Wat dew Labeda hey ieee tei taht ius Tint TL alt beer ane Li b fogalt Stee wit I iy ieee raat nr edie 4 epee ee betel 4 rite hati! Hatt wire ite thy Thee bagi yey i Keaet h tee tt Febery hey behad ihe HSE ad Mat ber Het esi tale Hy Tete seh. eyfth . 0 Maer Peete Thiers cn te Anenieybee yee eT 7 tine tt ee eld bet ate bp ele seat tes TUS engi SUnae ahs beast Wye vi hare ehadete be hitieiee ihe (ye eta ree) cpinedraee itt \ Ay) be tanner i ‘ile ratte ei eceeeyrier Pirin ihe eerie Haren Steel i iebgrares He er hae ett ae WAU Hehe Ug nel tiathert ttt hho t pepe en sean HIRO) Pehenitabe ttt yeh aisenhentee ibe i ie Liebert Hip eropenbrbnyh Hien cyte HTL TT bi i Pee ved tant Gornell Law School Cibrary Cornell University Library A COMPLETE PRACTICAL TREATISE ON CRIMINAL PROCEDURE, PLEADING AND EVIDENCE, IN INDICTABLE CASES, BY J. F. ARCHBOLD. —_ CONTAINING ALL OF THE AMERICAN AND ENGLISH DECISIONS TO THE DATE OF PUBLICATION. - 7 By JOHN NORTON POMEROY, LL.D. 4 EIGHTH EDITION.-IN TWO VOLUMES. VOL. I. BANKS & BROTHERS, LAW PUBLISHERS, NEW YORK: No. 144 NASSAU STREET. ALBANY: 473 anp 475 BROADWAY. . °4877. AAC wha Entered according to Act of Congress, in the year eighteen hundred and sixty, BY BANKS & BROTHERS, in the Clerk’s Office of the District Court of the Southem District of New York. Entered according to Act of Congress, in the year eighteen hundred and seventy-seven, BY BANKS & BROTHERS, in the Office of the Librarian of Congress, at Washington. CuarLes VAN BeNnTHUYSEN & Sons, Stereotypers, Printers, Paper Makers, and Binders, ALBANY AND CASTLETON, N.Y. PREPAC E TO THE BLlGHTH EDITION, In preparing this edition of a work so long and so well known to the profession of the United States, the editor has added the cases which have been-decided since the date of the preceding editio , and such new Statutes as a change i in the legislation of the various states seemed to render neces- sary to an understanding of the criminal law, as it now exists. The recent decisions, down to the time when the volumes were passing through the press, have been gathered from every state of the Union, and a considerable number have been selected from the English reports. The number of new citations, which have thus been added, exceeds five thousand. The principles, doctrines, and rules, contained in these cases, have been stated in a condensed manner, and arranged, under their appropriate heads, in the form of additional notes. In order to make room for this large quantity of new matter, it became necessary to abridge the annotations of the former edition. This has been accomplished, without any detriment to the work as a whole, by omitting a few portions, and by condensing others. The only parts omit- ted, are those which had become obsolete—as for example, PREFACE, those describing the criminal legislation of the Southern States, growing out of slavery—and a few other topics which had no real connection with the criminal law. The condensation has been chietly effected in the quotations made from standard English text-writers, and from judicial opinions. By this means it has been possible to incorpo- rate into the notes a large amount of new and valuable matter, the volumes themselves have been made more con- venient, and the practical usefulness of the work has been preserved, and, it is believed, increased. J. NL PB. Rocuester, May, 1877. TABLE OF CONTENTS. - « PART I. PROCEEDINGS FOR INDICTABLE OFFENCES. CHAPTER I. PERSONS CAPABLE OF COMMITTING INDICTABLE OFFENCES, AND THE DEGREE IN WHICH THEY MAY BE GUILTY. s\aheraieiseyeielarieietsie Section I. What persons are punishable, or excusable, fone crime. aise (a) Unfantsy sacaes anes, seesaw sae seemed aeasa sexe mune anies (b) Idiots and Lunatics. .... 600 cose eens ees ceceee oe (c) Wife. ate Siete aba as at e/s arsiaharceaieie ie einwiaets- Sa alerelerery (d) Ausbamartinns aad hele Servants ......0.ccee ceeccens win (8) ANIONS oo. c ects eieewecoiciats wit's tec teeeieaals Sieanianghchirieleresoisie: iobosots iene (£) Corporations ...... 0... ...66 bietaeiare b eicreieieis sareieles foghiligiuslevereraie (g) Persons offending from chance, mistake, etc ..... 0... eee (hb) Persons offending through compulsion ........ +6. secsee (i) Persons who are the innocent agents of others..... ...... Il. Degrees of guilt.............. ais Sib Dara SeSlale SE SIER SERGI ARON (a) Principals ........... raise tiie: Nera aie ee eroere ai tae (b) Accessories before the tanks aa avaieae el ch ier elaets caren oe (c) Accessories after the fact.........ss0++ (dy Persons who solicit and hneits others i anneal eifeness ' which are not afterwards committed. ........ .0.. seeeee (e) Persons who attempt to commit crimes, but do not com- Plete TOM sie osis.ds.ceccccteneease auido tiecnausdsawne aceon wanes Page. 9 10 10 16 39 45 46 47 49 52 53 55 55 65 13 78 79 TABLE OF CONTENTS. Apprehension of the offender. CHAPTER II. APPREHENSION OF THE OFFENDER ...e00 cece eooeee Section I. Arrest without warrant.... 2.0... ces. 0 bsassdiese bjlaaince spisieren niatateteiale © (a) In the act of committing the offence ,.... 0... ese. eens eens (b) In case of riots . 1... cece eee ceee eee ay solos davasaves ose vain siaiaNsiata (c) After offence committed .... 2... cess ceeeee cure tree ceeees (d) By constable. ... 2... cock cece eens cece tee cee cone ceneee (e) In prevention of offences. .... .... 6+. areteneie Saege a eeaivais, ancl sis iais (f) By magistrates ........ 262.665 siesta siwissavereisie y. State, 1 Wis..175...... 560 yv. Thorndike, 1 Greenl. 78. 420 Barron v. People, 1 Barb.186.... 621° Barrows v. People, 11 Ill.121.... 281 Barry v. Mercein, 3 Hill, 399.... 200 Barter vy. Com., 3 Penn. 253..... 587 Barton v. Keith, 2 Hill 8. C.537.. 178 Basham v. State, 38 Tex. 622..305, 561 Bassett v. State, 41 Ind. 308..... 270 Bassford v. People, 24 Mich. 244.. 543 549 Bate v. Kinsey, 1 Cr. M. & R. 88... 472 Bates y. State, 31 Ind. 72........ 27) Bathews v. Galindo, 4 Bing.610.. 472 Batolf v. Blust, 41 How. Pr. 481.. 9) Baugh v. Baugh, 4 Bibb, 556.... 442 Baxter’s case, 4 Leigh, 645 eesde eae 502 * Baxter v. Abbott, 7 Gray, 71..36, 37 v. People, 3 Gilman, 308.. 58 471, 515 Baynesv. Brewster, 11 LawJ.5M. 94 Beale v. Com., 25 Pa. St. 11...... 581 Beamon v. Ellice, 4C. & P. 585... 540 Bean v. Bean, 12 Mass. 20....... 478 v. Quimby, 5 N. H. 94..... 474 Beardsley v. Foot, 2 Root, 399.. 465 v. Knight, 4 Vt. 479... 450 Beasley v. State, 18 Ala. 535. 287, 930 Beaty v. Perkins, 6 Wend. 382.... 131 Beauchamp vy. State, 6 Blackf. 99) cies vais twee’ s 233, 237, 519, 700 Beauclerk, ex parte,7 Jur. 378 .. 89 Beck v. State, 20 Ohio St. 228. 498, 524 ‘Beckwith v. People, 26 Ill. 500... 889 v. Philby, 6B. &C. 635.. 91 96, 98, 757 Bedell v. Russell, Ry. & M. 298.. 376 Beers v. Jackson, 103 Mass. 192.. 968 Beets v. State, 1 Meigs, 106...... 714 Bell v. Bowgell, 1 Ashm. 7...... 459 v. Clapp, 10 Johns. 262..130, 131 v. Com., 8 Gratt. 600....301, 318 320 y. Miller, 5 Ohio, 250....... 912 v. State, 44 Ala. 393...339, 499, 563 v. State, 48 Ala. 684......... 561 v. State, 5 Eng. 536......... 268 v. State. 42 Tita. BBD scsi caierere 309 y. State, 1 Swan, 42........ 6 vy. State, 25 Tex. 574........ 919 Bellair v. State, 6 Blackf. 104.. 507 Bellonger v. People, 8 Wend. 599.. 140 Ben v. State, 22 Ala. 9...... ‘ 300 v. State, 37 Ala. 103........ 801 Ben’s Guardian, 2 Bay, 485...... 442 Benavides v. State, 31 Tex. 579.. 429 Benham v. State, 1 Clarke vou) BAD eicsicsietuat ataiediein vena e’’ 869 Benjamin vy. Garee, Wright, "450... re Bennac v. People, 4 Barb. 164.... aa : Bennett’s case, 8 Leigh, 745. _ Benson v. Manufac. Co., 9 “Met. : Bennett v. State, 8 Humph. 118.. v. State, 30 Tex. 446..... v. State, 31 Tex. 303.... v. State, 2 Yerg. 472...350, vy. Tenn, Mart. & Yerg. 133 “Benton v. eign 10 Serg. & R. MIAO) aire ateratare: sapeiaie ose evecare ele vbiete cate Bergin, in re, 81 Wisc. 383. - Berks Co. v. Pile, 18 Pa. St. “493... Berrian v. State, 2 Zab. 9..... 236, Berriman v. Wise, 4 Tr. 366...... Berry v. Com., 10 Bush, 15.. y. State, 10 Geo. 511. oe v. State, 32 Ind. 480. SzAcs Besimer v. People, 15 Ill. 439..... Best v. Osborne, 1C. & P: 632.. Bevans y. State, 6 Eng. 455...... Beverly’s case, 4 Co. 125... ...... Bibb v. Reid, 3 Ala, 88.......... Biddle v. Proprietors, 1 Mass. 169.. Hig Ory v. People, 5 T. & C. DAs G6 loroch +, idiaiale' eiggasierd sbisdierers Bierce v. Stocking, 11 Gray, 174.. Bigelow v. Stearns, 19 Johns. 39.. Binns v. State, 38 Ind. 277....... v. State, 46 Ind. 311.... Birbeck v. Tucker, 2 Hall, 121.... Bird v. Lynn, 10 B. Mon. 422.... v. State, 14 Geo. 43..498, 508, v. State, 50 Geo. 585..... 306, Birdsong v. State, 47 Ala. 68 Birney v. State, 8 Ohio, 230....... Bishop v. Cone, 3 N. H. Bld cox vy. State, 9 Geo. 121.. Bissell v. Briggs, 9 Mass. 462.0... Bittick v. State, 40 Tex. 117..890, Bivens v. State, 6 Eng. 455...508, Bixby v. oe Ins. Co., 8 Pick. Vv. eee 6 Ham. 86 ....... Black v. State, 2 Md. 376........ Blackburn vy. State, 23 Ohio St. XXV 374 ‘ 146..811, 851, 997, 1021 v. State, 39 Tex. 153.. Blackhawk v. Cotter, 2 or Blade v. Noland, 12 Wend. 173.. Blake v. Barnard, 9 C. & P. 26... v. Ray, 1 Dev. & Bat. 334.. Bland’s case, 1 Lew. 236......... Bland v. State, 2 Carter, 608. .405, Blanton v. Miller, 1 Hayw. 41.... Bledsae v. Com., 6 Rand. 678.. 532, Blem v. 7 Com., Bush. 320....... Bless v. Conn., etc., R. R., 24 Vt. A sicss : sccainse ve ecganceluleiss aceeat Se Satae Blood v. ;, Harrington, '8 Pick. 552. Bloodgood v. Overseers, etc., 12 Johns. 285.00. sees ceee vee 918 971 419 421 908 426 376 810 421 533 30 29 424 471 XXVi Bloomer v. State, 3 Sneed, 66.. 908, 916 Bloss v. Tobey, 2 Pick. 320...... 8 Blount v. State, 49 Ala. 381.. 385, 407 Boardman v. Wood, 3 Vt. 570.... 520 v. Woodman, 47 N. H. VIO: sence cect excise. | aod Bob v. State, 2 Yerg. 176.... 627, 628 Bodine v. Com., 12 Harris, 69.... 175 Bogart v. Brown, 5 Pick. 18..... 424 Boggs v. State, 25 Ala. 30....498, 525 Bohannon v. Com., 8 Bush, 481.. 689 Boles v. State, 24 Miss. 445.. 497, 543 v. State 13 Sm. & M. 898... 747 Pollman, ex parte, 4 Cranch, 129.. 152 Bond v. State, 23 Ohio St. 359..34, 35 Bonds v. State, Mart. & Serg. 148. 24 237 Bonnet’s lessee v. Davenbaugh, 8 Bin, ATG. oc cee cree radar sister's sie Bonney v. Van Buren, 2 Greene (Lowa), 280. sce sieees vanes 595 Booker v. Bowles, 2 Blackf. 90... 457 Boon v. State, 9 Kelly, 651........ 577 Boone v. Dyke’s legatees, 3 Monr. B80 ciacece shes aie erase ee 416, y. State, 31 Tex. 557...... Boote v. Cooper, 1 T. R. 535..... 92 Booth v. Com., 7 Met. 285....... Borden v. Fitch, 15 Johns. 121... Borthwick’s case, Doug. 202..'750, Boss y. Litton, 5 C. & P. 407 Bossert v. State, Wright, 113. Boswell v. Com., 20 Gratt. 860... 29 415 30, 34, 35 v. State, 8 Ind. 499...... 618 Botham v. Swingler, 1 Esp. 164.. 482 Bound v. State, 43 Geo. 88....... 688 Bourne v. State, 8 Porter, 458.... 620 Bouser v. State, 1 Smith, 408..... 269 Bovard v. State, 30 Miss. 600.... 20 Bow v. Parsons, 1 Root, 480...... 465 Bowen, ex parte, 46 Cal. 112..... 202 v. Reed, 103 Mass. 46..968, 975 Bower v. State, 5 Mo. 364........ 885 Bowie v. State, 19 Geo. 1........ 573 Bowman v. Smith, 1 Strob. 246... v. Torr, 3 Iowa, 571..... 37 Boxer v. Rabeth, 1 Gow’s R. 173.. Boyce v. Foster, 9 Bail, 540...... Boyd v. State, 6 Coldw. 1....211, «312 579 v. State, 7 Coldw. 69....253 279 298, 742 v. State, 17 Geo. 194....63, 756 v. State, 2 Humph. 39...6, 389 v. State, 4 Minn. 821 ...... Boyer v. Norris, 1 Harring. 22..., 456 v. Potts, 14 Serg. & R. 158. 181 Boyington v. State, 2 Porter, 100. 503 Boyle v. Burnett, 9 Gray, 251.... 968 Boyleston v. Kerr; 2 Daly, 220... 90 Bradfoot’s case, Fost. 154.... 0... 784 Bradford y. State, 4 W. Va. 763.. 499 TABLE OF CASES. Bradley ex parte, 48 Ind. 548..... v. 8S. F. M. Co., 80 N. H. AST orisss s seceeeuet ses v. State, 31 Ind. 492. .35, 549, 554, v. State, 10 Sm. & M. 618. Bradshaw v. Heath, 13 Wend. 407. Bradstreet v. Ferguson, 17 Wend. LB, sors jos desires dit wyresnves dntayarce sravesienens Brady v. Davis, 9 Geo. 73....108, Brain’s case, 9 Leigh, 633........ Bramer ex parte, 37 Tex. 1....... Brandon v. People, 42 N. Y. 265.. Brantley v. State, 13 Sm. & M. AGS aie aici gaat ain kteres. weirs ‘ Bratton v. Bryan, 1 Marsh, 212... v. State, 10 Humph. 103 . Brauer v. State, 25 Wisc. 413..... Bray v. State, 41 Tex. 560...,..... Brazier.v. State, 44 Ala. 387..... Brazil v. Moran, 8 Minn. 286..... Breese v. State, 12 Ohio St. 146... Brennan v. People, 15 Ill. 511..58, 60, 232, 338, Brent v. State, 43 Ala. 297....... Brewster v. Countryman, 12 Wend. 446 0... csec cece seus one Brialand v. Com., 74 Pa. St. 463.. Brier v. Woodbury, 1 Pick. 362... Bright v. Sexton, 18 Ind. 186..... Brister v. State, 26 Ala. 107. .522, Britain v. State, 3 Humph. 203... Brittain v. State, '7 Humph. 159.. Britton v. State, 5 Eng. 299...... Broad v. Pitt, 3 C. & P.518...... Broadwell v. Stites, 3 Halst. 59... Brockway v. People, 2 Hill, 558.. Brooks v. Com., 61 Pu. St. 352... v. State, 3 Humph. 25.... v. State, 2 Yerg. 482 ..... Broom y. Regina, 12 Shaw’s J. P. O28 weisisisieseins amare omens suai Mres-csbs Broomhead vy. Chisholm, 47 Geo. BQO sissies ase eestor 5 Gare, Chai wwe Browder v. State, 9 Ala. 58...... Brown, matter of, 32 Cal. 48..... 2 Leigh. 769 ...... 11 Leigh, 711...... 1 Lew. 165........ v. Bellows, 4 Pick. 194.... v. Com., 8 Mass. 63...281, . Com., 73 Pa. St. 321..309, - Com., 76 Pa. St. 319..732, . Com., 4 Rawle, 259..... . Com., 3 Serg. & R. 278.. « Howard, 14 Johns. 119.. - People, 4 Gilman, 439... . State, 5 Eng. 607...347, v. State, 7 Eng. 623..... ‘ 44 < Caldwell’s case, Burnett, 552..... Caldwell v. Brindell, 1 Jones, 293.. v. Com., 7 Dana, 229.... Caleb v. State, 39 Miss. 722... Calkins v. Lee, 2 Root, 363...... Callahan v. State, 21 Ohio St. 306.. v. State, 30 Tex. 488.... Callicott, ex parte, 8 Blatch. 89... Calliman v. Coffey, 3 Allen, 477.. Calloway et alv. State, 1 Miss. 150.. Cambrose v. Moffatt, 2 Wash C. C. Bains sun'ac-“ete a ldvere wateary uaiaievaioaye Camp v. State, 3 Kelly, 417....... Campbell, ex parte, 20 Ala. 89... y. Com. 2 Va. Cas. 314.. People, 16 Ill. 17.... People, 8 Wend. 636.. State, 23 Ala. 44.... 405, 406, 409, 411, 481, 700, 8v0, v. State, 11 Geo. 353.. » v. State, 48 Geo. 353.. vy. State, 9 Yerg. 333.. v. Wallace, 3 Yates, 271. Canada’s case, 22 Gratt. 899..... Cancemi v. People, 2 Smith, 501.. Cane v. People, 3 Neb 357...406, Asda ‘Canley v. Griffin, 3 Harrington, BAe Laws he REE RIE Remind Ge Cant v. Parsons, 6 Car. & P.504.. Canter v. People, 1 Abb. App. DOC BOG seiecis ao a caie eieis. a eles ecerey estas Carder v. State, 17 ‘Ind. BOT ecaiiees Carico v. Com., 7 Bush. 124 v. State, 11 Mo. 579 ...... Carleton, matter of, 7 Con. 471.. XXvil 173 177 475 368 418 519 179 185 110 258 465 548 478 205 621 927 201 XXVili Carlton v. Com., 5 Metc. 582. .296, Carnal y. People, 1 Parker, 272.. Carpenter v. Nixon, 5 Hill, 260.. Carrington v. People, 6 Park. Cr. BSG ss cise wee ai avis: dieavele Saisie Carrol v. State, 23 Ala, 28....393, Carroll v. Norwood, 1 Harr. & J. ADS wise acids asinenas spies we v. State, 3 Humph. 315... Carter v. Com.,2 Va. Cas. 169.. Vv. Hawley, Wright, 332... v. Beep les 2 Hill, (N. Y. ) . State, 2 Carter, 617.. . State, 35 Geo. 363 ere . State, 2 Ind. 617....... . State, 832 Ind. 404...... . State, 12 Tex. 500.... . State, 37 Tex. 362 Carter’s case, 2 Dev. 422 Cartwright v. Cartwright, 1 Phil- Timore, 100. 0.2... ccceee csenee Cary v. Campbell, 10 Johns. 363.. Case v. State, 5 Port. (Ind.) 1..... Cash y. State, 10 Humph. 111.... Casidy v. State, 32 Ind. 62.. .298, Cassin v. Delaney, 88 N. Y. 178.. Castallano v. Peillon, 2 Mart. (Lou.) N.S. 466..... 0.0... 0.6. Castner v. Sliker, 4 Vroom, 95.... Catlet v. Pacific Ins. Co., 1 Wend. BGI nsroderae-c aiegieies-wisadtgh cave earemes Cato v. State, 9 Flor. 163........ Celis v. Oriol, 6 Lou. (Curry) 403. Chadwick v. Trower, 8 Law J. 286. Chahoon, v. Comm. 20 Gratt. 733. adadae4 Chamberlain v. Gorham, 20 Johns. Chambers v. People, 4 Scam. 351. Champer v. State, 14 Ohio St. 487. Champion v. Terry, 3 Brod. & B. Champlain % People, 2 Const. 82. Chandler v. Comia, 4 Metce. (Ky.) GO issccasesecaieeitiow, 2ecasecaseie ietosc-as in;aie 962, Chanet v. Parker, 1 Rept. Con. Ct. 333.. Chaney, ex "parte, 8 ‘la. ‘424. wlleidinie Chapman v. Comm., 5 Lee Chappell v. State, 7 Coldw. 92... v. State, 30 Tex. 613.... Charles v. State, 49 Ala. 382..... Charleston y. Allen, 6 Verm. 638, 689! ciraig oie wins ace sands eee aration . Chase, ez parte, 43 Ala. 803...... v. Blodgett, 10 New Hamp. Disa be oa Malet oes sacar v. Jennings, 38 Maine, 44.. v. State, 46 Miss. 683. 308, v. State, 1 Spencer, 218.. 582 518 610 481 61 695 459 528 374 594 434 788 1011 37 971 29 553 476 35 429 196 296 302 41 481 37 448 997 447 568 132 499 421 259 919 419 136° 184 968 60 201. 290 360 186 417 452 234 481 514 811 502 “Clapp v. Fullerton, 34 N. Y. 190. TABLE OF CASES. Chauvin, ex parte, T. U. P. Charl- COM; 14s sis 2.5 esas aie eee so Seas Cheek v. State, 35 Ind. 492...562, Cheesum v. State, 8 Black, 332... Cheminant v. Pear: Bon 4 Taunt, BOTs carstineed came aa hee arcades aes Chenie i ae Peake Addi. Cas. 123.. ayaa sos v. Frost, 1 New “Hamp. MAD: sceracse Disieta tale (ee aiaribts Sas ete kas Chew v. “Keck, 4 Rawle, 163...... Chick v. State, 7 Humph. 161.... Christian’s case, 7 Gratt. 61...... Christian v. Comm., 23 Gratt. 954. Choice vy. State, 31 Geo. 424...21, 29, 36, 37, 742, “Church v. eas 2 Cranch, Churchill v. ” Matthews et al., Dick J., Arrest IT. yv. Sutter, 4 Mass. 156. Chrystal v. Com., 9 Bush, 669.... City Bank v. Bangs, 3 Paige, 36.. City of Emporia v. -Volmer, 12 Keats, 623) 6 oisd sajna neoierestaediee whens Council v. Hay wood, 2 Nott. & Me. 308 . i v. King, 4 McCord, 487... v. Payne, 2 Nott & McC. AID sisieisisie werars abies are Clare’s case, 8 Gratt, 668 Clare v. State, 30 Md. 163 matter of, 2 Burr. 540..183, ex parte, 9 Wend. 212..... Clarke’s case, 6 Gratt. 675....... Clark v. Cleveland, 6 Hill, 344... v. Com., 4 Pick. Dee ee aise v. People, 1 Scam. 117..... v. People, 5 T. & C. 33; 2 Hun. 520........ 6... Sanderson, 3 Bin. 192, TOG; 19G eas sase-atd cen - Bowers, 3 Brews. 350.... Boyer, 1 Bin. 201....... Boyer, 2 Wheeler’s C. C. TAQ scccsieiaieras eis lev otbig e-leieis's Boyle, 9 Phila. 592...... Bradford, 9 Met. 268.... Bradley, 16 Gray, 241.. Brayley, 1 Miss. 103.... Braynard, Thatcher C. C. 146. . 363, Briebell, '8 Pick. 138 . Briggs, 7 Pick. 171. .317, Briggs, 5 Pick. 429..... Brigham, 16 Pick. 10... Britton, 1 Leg. Gaz. R. ND sasidatcuerieascsebete'y, aimee ats Brown, 14 Gray, 419.... Brown, 103 Mass. 422... Brown, 3 Rawle, 207.... Bryant, 9 Phila. 395... Bugbee, 9 Gray, 206.... Burns, 4 J. J. Marsh, 177. Burke, 16 Gray, 32..... Burke, 14 Gray, 100.... Butler, 1 Allen, 4....... Bybee, 5 Dana, 219..... Cain, 102 Mass. 487. .298, Call, 21 Pick. 515...266, Call, 21 Pick. 509....... Canada, 13 Pick. 86 .... Carey, 2 Brews. 404..360 5 . Carney, 4 Gratt. 54..... een 116 Mass. | Gaston, B Vine. Cas. 319.. 180 952 355 464 928 851 919 252 361 525 XXX TABLE OF CASES. Com. v. Casey, 11 Cush. 417.... v. Caton, 2 Dana, 138...... . Chabbuck, 1 Mass. 144.. vy. Chapman, 11 Cush. 422.. v. Chapman, 13 Met. 68.... v. Chase, Thach. C. C. 267.. v. Chauncey, 2 Ashm. 90.. 502, vy. Cheney, 6 Mass. 347.. v. Cheney, 198 Mass. 33... : 186, v. Chesley, 107 Mass. 223. . vy. Chichester, 1 Va. Cas. Gle cs tas awa dw, aoesics . Church, 1 Penn. St. 105.. . Clapp, 16 Gr ay, 237.. . Clark, 2 Brown, 293... ae ads yv. Clark, 2 Gratt. 675...320 v. Clark, 2 Va. Cas. 401.... v. Clerk, 2 Ashm. 105..... v. Clue, 3 Rawle, 498:..... 552, . Connelly, 1 Browne, 284.. . Cook, 13 B. Mon. 149.... 552, y. Cooley, 10 Pick. 37. a3 v. Cooper, 15 Mass. 127... v. Corliss, 3 Brews. 575... vy. Corson, 4 Pa. L. J. R. DIG. sie stiees sabes . Costley, 118 “Mass. Tus B62, 364, 412, 732, 795, 802, . Cousins, 2 Leigh, 708... . Craig, 15 B. Mon. 534... Craig, 6 Rand. 781...... Crane, 1 Va. Cas. 10.... Cranse, 3 Am. L. J. 299.. Crawford, 8 Phila. 490.. . Crocker, 108 Mass. 464. . . Crowinshield, 10 Pick. << < 4 #4444448 . Cuffee, 108 Mass. 285.. Culhane, 102 Mass. 435.. . Cullen, 1 Mass. 115..... . Cullen, 111 Mass. 435... . Cummings, 3 Cush. 212.. . Cunningham, 104. Mass. 545... ee cee rien ee eee fi Cunningham, 13 Mass. 245.... .... 389, 342, 343, . Curtis, Thatch. C.C. 202.. a ¥. "State, | 4 Hayw. 273. AReS Hatch v. Hatch, 9 Mass. 311..... Hatch’s .Lessee v. Barr, 1 Ham. BO Kiansin: KAR LALA ER PDE WOREUS Hately v. State, 15 Geo. 346...... Haught v. Com. 2 Virg. Cas. 3... Hautz v. Rough, 2 Serg. & R. 349.. Hawes v. Gusten, 2. Allen, 402.962, Hawkins v. State, 7 Mo. 190...... y. State, 1 Porter, 475.. Haworth v. State, Pick. 89....... Haworth’s case, 4 C. & P. 254.. Hayden vy, Com., 10 B. Mon. 125.. v. Shea, 11 Mass. 500... v. State, 4 Blackf. 546... Haydon’s case, 4 Co. 42... weseee Haymes ex’r v. Miller, 1 Bailey, 242 .. Haynes v. “Crutchfield, 7 Ala. 189. v. State, 17 Geo. 465. .409, v. State, 40 Tex. 52...... 907, xi 657 567 236 567 » 499 309 305 508 6 175 a7 5 968 392 442 685 908 xlii Hays v. State, 40 Md. 633....407, y. State, 13 Mo. 246........ Hayward, matter of, 1 Sandf. (N. Y. Sup.) 701.... 203, Haywood v. State, 47 Miss. 1.... Heacock v. State, 42 Ind. 393..305, Head y. State, 44 Miss. 731.. vas 688, Heath v. Com., 1 Robin, 735. .368, v. State, 26 Ala. 273 Hector v. State, 2 Missouri, 135.. Heikes vy. Com., 26 Penn. 513.... Heilbonn, case of, 1 Parkers’ Cr. Ch scien caine cilia auseaee 117, Heller v. State, 23 Ohio St. oe 94, Hellings v. Com., 5 Rawle, 64.... Helm’s case, 1 Rogers’ Rec. 46.. Henderson v. Com., 8 Gratt. 708.. Henderson y. State, 12 Tex. 525.. Hendrick vy. Com., 5 Leigh, 708.. 488, 516, Hendrickson, case of, 6 Seld. 13.. Henricks, in re, 5 Blatch. 414..... Henrie v. State, 41 Tex. 573...... Henry v. State, 11 Humph. 224.. v. State, 18 Ohio, 32...... Henslie y.. State, 3 Heisk. 202.. Herrick v. Smith, 1 Gray, 1...... Herrin v. State, 33 Tex. 638..742, Herriott v. State, 1 McMiell, 126.. Hess v. State, 5 Ohio, 12...3, 281, Hester v. State, 17 Geo. 146..... Hewett v. Prime, 21 Wend. 79... Hewett’s case, 1 Carr. & M. 534.. Heyward, matter of, 1 Sand. 701.. Hick’s case, 1 C. H. Rec. 66 Hickes v. State, 9 Ark. 313...... Hickman vy. State, 38 Tex. 190.. Higgins’s case; 2 East, 5.... Higgins v. People, 58 N. Y. 399. Highland Turnpike Co.v. McKean, 10 Johns. 154..... cece sees coon Hight v. U. 8., 1 Morris, 407..... Hillsbrad Vv. State, 5 Mis. 548.. Hill, ex parte, 5 Nev. 154........ v. Com., 2 Gratt. 504... st; v. Packard, 5 Wend. 887.. v. People, 26 Mich. 496..... v. State, 41 Geo. 484....553, y. State, 3 Heisk. 317....... y. State, 34 Tex. 623.... 362, v. State, 9 erg, 3) aos ae O77, Hill’s case, 1C.H wisGewtess 2 Gratt. ae shea: Hilts v. Colvin, 14 Johns. 182.138, Hinchliff’s case, 1 Lew. 161...... Hindmarsh’s case, 2 Leach, 571.. 954 53 205 313 308 406 752 522 941 558 343 124 741 829 7 370 408 6 561 365 529 388 122 795 800 887 554 562 206 745 | 835 844 286 27 475 -399 124 385 177 36 896 407 1006 453 167 296 299 202 197 444 546 554 752 1000 364 597 479 369 483 695 788 TABLE OF CASES. Hines vy. State, 8 Humph. 597.... Hinton v. Dickenson, 19 Ohio St. 583 . v. Townes, 7. Hill, "439... eis Hipp v. State, 5 Blackf. 149...... Hitchcock vy. Aiken, 1 Cain, 460... Hite v. State, 9 Yerg. 198..... 305, 343, 344, Hix v. Whittemore, 4 McLean, 545. Hobbs v. Branscomh, 3 Camp. 420. Hochreiter v. People, 2 Abb. App. Dec. 363.. Hodgman y. People, 4 Denio, 285, Hodgsson’s case, 1 Lewin, 236.. Hoffe v. People, 31 Ill. 385....... Hoffman v. Com., 6 Rand. 685..63, v. Carter, 2 Whar. 453.. Hogan v. State, 46 Mis. 274...... v. State, 30 Wis. 428..741, v. State, 36 Wis. 226..743, Hoge, ex parte, 48 Cal. 3.. ee vy. Henderson, 2 Sandf. GUD icostansias's ecaleeaiatis sHolby v. State, 10 Humph. 141.. Holcomb v. State, 41 Tex. 125.. Holden v. State, 5 Geo. 445 Holford v. State, 2 Blackf. 108.... * Holland v. Putin: Peake’s ee Vv seit ‘io Flor. 117... Holler v. State, 37 Ind. 57....... Holley v. Mix, 3 Wend. 350....82 a y State, 32 Md. 399.... ollywood y. People, 2 Abb. App. Dec. 376....... F sweets ures a Holman v. Mayor ete., 34 Tex. 668.. Holmes v. Boughton, 10 Wend. 75. v. Com. 1 Casey, 221 . v. Comeg'ys, 1 Dall. 439... v. Jennison, 14 Pet. 540.. v. People, 5 Gilman, 478.. v. State, 23 Ala. 17...... Holsenbake v. State, 45 Geo. 43.. 549, Holt v. ae 2 Blackf. 108 .. v. Com., 2 Virg. C. 156. .532, Hood v. State, 44 Ala. 81...... Hooker v. State, 7 Blackf. 272.. v. State. 4 Ohio, 350. L277, Hooks v. Paige, 1 Tenn. 200...... Hooper y. State, 5 Yerg. 429. axe Hope’s case, 1 C. H. Rec. apa Hopkins v. Com., 50 Pa. St. 9 v. DeGiraffenreid, 2 Bay, v. Walter, 11 i. 543... 7 Hopper v. Com., 6 Gratt. 684.... Hopps v. People, 31 Ill. 385...... pieetuerasr v. State, 5 Port. (Ia.) Pee eke wee ene cease ceeeee 442 802 454 540 542 35 232 TABLE OF CASES. Hornby v. State, 86 Tex. 523..... 752 Horne vy. State, 39 Md. 552....270, 279 321 Horton v. Green, 64 N. C. 64..... 37 v. State, 30 Tex. 191...... 180 Hostetter v. Com., 12 B. Mon. 1.. 172 Houghtaling v. Kelder ‘house, 1 PAP QA, sci cesie's wow edna ewe 480 Houseman v. Roberts, 5 Carr. & Pe B 94 isis, ‘sca eecsies wines $a wetate erates 427 Housen v. Barrow, 6 T. R. 122... 763 Houston v. Moore, 5 Wheat.1.... 783 v. U.S. 1 Morris, 174... 596 How v. Hall, 14 East, 276....422, 426 Howard v. State, 25 Ohio St. 399.. 565 Howell v. Com., 5 Gratt. 664..268, 541 544 y. Jackson, 6C. & P.728.. 915 v. People, 5 Hun, 620..553, 563 v. State, 5 Geo. 48....532, 982 Howie v. State, 1 Ala. 113....125, 178 Hoxie v. Wright, 2 Vt. 263....... Hoye v. Bush, 1 Man. & Gratt. VID: sawisnce: asereuiea joxiiew/s 771 y. State, 39 Geo. 718....... 537° Hubbard y. State, 7 Port. (Ia.) 160: sess aera cas coieate 232, 257, 582 Hudgins v. State, 2 Kelly, 173.... 695 Hudson y. State, 1 Blackf. 31.... 291 292, 505, 507, 521, 798 v. State, 40 Tex. 12..553, 565 Hudspeth v. State, 1 Ark. 20..... 621 Huggett’s case, Kel. 59...... 758, 783 Hughe’s case, 5 C. & P. 126...... 888 Hughey v. State, 47 Ala. 97...... 811 Hughs, maiter of, Phill. (N. C.) L. OT we stiiaeh wate 34 eecest wads 125 v. State, 12 Ala. 458...87, oe ‘ 28 Hull v. State, 22 Wis. 580....100, 928 Humes v. Taber, 1 R. L. Rep. BG bcos barcte oe eats Baers 128, 129, 131 Hundley v. State, 46 Mo. 414.... 815 eae v.' Hunscom, 15 Mass. AGM E MA ST RFATE A eae the 465 Hunt v. ae 8 Yer ge 142........ 444 People, 3 Parker, 561.... 724 Ginter vy. Mathis, 40 Ired. 356... 310: yv. People, 1 Svar. 453.... 232 v. State, 43 Geo. 483..233, 801 v. State, 6 Ind. 428...... 609 Hunter’s case, 7 Gratt. 641 ...... 884 Hurd’s case, 5 Leigh, 715........ 535 Hurd v. People, 28 Mich. 405.... 688 103, 745, 752 Hurt v. State, 25 Mis. 378........ 830 Hussey v. People, 47 Barb. 503.. 928 Hyam y. Edwards, 1 Dall. 2..... 447 Hyer’s case, 6 C. H. R. 39....... 488 I. Ike v. State, 23 Mis. 525 ........ 268 Illies v. Knight, 3 Tex. 316...... 6 Illinois Cent. R. R. v. Sutton, 42 TN 488 ies s eceans te ee ee acen's Inby v. State, 32 Geo. 496...... 3 Ingram v. Hall, 1 Hayw. 193.... v. State, 10 Kans. 630... ~ v. State, 7 Mis. 298 ..... Inhabitants of Summer v. Inhabit- ants of Sebec, 3 Greenl. 223.... Inlay v. Harris, 2 Halst. 347 .... Innis v. State, 42 Geo. 473....... Isaacs v. Brand, 2 Stark. 167.... v. State, 25 Tex. 174...... Isham v. State, 38 Ala. 213...... Ishmael vy. State, 41 Tex. 244.... Ivey v. State, 12 Ala. 276....835, J. Jackson v. Allen, 8 Stark. 74.... vy. Andrews, 7 Wend. 152. ex dem Bogart v. King, 5 Cow. 237 .... .06- 447, ex dem Bond vy. Root, 18 Johns. 60...... ssseee ex dem Bowman v. Chris- tian, 4 Wend. 277.... ex dem Boyd v. Lewis, 18 Johns. 504........ ex dem Brown v. Betts, 6 Cow. 200 ex dem Burr v. Shear- man, 6 Johns. 18..... ex demHaverly v.French, 3 Wend. 337 ex dem Lansing v. Cham- berlain, 8 Wend. 620. ex dem Livingston v.Bou- ton, 1] Johns. 64.. ex dem Livingston v. Fri- er, 16 Johns. 193.420, ex dem Livingston v.Nee- ly, 10 Johns. 374..... ex dem Miner v. Bone- ham, 15 Johns. 226.. ex dem Schuyler v. Rus- sell, 4 Wend. 547. ex dem Schultz v. Goez, 18 Johns. 518........ ex dem Swartwout v.Cole, 4 Cow. 589 ex dem Taylor v. Cullum, 2 Blackf. 228........ ex dem Tuttle v. Gridley, 18 Johns. 98.......- ex dem Varick v. Wal- dron, 13 Wend. 178 . ex dem'Wallon v. Leggett, 7 Wend. 877.... «66.5 ex dem Woodruff v. Cody, 9 Cow. 140...... 458, vy. Com., 23 Gratt. 919.. xiii 424 459 458 457 458 421 424 474 459 458 424 419 447 421 459 421 419 465 458 452 459 132 524 xliv Jackson v. Com., 19 Gratt. 656... . Gager, 5 Cow. 303.... . Gridley, 18 Johns. 98.. . Hawks, 2 Wend. 619.. Pratt, 10 Johns. 381 . . Prevost, 2 Caines, 165. State, 45 Geo. 198.702, State, 51 Geo. 402.... . State, 11 Tex. 261.... . State, 138 Tex. 218.... . State, 25 Tex. (Supp.) saddees4444 Jackson’s case, 1 Rogers’ ass ’ Jacob v. State, 3 Humph. 498.... Jacobs v. Com., 3 Serg. & R. 315. 258, v. Hull, 12 Mass. 25...... Jacocks, Lessee, v. Gilliam, 3 Murph. 47 Jacquemin v. State, 48 Miss. 46.. Jacques v. People, 66 Ill. 84. Jacquins v. Com., 9 Cush. 279. . James v. Bostwick, 1 Wright, 142. v.. Com., 12 Rete: & R. DOO ie cisca eediaa’e: Neaeie) -sdteinrece v. State, 45 Miss. "572 sraeieee Jameson v. Garnett, 10 Bush, 221. Jane v. State, 3 Mis. 61 ......... Jacques’ case, 5 City H. Rec. 77. Jared v. Goodtitle, 1 Blackf. 29.. Jeffrey’s Ex’rs v. Parsons, 2 Verm. 956 ...... sieiasvalel Kedive ‘Sess eens Jelks v. McRae, 25 Ala. 440. Jenkins, ex parte, 2 Wallace, j jun., ¥ De Liss ar eee e Ses 9 Vv. State, 30 Tex. 444..... v. State, 41 Tex. 128..... Jenks v. State, 39 Ind. 1 ........ Jenks, case of, Am. Law Reg., Jan. 1854, 146 ....00 cecnee sees Jenner’s case, 2 City H. Rec. DAT x aeeiahoa catiara Veked os ae ates eaetniens Jennings v. Com., 17 Pick. 80.... v. State, 13 Kans. 80.... v. State, 9 Mo. 852.... Jerry v. State, 1 Black. 395. .236, 287, 319, 728, 785, Jewell v. Com., 22 Penn. 94...... Jim vy. State, 5 Humph. 145..410, Joby v. State, 32 Geo. 496..... John v. State, 1 Ala. 95...... 627, v. State, 2 Ala. 290......233, v. State, 16 Geo. 200........ John’s case, 1 East P. C. 357... Johnson, ex parte, 18 Ala, 414.... y. Americus, 46 Geo. 80.. v. Chase, 1 Tyl. 449.... v. Com., 9 Bush, 224.... y. Lee, 6 Taunt. 246.... vy. State, 17 Ala. 618. .368, v. State, 29 Ala. 62...... 429 549 458 465 561 450 248 746 888 337 174 917 140 398 678 237 363 442 447 168 . 1011 617 481 266 411 264 912 552 419 380 204 537 537 125. 466 293 188 930 237 786 830 532 629 581 62 428 167 100 415 802 774 374 384 TABLE OF CASES. Johnson v. State, 46 Ala, 212.... y. State, 2 Dutcher (N. J.) DTD eiiesa: seare 0's. 8 237, State, 14 Geo. 55.... State, 46 Geo. 269.... State, 14 Geo. 55.... State, 30 Geo. 426..889, State, 27 Tex. 758.... v. State, 30 Tex. 748.... y. State, 36 Tex. 117.... v. Tompkins, 1 Bald. BTL... 100.-- 39, 907, vy. U.S.,3 McLean, 89.. 4is<¢ Johnson’s case, 2 Gratt. 551...... 1 Lew. C. C. 164.. Johnston v. Com., 1 Bibb, 598.... v. State, 7 Mis. 183.... y. State, 7 Sm. & Marsh. Do shige SOEMRS ENS v. State, 2Yerg. 58. 152, Johnston’s case, 5-Gratt. 660. .680, Jones v. Blount, 1 Hayw. 238.... v. Brig Phoenix, 1 Peters’ Adm. Dec. 201...... : . Brinkley, 1 Hayw. 20... . Com., 20 Gratt. 848..... . Com., 75 Pa. St. 4038. .'743, ; Cooprider, 1 Blackf. 47. . Edwards, 1 McCl. & Y. DB Disiivecrcidtes-Srcieleten ‘star ered Fales, 5 “Mass. LOD os. sew Harris, 1 Strobh. 160.. People, 12 Til. 259...... Spicer, 6 Cow. 391...... State, 2 Blackf. 475. .507, State, 5 Blackf. 141.... State, 29 Geo. 595...... State, 837 Geo. 51........ State, 3 Heisk. 445..271, State, 6 Humph. 435.. . State, 35 Ind. 122 State, 1 Kelly, 610 . State, 1 Meigs, 120 . State, 14 Mis. 409...... . State, 26 Mis. 247...... . State, 2 Swan, 399...... . State, 11 Sm. & M. 315.. . State, 13 Tex. 168....56, . Thompson, 8 Allen, 334.. Vv. ore andt, 2 Maven 11 vers Jones’ case, 2 Gratt. "55D. esia staves 1 Leigh, 598........ : 1 Robinson, 148 Sea 6 Rogers’ Rec. 86.... 2 Russ, 658...... 0... adaaaad adddedssedesssaddds Jordan v. Cooper, 3 Serg. & R. Ce rar v. State, 10 Tex. 475.... v. State, 14 Tex. 486..., Joseph v. State, 5 How. 20...... Josephine v. State, 39 Mis. 613..56, Josslyn v. Com., 6 Mete. 236 313 319 539 253 0) a 941 689 753 941 911 205 363 481 650 621 2 505 458 721 458 449 519 210 743 949 370 141 425 743 “609 236 78 TABLE OF CASES. Judge v. State. 8 Geo. 173...... Justices vy. Plank R’d Co. 15 Geo. K. Kaine, matter of, 14 How. (U. 8.) LOB eee soiiee sewns: Se es 117. Kanavan’s case, 1 Greenl. 226.. Kane, ex parte, 3 Blatch. 1....... v. People, 3 Wend. 363. ..48, v. People, 8 Wend. 203..291, 296, Kean v. Rice, 12 Serg. & R. 203.. Kearney, ex parte, 7 Wheat. 38... Kearns v. State, 3 Blackf. 336.... Keating v. State, 44 Ind. 449..... Keefe v. People, 40 N. Y. 348.... v. State, 19 Ark. 190 ...... Keefhaven y. Com., 2 Penn. 240.. ’ Keeler y. Milledge, 4 Zab. 142... Keenan v. Com., 8 Wright, 55.... Keene v. State, 3 Chand. (Wis.) Keener v. State, 18 Geo. 194..372, Keether v. State, 10Sm. & M. 192. 78, 305, Keller y. State, 11 Md. 525 ...... Kelley v. People, 55 N. Y. 565... vy. State, 25 Ark, 392...... v. State, 38m. & M. 518.. Kellog, ex parte, 6 Verm. 509..... v. State, 43 Mis. 57.. Kelly v. Dunlap, 3 Penn. 136.. i, v. People, 29 Ill. 287. . 962, yv. State, 35m. & M. 518... Kelsen v. State, 47 Ala. 573.. 366, Kendle v. Tarbell, 44 Ohio St. 196. Kendrick v. State, Cooke, 474.... Kendrick’s case, 5 Leigh, 707.... Kennedy v. Com., 2 Va. Cas. 510. v. Fowke, 5 Harr.& J. 63. v. People, 39 N. Y. 245. v. Shea, 110 Mass. 152.. y. State 6 Ind. 485..... Kenny v. People, 31 N. Y. 330.. Kentucky v. Dennison, 24 How. CUE SY CO cas a icms seats bosses aie Kenzie v. State, 26 Ark. 334..... Kerns v. Schoonmaker, 4 Ohio, 331. v. Swope, 2 Watts, Dis sels Kerrains v. People, 60 N. Y. 221. Key v. Com., 3 Bibb. 495........ Keyser, ex parte, 47 Mo. 253. Kibbe v. Kibbe, Kirby’s R. 124.. Kidd v. Riddle, 2 Yeates, 412... Kilbourn v. State, 9 Conn. 560.... Killogg v. State, 43 Mis. 57...... 503 200 121 320 293 582 442 609 198 962 741 908 183 184 196 268 726 381 ~ 527 916 424 801 830 968 829 30 126 339 176 444 888 184 579 442 426 210 Kilpatrick v. People, 5 Den. 277.. Kimball y. Morrell, 4 Greenl. 368. Kinchelow v. State, 5 Humph. 9.. Kindred v. Stell, 51 Ill. 401... 82, King of the 2 Sicilies v. Wilcox, 14 FUE. DOL, ccees wanes siiet wad dale King v. Brisac & Scott, 4 East, 164. . Chapman, 1 Dall. 111.... . Com., 2 Virg. Cas. 78..431, . Dixon, 3M. & 8. 11...... . Farrington, Russ. & Ry. 201: cece fveaie's wSGkie 3 seine . Inhab’ts. of Upper Bod- dington, 8 Dowl. & R. 726. . Jeffs, Stra. 984 ...... .... . Johnson, 6 East, 583..... Lukens, 1 Dall. 5........ Marks, 3 East, 157 ...... McLean, 6 Bin. 290...... Morgan, Taylor, 333..... Philip, 1 Mood. Cr. Cas. adda < 448848 People, 5 Hun, 297...213, Rose Kelly, Macnally, 154. Shephard, Russ. & Ry. 169. State, 2 Carter, 651.. 291, Ss 3s State, 21 Geo. 220........ State, 3 Heisk. 148...260, State, 10 Tex. 281....... Woodburne & Sd 16 Howell’s St. Tr. 54 ...... Kingen v. State, 45 Ind. 518 acre yv. State, 46 Ind. 132..... Kingsbury’s case, 106 Mass. 223.. Kingston v. Lesly, 10 Serg. & R. S848 see cee cee wm ee eee tee eee Kone v Kinne, 9 Conn, 102 ..... |. Kinner v. State, 45 Ind. 175 ..... Kinloek’s case of the two, Fost, 27. Kinsley v. State, 3 Ohio N.S. 372. Kirby v. State, 7 Yerg. 259 ...... Kirby’s case, 7 Leigh, 747....... Kirk v. State, 6 Mis. 469. ....235, Kirland v. State, 43 Ind. 146..... . Kit v. State, 11 Humph. 167..... Kite v. Com., 11 Metc. 581....... Kitchen’s case, R. & Ry. 95...... Kitchen v. State, 41 Geo. 217. .553, Klare v. State, 43 Ind. 483....... Klem v. State, 44 Mis. 817....... Klemback v. State, 2 Speers, 418. Kliffield v. State, 4 How. (Miss.), BOA a cae dices Reem bee Ken Ramee Kline v. State, 44 Miss. 317...... Knell v. Wrink, 6 Blackf. 249.... Knight v. Martin, 1 Gow. 26..... v. Sampson, 99 Mass. 36.. v. State, 5 Humph. 599... Knight’s case, 1 Lew. 168... Knot v. Gay, 1 Root, 66.......... Knowles v. State, 3 Day, 103. .210, xlv 420 385 xlvi Koontz v. State, 41 Tex. 570 Kraus, ex parte, 1B. & C. 261.... Kriel v. Com. 5 Bush, 362. .35, 253, Kruger v. State, 1 Neb. 365..... Kunkle v. State, 32 Ind. 220. .889, L. Lacy v. State, 45 Ala. 80. 7 Ladd v. Prentice, 14 Conn. “109. Lagrave, matter of, 45 How. Pr, 315 Lake v. "People, 1 Parker Cr. R 495.. «036, Lamb v. | State, 36 Wis. 424. es Lamb’s case, Leach C. L. 625 . Lambert v. People, 7 Cow. 103... 58 v. People, 9 Cow. 578... y. State, 23 Miss. 323.. 431, Lamberton v: State, 11 Stanton, . 265, Lampson v. Landon, 5 Day, 508. ‘ Lander v. State, 12 Tex. 462..... Lanergan v. People, 50 Barb. M6 4 Lange, ex parte, 18 Wall, 163. Laporte v. State, 6 Mis. 208 saranns Laturner v. State, 9 Tex. 451 .... Laughlin v. State, 18 Ohio, 99.. Lautermilch v. Kneagy, 3 Serg. ‘& Ris. 202) ¢ise3,% ai he a Law v. Merrills, 6 “Wend. 268... v. State, 33 Tex. 37......... iene vy. Hedger, 3 Taunt. 14 v. People, 17 Ill. 172.. y. State, 14 Tex. 432.. Lawson v. Buzines, 3 Harring. 416 v. State, 20 Ala. 65..... v. State, 25 Ark. 106.,.. Lawyer v. State, 35 Ind. 80..553, Lazarus’s case, 1 C. H. Rec. 88... Lazier v. Com., 10 Gratt. 708... 476, 519, 786, Leach v. People, 53 Ill. 311...... League v: State, 36 Mo. 257...... Le Beau v. People, 34 N. Y. 228.. Le Beer, ex parte, 49 Cal. 160 . Leathers v. State, 26 Mis. 73. . Leazure v. Hillegas, 7 Serg. & 'R. VOB. ces aetes teks Soe e mage aes Ledwith v. Catchpole, “Cald. 391... Lee v. State, 26 Ark. 260, 14. 239, v. State, 1 Coldw. 62..... 699, v. State, 45 Miss. 114....309, Leeds v. Cook, 4 Esp. 256.... 423, ogper v. Com., Lit. Scl. Cas. VOD ists wacaieas Ue toes} Weal ela siitvete Legg v. Drake, 1 Ohio St. 286.. Leggett v. Boyd. 3 Wend. 376.... Leiber v. Com., 9 Bush. 11 Leibman v. Pooly, 1 Stark. R. 167. 271 82 746 931 909 1005 488 121 798 524 141 629 265 422 435 268 11f 687 812 202 233 609 589 459 541 411 96 178 609 99 372 499 811 409 259 790 525 488 801 202 504 450 834 146 524 424 182 542 802 426 TABLE OF CASES. ibe v. State, 4W. Va. 755.. Lenahan v. People, 3 Hun. 164. aie Leoni v. State, 44 Ala. 110....997, Lepiot v. Browne, 1 Salk. 7...... Leschi y. Territory, 1 Wash. T. 23. Lester v. State, 11 Conn. 415..... v. State, 33 Geo. 192..169, Lewin v. Edwards, 1 Dowl. (N. CE) CBO iis cislsver ss aietetias eee ates Lewis v. Baird, 3 McLean, 56.. ¥. Beatty, 8 Mart. (Lou.) )N. 8. 287.. ree , Marshall, 5 Peter Sy 470.. . State, 33 Geo. 181...... . State, 3 Head. 127...... . State, 4 Ohio, 339. ...... . State, 4 Sm. & M. 115.. d since ws sens oe at apes 5 en v. Cook, 1 Miss. bay... Mitchell v. Mitchell, 3 Stew. & P, BL sis o aiaveatenesceace -ctegns . Osgood, 4 Greenl. 124.. . State, 7 Engl. 50..... State, 41 Geo. 527..537, State, 3 Mis. 201..... State, 5 Yerg. 340..369, Mitchum v. State, 11 Geo. 615.. Mize v. State, 49 Geo. 375 ...... Mobley v. State, 46 Mis. 501. 549, isase Moffatt v. State, 6 Engl. 169..... Moffett v. State, 2 Humph. 99.... Mohan’s (Lord) case, 1 Salk. 104.. Molette v. State, 49 Ala. 18...... Molihan v. State, 30 Ind. 266..... Monday v. State, 32 Geo. 672.... Mongeon v. People, 54 N. Y. 613.. Monroe v. State, 5 Geo. 85..696, Montaloo v. State, 31 Tex. 63..889, Montana v. McClen, 1 Mont. 394.. Montee v. Com., 3 J. J. Marsh. VG ,sdeisseustcwerssaroue te beets 431, Montgomery v. State, 11 Ohio, 424....... 433, y. State, 33 Tex. 179. Moody v. Staté, 7 Blackf. 424.... ' v. State, 6 Coldw. 299.... v. State, 17 Ohio St. 210.. Moon vy. State, 3 Ind. 438........ Mooney v. State, 33 Ala. 419..... Moore, ex parte, 30 Ind. 197. .703, v. Com., 7 Bush, 191..524, v. State, 12 Ala. 764. .428, . State, 3 Heisk. 493. 340, . State, 2 Ohio (N.S.)500.. . State, 17 Ohio St. 521..18, . State, 31 Tex. 392...... . State, 34 Tex. 138..179, . State, 9 Yerg. 353..... . State, 1 Walker, 124.... Moorer v. State, 44 Ala. 15....... Moran’s case, 9 Leigh, 651. . Morey v. Com., 108 Mass. 433.... Mangan v. Perry, 51 N. H. 359.. vy. State, 11 Ala. 289..... v. State, 48 Ala, 65...... v. State, 31 Ind. 193..429, asdede<< xlix 422 415 579 525 830 801 802 176 188 522 +215 420 442 949 909 620 748 410 799 353 578 1000 413 168 879 330 889 953 809 827 890 381 527 699 179 186 241 954 828 753 525 432 549 409 1021 753 “186 552 360 516 562 961 379 B61 524 1 TABLE OF CASES. Morgan v. State, 13 Sm. & Mars. 242.. vy. State, 34 Tex. 677.... Moriarty v. Brooks, 6 C. & P. 684.. Morley’s (Lord) case, Kell. 55.... Morman v. State, 24 Miss. 54..273, Morris’ case, 2 Leach, 1096...... 9 Leigh, 638........ Morris v. Scott, 21 Wend. 281.... v. State, 25 Ala. 57....... v. State, 1 Blackf. 37..... y. State, 7 Blackf. 607.... Morrison v. State, 5 Ohio, 439..140, — Morrow v. State, 48 Ind. 432.... y. State, 6 Kans. 222..... 174, Morse v. Crawford. 17 Vt. 499.... Morton v. People, 47 Ill. 468..20, » v. Skinner, 48 Ind. 123... v. State, 46 Geo. 292. .546, Mosby, ex parte, 21 Tex. 566..... Mose v. State, 36 Ala. 211........ Moses v. State, 11 Humph. 232... Moss v. State, 17 Barb. (Ark.) 327. v. State, 6 How. (Miss.) 298.. Mott v. Doughty, 1 Johns. Cas. "280 sc: avererare is dajais steve eyatciine eiie'e Mount v. State, 14 Ohio, 295...... 352, Moyer v. Leicester, 9 Mass. 247... Mulkolin v. State, 7 Ind. 646..... Mull’s case, 8 Gratt. 695......... Mullen v. State, 45 Allen, 43..534, Mullinix v. People, 76 Ill. 20..... Mullins v. State, 37 Tex. 337..366, Munden v. State, 37 Tex. 353.... Mundson v. State, 17 Ala. 179.... Murdock v. Hunter’s Rep. 1 Brock. 135 ..... aS feubeorstauee eyes os i asc se iste a ie Mure v. Kaye, 4 Taunt. 34...... Murphy v. Com., 23 Gratt. 960... v. People, 37 Ill. 447.... v. People, 6 T. & C. 369.. v. Spence, 9 Gray, 399... v. State. 45 Ala. 32..742, vy. State, 7 Coldw. 516... vy. State, 31 Ind. 50. .703, Murphy’s case, 6 C. & P. 108.... Murray, ex parte, 43 Cal. 455..... Murray v. Queen, 14 L. J. 357.... v. State, 46 Ala. 89... Murrell v. State, 44 Ala. 367.. v. State, 46 Ala. 89..... “ Musquez v. State, 41 Tex. 226.... Musser v. Stewart, 21 Ohio St. 353., ae Ins. Co. v. Terry, 15 Wall, Myers v. People, 2 Hun, 6,...... v. People, 4 T. & C. 272... vy. State, 1 Conn. 502...... y. State, 33 Tex. 525...553 eee ee es 888 340 241 458 198 293 158 412 565 962 968 830 562 153 657 202 583 411 269 411 243 975 22 238 238 688 N. Nash v. State, 2 Greene (Ia.), 286. Neal, ex parte, 14 Mass. 205...... Ned v. State, 7 Porter, 187...545, Needham v. State, 1 Tex. 139... Neeley v. People, 13 Ill. 687..... Negro Jerry v. Townshend, 9 Md. 145,: siersoezemerss Neill, ex parte, 8 Saatas Nelius vy. Brickell’s Admr., 1 Hayw. 19. ...2+. -00+ ‘Nelms v. State, 13 Sm. &M. 500, 452, Nelson v. State, 46 Ala. 186...... v. State, 2 Carter, 249.... y. State, 7 Humph. 542... . State, 10 Humph. 518.. . State, 2 Swan, 482..539, . State, 82 Tex. 71... .. sad siecaevacsieret savers icieatets 200 Watson v. State, 5 Miss. 497..... 827 y.’Watson, 9 Conn. 141... 131 Watts v. State, 5 W. Va. 532..... 67 Waugh vy. People, 17 Til. 561..... 182 Waw Kowchawnnekaw v. U. 8. 1 Morris, 382.... .6.. seeen ee 308, 507 Wayne Co. v. Com., 26 Pa. St. MBAS feccises cas assierete ats sieraran- bags soe 594 Weatherford v. State, 43 Ala. 319.. 565 Weathers v. State, 2 Blackf. 278.. 281 Ixxxviii Weaver v. State, 24 Ohio St. 584.. Webb v. Smith, 1 Car. & P. 337.. Webb’s ease, 4 Car. & P. 564..141, Webster v. Com., 5 Cush. 386.... Webster’s case, 5 Greeril. 432.... Wedgwood’s case, 8 Greenl. 75... Weed v. People, 56 N. Y. 628.... v. People, 1 T. & C. 50.... Weeks y. State, 31 Miss. 490..535, Weems v. Weems, 19 Md. 334.... Weighorst v. State, 7 Md. 442.... Weinzorpflin v. State, 7 Blackt. 186, 235, 237, 320, Weissinger v. State, 11 Ala. 540.. Weit v. State, 22 Ohio St. 486 .... Welbourn’s case, 1 East P. C. 358. Welch v. Scott, 5 Ired. 72....103, Weldon v. State, 32 Ind. 81...... Weller y. People, 30 Mich. 16.... 746, Wells v. Battelle, 11 Mass. 477... Werner y. State, 51 Geo. 426..... Ware nway v. Pawling, 5 Harr. & HO eects, eaeee< eaves ages Wesley v. State, 37 Miss. 327..... West v. State, 2 Ala. 212 ........ v. State, 48 Ind. 483.... v. State, 2 Zabriskie, 213... Westmoreland v. State, 45 Geo. D2 ins so wale oars es Sie ees . . 35, 381,, Weston’s case, 1 Leach, 247...... Weston v. People, 6 Hun, 140..499, Wetherbee v. Wetherbee, 38 Vt. BOF usisieieres Maris iasietiys wide: B6-EREE ‘Weyman v. People, 6T. & C. 696. Whaley v. State, 11 Ga. 123..395, Wheat v. State, 6 Miss. 455...... Wheeler v. Alderson, 3 Hagg. 574. Wheeler v. Hatch, 3 Fairf. 389... vy. Raymond, 8 Cow. 311. y. State, 42 Geo. 307.... v. State, 38 Tex. 178.... v. State, 24 Wis. 52. .213, Wheeley, case of, 8 Car. & P. 250. Wheelwright v. Greer, 10 Allen, Whitaker, re, 43 Ala. 393... Sake, apne v. Brown, 15 Pick. B44. vy. English, 1 Bay, 15 . vy. Salisbury, 15 Pick. DAG 5 os miwistseccaiics < White, ex parte, 49 Cal. 484...... ex parte, 4 Engl. (Ark.) 222. y. Com., 6 Binn, 179....4, v. Com., 9 Bush, 178..... v. Com., 31 Ind. 262.. 537, v. People, 32 N. Y. 465.... 549 689 475 209 630 807 447 366 953 537 36 828 2 556 620 562 430 107 407 7103 753 449 388 962 444 202 457 66 456 126 167 285 7195 549 909 919 TABLE OF CASES. White v. State, 44 Ala. 409...... v. State, 3 Heisk. 338 y. State, 13 Ohio St. 569... vy. State, 14 Ohio, 466..... y. State, 1 Smed. & M. 149. v. State, 36 Tex. 347..... ‘ y. State, 5 Yerg. 183...... Whiteford v. Com. 6 Rand. 721.. Whitehead v. Com., 19 Gratt. 640.. v. State, 4 Humph. 278. Whitehurst vy. Davis, 2 Hayw. 113.. Whitesides v. People, Breese, ae é 266, Whitfield v. 8S. E. R. R. Co. 1 E. B. & E. 115.. Whiting v. State, 14 Conn. “487. Whitley’s case, 1 Lew. 123........ Whitman v. State, 34 Ind. 360.. Whitman’s case, 2 Wallace, j jr. 147. Whitney v. State, 35 Ind. 5038..1000, v. Turner, 1 Scam. 253... Whittemore v. Br ooks, 2 Greenl. 63. wens Whittier v. Br anklin, 46N. “H. 23. Whitton v. State, 37 Miss. 879.. Whittuck v. Waters, 4 Car. & P. Wickham v. State, 7 Coldw. 525.. 562, Wicks v. Com., 2 Va. Cas. 387.... Wickwire v. State, 19 Conn. 477.. Wige’s case, 4 Co. 46 (b)..... sates Wiggins v. People, 4 Hun, 540.... Wike v. Lightner, 1 Rawle, 290.. Wilcox v. State, 3 Heisk. 110.... v. State, 31 Tex. 586...... Wild’s case, 2 Lew. 214.......... Wilde v. Com., 2 Metc. 408;..... Wiles v. Brown, 13 Barb. 37.... Wiley v. State, 4 Blackf. 458.... Wilke v. People, 53 N. Y.525.... Wilkes v. R., 4 Bro. C. P. 367... ee v. Hemsworth, 38N.& P. wilkinson v. Mosely, 30 Ala. 562. v. Pearson, 27 Pa. St. 147 Willets v. Jeffries, 5 Kans. “470 siete 3 Willey v. State, 46 Ind. 363. ..309, William Grey The, Paine, 16.. William v. E. Ind. Co. 3 East, 199... DOD es: wisest lotsa nares v. Crary, 5 Cowen, 368... v. Queen, 10 Jur. 155... v. People, 54 Tl. 422.... y. State, 44 Ala. 41.... 90, 99, 269, 381 931 618 149 200 360 182 743 499 531 69. 574 259 289 49 210 888 968 516 1005 55 458 37 51 447 213 579 785 319 341 417 7 553 563 694 210 208 527 546 587 89 86 37 36 962. 659 53 6 376 962 419 290 601 811 82 100 TABLE OF CASES. Williams vy. State, 45 Ala. 57.... 498 v. State, 47 Ala. 659..549 553 v. State, 48 Ala. 85..531 561 v. State, 3 Heisk, 376... 238 688, 741, 794 v. State, 47 Ind. 568.... 56 61, 68, 385, 888, 890 v. State, 3 Kelly, 453.. 515 y. State, 9 Mis. 268..... 246 y. State, 42 Mis. 328..... 269 890 v. State, 47 Miss. 609... 1021 v. State, 14 Ohio, 222.... 18 y. State, 12 S. & Marsh. PSkccasaicrassmrnsehe sees oo 66 v. State, 30 Tex. 404.. 310 v. State, 37 Tex. 474.. 360 y. State, 41 Tex. 209... se “412 v. State, 27 Wis. 402.... 289 William’s Lessee v. Burnet, 1 Wright, 585: osecscis saeces ance 453 Williamson v. State, 16 Ala. 431.. 41 Willingham v. State, 14 Ala. 539.. 621 Willis v. People, 32 N. Y. 715.... 21 v. People, 1 Scam. 399..... 250 584 v. People, 5 Park. Cr. 620.. 22 v. Quimby, 31 N. H. 485... 87 v. State, 12 Geo. 444 ...... 515 Wilson v. Com., 3 Bush, 105. .... 928 v. Com. 10 Sere. & R. 375. 7 v. People, 26 IIL. 484...... 968 v. People, 24 Mich. 410... 889 v. State, 3 Heisk. 232.... 381 549 v. State, 42 Ind. 224...... 499 vy. State, 42 Miss. 639.... 330 v. State, 18 Ohio, 143..... 891 v. State, 2 Ohio St. 819.... 952 v. State, 1 Porter, 118.... 277 v. State, 82 Tex. 112.... 310 v. State, 41 Tex. 321.... 732 v. State, 25 Tex. 169.... 890 v. Stubs, Hob. 380........ 376 v. Woodside, 57 Me. 489.. 968 Winchester v. Evans Cooke, 420.. 441 Winehart v. State, 6 Porter, 30... 51 Winn vy. Patterson, 9 Peters, 663.. 458 Winship v. State, 51 Ill. 296...... 549 Winston ex parte, 9 Nev. 71...... 202 Wise v. State, 2 Kans. 419.... 795, a 2 v. Withers, 3 Crauch, 331... 89 Witt v. State, 6 Coldw. 5....740, ie 1 Wolff v. Oxholm, 6 Maule & 8. 09 cs acetcinctar is. a Bibi Was Sinee vanes 114 y. State. 19 Ohio St. 248..90, 100 Womack v. State, 7 Coldw. 508... 297 298, 745, 795 Wonson v. Sayward 13 Pick. 402. 252 Wood v. Connell, 2 Whart. 582... 423 vy. People, 16 Il. 171...... 176 v. People, 53 N. Y. 511.... 271 Wood y. Pleasants, 3 Wash. C.'C. QO Tes, arate oe anes ai v. Ross, 11 Mass. 271...... Wood’s case, 3 C. H. Rec. 189. .. Woodall v. Smith, 51 Geo.171.... Woodbury v. Obear, 7 Gray, 467. | Woodcock’s case, 1 Leach, 203.. Woodford v. People, 5 T. & C. 539. 298, v. State, 1 Ohio, 427.. Woodman y. Jarvis, 12 Gray, 190. Woods v. Courter, 1 Dall. 141.. vy. MePheran, Peck, 371. . v. People, 55 N. Y. 515.... vy. State, 43 Miss. 364. .... v. Young, 4 Cranch, 237... Woodsides v. State, 2 How. (Mis.) ODD erste senda x 236, 237, 369, 428, Woodson’s case, 9 Leigh, 669..... Woodward v. State, 6 Porter, 492. Word vy. Com., 3 Leigh, 743...... Wormley v. Com., 10 Gratt. 658.. 496, Worwck v. State, 9 Flor. 404.... Wortham v. Com., 5 Rand. 669... 339, 346, Worthy v. State, 44 Geo. 449. .... Wotin v. Wilkins, 39 Geo. 224.... Wray ex parte, 30 Miss. 673...... Wright v. Com., 19 Gratt. 626.... v. Court, 4 B. & C. 596... . Jacobs, 1 Ark. 394..... . People, 4 Neb. 407 .... . State, 18 Geo. 883. .249, . State, 51 Geo. 524..... State, 14 Humph. 194.. adda v. State, 5 Porter, 290..199, v. State, 41 Tex. 246..... v. State, 6 Yerg. 345..... v..State, 9 Yerg. 342..375, v. Tatham, 5 Cl. & F. 592., y.Tatham,1 A.& E. 3 TA. &E. 313 Wrockledge v. State, 1 Clarke (ERE) TCTs srs ncsieissataepasece age sees a secepai Wroe y. State, 20 Ohio St. 460.. Wyatt v. State, 25 Ala.9......... y. State, 1 Blackf. 257..... v. State, 8 Blackf. 507..... Y. Yates v. Lansing, 9 Johns, 395... v. People, 6 Johns, 335..615, v. People, 32 N. Y. 509. .52, v. State, 10 Yerg. 549. .226, Yates’s case, 4 Johns, 814.... 200, Yerger ex parte, 8 Wall. 85 ...... Yoe v. People, 49 Til. 410..... 56, Yois vy. State, 4 Engl. 42........ Ixxxix 444 11] 835 186 37 428 435 271 412 582 962 448 539 ~ 1005 498 532 787 865 461 15 231 533 889 246 384 537 429 166 133 114 421 35 533 188 293 296 933 429 385 872 36 37 310 406 429 391 552 529 xe TABLE OF CASES. Yoter v. Sanno, 6 Watts, 166..... 418 | Young v. State, 6 Ham. 435...... 319 Young’s case, 2 East, 14......... 896 v. State, 11 Hump. 200.. 683 case, 9 Leigh, 638....... 551 700 Young v. Com., 6 Bin. 88........ + 414 v. Stockdale, 2 Nott & McC. v. Com., 8 Bush. 366...... 382 DOA. jespacisiss erodiaisiS sisibsoath 46C vy. Com., 6 Bush. 312..429, 549 v. Gregory, 3 Call. 446.... 444 Lis Vv. Makepeace, 103 Mass. BO sroreianistoreteverer ieeiore 968, 975 | Zellers v. State, 7 Porter (Ia.) 659.. 251 ve. Rex, T. RB. 98:0220+ 050% 298 | Zundt v. People, 64 Ill. 372...... 699 y. Shaw, 1 Chip. 224...... 169 | Zweifel v. State, 27 Wisc. 396.... 962 CASES CITED IN VOL. IL. A. Page. Aaron v. State, 39 Ala. 684....... 1144 Abbee v. Daniels, 2 Stark. Ev.... a 1585 Adams v. Com., 23 Gratt. 949.... 1158 v. Kelly, Ry. & M. 157... 1046 Admir: alty’ s case, 13 Co. 53. ..6... 1446 Aickle’s case, 2 East P.C. 968.... 1591 Alcott v. State,8 Blackf. 6...... 3 > 1803 Aldrich y. Press Printing Co., 9 Minn. 188...... ...00. 1037 vy. Warren, 16 Me. 465... 1396 1401 Aldridge v.Com., 2 Va. Cas. 447.. 1144 Alexander v. Card, 8R. 1.145... 1785 y. State, 48 Ind. 394.. 1801 v. State, 12 Tex. 540. 1174 1180 Alkenbrack v. People, 1 Denio, 80. 1145 Allen y. State, 40 Ala. 334...1070, 1107 y. State, 51 Geo. 264....... 1803 v. State, 42 Tex. 12...... + 1737 v. Watson, 2 Hill, 319...... 1790 Allison v. State, 42 Ind. 354..1470, Alsey v. State, 39 Ala. 664 ..1144, Amos v. State, 10 Humph. 117... Anderson v. Com. 5 Rand. 627.... People, 63 Til. 53.... State, 48 Ala. 665... State, 28 Ind. 22... State, 39 Ind. 553.... State, 7 Ohio, 250... Andres v. Wells, 7 Johns. 260.... Andrews v.Cawthorne, Willes, 537. v. People, 60 354....... v. State, 3 Heisk. 165.... vy. White, 32 Me. 388.... Angel v. Com., 2 Va. Cas. 231..... Anonymous, Atk, 750... ...066 2 East P. C. 662..... 8 Mod. 116....... Anson v. Stewart, 1 T. R. 154 waite Anthony v. State, 4 Humph. 83... Arbuckle y. State, 32 Ind. 34 Sass s 1540 1163 1378 1819 1831 1782 1073 -. 1294 1782 1610 1047 1464 1434 1713 1802 1145 1171 1765 1155 we. 1748 1768 1794 . 1510 Page. Arden v. ge 5 Johns. Ch. iceta-o. Se seataiare’ escent -ateraresst 1861 Ve Ae 11 Conn. 408..... 1742 Armour y. State, 3 Humph. 379.. 1090 Armstead’s case, 1 C. H. Ree. NIA vaowiais meeamsl eae we tame wat 1175 Armstrong’s case, 1 Lew. 195.... 1184 Armstrong’ v. State, 4 Blackf. 247. 1796 y. State, 12 Ohio St. BOT vs scores Siseres's cuales 1172 Arnald y. Cost, 3G. & J. 219.1599, 1624 Arundel’s case, 1 Lew. 115...... 1483 Ashbrook v. Com. 1 Bush. 189... 1753 Ashley v. Harrison, 1 Esp. 48.... 1053 Ashlock v. Com., 7B. Mon. 441. . 1791 Ashworth v. State, 9 Tex. 490.... 1824 Ashley v. Young, 2 Burr, 817.... 1056 Atlantic, etc., R. R. v. Johnston, 70 IN 3: Cs BAS) sig: chciaid a cetaialelver odased« 1510 Att’y-Gen. v. Bay St. Brick Co., ‘ 115 Mass. 481...... 1764 vy. Lawton, 30 Mich. BEG iseieeiaiecidia s veces 4 1783 'y. Stewart, 20.N. J. Eq. AID ois «seen exes 1752 Austin v. State, 42 Tex. 345...... 1163 Aymette y. State, 2 Humph. 154. 1711 Ayres v. State, 5 Coldw. 26...... 1439 B. Babcock v. Thompson, 3 Pick. 446. 1788 Bachellor v. Honeywood, 2 East, 714. aaasa katate Ss “gha SN 1582 Baer ¥ Com. ‘To Bush. 8.. . 1784 Bagley v. State, 1 Humyph. 486... 1791 1794 Bailey v. Buck, 11 Vt. 252....... 1852 vy. Com., 5 Rawle, 59 . 1368 : ve State, 26 Ind, 422...... * 4991 Baird v. State, 38 Tex. 599....... 1713 Baker v. Pope, 5 T. & C. 102.... 1788 vy. State, 2H. & J.5...... 1789 Baldwin v. Chicago, 68 Ill. 418... 1782 v. Elphistone, Bl. R. 1037. 1043 xcil TABLE OF CASES. Baldwin v. People, 1 Scani. 304... 1146 Bales v. State, 3 W. Va. 685...... 1192 Ball’s case, 4 C. H. Rec. 157.1195, 1197 Ball v. State, 7 Blackf. 242....... 1795 Bangor v. Rowe, 57 Me. 436...... 1753 Bank of Pa. v. Haldeman, 1 Penn. DG sass syste victors des ctare 1582 v. Jacob’s adm’rs, 1 Penn. 160....°.... 1582 Banks v. State, 28 Tex. 644...... 1160 Barclay v. Com., 25 Pa. St. 503 .. 1722 Bard v. State, 35 Tex. 509...... 1404 Barker v. Com., 19 Pa. St. 412... oa 1771 v. Com., 2 Va. Cas. 122... 1144 1153 v. People, 2 Hill, 325..... 1811 Barnes vy. State, 49 Ala. 342...... 1784 v. Strong, 1 Jones Eq. 100. 1861 Barnum v. Barnum, 9 Conn. 242.. 1580 v. State, 15 Ohio, 717.... 1622 Barthelemy v. People, 2 Hill, 248. 1048 1051 Bartlett v. Brown, 6 R. I. 37..... 1191 v. Draper, 23 Mis. 407... 1131 Barton v. State, 18 Ohio, 221.1164, 1170 v. State, 23 Wisc. 587. 1565, 1606 Bartow’s Case, 3 C. H. Rec. 143.. 1613 Bass’ Case, 2 East P. C.566...... 1231 Bassett v. Spoffard, 45 N. Y. 387. 1189 Bates v. Davis, 76 Ill. 222 ...... - 1782 Baumer v. State, 49 Ind. 544..... 1828 Beach v. People, 11 Mich. 166.... 1753 Bedore v. Newton, 54 N. H.117.. 1789 Beiber v. State, 45 Geo. 569...... 1438 Belcher v. State, 8 Humph. 63... 1821 Bell v. Malory, 61 Ill. 167 ....... 1699 y. Norwood, 7 Louis. 96 ..... 1583 v. State, 48 Ala. 684........ « 1078 vy. State, 5 Eng. 5386......... 1673 v. State, 41 Geo. 589 ........ 1159 v. State, 42 Ind. 335......... 1160 v. State, 46 Ind. 453.... . pate Wee v. State, 20 Wisc. 599 ....... 1074 Bellair v. State, 6 Blackf. 104.... 1849 Benedict v. Ehler, Lancaster Com. De cestah Sea casstvaca cance ne 1665 v. Hart, 1 Cash. 487.... 1134 v. Stuart, 23 Barb. 420.. 1861 Benelleck v. People, 31 Mich. 200. 1783 Benford v. Sanner, 40 Pa. St. 9... 1834 1842 Benson v. State, 5 Minn. 19..1575, 1606 Benstead’s Case, Cro. Car. 583.... 1869 Bergen v_ People, 17 Ill. 426..... 1827 Berry y. State, 10 Geo. 511. 1180, 1196 Bertie v. Beaumont, 16 East; 33.. 1098 Bescher v. State, 32 Ind. 480..... 1782 Berthune vy. State, 48 Geo. 505.... 1071 Bevington v. State, 2 Ohio St. 160. 1599 1605 Bickely v. Norris, 2 Brev. 252.... 1185 Bigby v. State, 44 Geo. 344...... 1825 Billard y. State, 30 Tex. 367 ..... 1219 Bird v. Com., 21 Gratt. 800...... 1309 Birdg vy. State, 31 Ind. 88.. os 1510 Bishop v. Com., 18 Gratt. 185... 1793 Blackman v. State, 36 Ala, 295. 1s} Blackstone v. State, 15 Ala. 415.. 1470 Blair v. State, 32 Tex. 474....... 1800 Blanc v. Klumke, 29 Cal. 156.... » Tiss Blanchard ex parte, 9 Nev. 101... 17°7 Blanton v, State, 5 Blackf. 560.... 1791 Bledsoe v. State, 21 Tex. 223...... 1799 Blemer v. People, 76 Ill. 265..... 1801 Bliss v. Ball, 99 Mass. 597 ...... » 150a v. Com., 2 Little, 90........ 17 v. Hall, 4B. N. C. 183 ..... 1752 Bloomer v. People, 1 Abb. App. D665 VAG: oo: iajoiassesasgis erica o diestoes!tnaiece 1294 Bloomhuff v. State, § Blackf. 205. 1768 Bloomington v. Strehle, 47 Ill. 72. 1782 Bloss v. Toby, 2 Pick. 820....... 1483 Blunt v. Com., 4 Leigh, 689...... 1184 Board of Excise v. Sackrider, 2 IN oe RSA cee cesanaeee a eaascyan dy nue syanete 1733 Bodwell v. Osgood, 3 Pick. 379... 1047 Boggus v. State, 34 Geo, 275..... 1810) Boies v. McAllister, 3 Fairf. 308.. 1582 Bolduce v. Randall, 107 Mass. 121. 1780 Bolland’s Case, 2 East P. C. 958.. 1585 1 Leach, 88..... . 1589 Bolton v. State, 5 Coldw. 650..... 1163 Boulo v. State, 49 Ala. 22...:.... 1803 Bonsall v. State, 35 Ind. 460. 1172, 1293 Booth v. Com., 4 Gratt. 525...... 1218 v. Com., 5 Met. 535 ...... . 1822 Boothby v. Plaisted, 51 N. H. 436. 1780 Bosshard y. State, 25 Tex. (Supp.) DOT iia serine state o craiaaten ty ances 1801 Boswell v. State, 8 Ind. 499...... 1524 Bowe v. State, 25 Ind. 415...... . 1801 Bowler v. State, 41 Miss. 570..... 1406 Boyce v. ‘People, 55 N.Y. 644.... 1826 Boyd’s Case, 3 C. H. Rec. 134.... 1786 1 Robinson, 691..... 1178 Boyle v. State, 37 Tex. 359...... . 1158 Brabham v. State, 18 Ohio St. 485. 1062 Bradford v. State, 8 Humph. 370. 1673- Bradley v. State, Walker, 156.... 10389 Brady v. State, 48 Geo. 311...... 1771 Bramson’s Case, 1 Ashm. 84..... 1445 Branch v. State, 41 Tex. 622 ..... 1549 Brannan v. Adams, 76 Ill. 33..... 1783 ° Breese vy. State, 12 Ohio St. 146.. 1070 1071, 1074 Brennon v. State, 25 Ind. 403 . 1294 Brice’s Case, R. & Ry. 450. ...... 1115 Brig Malek Adhel v.U.8., 2 How. DUO eats suaslie eects sineeos oes Landen 1455 Brightwal v. State, 41 Geo. 482 .. 1475 Brinkerhoff v. Nelson, 13 Johns. DAO" ees wreteren ast Seale 0Gas 68 Na cet sce 1185 Brinley v. Whiting, 5 Pick. 348... 1860 Britt v. State, 7 Humph. 45. 1299, 1380. Brittin v. State, 5 Eng. 299 ...... 1806 Britton v. Com., 1 Cush. 302..... 1469 Brock y. State, 26 Ala. 104....... 1477 TABLE OF CASES. Brockway v. People, 2 Hill, 558.. 1785 Broms v. Com., 2 Duv, 351 ..... » 1221 Brooks v. People, 49 N. Y. 436... 1293 v. State, 51 Geo. 612 ..... 1476 v. State, 2 Yerg. 482. 1769, 1787 Brown v. Beauchamp, ! 5 Mon. 413. 1861 v. Com., 2 Leigh, 769. 1566, 1573 Vv Com., 8 Mass. 59.. 1163, 1670 v. Maryland, 12 Wheat. AN) ge iSes aad eases 1778 v. People, 66 Ill. 344...... 1576 v. Perkins, 12 Gray, 89... 1758 v. State, 47 Ala. 47....... 1735 v. State, 46 Ala. 175...... 1806 v. State, 5 Eng. 607....... 1795 v. State, 35 Geo. 232...... 1199 v. State, 40 Geo. 689..... . 1799 v. State, 44 Geo. 300..... 1158 v. State, 24 Ind. 118...... 1782 v. State, 48 Ind. 38....... ‘1782 v. State, 18 Ohio St. 496... 1344 1345 v. State, 35 Tex. 691...... 1161 v. Union Ins. Co., 5 Day, 1. 1857 Brown’s aise, 2 East P. C. 487....1077 1088 3 Greenl. 177..... 1514 -2 Leigh, 769...... 1574 O. B. 1763........ 1292 Browne’s Case, O. B. 1780....... . 1800 Brownlow. v. Tomilson, 1M. & Gr. ASAe occ ccteln acs An ayalasayas a trons sie 1761 Bryan vy. State, 26 Ala. 65........ 1792 Bryant v. State, 46 Ala. 302..... . 1784 Buckland’s Case, 8 Leigh, 732.... 1569 Buckley v. State, 2:Greene, 162.. 1566 Buddington, matter of, 29 Mich. BLD tapas asciata ies im tate wie Karst 1783 Buford v. Com., 14 B. Mon. “Oa. . 1794 Bull’s Case, 2 East Py Cs S126 ccens 1235 Bullock y. State, 10 Geo. 46. 1148, 1196 Burd v. State, 29 Tex. 509....... 1406 Burdine vy: State, 25 Ala. 60...... 1792 Burgess’ Case, Kel. 27.. . 1098 v. State, 44 Ala. ‘190 .. «eee 1470 1548 Burk v. State, 27 Ind. 480....... 1753 Burns v. People, 59 Barb. 531.... 1715 1736 y. State, 35 Tex. 724...... 1162 Burr v. Com., 4 Gratt. 5384. ...... 1196 Burrows v. State, 7 Eng. 65. 1376, 1383 Burt y. State, 3 Brev. 413.. 1131, 1133 Bush v. Steinman, 1 B. & P. 407.. 1760 Bussier v. Pray, 78. & R, 447. 1372 Butcher v. Butcher, 7 B. & C 399, 1131 Butler’s Case, 1 C. H.Rec. 66..... 1707 28 Eliz......-. sess 12285 Butler v. People, 4 Denio, 68..... 1101 v. State, 5 Blackf. 280 .... 1795 Byron v. State, 12 Wisc. 519..... 1851 G Cady v. Com., 10 Gratt. 776. 1572, 1586 Cain v. McHarry, 2 Bush. 263... Caldwell’s Case, 1 Dall. 150...... v. State, 49 Ala. 34.... Calkins v. State, 18 Ohio St. 366.. Call v. State, 20 Ohio St. 330..... Callan’s Case, R. & Ry. 157...... Calvert v. Com., 5 B. Mon. 264... Cameron v. State, 14 Ala. 546.... v. State, 15 Ala. 383 .... Campbell’s Case, 2 Leach, 564.... v. Com., 59 Pa. St. 266. v. People, 8 Wend. 1728, 1724, v. State, 16 Ala. 144.. v. ae 8 eve Cannady v. People, 17 Ill. 158.. Carlin v. State, 4 Yerg. 143...... Carlton v. Com., 5 Met. 534...... Carmichael y. State, 12 Ohio St. 553 Carmon v. State, 18 Ind 450..... Carny’s Case. 3 C. H. Ree. 44.... Carotti v. State, 42 Miss. 334..... Carrel’s Case, 2 East P. C. 506.. Carter v. State, 20 Wisc. 647..... Cartwright v. Green, 8 Ves. 405.. Cary v. Pitt, 1 Peake’s Add. Cas. 130. Case v. “Case, 17 Cal. 598........ v. State, 26 Ala. 17........ 2 Cash v. State, 10 Humph. 111.... v. State, 2 Overton, 198..... Cassell v. Scott, 17 Ind. 514...... Castello v. State, 36 Tex. 324..... Castle’s Case, 1 Hale, 558....... Caswell v. Allen, 10 Johns. 117.. Catsinger v. Com., 7 Bush, 392.. Caulkins y. Whisler, 29 Iowa, 495. Cayford’s Case, 7 Greenl. 57 Chahoon v. Com., 20 Gratt. 733.. Challis’s Case,.1 Hawk. 45...... ‘ Chamberlain v. ae 23 N. Y. v. State, 5 Blackf. DIS: oases < Sacereee teaiets Champer v. State, 14 Ohio St. 437. Chapman v. Com., 5 Whart. 427.. y. Gillett, 2 Conn. 40... Charles v. People, 1 Comst. 180.. Charlewoods case, 2 East P.C. 689. Charlton v. Donnett, 100 Mass. 229 Cheek v. State, 1 Coldw. 172..... Cherry v. State, 7 Ohio, 222..... v. State, 30 Tex. "439 ee Chess v. State, 1 Blackf. 198. Child v. Affleck, 9 B. & C. 403. Childress v. Mayor, 3 Sneed, 347. Chiles v. Com., 2 Va. Cas. 260.... Chisholm v. State, 45 Ala. 66. Chisser’s case, T. Raym. 175..... xchii 1799 1761 1549 1845 1716 1079 1790 1808 1808 1208 1806 1728 1772 1802 . 1778 1712 1822 1809 1782 1072 1823 . 1095 1475 1237 1582 1809 1170 1712 1710 1782 1153 1118 1853 1718 1565 1625 1821 1564 1606 1282 1716 1569 1711 1473 1511 1722 1776 1223 1781 1404 1197 1801 . 1671 1052 1787 1165 1159 1203 xciv TABLE OF CASES. Christian v. State, 40 Ala. 376.... 1784 v. State, 37 Tex. 475.. . 1718 Chute v. State, 19 Minn. 271..... 1756 Cincinnati v. Rice, 15 Ohio, 225... 1805 City of Clinton v. Phillips, 58 Il. LO Disses vicncseressaciairag acaiseies ye BET « 1782 Clark v. Binney, 2 Pick. 113..... 1055 vy. Cleveland, 2 Hill, 344.... 1864 v. Com., 25 Gratt. 908.1070, 1075 v. Com., 16 B. Mon. 206 ... 1600- v. People, 2 Lans. 329...... 1405 v. People, 1 Scam. 117..... 1478 y. Periam, 2 Atk. 339...... 1768 v. State, 12 Ala. 492....... 1792 vy. State, 34 Ind. 468. ...... 1782 Clary v. Com., 4 Barr, 210...... 1624 Clay’s case, 2 East P. C. 580..... 1684 Clay v. Schwab, 1 Mich. N. P.168. 1564 1625 Clayton v. Wardell. 4 Comst. 230. 1808 Clement v. Chevis, 9 B. & C. 172. 1029 Clendon, case of, Str. 789........ 1032 Cleveland vy. Citizens Gas Co., 20 N.J. Eq. 201. cece cece cece wees 1752 Clifford v. Brandon, 2Camp. 369. 1698 1704 v. Overseers, 37 N. J. b. DS Dang atacate xea Violet eos waysve 1803 v. State, 29 Wisc. 327..:. 1784 Clifton v. State, 5 Blackf. 224.... 1149 Clinch’s case, 1 Leach, 540....... 1623 Cobbett’s case, 1 Vt. 322... .:.... 1031 Cobletz v. State, 36 Tex. 353. ... 1344 . Cochrane vy. State, 6 Md. 400..... 1472 vee v. poe eon 5P.&C. 543. - 1053, 1055 Cocke v. “Com. 13 Gratt. 750 .e.-e 1570 Cockin’s case, 9 Lew. 235........ 1195 Coenhaven v. State, Coxe, 258....1135 Cofferman v. People, 56 N. Y. 591. 1439 Coffey’s case, 4 C. H. Rec. 52.... 1542 : 1611 Coggin’s v. State, 7 Port. 263.... 1795 Colby v. Sampson, 5 Mass. 310.... 1861 Coleott’s case, 1612.6 ciaces cavewn 1623 Coleman’s case, 2 East P. C. 672.. 1210 1389 Coleman v. Com., 25 Gratt. 865.. 1576 . -v. People, 55 N. Y: 82... 1486 1489 v. State, 13 Ala. 602.... 1792 Collins’ case, 9 Leigh, 666........ 1802 Collins v. Com., 38. & R. 220.... 1830 v. People, 1 Hun,610..... 1809 v. People, 39 Ill. 233...... 1192 1221, 1294 v. State, 14 Ala. 608...... 1820 Comfort v. Fulton, 39 Barb. 56... 1191 . 1511 Commissioners of Excise v. Dough- erty, 55 Barb. 332.. one 1783 Commissioners of Pilots. v. “Erie R. R., 5 Rob. 366.. Laie aeajasiere GEIOD. Com. vy. Adams, 109 Mass. 344... 1798 Com v. Stss's SSS As aad4s4442 Asddd448484249 Adams, 7 Met. 50....... 1605 Adkinson, 2 Va. Cas. 513, 1789 Aglar, Thach. C. C. 412, 1850 Alburgher, 1 Whart. 469, 1753 Alden, i4 Mass. 388..... 1862 Alexander, 4 Hen. & Mun. DDD esi eile ote is cuoucrees tener 1868 Alexander, 1 Va. Cas. 156, 1785 Allen, 15 B. Mon. 1..... 1779 Andrews, 2 Mass. 14, 1142, 1424 Annis, 15 Gray, 197..... 1221 Arnold, 4 Pick. 251...... 1793 Arrance, 5 Allen, 517.... 1161 1220 . Ashley, 2 Gray, 356..... 1787 Ayer, 3 Cush. 150....... 1624 Bacon, 108 Mass. 25..... 1780 Bagley, 7 Pick. 279 ..... 1870 Bailey, 11 Cush. 414 . 1504 Bailey, 1 Mass. 62....... 1565 Baldwin, 11 Gray, 197... 1565 Barbarick, 15 Mass. 168, 1821 Barker, 100 Mass. 412... 1781 Barney, 10 Cush. 480.... 1478 . Barrett, 108 Mass. 302... 1711 Barry, 115 Mass. 146.... 1780 Barry, 116 Mass. 1..1191, 1439 Batchelder, Thach. C. C. TQM ovis crane dra dineys 1029, 1049 . Bean, 117 Mass. 141..... 1439 . Beebser, 14 Gray, 86.... 1781 Bell, 102 Mass. 163...... 1219 Bennett, 108 Mass. 27... 1780 Berry, 5 Gray, 98....... 1707 Berry, 99 Mass. 428:.... 1345 Berry, 109 Mass. 366.... 1780 Bigelow, 3 Pick. 31..... 1132 . Birdsall, 69 Pa. St. 482. 1173 - Blaisdell, 107 Mass. 234.. 1752 1763 v. Blanchard, 105 Mass. 173, 1780 < Blanding, 3 Pick. 304.... 1030 1038; 1044, 1047 v. Bloss, 116 Mass. 56...... 1780 v. Bolkom, 3 Pick. 281..... 1793 v. Bond, 1 Gray, 564... 1675 v. Bonner, 97 Mass. 587.... 1163 v. Bonner, 9 Met. 410, 1047, 1049 v. Boon, 2 Gray, T4.... 0... 1785 v. Boston, 97 Mass. 555 .... 1753 v. Bowden, 14 Gray, 104... 1071 1074 v. Bowers, 3 Brews. 350:... 1161 v. Boyer, 7 Allen, 806...... 1810 v. Boyle, 14 Gray, 8. ...... 1780 v. Bradford, 9 Met. 268.... 1850 v. Brady, 5 Gray Y, 78. ....4. 1715 : v. Branham, 8 Bush. 387... 1713 1801 v. Eh net, Thach. C, C. VAD ecco eed a ccatlnt ceva « 1774, 1776 v. Bettun, 100 Mass. 206.. 1160 v. Briggs, 5,Met. 599 ...... 1870 Brooks, 1 Duy. 150...... 1294 Com. TABLE OF CASES. v. Brooks, 9 Gray, 299..... 1549 v. Brown, 12 Gray, 185.... 1781 v. Brown, 4 Mass. 580..... 1228 v. Brown, 13 Met. 865..... 1755 v. Brown, 3 Rawle, 207.... 1072 1101 v. Bruce, 6 Pa. L. J. 236... 1827 v. Buckingham, Thach. C. C. DY cccssarareraie erence ores 1039, 1045 v. Burdick, 2 Barr, 163.... 1391 v. Burke, 12 Allen, 183... . 1221 y. Burns, 4 J. J. Marsh. 177, 1791 v. Butterick, 100 Mass. 1.. 1345 1564, 1574, 1601, 1625 v. Butts, 2 Va. Cas. 18..... 1797 vy. Buzzel, 16 Pick. 158..... 1491 v. Bybee, 5 Dana, 219...... 1711 v. Byerly, 2 Brews. 568.... 1160 v. Byron, 14 Gray, 31...... 1736 y. Cales, 10 Mass. 153 . 1824 vy. Call, 21 Pick. 515.. 1380, 1885 1390 v. Callaghan, 2 Va. Cas. 460, 1368 1666 v. Callahan, 108 Mass. 421, 1780 v. Campbell, 103 Mass. 436, 1159 v. Campbell, 116 Mass. 32.. 1781 vy. Carel, 105 Mass. 582.... 1715 1747 v. Carey, 2 Pick. 47.. 1570, 1579 v. Carlisle, 1 Whart. Dig. SAA os sisicvsccate dees severoieaynsecscors 1829 v. Carney, 108 Mass. 417... 1780 v. Carpenter, 100 Mass. 204, 1781 v. Carpenter, 108 Mass. 15, 1061 v. Carr, 111 Mass. 423..... 1781 v. Carrol, 8 Mass. 490 ..... 1091 v. Carroll, 15 Gray, 409.... 1789 vy. Carter, 11 Pick. 277..... 1200 v. Castles, 9 Gray, 123..... 1575 1606 v. Catlin, 1 Mass. 8........ 1771 vy. Chace, 9 Pick. 15....... 1180 v. Chandler, Thach. C. C. AST cisnas gris s eadeneeee 1585 v. Chapin, 5 Pick. 199...... 1762 v. Chapman, 13 Met. 68.... 1028 v. Chapman, 1 Va. Cas. 138. 1666° v. Chappel, 116 Mass. 7.... 1781 v. Chathams, 50 Pa. St. 181. 1190 v. Child, 18 Pick. 198...... 1039 y. Chilson, 2 Cush. 15...... 1106 v. Chisholm, 103 Mass. 213. 1780 v. Choate, 105 Mass. 451.... 1475 v. Chubb, 5 Rand. 715..... 1775 y. Clancey, 7 Allen, 537.... 1575 ; 1606 v. Clapp, 4 Mass. 163...... 103f 1038, 1047 v. Clapp, 5 Pick. 47....... 1774 v. Clapp, 48 Pa. St. 53...... 1763 v. Clark, 14 Gray, 367..... 1780 v. Cleary, 105 Mass. 384.... 1780 v. Clifford, 8 Cush. 215..... 1297 Com. dae < < 4 ¢4s8 Sas 3 Atdd4e4444444444445 . Cullins, 1 Mass. 116 . Culver, 2 Pa. L. J. 362... . Curtis, 9 Allen, . Dana, 2 Met. 329... . Davenport, 2 Allen, 299. . Davis, 11 Gray, 4.. « Davis, 9 « Dearborn, 109 sd44444448 . Doe, 108 Mass. 418 . Doherty, 10 Cush. 52.... Sao S.4-8 . Cobb, 14 Gray, 57....... . Coe, 115 Mass. 481. .1405, . Coffe, 9 Gray, . Collins, 12 ian 181... ‘ . Collins, 46 Gray, 29..;.. Commesky, 13 Allen, 585. 139... Concannon, 5 Allen, 502.. Conneally, 108 Mass. 480. Conner, 9 Phila. 591..... Cony, 2 Mass. 523....... Cook, 1 Rob. 729. ..1723, Cooley, 10 Pick. 37...... Corlies, 8 Phila. 450..1833, Cornish, 6 Binney, 249... Cotter, 97 Mass. 336..... . Coughlin, 14 Gray, 389... Cox, 7 Allen, 577........ Coyan, 107 Mass. 212.... Crawford, 9 Gray, 128... Cregor, 7 Gratt. 591..... Crowther, 117 Mass. 116. Crupper, 3 Dana, 466.... 266. 1775, 1770, . Davidson, 1 Cush. 33.... .1601, 1769, Mass. 415 Davis, 104 Mass. 548.... Davis, 11 Pick. 482...... Dean, 14 Gray, 99....... Dean, 110 Mass. 357..... Dean, 1 Pick. 38§... 1788, 1 ass. 368. Dennis, Thach. C. C. 165. Dewitt, 10 Mass. 154.... Dickenson, 3 Pa. L. J. R. Dickenson, 5Pa. L. J. 164. Doane, 1 Cush. 5........ Dole, 2 Allen, 165...... 1601, Donovan, 16 Gray, 18... Dorus, 108 Mass. 488.... Dougherty, 103 ADEs OAS vis saieesca’ eievete!aivenssgjans Dae Me 241. 1749, Dove, 2 V. Cas. 26. . Dressall, 110 Mass. 102. Drew, 3 Cush. 279 Drew, 19 Pick. 179. .1383, Dudley, 10 Mass. 403.... Duffy, 11 Cush. 145.1147, v. Dunn, 14 Gray, 401 1135 1170 1780 xevi Com. v a s dtdaade ddaesadde fs4sadaesess Addndddadsdsdsdsdsdsdds TABLE OF CASES. Griffen, 4 Allen, 310..1178, . Griffin, 21 Pick. 523..1170, . Eastman, 1 Cush. 189... 1831 ; 1835, 1841 . Eastman, 2 Gray, 76.... 1132 1147 . Edds, 14 Gray, 406...... 1780 1800, 1801 Edgerly,'10 Allen, 184... 1601 1606 Eicher, 1 Am. Law Jour. BDL waste Wasa wdeewe 1825 . Eicher, 4 Pa. L. J. R. 326. 1826 Elwell, 2 Met. 190....... 1820 . Evans, 188. & R, 426... 1372 . Ewing, 7 Bush. 105...... 1783 Byrie, 18. & R. 347..... 1805 Fagan, 108 Mass. 471.... 1294 Falvey, 108 Mass. 304... 1470 1510, 1548 . Farren, 9 Allen, 489..... 1420 . Ferris, 5 Rand. 691...... 1754 Finn, 108 Mass. 466..... 1438 Fisher, 17 Mass. 46...... 1571 Fisher, 9 Phila. 594..... 1404 . Flannelly, 15 Gray, 195.. 1420 Floyd, 11 Gray, 52..1769, 1770 Flynn, 3 Cush. 529...... 1729 . Foering, 4 Pa. L. J. R. 29. 1833 Foley, 99 Mass. 499 ..... 1786 . Fortune, 105 Mass. 592 .. 1162 Foss, 14 Gray, 50...1780, 1781 Foster, 107 Mass. 221.... 1344 Fraize, 5 Bush, 325 ..... 1800 France, 2 Brews, 568.... 1405 Frey, 50 Pa. St. 245..... 1405 Frost, 5 Mass. 53........ 1852 . Fuller, 8 Met. 313. ..... . 1671 . Gale, 10 Bush, 488...... 1851 . Gallagher, 16 Gray, 240 . 1159 Gallagher, 6 Met. 565.... 1311 Gallficher, 4 Pa. L. J. 58 . 1736 Garland, 3 Met. (Ky.) 478. 1800 1801 Garland, 5 Rand. 652.... 1789 Genther, 178. & R. 185.. 1367 Gibbs, 4 Dall. 253...... . 1849 Gibney, 3 Allen, 150 .... 1699 Gilland, 9 Gray, 3....... 1780 . Gillespie, 7S. & R. 469.. 1775 . Gillon, 2 Allen, 505 1780 . Glover, 111 Mass. 395.... 1007 Goddard, 4 Allen, 312... 1405 1406 Goding, 3 Met. 130...... 1788 Golding, 14 Gray, 49.... 1780 Goodhue, 2 Met. 198..... 1827 Goodman, 97 Mass. 117.. 1780 Goodwin, 14 Gray, 55..., 1475 Gourdier, 14 Gray, 390.. 1799 Grady, 108 Mass. 412.... 1780 Grant, 116 Mass. 17..... 1716 Gray, 2 Duv. 378........ 1851 . Green, 111 Mass. 392.... 1221 1220 1670 Com. v. Grimes, 10 Gray, 470.... 1160 vy. Grose, 99 Mass. 423..... 1220 v. Guild, Thach. C. C. 329.. 1044 1051 v. Hagan, 9 Phila. 574..... 1375 v. Hall, 4 Allen, 345.. 1575, 1601 1602, 1606 v. Hall, 15 Mass. 240 ...... 1763 v. Hallett, 1083 Mass. 452... 1780 v. Hamilton, 15 Gray, 480.. 1475 v. Handeraft, 5 Bush, 91... 1783 v. Harley, 7 Met. 462. 1380, 1395 v. Harmon, 2 Gray, 289..., 1038 v. Harrington, 3 Pick. 26... 1787 v. Harris, 13 Allen, 534.... 1777 v. Harris, 1 Leg. Gaz. R. 455. 1666 v. Harrison, 11 Gray, 308 .. 1804 v. Hart, 10 Gray, 465..... . 1770 v. Harvey, 16 B. Mon. 1... 1779 v. Hatfield, 107 Mass. 227.. 1715 v. Hathaway, 2 Allen, 153.. 1173 vy. Haughey, 3 Met. (Ky.) DOS cecldascierce' anise casts 1403, 1404 .v. Haynes, 2 Gray, 72...... 1771 v. Hays, 14 Gray, 62 ...... 1345 v. Hays, 1 Va. Cas. 122.... 1157 v. Hayward, 10 Mass. 34... 1596 v. Hazeltine, 108 Mass. 479. 1780 v. Hearsey, 1 Mass. 137.... 1411 v. Heffron, 102 Mass. 148... 1781 v. Henley, 1 Va. Cas. 145... 1172 v. Henry, 2 Brews. 566 .... 1160 v. Henry, 22 Pa. St. 253.... 1385 v. Herrick, 12 Gray, 125... 1781 v. Hickey, 3 Pa. L. J. 86... 1444 v. Hickey, 1.Pa. L. J. R. ABB. cracoss 5 oleeins. Oicinterslay We as 1403 v. Hicks, 7 Allen, 573....-. 1540 v. Higgins, 16 Gray, 19.... 1781 v. Hill, 4 Allen, 589........ 1781 v. Hill, 14 Gray, 24........ 1780 v. Hill, 11 Mass. 136...... . 1605 v. Hill, 14 Mass. 207....... 1188 y. Hills, 10 Cush. 530...... 1242 v. Hinds, 101 Mass. 209.... 1564 1574, 1625 v. Hogan, 11 Gray, 315 .... 1781 v. Hogan, 97 Mass. 120.... 1780 v. Holder, 9 Gray, 7..... . 1148 vy. Holland, 1 Duv. 182..... 1293 vy. Holmes, 17 Mass. 336... 1034 1038 v. Homer, 5 Met. 555...... 1869 v. Hooper, 104 Mass. 549... 1404 1409 v. Hooper, 5 Pick. 42...... 1774 . Houghton, 8 Mass. 107.. 1588 . Hope, 22 Pick. 1... 1069, 1164 1171 . Hopkins, 2 Dana, 418.. if 1796 Harrigan, 2 Allen, 159... 1475 Horton, 2 Gray, 69.. 1776, 1821 Horton, 1 Va. Cas. 335.. 1798 1605 TABLE OF CASES. Com. v. Howard, 3 Met. (Ky. ) 407, 18 Set Ws Ss ee 444 des a 3. 8 a aad Vv. v. . Howe, 2 Allen, 153 . Hoye, 9 Gray, 292 . Hughes, 5 Allen, 499.... . Hulbert, 12 Met. 446.... Humphries, 7 Mass. 242, 1296 | . Hunt, 4 Met.111.. . Irwin, 8 Phila. 380 . Isaacs, 5 Rand. 634 . Jacobus, 1 Pa. Leg. Gaz. 1781 1716 1736 1380 1310 . 1830, 1833 Hutchinson, 1 Mass. 7... Hutchinson, 2 Pa. L. J. DAY idee sassy esis aeons 1383, 1391 Hutchinson, 1 Pa. L. J. Rs 1802 sccase seveacsecialecs e500 Hyde, Thach. C. C. 19 .. 1788 17938, 1796, 1797 Hyneman, 101 Mass. 30.. 1780 Intox. Liquors, 4 Allen, ‘ 1781 5938.. . 1780, Intox. “Liquors, 6 ‘Allen, 1781 1781 596 1781 Bl ce ere 1781 ailite lass Uae oe | 1781 eaan tise a ace 1781 Sea et eee 1781 Baya eda ae 1781 1781 1780 1781 1780 ” 1780 1780 1781 ewes cee wae eee wees Cees ee ose coe serene pee a aed gies 1781 . Liquors, 116 Mass. Dc wusasi Sesion eoee 1781 BRAD oi csdes ovis, ai siaie, cacolete 1804 James, 1 Pick. 375..1197, 1213 1227 Jeffries, 7 Allen, 548, 1405, 1406 G Com saad 44s 4 #8 s SS¢8 SSeS es sa.3 . Kimball, 105 Mass. 465.. . Kimball, 108 Mass, 478.. . King, 9 Cush. 284.. 1232, xevil Jenkins, 10 Gray, 485... Jenkins, Thach. C. C. 118, Jessup, 16 Pa. St. 34.... Johnson, 10 Allen, 196... Johnson, 4 Pa. L. J. R. Johnson, Thach. C. C. 284, Josselyn, 97 Mass. 411... Judd, 2 Mass. 337....... Kaas, 3 Brews. 422 Keefe, 9 Gray, 290 Keenan, 67 Pa. St. 203.. Keeper, etc., 1 Ashm. 140, Kelly, 12 Gray, 175 Kennedy, 108 Mass. 292... Kent, 6 Met. 221........ Kevill, 108 Mass. 422.... Kidder, 107 Mass. 188..: Killian, 109 Mass. 345... 1439 1776 1783 1810 1769 1776 1804 1830 1074 1781 1037 1133 1781 1780 1781 1674 1780 1752 1470 1540 1780 1715 1747 1257 1423 1780 1780 1032 1042 1719 1727 1805 Kingman, 14 Gray, 85... Kinsley, 108 Mass. 24... Kneeland, 20 Pick. 206.. Knight, 12 Mass. 274.... 1722, 1723, v. Knox, 6 Mass. 76........ v. Kuntzman, 41 Pa, St..429, 1851 v. Ladd, 15 Mass. 526, 1597, 1599 v. Lafferty, 6 Gratt, 672.... 1824 v. Lahey, 14 Gray, 91...... 1823 v. Lamb, 1 Gray, 493..1473, 1493 v. Lamere, 11 Gray, 319... 1781 v. Lampton, 4 Bibb, 261... 1790 vy. Lancaster, Thach. C. C. GOB Fd cia ccsibievagsusssib a sesaresae 1384 v. Landis, 8 Phila. 453..... A771 v. Langley, 14 Gray, 21.... 1770 v. Lawless, 101 Mass. 32... 1564 1625 v. Lawless, 103 Mass. 425.. 1161 . 1220 v. Leeds, 9 Phila. 569...... 1783 v. Leo, 110 Mass. 414...... 1780 v. Leonard, 9 Gray, 285.... 1781 v. Lewis, 4 Leigh, 664...... 1368 v. Lewis, 1 Met. 151....... = aioe vy. Lewis, 1 Va. Cas. 334.... 1798 v. Libbey, 11 Met. 64...... 1342 v. Lincoln, 11 Allen, 233.... 1403 AS SS A838 1406 1781 1504 1091 1619 1405, Lincoln, 9 Gray, 288.... Lindsay, 11 Cush. 415... Lindsey, 10 Mass. 153... Linton, 2 Va. Cas. 476.... Littlejohn, 15 Mass. 163.. 1808 Litton, 6 Gratt. 691...... 1728 Livermore, 4 Allen, 484.. 1781 xeviil Com. < Aidddddddddsddsadsasads a 4 444 4448444488 4 ads aa<4 ad TABLE OF CASES. Lodge, 2 Gratt. 579..... Logan, 12 Gray, 136..... . Loring, 8 Pick. 370...... Lovett, 6 Pa. L. J. 266... Low, Thach. C. C. 477... Lucas, 2 Allen, 170..... ‘ Luckis, 99 Mass. 481.... Lufkin, 7 Allen, 579..... Macklin, 9 Phila. 593.... Maddox, 2 Va. Cas. 19... Maguire, 108 Mass. 478.. Major, 3 Humph. 2038.... Maloney, 16 Gray, 20.... Manderfield, 8 Phila. 457. Manley, 12 Pick. 173.... Maroney, 105 Mass. 467. Marshall, 11 Pick. 350... . Martin, 17 Mass. 539.... Martin, 108 Mass. 29.... Mash, 7 Met. 472....... Mason, 12 Allen, 185.... . Mason, 116 Mass. 66..... . McCarty, 4 Pa. L. J. 136. . McClellan, 101 Mass. 34.. McCook, Dauphin Gen. McCulloch, 15 Mass. 227. . McCurdy, 109 Mass. 364. . McDonald, 5 Cush. 365... McDonough, 13 Allen, 581. McDowell, 1 Browne, 359. McDowell, Vaux Cas. 167. McGuire, 1 Va. Cas. 119. . McIvor, 117 Mass. 118... McKean, 98 Mass. 9.1575, . McKenney, 9 Gray, 114.. . McKisson, 8 S. & R. 420.- . McLaughlin, 11 Cush. 598. . McLaughlin, 105 Mass. 460s cacan sxeees . 1470, McLaughlin, 108 Mass. 4 McMonagal, 1 Mass. 517. . Mead, 10 Allen, 396...... . Melling, 14 Gray, 388.... Mergelt, 6 Pa. L. J. 228... . Merriam, 14 Pick. 518... Merrifield, 4 Met. 468.... Merrill, Thach. C. C.1.. . Messinger, 1 Bin. 273.... Miller, 3 Ash. 61. ..1862, . Milliman, 13 8. & R. 403. Mohn, 52 Pa. St. 243.... Monahan, 9 Gray, 119... . Monarch, 6 Bush. 298.... . Montgomery, 11 Met 534. . Mooar, Thach. C. C. 410, . Moore, 11 Cush. 600..... . Moore, 2 Dana, 402...... 1728 1780 1465 1772 1184 1190 1192 1549 1375 1798 1438 1752 1781 1777 1153 1780 1465 1309 1780 1811 1804 1781 1825 1470 1549 1665 1858 1780 1150 1753. 1148 1597 1794 1781 1602 1178 1220 1835 | 1144 1548 1780 1072 |: 1091 1781 1780 1772 1821 1338 1080 1179 1870 1760 | 1753 | 1757 | 1747 1800 | 1195 1380 1402 1787 1796 Com. v. Moorhouse, 1 Gray, 470. 1779 v. Morgan, 107 Mass. 199.. 1037 v. Morrill, 8 Cush. 571..... 1396 v. Morris, 1 Cush. 391...... 1821 vy. Morris, 1 Va. Cas. 176.... 1050 v. Morse, 2 Mass. 128...... 1411 vy. Morse, 14 Mass, 217.1153, 1154 v. Moseley, 2 Va. Cas, 154.. 1149 1157 1241 1061 1294 1780 1062 1780 1803 1808 1804 1405 1104 v Moulton, 9 Mass. 30...... Moulton, 108 Mass. 307.. Mowry, 11 Allen, 20..... Munn, 14 Gray, 364..... Murphy, 12 Allen, 449... Murphy, 10 Gray, 1..... Murray, 14 Gray, 397... Murtagh, Ashm. 272 .... Nagle, 17 Mass. 142..... Nason, 9 Gray, 125. .1403, Newell, 7 Mass. 245..1069, . Nichols, 10 Allen, 199 ... 1420 Nolan, 5 Cush. 288...... 1171 Norcross, 9 Mass. 492 ... 1821 . Norton, 11 Allen, 110.... 1345 1403, 1405, 1406 O’Brien, 12 Allen, 183... 1162 O’Brien, 2 Brews, 566.... 1161 O’Connell, 12 Allen, 451.. 1160 1221 1713 1823 1037 1778 1163 1798 1161 1190 1345 1781 1771 1801 1392 1569 1605 1753 1626 1852 1780 1578 1173 1072 Adddde44444844 S33 O’Connor, 7 Allen, 583... O’Connor, 107 Mass. 219. Odell, 3 Pittsb. 449...... Odlin, 23 Pick. 275.....« O’Donnell, 12 Allen, 451.. Offner, 2 Va. Cas. 17.... O’Hara, 10 Gray, 469.... O'Malley, 97 Mass. 584.. . O’Reilly, 116 Mass. 15... Parker, 4 Allen, 313..... . Parker, 11'7.Mass. 112... Parker, Thach. C. C. 24,. Parmenter, 5 Pick. 279.. Sass ass 44434 Patch, 97 Mass. 221..... Paulus, 11 Gray, 305.... Pease, 16 Mass. 91..1370, Pease, 110 Mass. 412 .... Peck; 1 Met. 428...... on Peiffer, 9 Phila. 593..... . Pennock, 3S. & R. 199.. Percival, Thach. C. C. B08 assis oaisiaica, states cma Perdu, 2 Va, Cas. 227.... . Perigo, 2 Met. (Ky.) 5... . Perris, 108 Mass.1...... . Pickering, 8 Gratt. 628 .. . Pierce, 11 Gray, 447..... Pine, 2 Pa. L. J. R. 154.. . Pollard, 12 Met. 225..... iddd4e¢4 1613 1712 1800 1074 1728 1823 1159 1728 1746 Pollard, Thach. C. C. 280. 1774 Posey, 4 Call. 109...1472, 1487 v. Poulson, 4 Pa. L. J.R.30. 1404 444e4e4 as Com. v. . Pray, 13 Pick. 359..1769, . Price, 8 Leigh, 757...... . Price, 10 Gray, 472. .1575, dddde4 46 445 44455 48 < adds 44 43 i444 . Prius, 9 Gray, 127 - Quinn, 12 Gray, 178..... . Rand, 7 Met. 475........ . Ray, 3 Gray, 441... . Rear.lon, 6 Cush. 78..... Sadsdan AdsAd444444444 TABLE OF CASES. Powers, 116 Mass. 337... 1820, . Reickart, 108 Mass. 482.. . Reily, 9 Gray, 1 . Richards, 1 Va. Cas.1... Riggs, 14 Gray, 376..... Robinson, Thach. C. C. Rogers, 1 Serg. 124..... . Roland, 12 Gray, 132.... . Rowe, 14 Gray, 47 Ruff, 9 Watts, 114. ...... . Ruggles, 10 Mass. 391... Rumford Chem. Works, 269.......... 1031, 1047, Sankey, 22 Pa. St. 390... Saunders, 5 Leigh, 751 .. Savary, 101 Mass. 207... . Savory, 10 Cush, 535.... Sawtelle, 11 Cush. 142... Searle, 2 Bin. 232...1605, Sharpless, 2 8. & R. 91.. Shaver, 3S. & W. 388... Shaw, 4 Allen, 308..1190, Shaw, 7 Met. 52 ........ Shea, 14 Gray, 386 ..1780, Shed, 1 Mass. 227....... Sheehan, 105 Mass. 174.. Sheriff, etc., 1 Leg. Gaz. fs Sherman, 105 Mass. 169.. . Shirk, Lancaster Co. 1845. i Shissler, 9 Phila. 587.... Shouse, 16 B. Mon. BOD od wav sed 645s DERE Sigman, 2 Pa. Tide Be 36, Simonds, 11 Gray, 306.. . Simonds, 14 Gray, 59.... . Simpson, 9 Met. 138..... 11 . Slack, 19 Pick. 304...... . Smith, 2 Allen, 517.. 1781 1771 1787 1797 1601 1606 1837 1781 1178 1629 1819 1822 1780 1780 1072 1789 1220 1179. 1135 1781 1780 1368 1762 16 Gray, 231 ....... 0.6. 1756 . Runnels, 10 Mass. 518... 1697 1699 Rush, 14 Pa. St. 186..... 1760 Ryan, 9 Gray, 187 ...... 1781 Ryan, 108 Mass. 415..... 1780 Sampson, 97 Mass. 407.. 1804 Sandborn, 116 Mass. 61.. 1781 Sanders, 14 Gray, 394... 1345 Sanderson, 3 Pa. L. J. 1057 1604 1789 1159 1436 1147 1625 1034 1665 1191 1850 1781 1370 1780 1833 1162 1624 1576 1794 1806 1575 1606 1575 1141 1337 1465 1510 Com. v. Smith, 11 Allen, 243..... 1716 1736 v. Smith, 6 Bush. 303...... 1783 vy. Smith, 6 Cush. 80....... 1766 v. Smith, 1 Gratt. 553. caterers 1778 v. Smith, 1 Mass. 245...... 1150 v. Smith, 102 Mass. 144.... 1780 v. Smith, 111 Mass. 429.... 1191 v. Smith, 116 Mass. 40..... 1162 v. Smith, 1 Pa. L. J. R. 400, 1189 v. Smith, 7 Pick. 187..1570, 1624 v. Snell, 3 Mass. 82........ 1578 v. Snelling, 4 Bin. 379...... 1290 v. Snelling, 15 Pick. 321.... 1039 1049 v. ensllng: Thach. C. C. LBs o sosrscs serena 1039, 1044 v. Snow, 14 Gray, 20 ...... 1780 v. Soule, 9 Gray, 304...... 1549 v. Soule, 2 Met. 21 ........ 1561 vy. Speer, 2 Va. Cas. 65..... 1410 v. Squire, 1 Met. 258 ...... 1479 v. Stacey, 1 Leg. Gaz. R.114, 1037 v. Stahl, 7 Allen, 304 ...... 1800 v. Starr, 4 Allen, 301 ...... 1601 v. State, 11 Gray, 60....... 1489 v. Stearns, 2 Met. 343...... 1343 vy. Stearns, 10 Met. 256 .... 1612 ad ss 4 < << addasds2 . Stephenson, 11 Cush. 481, . Stephenson, 3 Met. (Ky.) 1 . Stephenson, 8 Pick. 354, Adds44444 3 . Sullivan, 107 Mass. 218.. . Taggert, 3 Brews. 340... . Tarbox, 1 Cush. 66...... . Taylor, 5 Cush, 605..... . Thomas, 10 Gray, 483... Stephens, 4 Pick. 370.... Stevers, 1 Mass. 203... z Bieword, x Dane’s Abr. 1078, nee meee ceeeee 5 oe 18. & R. 342.. 1768 Stoeter, 109 Mass. 365... Stone, 4 Met. 43... 1378, Stow, 1 Mass. 54........ Stowell, 9 Met. 572...... Strain, 10 Met. 521...... Streepney, 105 Mass. 588, Sullivan, 5 Allen, 511.... Sullivan, 104 Mass. 552.. . Superintendent, etc., 9 Phila. 581 Talbot, 2 Allen, 161..... 1 Taylor, 14 Gray, 26, 1781, Taylor, 105 Mass. 172... Temple, 14 Gray, 69 .... Terry, 2 Va. Cas. 77 .... Thacher, 97 Mass. 583... 1575 1606, 162€ e TABLE OF CASES. Com. v. Thompson, 6 Allen, 591.. v. Thompson, 11 Allen, 28.. Thompson, 2 Cush. 551.. Thompson, 9 Gray, 108.. Thompson, 2 P. L. J. 250, Thornton, 14 Gray, 41... Thrasher, 11 Gray, 450.. Thurlow, 24 Pick. 374... Tibbetts, 2 Mass. 538.... Tierman, 4 Gratt. 545... Tinkham, 14 Gray, 12... . Titus, 116 Mass. 42 ..... . Tobin, 2 Brews. 570..... a3 S39 Sa SS Sa Traverse, 11 Allen, 260.. Trickey, 13 Allen, 559... Trimmer, 1 Mass. 476. 1153, . Tuck, 20 Pick. 356..1091, . Tucker, 110 Mass. 403... . Tucker, 2 Pick. 44...... . Tuckerman, 10 Gray, 173, . Uprichard, 3 Gray, 434, . Vandine, 6 Gratt. 689.... Van Schaack, 16 Mass. NOB: giscias scien sie xehdres! areca . Vansickle, 1 Bright. 69.. ss . Van Stone, 97 Mass. 548. . Varney, 10 Cush. 402.... << 4 d4e4e04 Very, 12 Gray, 124...... Viall, 2 Allen, 512....... Wade, 17 Pick. 395...... Waite, 11 Allen, 264..... Waite, 5 Mass. 261...... Walden, 3 Cush. 558.... Walker, 108 Mass. 309... Wallace, 16 Gray, 221... . Wallace, Thach. C. C. 592, Walton, 16 Allen, 238.... Ward, 2 Mass. 397...... Warden, 11 Met. 406.... . Warren, 6 Mass. 72, 1383, 1388, 1413, 1419, Warren, 11 Met. 406.... Waters, 11 Gray, 81..... Watson, 2 Duy. 408..... Watson, 109 Mass. 354... Webb, 6 Rand. 726...... Welch, 97 Mass. 593..... Weld, Thach. C. C. 157.. Wellington, 7 Allen, 299. Welsh, 110 Mass. 357.... Wentworth, Brigit, 318.. Wentz, 1 Ashm. 269..... Whalen, 16 Gray, 28.... Whaley, 6 Bush. 266.... Whitcomb, 12 Gray, 126, Whitcomb, 107 Mass. 486, y. White, 11 Cush. 483..... v. White, 15 Gray, 407..... v. White, 8 Pick. 453...... ddee444445484 SSSHs SS ASA AAS ss 1823 1823 1820 1074 1106 1392 1781 1828 1778 1830 1793 1781 1191 1189 1192 1781 1804 1079 1156 1164 1474 1752 1345 1142 1789 1476 1752 1755 178) 1039 1045 1781 1781 1482 1420 1578 1469 1837 1837 1850 1781 1669 17438 1384 1830 1725 1780 1799 1294 1755 1780 1183 1509 1780 1760 1819 1781 1809 1781 1402 1141 1781 1742 Com. v. Whitemarch, 4 Pick. 238, 1571 ‘y. Whitmarsh, Thach. C. C. AA isccceren sreccist saya seize 1028, 1038 v. Whitney, 11 Cush. 477... 1785 v. Whitney, Thach. C. C. O88 x tases c: waiee, vers 1584, 1600 v. Wilde, 5 Gray, 83... 1213, 1424 v. Wilgas, 4 Pick. 177. .1383, 1401 v. Williams, 4 Allen, 587... 1780 v. Williams, 2 Cush. 582... 1072 1073, 1101, 1104, 1172 v. Williams, 3 Gray, 461... 1429 v. Williams, 110 Mass. 401.. 1471. 1510 y. Williams, 1 Va. Cas. 14.. 1156 v. Willis, 14S. & R. 398.... 1802 v. Wilson, 2 Cush. 590..... 1105 v. Wilson, 9 Leigh, 648 .... 1789 v. Wise, 110 Mass.18...... 1770 v. Wolfe, 28. & R. 48. . 1805 . Wood, 97 Mass. 225..... 1769 . Wood, 111 Mass. 409.... 1549 . Woodrun, 4 Pa. L. J. R. DOT ise savaveie, ce: siesersha se eusiee aes 1404 . Woods, 9 Gray, 131..... 1780 . Woods, 10 Gray, 477.... 1601 ‘ 1606, 1626 . Woodside, 105 Mass. 594, 1344 . Work, 3 Pittsb. 493 ..... 1564 . Wright, 12 Allen, 187... 1804 . Wright, 1 Cush. 46.. 1028, 1030 1088 . Wright, Thach. C. C. 211, 1761 . Young, 9 Gray, 5....... 1345 Compher v. State, 18 Ind. 447.... 1782 Conkwright v. People, 35 Ill. 204. 1219 Conley v. State, 5 W.Va. 522...... 1783 Connell v. State,46 Ind.446...... 1782 Conner vy. Com., 2 Va. Cas. 80... 1720 1728, 1742 v. State, 14 Mo. 561...... 1071 Constable v. Steibel, 1 Hagg.56.. 1583- Conyers v. State, 50 Geo. 108..... 1801 Coogan’s case, 2 Hast P. C. 948... 13 163! Cook v. People, 2 T. & C. 404.... 1827 v. State, 11 Geo. 53....1806, 1827 v. State, 49 Miss. 8........ 1172 Cool v. State, 16 Ind. 355........ 1782 Coolidge v. Choate, 11 Met. 79.... 1788 Coon v. State, 138. & M. 246.... 1213 1236 Cooper v. Greeley, 1 Denio, 347.. 1029 v. Stone, 24 Wend. 434.... 1029 Coppack v. State, 86 Ind. 518.... 1715 1734 Corless v. Anthony, 4 Johns. 198. 1136 Cornwall’s case, 2 Str. 881...1081, 1083 Cothran v. State, 39 Miss. 541.... 1716 Cotterill v. Myrick, 8 Fairf. 280.. 1582 adds <4 sd sd Counts v. State, 87 Tex. 593...... 1172 Cousin’s case, 2 Leigh, 708. ...... 1141 Covery v. State, 4 Port. 186...... 1792 ° Coward v. Wellington, 7 C. & P.531, 1053 TABLE OF CASES. Cowen v. People, 14 Ill. 348.1377, Cox v. State, 3 Blackf. 193....... Cramer v. Riggs, 17 Wend. 209.. Crandall vy. People, 2 Lans. 309.. Crane v. State, 3 Ind. 193 Craven’s case, Lancaster 8S. A. TSOD sits v iccctataeman os mndea meen Crawford v. State, 44 Ala. 398.... v. State, 2 Carter, 182.. Crews v. State, 3 Coldw. 350..... vy. State, 38 Ind. 28....... Crilley v. State, 20 Wisc. 231..... Crisp v. Walpole, 2 Hagg. 201.... Crockett v. State, 33 Ind. 416.... Crofts v. People, 2 Scam. 442... : Crogan v. State, 22 Wisc. 444.. Croker v. State, 47 Ala. 58... .... Papmpuan ¥: Bearcroft, Beel N. P. Gace v. People, 47 Ill. 152. .1564, : 1601, Crouse v. State, 16 Ark. 566..... Crousillat v. Ball, 4 Dall. 294.. Crow’s case, 1 Lew. 88. Crozier v. People, 1 Park. 454. Cruiser v. State, 3 Harr. 206 . Culbertson v. Martin, 2 Yeates, AAS om ie cia Scie sfaicince as wo aieisfesk dossiadisis Culp v. State, 1 Port. 33....1148, Cummings v. Com., 2 Va. Cas, 128... - 1178, v. re 1 ‘Harr. & J. BAO S Sees Bee: aes Cunningham v. State, 49 Miss. 685. 1574, vy. State, 5 W. Va. Curry v. Walter, 1 B. & P. 523.. Curtis v. Hubbard, 1 Hill, 238... v. People, Breese, 197. v. State, 6 Coldw. 9 Cuscadden’s case, 2 C. H. Rec. 53.. Cutler v. State, 36 N. J. L.125... D. Denes v. Dalrymple, 2 Hage. i ie State, 1 How. (Miss. ) DOD ss iaieiat sossietsides 1144, 1148, une ‘Dana v. State, 2 Ohio St. 91...... Danville, etc., R. R. v. Com., 73 Pai St; D9 sind: wiewiarsieeinaacinece Dashler v. Dodge, 16 How. 622.. Davenport v. State, 38 Geo. 184... Davies’ case, 2 East P. C. 709.. Davis v. Com., 17 Gratt. 617..... i v. People, 1 Park. Cr. 447.. y. Sharron, 15 B. Mon. 64.. y. State, 17 Ala. 415....... 1395 1763 1028 1030 1826 1827 1770 1147 1047 1148 1294 1777 1219 1583 1804 - 1625 -. 1826 1158 1815 1575 1625 1821 . 1857 . 1351 . 1825 1129 1665 1178 1242 1142 1564 1606 1783 1052 . 1078 1163 1219 1788 1375 1178 1567 ci Davis v. State, 3 Coldw. 77...... 1070 1074, 1107 v. State, 40 Geo. 229...... 1159 v. State, 7 Ham. 204...... 1795 v. State, 19 Ohio St. 217... 1106 v. State, 40 Tex. 134...... 1160 Dawson’s case, 1 Str. 19......... 1595 Dawson v. State, 16 Ind. 428..... 12, Deakin’s case, 1 Sid. 142........ 162) Deane v. State, Mast. & Yerg. 127. 1794 De Bow v. People, 1 Denio, 9.... Deck v. State, 47 Ind. 245...... ‘ De Frese v. State, 3 Heisk. 53.... De Gaultie vy. State, 31 Tex. 32... Delaney v. Jones, 4 Esp. 191..... v. People, 10 Mich. 241.. v. State, 41 Tex. 601..... Delaware, etc., Canal Co. v. Com., 60 Pa. St. 867........ eee 1753, 1757 Delegal v. Higley, 3B. N. C.950.. 1053 Den v. Johnson, 3 Har, 87........ 1830 Denbow v. State, 18 Ohio, 11..... 1511 Dennis v. People, 27 Mich. 151... 1069 v. People, 1 Park.Cr. 469.. 1586 Deshazo v. State, 4 Humph. 275.. 1849 Deveny v. State. 47 Ind. 208. ... 1782 Devoe v. Com., 3 Met. 316...1072, 1091 Devolo v.Com., 3 Metc, (Ky.) 417.. 1439 Dexter v. Spear, 4 Mason, 115.... 1028 Dibbin v. Swan, 1 Esp. 28....... 1053 Dillingham v. State, 5 Ohio St DBO. nisin: sieceey co singin: eke bei 1386 1388 Dillon v. People, 1 Hun, 670...... 1218 Dingley’s case, 2 Leach, 840....., 1104 Dinkey v. Com., Phil. Dec. 1852.. 1825 Dishon v. Smith, 10 Iowa, 212.... 1666 Dixon’s case, 2 Lew. 178. v.00. vs | 1587 Dixon v. People, 18 Mich. 84..... 1810 Doan v. State, 26 Ind. 495.. 1074, 1107 Dobb’s case, 2 East P. C. 573. 1108 Dodd v. Hamilton, 2 Tayl. 31 . 1182 Dodge v. State, 4 Zab. 455 . .1733, 1746 1748 Doe v. Suckermore, 1 Nev. & P. Oca waierone ae Sere sakes sa ueenace Donally’s case, 2 East P. C. 16... 1 Leach, 196...... Donohoo v. State, 36 Ala. 281 .... Donolly’s case, 2 East P. C. 718 .. Dord v. People, 9 Barb. 671...... Dormer v. State, 2 Carter, 308... Dorsett’s case, 5 C. H. Rec. 77... Doss v. Com., 1 Gratt. 557...... A Doty v. State, 6 Blackf. 529...... Dougherty v. People, 4 Scam. 179.. vy. State, 20 Ind. 442.. Douglas v. State, 4 Wisc. 387 .... Dowdy v. Com., 9 Gratt. 727 Downey v. State, 20 Ind. 82...... Doyle v. Comm’r, etc., 12 G. & J. IBA veissary srsiday wizahen nists) whe ae epee cli Drake vy. State, 19 Ohio St. 211... 1575, Dreux v. Domec, 18 Cal. 88..... - Drew v. State, 5 Eng. 82 ........ Dubois v. Miller, 5 Hun, 332..... Ducher v. State, 18 Ohio, 308.... Dudney v. State, 22 Ark. 251.... Dull vy. Com., 25 Gratt. 965 Duncan v. Com., 6 Dana, 295.... v. Com., 48. & R. 449... v. State, 49 Miss. 331.... v. Thwaites, 3 B. & C. DBF wat’ cesar. ti 1047, Dunlap v. Curtis, 10 Mass. 210... v. Waldo, 6 N. H. 450.... Dunn’s case, 2 East P. C. 962.... v. People, 40 Ill. 465..... Durant v. People, 13 Mich. 351... Durham v. People, 4 Scam. 172.. E, Earhart v. Com., 9 Leigh, 671.... Eastman v. Com., 4 Gray, 416.... Eckels v. State, 20 Ohio St. 508. Eckhart v. State, 5 W. Va. 515... Edge v. Com., 7 Barr. 275...... : Edsall’s case, 2 East P. C. 19.... Edwards v. State; 49 Ala. 334.. Effinger v. State, 47 Ind. 235 .... Elkin vy. People, 28 N. Y. 177.... Elkins y. State, 2 Humph. 543.... Elsberry v. State, 41 Tex. 158.. Elsmore v. Hundred, etc., 8 B. & C. 461...... soa Elsner v. State, 30 Tex. “524.” Lah as fe Elsworth’s case, 2 East P. C.19.. Ely v. Niagara Co., 36 N. Y. 297. Emory v. State, 6 Blackf. 106.... Empson vy. Bathurst, Hutt. 52.... Enders v. People, 20 Mich. 283... Engleman y. State, 2 Carter, 91.. Ennis v. State, 3 Iowa, 67 Entick v. Carrington, 2 Wils. 275. Epperson v. State, 42 Tex. 79.. Erskine’s case, 8 Gratt. 624 ..1483, Erwin v. Stafford, 45 Vt. 390... Eslava v. State, 44 Ala. 406...... Estes v. State, 10 Tex. 300....... Eubank v. State, 3 Heisk. 488.... Eubanks v. State, 5 Mis. 450..... Evans v. State, 24 Ohio St. 458... Everendon v. Beaumont, 7 Mass. 7 Everett v. State, 6 Ind. 495...... Evins v. State, 46 Ala. 88........ F. Fagan v. State, 21 Ark. 390...... 1564 1625 1834 1795 1783 1098 1801 1160 1710 1821 1470 1548 1053 1370 1742 1592 1777 1439 1573 1102 | 1149 -- 1192 1783 1368 1568 - 1406 , 1782 1716 1837 1752 1761 1801 1479 1804 1595 1769 1374 1369 1404 1405 1148 1164 1230 1035 1406 1511 1780 1717 1796 1799 | 1793 1476 1860 1700 1713 1779 TABLE OF CASES. Fairchild v. Case, 24 Wend. 381.. 1863 Fairman vy. Ives, 5 B. & A. 642... 1054 Hellen v. Feeple, 2 Abb. App. Dec. ‘ . 1162, 1172 mk v. Watson, 5 Bush, 660. 1783 Farbach y. State, 24 Ind. 77 ..... 1782 Farmer vy. Com., 8 Leigh, 741.... 1789 Farmers Bank y. Whitehill, 10 S. &R.110.. 1583 Farr’s case, Kel. 43... 1094, ‘1098, 1185 Farrell v. People, 16 IL. 506s... 1203 v. State, 45 Ind. 871..... 1782 Fassett v. Smith, 23 N. Y. 252.... 1404 Faunce v. People, 51 Ill. 34.. 1439 Faut v. People, 45 Ill. 259....... 1782 Feibal v. Middlesex R. R., 109 Mass. 398) sacecs wesc vs oe ates 1804 Felter v. State, 9 Yerg. 397..1183, 1204 Felterer vy. State, 18 Ind. 388 . .. 1782 Fenn v. Grafton, 2 B. N. C. 617.. 1100 Fenton v. People, 4 Hill, 126 .... 1385 v. Reed, 4 Johns. 51..1808, 1811 Fergus v. State, 6 Yerg. 345..... 1424 Ferguson, Case of, 1 C. H. Rec. GO seus ee an Alexander, 56 Mo. 131.... . Alexander, 7 Rich. 5..... Alexander, 14 Rich. Law. 247.. aces Allen, i Hawks, fics cise Allen, 4 Hawks, 356...... Allen, 1 McCord, 525..... Allen, 2 McCord, 55....... Allen, 72 N.C. 114...... Allen, R. M. Charlt. 518.. . Allmond, 2 Houst. 612.... Alvey, 26 Tex. 155....... Almes, 10 Mis. 748....... Ammond, 16 Conn. 457... Ammons, 3 Murphy, 123.. Anderson, 34 Tex. 611.... Anders, 8 Ired. 15....... Andrews, 43 Mo. 470..... Anthony, 7 Iredell, 234 .. Antonio, 2 Const. 776.... Armstrong, 4 Minn. 335.. Arnold, 12 Iowa, 479..... Arnold, 39 Tex. 74....... Arnold, 55 Mo. 89........ . Atherton, 16 N. H. 203.. Atkins, 5 Blackf. 458..... Atkins, 42 Vt. 252........ Atkinson, 24 Vt. 448.. ... Avery, 7 Conn. 266..1038, Avery, 44 N. H. 392..... Aydelott, 7 Blackf. 157... Ayer, 3 Fost. 301....1072, Bacon, 7 Vt. 222..... ..+ Baggerly, 21 Tex. 757... Bailey, 10 Conn. R. 144.. Bailey, 1 Fost. N. H. 343. Bailey, 21 Maine, 62..1848, Bailey, 34 Min. 350...... Baker, 70 N. C. 530...... Baldwin, 1 Dev. & Bat. 195. Baldy, 17 Iowa, 39 Ball, 59 Mo: 821.4 cis a cas Ballard, 2 Murphey, 186.. . Bancroft, 10 N. H. 105... Banfield, 22 Mis. 461..... Banks, Phill. Law. 577... Barns, 25 Tex. 654....... Barnett, 3 Kans. 250..... Barr, 39 Conn. 41........ Barron, 37 Vt. 57 ... ...+ . Bartlett, 30 Maine, 132... ‘Bartlett, 11 Vt. 650...... Bartlett, 55 M. 200..1074, Bartlett, 47 M. 388....... Bartlett, 53 M. 446. ...... Bartlett, 43 Vt. 86.......- 1722 1742 | 1070 1074 1706 1549 1581 1712 1782 1051 1057 1775 1549 1147 1788 1801 1794 1742 1720 1161 1132 1801 1296 1010 1013 1823 1219 1511 1826 1674 1768 1551 1037 1750 1042 1549 1508 1154 1370 1405 1091 1766 1850 1716 1172. 1768 1828 1753 1569 1108 1794 1190 1800 1294 1780 1780 1829 1885 1142 1162 1779 1823 . 1780 sa geessssersessdiges sss Statev. SSS SSS S's ass Bates, 10 Conn. 372....... 1921 . Bates, 10 Mis. 166........ 1793 . Batson, 31 Mo. 348....... 1510: Bean, 21 Mis. 26%...... « 1787 Beatty, Phill. Law. 52.... 1439 Becker, 20 Iowa, 438..... 1782 Beebe, 17 Minn. 241...... 1158 Beeler, 1 Brev. 482...... 1870 Belcher, 1 McMullan, 40.. 1823 Bell, 5 Porter, 366....... 1782 . Bell, 29 Iowa, 316........ 1106 Bell, 65 N. C. 318........ 1161 Benham, 7 Conn, 414.... 1567 1573, 1805 Benjamin, 2 Oreg. 125.... 1784 Bennett, 2 Const. 693.... 1171 . Bennett, 14 Iowa, 479.... 1143 Bennett, 31 Iowa, 24..... 1823 . Benthal, 5 Hump. 519.... 1711 Berry, 21 Mis. 504....... 1836 Berry, 12 Iowa, 58....... 1763 Bess, 5 Coldw. 55...... «+ 1801 Binder, 38 M. 454 ...... . 1784 Bishop, 1 Chip. Vt. 120 .. 1783 Bishop, 8 Ired. 266....... 1790 . Bittinger, 55 Mo. 596 .... 1848 . Biebusch, 32 Min. 276.... 1736 Bielby, 21 Wis. 204...... 1784 Bishel, 39 Iowa 43....... 1799 Biting, 13 Iowa, 600 1800 Black, 9 Ired. 378........ 1790 Blackburn, 2 Coldw. 235.. 1799 Blair, 18 Rid. Law, 93... 1699 Blair, 41 Tex. 30 ........ 1801 . Blodgett, 1 Root, 534..... 1578 . Bloneen, 36 Wis. 308..... 1764 Board of Comm’rs, 45 Ind. BIG «swe: copes sees, 1782 v. Bobbitt, '70 N.C. 81..... 1716 v. Bogart, 36 Col. 245...... 1162 v. Bond, 38 Mo. 425........ 1851 vy. Bonnell, 46 Mo. 395. .1404, 1405 v. Bonney, 34 Maine, 223... 1567 7 v. Bonwell, 2 Harr. 529..... 1194 vy. Boon, 13 Ivedell, 244..... 1078 . 1106 v. Bordeaux, 2 Jones, N. C. 241. 1183 ade2 é ‘ in4s42 Vv. Vv. - Bosse, 8 Rich. “976. 1473, 1498 Bougher, 3 Blackf. 309... 1795 . Bowers, 17 Iowa, 46..... 1220 . Bowles, 3 Heisk. 29.,.... 1715 1735, 1747 Bowman, 6 Vé. 594...1670, 1671 1673 Boyes, 1 McMullan, 191.. 1163 Boyett, 10 Ired. 336...... 1848 Boyington, 57 M.572..... 1857 . Braden, 2 Ten. 68....... 1204 Brady, 27 Iowa, 126..... 1219 . Brady, 45 Conn. 588...... 1780 Bradley, 1 Hay. 408..... 1743 Brady, 14 Vt. 353. -1078, 1109 TABLE OF CASES. State v. Brannen, 55 Mo. 63...... 1295 vy. Brannen, 8 Jones. Law, DOB wisracsia wisierivn shepacatoute sees 1799 v. Brant, 14 Iowa, 180...... *1510 v. Bray, 13 Ived. 289. ...... 1808 v. Brazil, 1 Rice, 257..1699, 1704 v. Brewster, 7 Vt. 118...... 1194 v. Brice, 2 Brev. 66........ 1790 v. Briggs, 34 Vt. 501...1565, 1575 1626 vy. Bristow, 41 Tex. 146..... 1801 yv. Britton, 4 McCord, 255... 1808 v. Brocher, 32 Tex. 611..... 1470 1548 v. Broderick, 59 Mo. 318.... 1294 v. Brooks, 4 Conn, 446...... 1091 -v. Brooks, 1 Hill’s South Car. BOL vesiswaecsagcs acini 1708, 1897 v. Brooks, 42 Tex. 63....... 1346 v. Brooksbank, 6 Ired. 73.. 1705 vy. Brosius, 39 Mo. 534...... 1784 vy. Brown, 16 Conn. 54...... 1850 v. Brown, 1 Dev. 187.. « 1145 v. Brown, 1 Hayw. 100...... 1142 v. Brown, 25 Iowa, 561..... 1192 1219 y. Brown, 8 Jones’ Law. 443. 1160 v. Brown, 2 Oreg. 221...... 1675 v. Brown, 12 Minn. 490..... 1375 v. Brown, 8 Nev. 208....... 1143 v. Brown, 36 Vt. 540....... 1780 v. Brownlaw, 7 Humph. 63.. 1838 vy. Brun, 34 Mo. 587........ 1219 v. Brunell, 29 Wis. 435..... 1769 v. Brunson, 2 Bailey, 149... 1819 v. Brayant, 9 Pick. 118..... 1141 v. Brayant, 17 N. H. 823... 1565 1575 v. Buchanan, 5 Har. & John. 317.. 1830 v. ‘Buckley. “40 Conn. 846... 1780 v. Buckley, 12 Kler. 358.... 1226 vy. Buckner, Phill. Law, 558. 1764 v. Bullard, 16 N. H. 139.... 1220 v. Bullard, 72 N. C. 445.... 1511 v. Bullinger, 54 Mo. 142.... 1828 vy. Bullion, 42 Tex. 77....... 1801 v. Buntin, 2 Nott & McCord, BA 4 eices wer acaten «ari aire ats 1171 v. Burgett, 22 Ark. 323..... 1825 v. Burnham, 9 N. Hamp. BAG oc icioianisiastsciioasaget ayeceis 1038, 1050 v. Burnham, 15 N. H. 396.. 1829 v. Burrows, 11 Iredell, 477.. 1376 1385 vy. Burt, 64 N. C. 619. ...... 1190 v. Burtis, 4 Dev. & Batt. 222. 1131 v. Burton, 25 Tex. 420 1800 vy. Burton, 3 Ind. 93........ 1375 v. Bush, 29 Ind. 110........ 1511 v. Butler, C. & N.331...... 1129 v. Butler, 1 Tayl. 262...... 1136 y. Butler, 65 N. C. 309. .... 1189 v. -. 1037 ’Butman, 15 La. An. 166 State v. v. v. . Caldwell, 2 Jones’ N. C. ce a a See SS 33-35 AaSa8 335 3 s oasassa oaa4 sdss4483 Vv. Vv. -Clark, 5 Dutch, 96. . Clark, 42 Vt. 629 Call, 148 N. H. 126..1404, Cagle, 2 Humph. 414.... Calder, 2 McCord, 462... 408. Fi ae 3 Heisk. 78.. aoe T. W. P. Charlit. VOG a wis, 05-5 Siteistaiese? Bieioiett s Candler, 3 Hawks, 393.. Cantield, 5 Iredell, 207. .. rire 19 New Hamp. tes 18 Iowa, 372. .... Canton, 43 Mo. 48........ Carabin, 33 Tex. 697..... Cargill, 2 Brey. 445...... Carland, 5 Dev.114...... Carpenter, 20 Vt. 9...... Carpenter, 20 Ind. 219.... Carow, 49 M. 588........ Carr, 5 N. H. 367. ..1567, Carr, 13 Vt. 571..... 1216, Carrier, 5 Day, 131...... Carro, 26 La, An, 377.04. Carson, 59 M. 137........ Carter, 7 Humph. 158.... Carter, 72 N.C. 99...... Carter, 36 Tex. 89. Cason, 20 La. An. 48 Cassados, 1 Nott & ae. 1178 Cassele, 2 Har. & Gill. 407. Casteel, 53 Mo. 124...... Caster, 35 Iowa, 221..... Cawood, 2 Stew. 360..... Chace, Walk. 384.... Chambers, 6 Ala. 855.... . Chambers, 2 Greene’s, 308. a 2 Harrington, Cae 44 Vt. 446..... Cherry, 63 N. C. 498. .... Church, 4 W. Va. 745.... Chitty, 1 Bailey S. C.379. Chunn, 19 Mis. 233 Clavk, 54 Mo. 17......... Clark, 54 N. H. 456...... Clark, 2 Brevard, 386.... Clark, 8 Iredell, 226..1145, . Clark, 82 N. H. 329 v. Clark, 4 Strobh. 311.1194, Clark, 2 Tyler, 282 Clarke, 3 Harr. 557...... 1081, exxvii 1405 1406 1767 1789 ‘1704 1898 1133 1588 1344 1547 1581 1134 1135 1092 1826 1784 1161 1135 1726 1750 1782 1163 1579 1624 1218 1091 “1295 1716 1778 1221 1713 1160 1179 1148 1178 1160 1752 1830 1039 1183 1144 1033 1736 1475 1783 1857 1859 1385 1509 1070 1769 1823 1819 1146 1775 1196 1742 1848 Cxxviil Btate v. Clements, 1 Speers, 48 ... 1819 y. Clewland, 6 Nev. 181.... 1564 1574, 1600 vy. Clifton, 24 Mis. 376..... . 1547 v. Close, 35 Iowa, 570..1752, 1756 v. Clotter, 33 Ind. 409...... 1782 y. Corkfield, 15 Rich. Law, SIG mowsataae wane arse wee- 1160 v. Cochran, 2 Dev. 63 ...... 1614 vy. Cody, 1 Wins. No. 1, 197. 1071 1107 v. Coffey, N. C. Term, 272.. 1723 1724 v. Cofrew, 48 Mo. 364 ...... 1779 v. Coggswell, 3 Blackf. 55 .. 1372 v. Cohen, 35 Md. 263....... 1783 v. Cohn, 9 Nev. 179........ 1475 v. Cohoon, 12 Ived. 178..... 1848 | v. Cole, 2 McCord, 117...... 1897 y. Cole, 19 Wisc: 120...1601, 1606 v. Collins, 3 Hawks. 191.... 1672 1673 v. Collins, 1 McCord, 355.... 1779 v. Collins, 48 Mo. 217...... 1779 v. Collins, 72 N. C. 144..... 1221 v. Collins, 11 Iowa, 141..... 1782 vy. Collins, 38 Tex. 189...... 1763 y. Cotter, 6 R. 1. 195....... 1070 1074 v. Combs, 55 Mo. 477....... 1192 v. Commissioners, Riley, 146. 1752 v. Commissioners, etc., for pL a ass SSSSS3 88958348 S Charleston Neck., 3 Hill Si: Ri 149) occ cone sxe Connelly, 63.Mo. 212..... 1779 Connolly, 3 Rich. 337..... 1697 Connor, 5 Coldw. 311 .... 1162 Conway, 18 Mis. 321..... 1235 Cook, 20 La. An. 145..... 1294 Coon, 18 Minn. 519...... - 1172 Cooper, 5 Day’s, 250..... 1824 Cooper, 16 Verm. 551.... 1104 1818, 1819 Cooster, 10 Towa, 453.... 1799 1800, 1801 Copperberg, 2 Strob."273, 1435 Corbett, 1 Jones’ N.C. 264, 1377 Court of Com. Pleas, 36 Nei, Vis WDissccere, cease Bate 1783 Covington, 2 Bailey, 569. 1180 Covington, 70 N. C. 71... 1510 Cowan, 7 Iredell, 239.... 1295 Cowell, 4 Ived. 231 ...... 1824 Craig, 23 Ind. 185....... Tice Crank, 2 Bailey, 66...... 1163 Crawford, 34 Iowa, 40... 1826 Cr enshaw, 22 Mis. “457... - 1547 Creson, 38 Mo. 372°...... 1219 Crocker, 3 Harrington, 554, 1109 Crowell, 25 Maine, 171... 1779 Cr owder, 39 Tex. 47..... 1801 Crowley, 37 Mo. 369..... 1784 Crowly, 18 Ala. 172...... 1821 Crummey, 17 Minn, 72... 1800 1760 State v. Cummings, 33 Conn. 260. 1143 1190 vy. Cunningham, 21 Iowa, 433. 1162 v. Curley, 33 Iowa, 359..... 1782° v. Currier, 23 Maine, 45.... 1797 v..Curtis, 3 Dev. & Batt. 222. 1132 vy. Custer, 65 N. C. 339..... 1803 v. Cutting, 3 Oreg. 260...... 1784 v. Dalton, 2 Murph. 379.... 1571 v. Dandy, 1 Brev. 395...... 1853 v. Daniels, 32 Mo. 558..1163, 1173 v. Dark, 8 Blackf. 526...... 1564 v. Darnal, 1 Humph. 290... 1849 v. Daubert, 42 Mo. 242..... 1221 : . 1439 vy. Davidson, 38 Mo, 374.... 1294 1295 v. Davis, 2 Ired. 153. ......°1548 v. Davis, 3 McCord, 187 ... 1171 v. Davis, 22 La. An. 77..... 1191 v. Davis, 20 La. An. 354.... 1801 v. Davis, 69 N. C. 318...... 1600 v. Davis, 69 N. C. 495..1715, 1785 v. Davis, 69 N. C. 388...... 1715 . ° 1735, 1747 v. Dayton, 3 Zab. 49....... 1748 v. Dean, 3 Jones, 393....... 1856 v. De Bruhl, 10 Rich. 23,... 1498 v. Deffenbacker, 51 Mo. 26. 1470 1548 v. Delyon, 1 Bay. 383..1418, 1410 v. Dennett, 19 La. An. 395.. 1565 1602 v. Dent, 1 Rich. 469...1790, 1798 v. Devitt, 2 Hill’s 8. C. 282.. 1829: v. De Witt, 32 Mo. 571..... 1220 yv. Dibble, 4 Jones, 107...... 1762 v. Dickens, 1 Hay. 406...... 1373 v. Dillard, 5 Blackf. 365.... 1899 y, Dingee, 17 Iowa, 232 .... 1823 v, Divoll, 44 N. H. 140..... 1736 v. Dobson, 3 Har. 563...... 1242 v. Doherty, 25 La. An. 119.. 1343 v. Doig, 2 Rich. 179..;..... 1469 v. Dole, 3 Blackf. 294 ...... 1795 v. Donaldson, 3 Vroom, 151. 1834 v. Donnigar, 34 Mo. 67..... 1190 1220 v. Doon, R. M. Charlt.1.... 1792 v. Dorr, 33 Maine, 498 ..... 1378 v. Douglass, 5 Shepl. 193. vee 1141 v. Dourden, 2 Dev. 448..... 1571 1572 v. Dowell, 3 Gill. & John. 310. 1145 v. Dowe, 27 Iowa, 273...... 1405 v. Downes, 21 Wis. 274..... 1784 v. Dozier, Dudley Geo. 155. 1401 v. Dr ake, 1 Wins. No. 1, 241. 1511 v. Drischel, 26 Ind. 154... -. 1782 v. Due, 7 Fost. 256......... 1149 v. Duhammel, 2 Har. 532... 1852 v. Duke, 42 Tex. 455....... 1718 v. Dunhan, 34 Tex. 675.... 1161 Vv. TABLE OF CASES. Dunlop, 24 Maine, 77.... 1896 State v. Dunnavant, 3 Brevard, 9. 1146 : : 1493 v. Dunn, 36 Ark. 24........ 1823 v. Dwyre, 2 Hill’s 8. C. 287. 1153 1156 v. Dyer, 41 Tex. 520.... .... 1405 v. Early, 3 Harr. 562 ...... 1750 v. Eaton, 3 Harr. 554..1073, 1104 v. Ebert, 40 Mo. 186..,.... 1799 v. Edwards, 36 Mo. 394.... 1439 v. Edwards, 32 Miss, 548... 1806 y. Elder, 21 La. An. 157.... 1474 1475 v. Ellar, 1 Dev. 267........ 1788 y. Ellis, 33 N. J. &. 102 .... 1666 v. Ellis, 3 Conn. 185........ 1142 v. Ellison, 8 Blackf. 225.... 1722 1734 v. Emery, Brayt. 131....... 1148 v. England, 8 Jones’ Law, . B99 22 oeruiends wea wires . 1190 v. Eno, 8 Minn, 220........ 1173 v. Ensley, 10 Iowa, 149..... 1782 v. Enslow, 10 Iowa, 115..... 1549 v. Evans, 5 Ired. N. C. 603. 1786 1787 v.. Evans, 15 Rich. Law, 31.. 1160 v. Evers, 49 Mo. 542........ 1403 v. Fairclough, 29 Conn. 47.. 1190 y. Falford, Phill. Law, 563.. 1160 y. Fann, 65 N. C. 315 ...... 1189 vy. Fant and others, 2 Brev. BOT Se isinosace siavezicsiys essseokiite ave, 1795 y. Farley, 4 McCord, 317.... 1028 vy. Farrer, 38 Mo. 457 ...... 1294 vy. Farrow, 10 Rich. 165 .... 1720 1723, 1740 v. Farrow, Phill. Law, 161.. 1190 v. Fenley, 18 Miss. (3 Ben- <) except that, im describing an offence upon the high seas, the warrant states it to have been committed “on the high seas out of the body of any county of this realm, and within the jurisdiction of the Admiralty of England ;” and in describing an offence committed abroad, for which the offenders may be indicted in this country, the warrant states it to have been committed ‘on land out af the United Kingdom, to wit: at , in the Kingdom of . or ‘at , in the Eiast Indies,” or “in the island of , in the West Indies,” as the case may be.(c) The warrant is executed as in ordinary cases. (a) 11 & 12 Vict., c. 42, § 2. (b) Ante, p. 31. (c) Ibid., sched. E. bound to surrender up fugitive criminals from other countries, who have sought. a refuge in his dominions. 3 Co. Inst. 180. See, also, Commonwealth v. Deacon, 10 Serg. & Rawle, 125; 3 Story on Const. 675, 676; Rex v. Ball, 1 Amer. Jurist, 297. Case of Jose Ferreira Dos Santos, 2 Brock. 493. All writers upon the law of nations agree, that it is the right of every sovereign state to expel from its territory, or to surrender to another nation in amity with it, an offender against the laws of such friendly nation. No state is bound to harbor criminals within: its bosom, but may, at its option, surrender them to the government against whose laws they have offended. Whether any government is bound to make such surrender, upon the demand of the sovereign of another na- tion in amity with it, upon the principle of the comity of nations, is another ques- tion, upon which jurists and courts are not agreed. Itis held, by some writers of high. authority upon the law of nations, that such duty does exist. Vattel, b. 2, ¢. 6, §76; 2 Burlam. 179, §§ 23, 27; Story’s Confl. of Laws, § 627. The obli- gation was recognized by Chancellor Kent, in the case of Washburn, a fugitive from Canada to the State of New York (4 Johns. Ch. R. 106); and also by the Supreme Court of Canada, in the case of Joseph Fisher, a fugitive from justice in the State of Vermont. Rex v. Ball, 1 Am. Jurist, 297. Other writers insist that the right, as between independent sovereign nations, to demand of each other fugitives from justice, does not exist independent of treaty obligations. Puffendorf and Martens do not consider it as a matter of right to require the surrender of criminals. Mr. Wheaton, in his Law of Nations, considers that no State is bound, unless by special compact, to deliver up persons, whether its own subjects or foreigners, charged with or convicted of crimes committed in another country; and such appears to be the weight of authority in this country. The United States government have never recognized the right, unless under treaty stipulations. Green, C.J., in The matter of William Fetter, 3 Zabriskie, 311, citing Com. v. Deacon, 10 Serg. & Rawle, 125; Case of Dos Santos, 2 Brock. 493; U.S. ». Davis, 2 Sumner, 486; Story on Confl. of Laws, § 626; Story’s Com. on Con. § 1802; Jefferson’s Letter to Washington, 7th Nov. 1791; Jefferson’s Letter to Genet, 1793, 1 Am. State Papers, 175; Story’s Letter to Gov. Everett, 6th June, 1835, cited in 2 Life of Story, 197; 1 Kent’s Com. 37, note c. When this proceeding is had under the comity of nations, it seems that the 116 APPREHENSION OF THE OFFENDER UNDER A WARRANT. Fugitives from justice. offender will be surrendered only when charged with crimes of great atrocity or deeply affecting the public safety. Matter of Clark, 9 Wend. 212. ’ The subject has been a matter of agreement between the government of the United States and several nations, and provision has been made for the mutual surrender of fugitive criminals. The following article is contained in the treaty between our government and Great Britain, made at Washington, the 9th of August, 1842: “Art. 10. It is agreed that the United States and her British Majesty shall, upon mutual requisition by them, or their minister, officers or authorities, respec- tively made, deliver up to justice all persons who, being charged with the crime of murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of either, shall seek an asylum, or be found within the territories of the other ; provided, that this shall only be done on such evidence of criminality as, according to the law of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had been there committed ; and the respective judges and other magistrates of the two governments shall have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person charged, that he may be brought before such judge or other magistrate, respectively, to the end that the evidence of crime may be heard and considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of the fugitive. The expenses of such appli- cation and delivery should be borne and defrayed by the party who makes the requisition, and receives the fugitive.” : The conyention for the surrender of criminals, between the United States of America and His Majesty, king of the French, concluded at Washington, the 9th of November, 1848, contains these articles : “Art. 1. It is agreed that the high contracting parties shall, on requisitions made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of crimes eaumerated in the next following article, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territory of the other ; provided, that this shall be dont only when the fact of the commission of the crime shall be so established as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension or commitment for trial, if the crime had been there committed. “Art. 2. Persons shall be so delivered up who shall be charged, according to the provisions of this convention, with any of the following crimes, to wit: murder (comprehending the crimes designated in the French penal code by the terms assassination, parricide, infanticide, and poisoning), or with an attempt to commit murder, or with rape, or with forgery, or with arson, or with embezzle- ment by public officers, when the same is punishable with infamous punishment. “Art. 3. On the part of the French government, the surrender shall be made only by authority of the keeper of the seals, or minister of justice; and on the part of the government of the United States, the surrender shall be made only by authority of the executive thereof. “Ait. 4, The expenses of any detention and delivery, effected in virtue of the preceding provisions, shall be borne and defrayed by the government in whose name the requisition shall have been made. “Art. 5. The provisions of the present convention shall not, be applied in any manner to the crimes enumerated in the second article committed anterior to the date thereof, nor to any crime or offence of a purely political character. “Art. 6. This convention shall continue in force until it shall be abrogated by the contracting parties, or one of them; but it shall not be abrogated except by mutual consent, unless the party desiring to abrogate it shall give six months’ previous notice of his intention to do so. “Additional Article. The crime of robbery, defining the same to be the felonious and forcible taking, from the person of another, of goods or money to any value, by violence, or putting him in fear; and the crime of burglary, detin- ing the same to be breaking and enteriug by night into a mansion-house of APPREHENSION OF THE OFFENDER UNDER A WARRANT. 117 Fugitives from justice. another, with the intent to commit felony ; and the corresponding crimes included under the French law in the words vol, qualifie crime, not being embraced in the second article of the convention of extradition, concluded between the United States of America and France, on the 2th of November, 1843; it is agreed by the present article, between the high contracting parties, that persons charged with those crimes shall be respectively delivered up, in conformity with the first article of the said convention; and the present article, when ratified by the parties, shall constitute a part of the said convention, and shall have the same force as if originally inserted in the same.” The power to issue warrants for the apprehension of fugitives from justice, under the treaties between this government and foreign governments, is conferred by the act of Congress of August 12, 1848 (c. 167), as well upon the judges of the * several state courts as upon the justices of the Supreme Court and the several district courts of the United States, and the commissioners appointed by the eourts of the United States. In the matter of Heilbonn, 1 Parker Cr. Rep. 429. Upon complaint, made under the act of Congress of 1848 (c. 167), for the extra- dition of one charged with a crime in Great Britain, proof that the person who, as justice of the peace, took the affidavits of the commission of the crime and issued the warrant in Great Britain for the apprehension of the person charged, was accustomed to act as justice of the peace, is sufficient evidence, prima facie, of his authority to take the affidavits and issue the warrant. Jn ve Kaine, 14 How. U. S. R. 103; Taney, C.J., Daniel and Nelson, JJ., dissenting. Under the aet of Congress of 1848 (c. 167), a commissioner of the United States has jurisdiction of a complaint for the extradition of one accused of # crime in a foreign country, without being specially appointed or authorized by the circuit court to discharge such duty. Ibid. a The officials upon whom the act of Congress of 1848 (c. 167) confers authority, in proceedings for the extradition of persons accused of crimes in a foreign country, have jurisdiction of a complaint which is made for that purpose by a consul of Great Britain, without a previous requisition by his government upon the President of the United States. Ibid. A treaty containing provisions in futuro is in the nature of a contract, and does not become a rule for the courts, until legislative action shall be had’ on the sub- ject. In re Metzger, 1 Parker’s Crim. R. 108. The treaty with France, of 1843, providing for the surrender of fugitives from justice, cannot be carried into effect by the President of the United States, without an act of Congress. Ibid. ‘A person cannot be surrendered, under our treaty with France, of 1848, who is inenaly charged with crime before a committing magistrate. He must, under our law, be indicted, or, under the French law, be mis en accusation by the chambre des mises en accusation. In the matter of Metzger, 1 Parker’s Cr. Law, 108. [In addition to the foregoing treaties with Great Britain and with France, the following conventions have been made, and are now existing between the United States and the several nations named :] (Austria, dated July 8, 1856, specifying the offences of “murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the fabrication or circulation of counterfeit money, whether coin or paper money, or the embezzlement of public moneys. Neither of the contracting parties shall be bound to deliver up its own citizens or subjects. Whenever any person accused of any of the crimes enumerated in this convention, shall have committed a new crime in the territory of the state where he has sought an asylum or shall be found, such person shall not be delivered up until he shall have been tried and shall have received the punishment due to such new crime, or shall have been acquitted thereot.” The same provision as to the prima fucie proof of guilt, and the functions of examining magistrates to enquire into the charge, etc., as in the treaty with Great Britain. Renewed by treaty of Sept. 20, 1870. ] ; ; [Baden, dated January 30, 1857; same offences as in the treaty with Austria, and otherwise identical therewith. Renewed by treaty of July 19, 1868.] (Bavaria, dated Sept. 12, 1853. Same as the convention with Austria, except that it adds, “or the utterance of forged papers” after “forgery ” on the list of crimes. : ; annie Republic, dated Feb. 8, 1867, specifying “ murder (including assas- sination, parricide, infanticide and poisoning) 5 attempt to commit murder; rape ; 118 APPREHENSION OF THE OFFENDER UNDER A WARRANT. Fugitives from justice. forgery ; the counterfeiting of money; arson; robbery with violence, intimida- tion, or forcible entry of an inhabited house; piracy ; embezzlement by public officers, or by persons hired or salaried to the detriment of their employers.” Political offences are excepted. The persons accused shall only be surrendered ‘*when the fact of the commission of the crime shall be so established as to jus- tify their apprehension and commitment for trial, if the crime had been commit- ted in the country where the persons so accused shall be found ; in all of which the tribunals of said country shall proceed and decide according to their own laws.” ee: additional convention, dated Feb. 10, 1858, adding the following offences to those contained in the treaty of 1843, and in the additional article of 1845 (see text supra), viz.: “forging or knowingly passing or putting in circula- tion counterfeit coin or bank notes, or other paper current as money, with intent to defraud any person or persons ; embezzlement by any person or persons hired or salaried to the detriment of their employers;” whether the parties charged are “principals, accessories or accomplices.”] [ Hanover, dated Jan. 18, 1855, specifying same offences and containing the same provisions as the treaties with Austria and with Bavaria.] ; [Hawaiian Islands, dated Dec. 20, 1849, specifying ‘‘ murder; piracy; arson ; robbery; forgery, or the utterance of forged paper,” and containing the same ao as to prima facie proof of the crime, etc., as in the treaty with Great Britain. ; ; (Hayti, dated Nov, 3, 1864, containing the same provisions as to proof of the crime, and the same enumeration of offences as the treaty with the Dominican Republic, except that ‘piracy ” is added, and the clause defining ov qualifying “robbery ” is omitted, so that the offence is described simply as ‘‘robbery.”] (Italy, original treaty, dated March 23, 1868, and an additional article, dated Jan. 21, 1869, specifies: “1. Murder, comprehending the crimes designated in the Italian Penal Code by the terms parricide, assassination, poisoning and infanti- cide; 2. The attempt to commit murder; 3. The crimes of rape, arson, piracy and mutiny on board a ship, whenever the crew or a part thereof, by fraud or violence against the commander, have taken possession of the vessel; 4. The crime of burglary, defined to be the action of breaking and entering by night into the house of another with the intent to commit felony ; and the crime of robbery, defined to be the action of feloniously and forcibly taking from the person of another goods or money by violence, or putting him in fear; 5. The crime of forgery, by which is understood the utterance of forged papers, the counterfeiting of public, sovereign or government acts; 6. The fabrication or circulation of coun- terfeit money, either coin or paper, of public bonds, bank notes and obligations, and, in general, of any title and instrument of credit whatsoever, the counterfeit- ing of seals, dies, stamps and marks of state and public administrations, and the utterance thereof; 7. The embezzlement of public moneys, committed within the jurisdiction of either party, by public officers or depositors [? depositaries]; 8. {as amended by article of Jan. 21, 1869] Embezzlement by any person or persons hired or salaried when these crimes are subject to infamous punishment.” “This treaty shall not apply to any crime or offence of a political character, and the person or persons delivered up for the crimes enumerated in the preceding article, shall in no case be tried for any ordinary crime committed previously to that for which his or their surrender is asked.” If the person shall have been arrested for a new crime committed in the country where he has sought an asylum, his extradition may be deferred until he shall have been acquitted thereof, or shall have been punished therefor. The surrender shall only be made upon such evidence of guilt as would justify a commitment for trial according to the law and practice of the country surrendering, if the crime had been done in that country.] (Mexico, dated Dec. 11, 1861, specifying murder (including assassination parri- cide, infanticide and poisoning); assault with intent to commit murder ; mutila- tion, piracy ; arson; rape; kidnapping, defining the same to be the taking and carrying away of a free person by force or deception; forgery, including the forging or making or knowingly passing or putting in circulation counterfeit coin or bank notes or other paper current as money, with intent to defraud any person or persons ; the introduction or making of instruments for the fabrication of coun- terfeit coin or bank notes or other paper current as money; embezzlement of t APPREHENSION OF THE OFFENDER UNDER A WARRANT. 119 Fugitives from justice. public monies; robbery, defining the same to be the felonious and forcible taking from the person of another of goods or money toany value by violence or putting him in fear; burglary, defining the same to be breaking and entering into the house of another with intent to commit felony; and the crime of larceny of cattle or other goods and chattels of the value of $25 or more. Political offences are ex- pressly excepted; and neither country is bound to deliver up its own citizens. Provision as to proof, etc., as in the treaty with Italy.] { Nicaragua, dated June 25, 1870, identical in all its provisions with the fore- going, taken from the treaty with Italy, except that “the attempt to commit murder ” is omitted from the list of crimes. ] {Prussia and other states, dated June 16, 1852; including besides Prussia, the following German states, Sarony, Hesse, Hesse and on Rhine, Saxe- Weimar, Saxe- Meiningen, Sazxe-Altenburg, Saxe-Coburg-Gotha, Brunswick, Anhalt-Dessau, Anhalt-Bernburg, Nassau, Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen, Waldeck, Reuss elder branch, Reuss junior branch, Lippe, Hesse-Homberg and Frankfort. It is provided that other German States may become parties by acceding to the convention. It specifies the crimes of “ murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utter- ance of forged papers, or the fabrication or circulation of counterfeit money whether coin or paper money, or the embezzlement of public monies.” Neither party is bound to surrender its own citizens. he provision in relation to prima facie proof, etc., is the same as in the British treaty. The following additional states have acceded to this convention: Bremen, Oct. 14, 1853; Mecklenburg- Schwerin, Nov. 26, 1853; Mecklenburg-Strelitz, Nec. 2, 1853; Oldenburg, Dec. 30, 1853; Sckawmburg-Lippe, June 7, 1854; Wirttemberg, Oct. 13, 1853. This last accession was continued in full force by a special article in the treaty of July 27, 1868, between the United States and Wirttemberg. | (Sweden and Norway, dated March 21, 1860, specifying “murder (including assassination, parricide, infanticide, and poisoning) or attempt to commit murder ; rape; piracy (including mutiny on board 9g ship whenever the crew or a part thereof, by fraud or violence against the commander, have taken possession of the vessel) ; arson, robbery and burglary ; forgery, and the fabrication or circulation of counterfeit money whether coin or paper money ; embezzlement by public officers, including appropriation of public funds.” Political offences are expressly excepted ; neither state is bound to surrender its own citizens. The clauses in rela- tion to the prima facie proof of the crime charged against the fugitive, and the delay in his surrender if he shall have committed a new offence in the country where he is found, are the same as in the other treaties. Renewed by treaty of May 26, 1869. CSibies Confederation, dated Nov. 25, 1850, ratified Nov. 8, 1855, specifying ‘Murder (including assassination, parricide, infanticide and poisoning); attempt to commit murder ; rape, forgery, or the emission of forged papers; arson; rob- bery with violence, intimidation, or forcible entry of an inhabited house ; piracy ; embezzlement by public officers, or by persons hired or salaried, to the detriment of their employers.” Political offences are expressly excepted ; and the provision for prima facie proof of the crime charged is similar to that found in the treaty with Italy. ] : ; [The Two Sicilies, dated Oct. 1, 1855, specifying “‘ murder (including assassina- tion, parricide, infanticide, and poisoning); attempt to commit murder; rape; piracy; arson; the making and_ uttering of false money ; forgery, including forgery of evidences of public debt, bank bills, and bills of exchange ; robbery with violence, intimidation or forcible entry of an inhabited house; embezzlement by public officers, including appropriation of public funds.” Neither country is bound to surrender its own citizens; and political offenders are exempt ‘unless the political offender shall also have been guilty of some one of the crimes” above ‘specitied, This convention is probably superseded by the more recent one, before described, made with the kingdom of Italy in 1868.] a . (Salvador, dated May 23, 1870, ratified March 2, 1874 ; specifying eight classes of crimes identical with those contained in the treaty with Italy ; and containing also the same provisions found in that convention concerning the prima facie proof of the crime charged, excepting political offences, that the person surren- dered shall not be tried for any previous crime to the one for which he was de- 120 APPREHENSION OF THE OFFENDER UNDER A WARRANT. Fugitives from justice. manded, and that the ‘surrender may be delayed if the person has committed crime in the country.where he is found. Neither state is bound to surrender its own citizens. ] (Peru, dated Sept. 12, 1870, ratified May 28, 1874; specifying ‘1. Murder, com- prehending the crimes of parricide, assassination, infanticide, and poisoning. 2. Rape, abduction by force. 3. Bigamy. 4. Arson. 5. Kidnapping, defining the _same to be the taking or carrying away of a person by force or deception. 6. Robbery, highway robbery, larceny. 7. Burglary [defined as in the treaty with Italy]. 8. Counterfeiting or altering money ; the introduction or fraudulent com- merce of and in false coin and money ; counterfeiting the certificates or ‘obliga- tions of the government, of bank notes, and of any other documents of public credit, the uttering and use of the same; forging or altering the judicial judg- ments or decrees of the government or courts, of the seals, dies, postage stamps, and revenue stamps of the government, and the use of the same; forging public and authentic deeds and documents, both commercial and of banks, and the nse of the same. 9. Embezzlement of public moneys committed within the jurisdic- tion of either party by public officers or bailees ; and embezzlement by any person hired or salaried. 10. Fraudulent bankruptcy. 11. Fraudulent barratry. 12. Mutiny on board of a vessel, when the persons who compose the crew have taken forcible possession of the same, or have transferred the ship to pirates. 13. Se- vere injuries intentionally caused on railroads, to telegraph lines, or to persons by means of explosions of mines or steam boilers. 14. Piracy.” Neither State is bound to give up its own citizens, and crimes ‘‘ of a purely political character” are excepted. ‘The provisions concerning the prima facie proof, and the delay in surrendering a fugitive, when he has committed an offence in the country from which he is demanded, are the same as in the treaty with Italy.] [Grange Free State, dated Dec. 22, 1871, ratified Aug. 18, 1873, specifying “ Murder (including assassination, parricide, infanticide, and poisoning) ; attempt to commit murder ; rape; forgery, or the emission of forged papers; robbery, with violence ; intimidation, or forcible entry of an inhabited house ; piracy ; em- bezzlement by public officers, or by pérsons hired or salaried to the detriment of their employers.” Political offences are excepted; and prima facie proof must be made out as in all other treaties. ] | Ecuador, dated June 28, 1872, ratified Nov. 12, 1878. The list of crimes is the same as that contained in the treaty with Italy, with a few slight verbal varia- tions in the definitions of “forgery” and “burglary,” and with the omission of ‘attempt to commit murder,” and ‘embezzlement by any persons hired or salaried.” The other provisions, also, are the same as those found in the conven- tion with Italy. No limitation is made upon the surrender of citizens. ] [ Belgium, dated March 19, 1874. The list of crimes comprises eight classes or groups identical with those in the Italian treaty, except that at the close of class 4, after the definition of “robbery,” there is added, ‘‘and the corresponding crimes punished by the Belgian laws under the description of thefts committed in an inhabited house by night, and by breaking in, by climbing, or forcibly ; and thefts committed with violence or by means of force.” Neither country is bound to surrender its own citizens. The other clauses are the same as those found in the convention with Italy.] [From this abstract of treaties, it appears that political offences are universally excluded from their operation. In a large part of the conventions, the contracting powers refuse to surrender their own citizens; in the others there is no such res- ervation, and the general language includes all persons, whether citizens of the surrendering state or aliens. In the convention with Italy, there appears a clause which {s repeated in many subsequent treaties, namely, that ‘the person or per- sons delivered ap for the crimes specified shall, in no case, be tried for any [ordi- nary] crime committed previously to that for which his or their surrender is asked.” ‘The word ‘ordinary ” is omitted from this provision in many of the recent treaties. In the year 1870, the British Parliament passed a statute sub- stantially to the same effect, purporting to forbid the surrender of any fugitive, unless it was stipulated, or in some manner made certain, that he would not be tried for any offence other than the one charged against him by the government demanding his surrender, and on account of which his surrender is demanded. The British government now claims that this statute affects the treaty made with the APPREHENSION OF THE OFFENDER UNDER A‘WARRANT. 121 Fugitives from justice. U S., which contains no such provision. It insists that upon the surrender of a person, the U. 8. government shall give a stipulation that he shall not be tried for any other crime than the one specified in the extradition proceedings, and it has refused to make the surrender without such a stipulation. The U.S. government insists that the statute of Parliament cannot thus annul the provisions of a solemn treaty, and that it cannot have a retroactive effect. It is, moreover, very plain, that where the crime has been committed against one of the states, so that its pun- ishment is wholly within the exclusive jurisdiction of that state, no stipulation of the national executive could be of any legal or binding efficacy. This most im- portant question, which has arisen between the two cabinets, has not yet been permanently settled. ] . 7 (The subject of extradition of fugitives from foreign countries, belongs exclu- sively to the national government under the U. 8. constitution, and the state can- not legislate upon it. A statute of N. Y. (1 R. S. 164, §§ 8, 11) providing for a surrender of foreign criminals by the state authority, was therefore held by the N. Y. Court of Appeals unconstitutional and void. People v. Curtis, 50 N. Y. 321.] [A person committed a crime in Belgium and escaped to the U.S. There was then no treaty with Belgium, but the Prussian government requested his surrender under the treaty with Prussia, on the ground that he was liable to be tried and punished in Prussia. The U. 8. Judge held that the fugitive was embraced within the treaty, and decided in favor of his surrender ; the Executive, however, overruled this decision and refused to surrender, relying upon the opinion of the U. S. Attorney-General, which declared that the offence was not covered by the treaty because it was not committed within the actual territory of Prussia, Re Stupp, 11 Blatch. 124.] (‘The complaint on which a warrant of arrest is issued need not allege the issu- ing of a mandate by the Executive. Both the mandate and the warrant may describe the crime in the words of the treaty. Practice before the commissioner described, and especially concerning depositions taken in foreign countries under acts of Congress, Aug. 12, 1848 (9 Stat. at L. 302), and June 22d, 1860 (12 ib. 84). Re Macdonnell, 11 Blatch. 170.] (Under the treaty with France burglary in the second degree, as defined in the statutes of N. Y., is not included in the list of crimes. Matter of Lagrave, 45 How. Pr. 315.] (Under the treaty with Great Britain and laws of Congress, no Executive au- thority is necessary to enable a judge or commissioner to issue a warrant for the arrest of a fugitive: what foreign documents are admissible in evidence discussed. Re Ross, 2 Bond, 252; per contra, see ex parte Kane, 3 Blatch. 1.] : [Under the treaty with Great Britain a requisition must be made on the President before the judiciary can interfere. The proof must be strong enough to warrant a conviction, in the judgment of the magistrate, if he was sitting at the final trial. Ex parte Kane, 3 Blatch. 1.] ‘ [Judges of the U. 8. court have no jurisdiction over proceedings under any ex- tradition treaty, unless a previous requisition has been made by the foreign gov- ernment upon the government of the U. S., and the authority of the U.S, Execu- tive has thereupon been obtained to arrest the fugitive. Evidence furnishing good reason to believe that the crime alleged has been committed by the person charged, is necessary ; but full proof, such as would produce a conviction upon a final trial is not requisite. Under the Swiss convention, a person must be sur- rendered for one of the specified crimes, if it is subject to infamous punishment by the laws of the country where it was committed ; it need not also be infamous by the laws of the U.S. The contents and requisites of the complaint, mandate, and warrant, and the rules and methods of procedure discussed at large and de- termined. Re Farez, 7 Blatch. 345; 7 Abb. Pr. N. 8. 84; 40 How. Pr. 107; 2 Abb. U.S. 346.] ; . . [The act of Cong. Sept. 24, 1789, (§ 27, 33, concerning arrests by marshals within their own districts, does not apply to arrests under extradition proceed- ings. When a U. S. commissioner orders a surrender, a U. 8. Cireuit Ct. by habeas corpus and certiorari can examine and pass upon the weight of the evi- dence as well as its sufficiency ; but it will not reverse except for substantial error _in law or manifest error in fact. From the decision of the court on habeas corpus there is no appeal. Requisites of the complaint; authentication of foreign docu- 122 APPREHENSION OF THE OFFENDER UNDER A WARRANT. Fugitives from justice. ments; and the general proceedings in extradition cases, discussed. Re Hen- rich, 5 Blatch. 414.] [Habeas Corpus before U. S. Cir. Ct. to discharge a prisoner ordered to be sur- rendered by a U. S. commissioner under the treaty with Great Britain. Held that the court will not review the merits of the commissioneyr’s decision on the law or on the facts, but will only inquire whether the prisoner is charged with a crime subjecting him to the arrest and surrender, and whether the commissioner had jurisdiction ; if the. commissioner had no jurisdiction, or if the President’s warrant was issued illegally, the prisoner will be discharged. Hx parte Van Aernam, 3 Blatch. 160. See Re De Giacomo, 12 Blatch. 391; Re Stupp, 12 Blatch. 501.] : The Constitution of the United States (art. 4, § 2) provides, that a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. ‘This clause of the Constitution does not con- tain a grant of power. It confers no right. It is the regulation of a previously existing right. It makes obligatory, upon every member of the confederacy, the performance of an act which previously was of doubtful obligation.” Green, C. J., in the matter of William Fetter, 3 Zabriskie, 311. The Supreme Court of New York has decided that where a person arrested as a fugitive from justice by a warrant from the governor, on the requisition of the governor of another state, sues out a writ of habeas corpus, the court or judge before whom he is brought will not inquire as to the probable guilt of the accused. The only inquiry in such cases is, whether the warrant on which he is arrested states that the fugitive has been demanded by the executive of the state from which he is alleged to have fled, and that a copy of the indictment, or an aflidavit, charging him of having committed treason, felony, or other crime, certified by the executive demanding him as authentic, has been presented. An offence made indictable by statute is a crime within the meaning of the Constitution and law of Congress on this subject. Matter of Clark, 9 Wend. 212. The surrender of fugitives from other states is regulated by statute in each of the states, varying somewhat in detail, but substantially the same in all. See Statutes of the several states, tit. Fugitives from Justice. To authorize the surrender or detention of the fugitive, it must appear that the crime with which he stands charged was committed within the state from which he is alleged to be a fugitive. In the matter of Fetter, 3 Zabriskie, 311. In People v. Wright (2 Caines, 212), it was held, that a magistrate had no authority to arrest and detain a fugitive from justice, from either of the United States, until a requisition had been actually made upon the executive for his surrender. But subsequent authorities distinctly recognize such right. In the case of Daniel Washburn, the prisoner was detained in custody by virtue of a mittimus from the recorder of the city of Troy, under charge of a crime com- mitted in Canada. Upon the prisoner being brought up by a writ of habeas cor- pus, Chancellor Kent said, ‘It is the law and usage of nations, resting on the plainest principles of justice and public policy, to deliver up offenders charged with felony and other high crimes, and fleeing from the country in which the crime was committed, into a foreign and friendly jurisdiction. When a case of that kind occurs, it becomes the duty of the civil magistrate, on due proof of the fact, to commit the fugitive, to the end that a reasonable time may be afforded for the government here to deliver him up, or for the foreign government to make the requisite application to the proper authorities for his surrender.” 4 John. -Ch. Rep. 106. : In the People v. Schenck (2 John. R. 479), the prisoner having been indicted for stealing a gun, the jury found especially, that he stole the gun in New Jersey, and brought it into the state of New York. The court held that the act, as found, constituted no crime against the laws of New York; but they ordered the prisoner to be detained in prison for three weeks, and that notice be given to the een of the state of New Jersey that the prisoner wus detained cn a charge of felony. In the matter of Thomas F. Goodhue, in the mayor's court.of the city of New York, 1 Wheeler’s Crim. Cas. 427, upon the return of habeas corpus, it appeared APPREHENSION OF THE OFFENDER UNDER A WARRANT. 123 Fugitives from justice. « that the prisoner was detained on three different commitments. The first com- mitment was under the statute for apprehending and punishing disorderly per- sons, under which he was committed to Bridewell for sixty days. The second and third commitments stated, that the prisoner is charged, on the oaths of R. W. and others, with having, at Lexington, in the state of Kentucky, fraudulently, ‘py false pretences and exhibiting forged letters of credit, obtained divers sums of money of several individuals and mercantile houses with intent to defraud. Riker, recorder, said: “It appears upon oath of a witness, which oath is taken on competent authority, that the prisoner has committed public offence against the laws of the state of Kentucky, and that he is a fugitive from the justice of that state. The Constitution of the United States provides expressly for his arrest. The Constitution is sacred, and we are bound by it. It is the supreme law of the land. It may be said, that though it be true that, on the demand of the executive power of the state of Kentucky, the prisoner may, doubtless, be given up, yet until he is demanded he is to be held at large. This cannot be the meaning of the Constitution. We may hold a fugitive to give reasonable time to demand him. The decision of the court, therefore, is, that Thomas F. Goodhue be remanded and detained in custody six weeks, to give time to the executive of Kentucky to demand him, under and in pursuance of the Constitution of the United States.” The prisoner was subsequently brought before Chancellor Kent, by habeas corpus, on the 14th of October following, and the chancellor, considering that a sufficient time had elapsed since the commitment in August, preceding, for the executive of the state of Kentucky to have demanded the prisoner, according to the Consti- tution, no such demand appearing to have been made, ordered his discharge. In the matter of Goodhue, 1 Rogers’ City Hall Recorder; 2 John. Ch. Rep. 198. In The Commonwealth v. Deacon (10 Serg. & Rawle, 125), Tilghman, Ch. J., though he denied the right in that case to hold the prisoner,’on the ground that the government would not surrender him, held the following language: “I grant that, when the executive has been in the habit of delivering up fugitives, or are obliged by treaty, the magistrates may issue warrants to arrest, of their own accord (on proper evidence), in order the more effectually to accomplish the intent of the government, by preventing the escape of a criminal. On this principal, we arrest offeuders who have fled from one of the United States to another, even before demand has been made by the executive of the state from which they fled.” Here is a statement of the existence of the practice not only, but a vindication of the principle upon which it rests, viz., to accomplish the intent of the govern- ment, and to carry into effect the provisions of the Constitution. 8. C., 2 Wheeler's Crim. Cases, 1. ae : In England, this right of arrest and imprisonment, by the civil magistrates, of offenders against the laws of another government, has been recognized from a very early period. r - Thus, in Rex v. Hutchinson (29 Car. II, 3 Keble, 785), the Court of K. B., upon habeas corpus, refused to bail a prisoner who was committed on_suspicion of murder committed in Portugal; and in the case of Col. Lundy (2 Vent. 314), it was agreed, on a consultation of all the judges, that there was nothing in the . habeas corpus act to prevent a person guilty of a capital offence in Ireland (then a distinct kingdom) being sent there to be tried. : : In the case of Rex v. Kimberly (2 Stran. 848), the prisoner was committed, by a justice of the peace in England, for a felony committed contrary to an Trish act of Parliament, in order to be transmitted to Ireland to be tried, the offence having been committed there. On being brought before the King’s Bench by habeas corpus, Strange, for the prisoner, moved for his discharge, or for bail, on the ground that justices of the peace in England had no power over crimes committed in Ireland, which was a distinct kingdom; and that it was against the habeas corpus act to remove the prisoner to Ireland, But the court, upon the authority of the cases above cited, remanded the prisoner, observing that if he was not removed to Ireland in a reasonable time, application might be again made to the court for his discharge. See, also, Mure v. Kaye, 4 Taunt. 34; 1 Chit. Cr. Law, 14, 46. : 7 ; The governor of one of the United States has no authority to surrender to a for- eign government, on the request of the latter, a person who has committed a crime in the territory of that government. Holmes v. Jennison, 14 Pet. 540; ‘124 APPREHENSION OF THE OFFENDER UNDER A WARRANT. Fugitives from justice. Holmes ex parte, 12 Vt. Rep. 631. This case was as follows: In the spring of the year 1839, George Holmes, being charged with murder committed in Lower Canada, fled into the state of Vermont, and the governor-general of Canada demanded his surrender. Application was made by authority, in Vermont, to the President of the United States, who declined to act, through an alleged want of power, and the case came back to the governor of Vermont; and he decided that it was his duty to surrender the fugitive. The case was afterwards, and before any actual surrender, carried up before the Supreme Court of that state, — upon habeas corpus, and elaborately argued, and the decision of the governor affirmed. The case was taken up to the Supreme Court of the United States. and the court ordered that they had not jurisdiction of the case (1 Kent’s Com. 36, in note); but a majority of that court having expressed the opinion that the power to surrender to a foreign state did not reside in any of the states of the Union— that it belonged to the federal government, to be exercised by treaty, or other- wise, as may be deemed most for the public interest in the’ regulation of our foreign intercourse—the Supreme Court of Vermont afterwards directed the dis- charge of Holmes. 14 Peters, 574; 1 Wheat. C. C. 454. In the Circuit Court of the United States, however, for the Massachusetts dis- trict, it was.held, by Justice Woodbury, that state magistrates might, but were not compellable by the. United States, entertain jurisdiction of an application under the treaty of extradition with Great Britain to surrender fugitives from that nation. The British Prisoners, 1 Woodbury & Min. C. C. R. 66. A fugitive from a foreign country cannot be arrested in Pennsylvania by a magistrate on a charge, by a private person, of having committed murder in such foreign country, in order to afford an opportunity to the Executive of the United States to deliver him up to the government of that country. Quzre, whether the Executive of the United States, or of Pennsylvania, has aright to apply to a magistrate to arrest a fugitive criminal for such a purpose. 10 Sergt. & R. 125. The-statute of Massachusetts (Rev. Sts., c. 142, § 8), for the arrest. of fugitives from justice, is not unconstitutional. Com. v. Tracy, 5 Mete. 536. In order to confer upon the magistrate jurisdiction under the acts of the legis- lature of Indiana, approved Feb. 12, 1838 (Rev. Stat. 1843), relative to fugitives from justice, it must be proved that the person sought to be apprehended has left the state in which he committed the crime for the purpose of escaping punish- ment for it. Degant'v. Michael, 2 Carter (Ind.), 396. To authorize a magistrate to arrest and examine an alleged fugitive from justice from another state, it must be distinctly alleged, by a complaint in writing on oath, that a crime has \ven committed in the foreign state; that the accused has been charged in such state with the commission of such crime; and that he has fled from the state and is found here. Inu the matter of Heyward, 1 Sandford’s R. 701. Therefore, aii affidavit that B. has been charged in Pennsylvania, on the oath of A., with felony, viz., with cheating and defrauding A. and others, residents of that state, and that he is a fugitive from justice from that state, is insufficient to authorize the arrest of B. here, under the Fugitives from Justice Act—the affidavit not showing that the alleged crime was cominitted in Pennsylvania, or that B. fled from that state. Ibid. It would be well for the magistrate in all such cases to require an authenticated copy of the charge or complaint made in the foreign state. In the matter of Heyward, 1 Sandf. Rep. 701. The magistrate may look behind the warrant in order to ascertain whether the complaint made is sufficient to confer jurisdiction. 2 ve Heilbonn, 1 Parker’s Cr. Rep. 429. ‘The representations of the executive of the demanding state are of no effect, unless supported by a duly authenticated copy of the indictment found, or aflfida- vit made. These are prerequisites to the issue of the warrant; and without these it is void, and gives no authority to arrest or detain the person alleged to be charged. The warrant ought to show on its face that such authentic copy of the indictment or aflidavit had been produced to the executive. Hz parte Thornton, 9 Texas, 635, per. Hemphill, C.J. ‘ Under the provisions of the federal Constitution and the act of Congress re- specting fugitives from justice, one state is not bound to surrender, upon the requisition of another, a fugitive who is at the time of the demand or requisition already in the custody of the law, held to respond to the claim of a party who APPREHENSION OF THE OFFENDER UNDER A WARRANT. 125 Fugitives from justice. sues in-the courts of the state of which he is demanded. In the matter of Trout- man, 4 Zabriskie, 634, per Potts, J., citing the case of Jenks (Am. Law Reg., Jan. 54, p. 146), in which Justice Grier says :—‘‘ Where persons or property are liable to seizure or arrest by the courts of the United States and of the state, that which first attaches should have the preference. Any attempt of either to take them from the legal custody of the officers of the other would be an unjustifiable exer- cise of its power, and lead to the most deplorable consequences. Therefore, if a person be imprisoned under the civil or criminal process of one, the other cannot take him from such custody, in order to subject him to punishment for an offence against them. A fugtive cannot be taken from the legal custody of the sheriff by any warrant from the courts of the United States, in order to extradition under the acts of Congress. Neither can such fugitive, when in custody of the marshal, under legal process from a judge or commissioner of the United States, be delivered from such custody by means of a habeas corpus, or any other pro- cess, to answer for an offence against the state, whether felony or misdemeanor, or for any other purpose.” (One who goes into a State and there commits a crime and returns to his own State, is a fugitive from justice within the meaning of the constitution and laws. Requisites of the requisition and proceedings thereon. Kingsbury’s Case, 106 Mass. 228. When a fugitive is surrendered, it is the duty of the agent ap- pointed to receive him, to deliver him to the governor who made the demand; and if this is done without unreasonable delay, such agent is not liable for a false imprisonment. Pettus v. State, 42 Geo. 358.] {Iowa statute (Rev. § 4523) construed ; there must be acriminal charge pend- ing in another State. State v. Hufford, 28 Iowa, 391.] [When a prisoner, arrested on a warrant for extradition to another State, is brought before a judge aon habeas corpus, he will not be remanded unless it ap- pears that a crime has been committed in such other State; that the committing magistrate had jurisdiction, and that the warrant is sufficient on its face. A war- rant which stated merely that the prisoner is charged with forgery on the oath of ——., was held not sufficient. Matter of Leland, 7 Abb. Pr. (N. 8S.) 64.] [A requisition from another governor to the governor of New York is not of itself sufficient authority to make an arrest; nor the affidavit of an attorney set- ting forth information received by telegraph. An authenticated copy of the charge or indictment must be furnished. Matter of Rutter, 7 Abb. Pr. (N. 8.) 67.] [Habeas corpus in case of a person arrested on the requisition of a governor of another State; if the return states that the petitioner is the identical person named. in the warrant, the question of his guilt can only be tried in the State from which the requisition was sent. Robinson v. Flanders, 29 Ind. 10. In’ order that the governor of Indiana may have jurisdiction to issue a warrant of arrest under stat- ute of March 9, 1867, an authenticated copy of the affidavit charging the offence committed must be produced. Hx parte Ptitzer, 28 Ind. 450.] (The constitutional provision applies to statutory as well as to common-law crimes. When a fugitive has been surrendered, admitted to bail, forfeited his bond, and again escaped to the State from which he was surrendered, the gov- ernor thereof may order a second arrest and surrender. Matter of Hughes, Phill. Law (N. C.) 57.] (Whether the act of Congress applies to fugitives from a territory to a State, quere? But under the statute of California the governor can issue a warrant on a requisition from the governor of a territory. A warrant for surrender is defi- cient when it omits to state that the person has fled from justice and is found within this State; but on a habeas curpus to discharge the person arrested under such a warrant, the return contained the requisition and the original affidavit which supplied these facts, and the prisoner was thereupon remanded. Re Ro- maine, 23 Cal. 585.] ; Mg [A governor making a requisition may appoint an agent to receive the fugitive ; and the governor on whom the requisition is made may issue a warrant authoriz- ing that agent “to take and receive into custody” the fugitive. Such a warrant authorizes the agent to arrest. Mass. Rev. Stat., ch. 142, § 7, on the subject con- strued and held valid. Com. v. Hall, 2 Gray, 262. ‘‘I'reason, felony, or other evime,” in the U. 8. Constitution, art. 1V, § 2, includes every offence made so by the law of the State in which it is committed. Upon a proper demand by the 126 SEARCH WARRANT. When not allowed. executive of another State, and the production of the indictment duly certified, it is the duty of the executive of any State to give up a fugitive from justice to the agent appointed to receive him. This duty is ministerial, and the executive upon whom the demand is made has no discretion as to the nature or character of the offence charged in the indictment. But this duty can be enforced by the U. 8. courts or by any department of the U. S. government. A mandamus cannot be directed to a governor by the U. 8. courts to compel him to surrender a fugitive. Kentucky v. Dennison, 24 How. U. 8. 66.] : (The constitutional provision applies to the offence of obtaining money or other property by false pretences, when that is made a crime by statute. I¢ seems that when a fugitive is charged with crime by affidavit, and it appears from the whole affidavit that no crime has been committed, a court may, on habeas corpus, dis- charge the prisoner, although his surrender has been ordered by the governor; but that it is otherwise when the prisoner has been indicted, and the indictment has been duly certified. Case of surrender of a person charged with obtaining money by false pretences. Re Greenough, 31 Vt. 279. See also People v. Brady, 56 N.Y. 182 (an important case); Ma parte White, 49 Cal. 434; Hx parte Cubreth, 49 Cal. 436; Morton v. Skinner, 48 Ind. 123.] : SEARCH WARRANT. I propose to treat this subject under the following heads: (a) WHEN NOT ALLOWED. (b) WHEN AUTHORIZED. (c) How oBTalNneD. (ad) REQUISITES OF SEARCH WARRANT. (e) How EXECUTED. (a) WHEN NOT ALLOWED. Formerly, according to Lord Coke (4 Inst. 176), search warrants were contrary to law, and Lord Camden (11 State Tr. 321; Hawk., b. 2, c. 13, § 17, n. 6) said, that they had crept into the law by imperceptible practice ; but Lord Hale clearly establishes their legality, on the ground that, without them, felons would fre- quently escape detection. 2 Hale, 113; 2 Wils. 149, 291; 11 Harg. State Tr. 321; 1D. & R. 97; Burn, J., and Williams, J., Search Warrant; Dick, J., Warrant, I. And by the statute 22 Geo. III, c. 58, § 2 (see also 30 Geo. II, c. 24, § 9), it is made lawfal for any one justice of the peace, upon complaint made before him, upon oath, that there is reason to suspect that stolen goods are knowingly con- -cealed in any dwelling house, or other place, by warrant, under his hand and seal, to cause every such place to be searched in the daytime ; and the person know- ingly concealing the stolen goods, or in whose custody the same shall be found, being privy thereto, shall be deemed guilty of a misdemeanor, and shall be brought before any justice of the peace for the district, and made amenable to ansyer the same by like warrant of any such justice. But a search warrant for libels and other papers of a suspected party is illegal (2 Wils. 752; 11 St. Tr. 318, 321); for, as observed by Lord Camden (11 St. ‘Tr. 321), the difference between seizing stolen goods and private papers of the party accused is apparent. In the one, Iam permitted to seize my own goods, which are placed in the hands of a public officer until the felon’s conviction shall entitle me to restitution ; in the other, the party’s own property would be seized before, SEARCH WARRANT. 127 When authorized. and without conviction, and he have no power to reclaim the goods, even after hig innocence be cleared by acquittal. The Constitution of the United States (4th art. of the Amend.) provides, that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and partic- ularly describing the place to be searched, and the person or thing to be seized. See 3 Story on the Constit. 748, 750; Sailly v. Smith, 11 Johns. 500; Hz parte Buford, 3 Cranch, 447. The language of the constitution of the United States, relative to searches and seizures, has been substantially adopted in the constitu- tion of each of the several states. The language of the constitution of Vermont is, “The people have a right to hold themselves, their houses, papers and possessions, free from search or seizure; and therefore, without oath or affirmation first made affording sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any per- son or persons, his, her, or their property, not particularly described, are con- trary to that right, and ought not to be granted.” Const. of Vt., art. 11. Of Virginia, “That general warrants, whereby an officer or messenger may be com- manded to search suspected places, without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly de- scribed and supported by evidence, are grievous and oppressive, and ought not to be granted.” Const. of Va., Bill of Rights, sub. 10. The constitution of Arkansas contains a similar provision. Const. of Ark., art. 2, § 9. The consti- tution. of Illinois (art. 13, § 7) designates such warrants as “dangerous to liberty.” (b) WHEN AUTHORIZED. By the laws of the United States every custom-house officer, who shall have cause to suspect the concealment of any goods subject to duties, in any particular dwelling-house, building, or other place, shall, upon application to a justice of the peace, be entitled to a warrant to enter such house or place in the daytime only, to search for such goods, and, if such shall be found, to seize and secure the same for trial. Laws of the U. 8. 1799, § 68. See 7 Dane Ab. 244, 245. In New York, a search warrant may be issued for books and papers in the hands‘ of public officers; for children detained by Shakers, and for property stolen and embezzled. N.Y. Rev. Sts., 4th ed., vol. 1, p. 3365 vol. 2, 333, 929. In Pennsylvania, the issuing of a warrant to search for stolen goods is recog- nized, and the manner of disposing of goods found thereon, and supposed to be stolen, regulated by the act of Assembly of the 23d of Sept. 1791. .38 Smith’s Laws of Penn., p. 120; M’Kinney’s Digest, title “Robbery and Larceny.” The act provides, that where there is probable cause, supported by oath or affirmation, to suspect that other goods, besides those described in the warrant, which may be discovered on the search thereupon, are stolen, the magistrate may direct the said goods to be seized, and secure the same in his own custody, unless the person in whose possession they were found shall give security to produce the same at the time of his trial; that the magistrate shall cause the same to be publicly advertised, and shall return an inventory of them into the proper court; and directs in what manner they shall be finally disposed of The act is given at length, under the title “Robbery and Larceny,” head “ Pennsylvania,” in Part IT of M’Kinney’s Am. Mag. ; : In Maine, a search warrant may issue for females enticed to houses of ill-fame ; for obscene books and pictures; for implements of gaming, and for stolen goods, counterfeit money, and implements of forgery. Rev. Sts. of Maine, 687, 690, 711. In Ohio, the statute authorizes a search warrant for stolen property ; and for money or any specified articles of personal property, or any gaming table, device or apparatus, the discovery of which might tend to convict a person | of keeping gaming apparatus or of gambling for a livelihood. Rev. Sts. of Ohio, 537, 538; 438, 439, : In Michigan, the statute authorizes a search warrant where property has been stolen or embezzled, or vbtained by false tokens or pretences ; to search for gun- powder kept contrary to law; for books witbheld by public officers ; for counter- feit coin, forged bank notes, or other forged instruments, and the tools and 128 SEARCH WARRANT, How obtained. —Requisites of search warrant. materials for making the same; for obscene books, pictures, figures, or descrip- tions; for lottery tickets or materials for a lottery; and for gaming apparatus. Rev. Sts. of Michigan, pp. 200, 506, 709. The statute of Wisconsin is similar. Rev. Sts. of Wisconsin, 624, 714. ‘ ; In Virginia, a search warrant may issue for personal property stolen, embezzled or obtained by false pretences; for counterfeit coin, forged bank notes and other instruments or writings, or any tools, machines or materials for making them ; obscene books, prints, figures or descriptions ; lottery tickets or materials ; gaming apparatus or implements; fire arms, weapons or ammunition in the possession of a negro; any harbored runaway slave. Code of Va., tit. 55, c. 203, § 2. In Illinois and Mississippi, a search warrant is only authorized where personal property has been'stolen ; and in Texas where it has been stolen ur embezzled. Cr. Code of IIL, pt. 2, div. 18, § 211; Hutchinson’s Miss. Code, p. 689, 938 ; Hart- ley’s Dig. Art. 1711. In Vermont, a search warrant may be issued in the daytime ‘‘ where any per- sonal property, that has been stolen, embezzled or obtained by false tokens, is suspected to be concealed.” Rev. Sts. of Vt., tit. 18, c. 29, § 14. It has been held in North Carolina that a magistrate has no right to issue a search warrant for runaway slaves, or such as have been seduced away; but that he can only issue it for goods or chattels which are distinctly alleged to have been stolen. . State v. McDonald, 3 Dev. 470; State v. Mann, 5 Iredell, 45. (¢) HOW OBTAINED. The search warrant is not be granted without oath, made before the justice, that the party complaining has probable cause to suspect his property has been stolen, or is concealed in such a place, and showing his reasons for such suspicion. 2 Hale, 113, 150; 2 Wils. 283, 291; 11 State Tr. 321; State v. Mann, 5 Iredell, 45. The oath need not positively and directly aver that the property has been stolen, 1D. &R. 97. And it is not necessary for an officer, in order to justify the execu- tion of a search warrant from a magistrate having jurisdiction over the subject, to show that it was founded on a complaint under oath, provided the warrant itself contains an allegation of the fact. -Sanford v. Nichols, 13 Mass. 236. And it has even been held, that although the search warrant does not appear to have been issued on oath, the officer is justified in executing it, if the subject-matter be within the magistrate’s jurisdiction. State v. Mann, 5 Iredell, 45. The statute of Rhode Island requires the complainant to make oath or affirmation “that he be- lieves” the stolen goods ‘‘are concealed in some house or place in the county where such complaint shall be made, and in such complaint particularly de- seribed.” Humes v. Taber, 1 Rhode Island Rep. 464. Where the language of the complaint under the foregoing statute was, that the complainant ‘“‘has cause to suspect, and does suspect,” etc., it was held that the complaint was insufficient, the statute not authorizing a warrant to issue upon the suspicion of the com- plainant. Ibid. In Arkansas, the statute provides that the search warrant shall issue upon complaint, on oath, that the complainant ‘“ suspects,” etc. Rev. Sts. of Ark., c. 52, § 15. And in Vermont, the statute declares that a search warrant ‘shall not be granted but on the oath of some creditable person, that he has rea- son to suspect, and does suspect, that such property is concealed,” in the place designated. Rey. Sts. of Vt., tit. 18, c. 29. There is a similar statute in Maine. Rey. Sts. of Maine, c. 170, § 14. (d@) REQUISITES OF SEARCH WARRANT. The place must be particularly designated, and the property be particularly described in the warrant. This is required by the Constitution of the United States, as well as of each of the several states. See also 2 N. Y. Rev. Sts., 4th ed., p. 929; Rev. Sts. of Maine, c. 170, § 14; Rev. Sts. of Mich., c. 170,-§3; Hart- ley’s Dig. of Laws of Texas, art. 1711. As general warrants, to arrest all persons suspected or guilty of a particular crime, without naming or describing the par- ticular person to be arrested, are illegal, so also general warrants, to search all suspected places for stolen goods, are illegal ; and even the officer acting under color of their authority will not be justified in executing them. 1 Nun. & Walsh, 255. Such warrants are held to be illegal, at common law (and much more so, SHARCH WARRANT. 129 Requisites of search warrant. under the statute), because it would be extremely dangerous to leave it to the discretion of a common officer to arrest what persons, or search what houses, he might think fit. The warrant must therefore specify the place to be searched, as well as the person to be apprehended, unless it be fonnded upon some statute which authorizes a different form. 1 Nun. & Walsh, 255; 2 Hale, 150; 2 Hawk., c. 13, §§ 10, 17. The warrant ought also to name the person in whose building the stolen property is suppesed to be. Stone v. Dana, 5 Metc. 98; Rev. Sts. of Maine, c. 170, § 14. Under the clause in the constitution of Kentucky, which provides that “no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be,” it has been held that a description of the place, the person, and the things, was essential to the validity of the war- rant. Reed v. Rice, 2 J. J. Marsh. 44. A search warrant, commanding an officer to search the premises of B. P. Tuell, does not authorize the officer to search the premises of Benjamin P. Tuell. Knell ». Wrink, 6 Blackf. 249. Where the description in the complaint was “the premises of Hiram Ide and Henry Ide,” it was held that the place was not described with sufficient particu- larity ; and that, although the complainant afterwards, in his prayer for process, prayed that process might issue to search the “houses and buildings” of Hiram Ide and Henay Ide, yet that this description did not aid the defendant in the stating part of the complaint. umes v. Taber, 1 Rhode Island Rep. 464. A warrant to search the dwelling-house of a person will confer an authority to search the house in which he dwells, but not the houses which he owns and rents to other persons. Humes v. Taber, 1 Rhode Island Rep. 464. In Pennsylvania, by act of Assembly, of September 28, 1791 (3 Sm. Laws, p. 120), where a magistrate issues a search warrant, to apprehend a person charged -with robbery, burglary or larceny, and to seize stolen goods, the goods described may be searched for, and seized, ‘‘in the custody or possession of such person, or in the custody or possession of any other person or persons for his use.” But in- dependently of statute it seems, that a search warrant will not authorize the officer to search for or seize the goods described, in the possession of another person than the accused, unless such possession be for his use, or by a person who conceals them, or who received them knowing them to be stolen. And a warrant cannot be issued to search for and seize goods charged to be stolen, in the possession of a person who obtained them innocently, without any knowledge of their being stolen. A sale, however, of stolen goods does not change the property in them, and they may be recovered of the purchaser by the owner in a civil suit. Ifa search warrant, and the complaint on which it is issued on the same paper, and the things to be searched for be properly designated and described in the com- plaint, and the warrant direct the officer to search for the things “ mentioned iti the above complaint,” the process is legal and sufficient, without any further des- ignation or description of the things in the warrant itself. Commonwealth v. Dana, 2 Metcalf, 329. The house or place where lottery tickets, etc., are believed to be concealed, is sufficiéntly designated and described in a search warrant, according to the provi- sions of Mass. Rev. Stat., ch. 142, (3, by denominating it the office of D., ‘and truly stating the number thereof and the street in which itis situate, although A. occupies the office with D.” Commonwealth v. Dana, 2 Metcalf, 329. Ifthe house be described as the house of a company, such description will not authorize the searching of the house of an individual member of the company. Sanford v. Nichols, 13 Mass. 286. And if goods be described in general terms, as goods, wares, and merchandise, without any specification of their character, quality, number or weight, or any other circumstance tending to distinguish them, it is not such a particular description as the constitution requires. Sanford v. Nichols, 13 Mass. 286. The warrant should direct the search to be made in the daytime (2 Hale, 113, — 150 ; 22 Geo. III, c. 58, § 1), though it is said that where there is more than prob- able suspicion, the process may be executed in the night. Shaw, J., Barb. J., Burn, J., Williams, J., Search Warrant. The New York Revised Statutes pro- vide, that, “if there be positive proof that any property stolen or embezzled is concealed in any particular house or place, the warrant may authorize the search- ing of such house or place in the nighttime.” 2N. Y. Rev. Sts., tit. 7, pt. 4, art. 9 180 SEARCH WARRANT. Requisites.—How executed. 8, § 34, p. 929 (4th ed.), There is a similar statute in Michigan. Rev. Sts. of Mich., c. 170, §1. In Maine the warrant cannot authorize the person executing it to search any dwelling-house in the nighttime, unless the magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or property to be searched for, and unless such authority be distinctly expressed and given in the warrant. Rey. Sts. of Maine, c. 170, § 14. The warrant ought to be directed to a constable or other public officer, and not to a private person, though it is fit that the party complaining shouid be present, and assisting, because he will be able to identify the property he has lost. 2 Hale, 150; 11 State Tr. 321. It should also command, that the goods found, to- gether with the party in whose custody they are taken, be brought before some justice of the peace, to the end that, upon further examination of the fact, the goods and the prisoner may be disposed of as the law directs. 2 Hale, 150, 151. A search warrant issued by a justice of the peace, reciting information on oath, that goods described therein had been stolen by A. and B. and were concealed in the house of C., and commanding the officer to enter the house in the daytime and search for the articles stolen, and to bring them with C., or the person in whose custody the goods should be found, before the justice, is a legal and valid war- rant: and the officer in executing it, if the door be shut, may, after demand and refusal to open it, break open the outer or other door of the house. Bell v. Clapp, 10 Johns. 263. See 2 N. Y. Rey. Sts. 746. As'to the sufficiency and requisites of search warrants, see further in Grumon v. Reymond (1 Conn, 40). Sanford v. Nichols, 13 Mass. 286. (e) HOW EXECUTED. In executing a search warrant, the officer must be careful strictly to pursue its directions. As the warrant should distinctly specify the goods to be seized, the officer ought not to take any goods but those specified. Where, therefore, a war- rant was granted expressly to seize stolen sugar, and the officer seized tea, he was held to have exceeded his authority, and to be liable to the party aggrieved, for a trespass. 2 Bos. & Pul. 158; 3 Esp. Rep. 96. So, also, where the constable, having a warrant to search for specific articles alleged to have been stolen, found and took away those and certain others supposed to be also stolen, but not men- tioned in the warrant, and not likely to be of use in substantiating the charge of Stealing the goods that were specified, it was held that the constable was a tres- passer. Crozier v. Cundy, 9 Dow. & Ry. 224; 6 Barn. & Cress. 332. In this case, however, Abbot, Ch. J., said, ‘If those articles had been likely to furnish evidence of the identity of the articles stolen, ancl mentioned in the warrant, there might have been reasonable ground for seizing them, although not specitied in the warrant.” And he added, that he expressed himself thus, to prevent the suppo- sition that a constable, seizing articles not mentioned in the warrant, is necessarily a trespasser. 6 Barn. & Cress. 333. ‘The duty of the officer, and those acting in aid of him, in executing a search warrant, is well and legally discharged, if, upon making the search required, and finding goods corresponding in description with those directed to be searched for, he seizes such goods, and brings: them, with the person whose premises he is directed to search, before a magistrate, for further proceedings. The officer is not made the judge in the last resort of the identity of the goods with those stolen.” Dewey, J., Stone v. Dana, 5 Metc. 98. Where a magistrate, before committing a person for forgery’ took from his person asum of money in good notes, which was not asserted to be the property of any one but the prisoner, the court, on motion, made an order on the magistrate to restore the money to the prisoner. 4 Wash. C. C. Rep. 710. As already intimated, if admission be refused, after the usual demand and noti- fication of his business, by the officer or person executing the warrant, the outer door of the house may be broken open (Banks v. Farwell, 21 Pick. 156); and«so may boxes, after the keys have been demanded and refused. Ibid., 2 Hale, 151; 3 Bos. & Pul. 258. And though the goods sought be not found there, the officer will not be responsible if he has acted duly in obedience to the warrant. 38 Esp. Rep. 135; 2 Bos. & Pul. 160; 1 T. R. 585; 1 Chitt. Cr. L. 57, 66. It is to be observed that in this, as in all other.cases in which doors may be broken open, there should be a previous notification of the business, accompanied by a demand to enter, on the one hand, and a refusal on the other, before: the SEARCH WARRANT. 131 How executed. officer proceeds to that extremity. 1 Nun. & Walsh, 205; Fost. 320; 2 Hale, 193; 1 Russ. Cr. L. 519. But no precise form of words is required to be used in giving notice. It is sufficient if the party be informed, by the officer, of his business and. authority, and apprised that he comes not as a trespasser, but claiming. to act under a proper authority. Fost. 137. If a precept should direct an officer to break and enter a dwelling-house, without stating any sufticient cause, he could not justify such act under such a precept. Sandford v. Nichols, 13 Mass. 286. Still, although the warrant in such a case, by reason of its irregularity, be insufli- cient to justify him, he will, nevertheless, be permitted to show, in mitigation of damages, that no goods were taken, except those which were proper objects of the search, and that no violence or injury was done but what was necessary to obtain possession of the goods. Ibid. The constable is to keep the search warrant in his possession ; and where officers with a search warrant, at the desire of the party whose premises were searched, handed it to him for perusal, and he refused to return it, it was held that they had a right to take it from him, and even to coerce his person to obtain possession of it, provided they did not use unnecessary violence. 3 Car. & P. 31. The wife has no implied authority in the absence of her husband to license a search of his house for stolen goods. Humes v. Taber, 1 Rhode Island Rep. 464. If, on bringing the goods, and the person in whose custody they were found, before the justice, it appears that the goods were not stolen, they are to be re- stored to the possessor. 1 Nun. & Walsh, 260. If it appears that they were stolen, they are to be delivered by the justice to the owner, on his paying the ‘expenses. 2R.&., 74, § 32. The party who had the custody of the goods is to be discharged if they were not stolen. If they were stolen, not by him, but by another person, who sold or delivered them to him, and it appears that he was ignorant of the mode in which they were procured, he may be discharged, but bound over to give evidence as a witness against the’ person suspected of having stolen them. If it appears that he knew them to be stolen, then he should be either committed as ror a felony, if the original offence of stealing or taking such goods appears to have been a felony (2 Hale, 151, 152), or bailed and bound over to answer the charge if the case should so require; and so if the original offence were a misdemeanor ; or pro- ceeded against summarily, if the original offence be punishable upon summary conviction. 1 Nun. & Walsh, 261. ; An indictment for obstructing the execution of a search warrant must show the warrant to be legal; and it must therefore show that the warrant appeared on its face to be founded on a sufficient affidavit. State v. Tuell, 6 Blackf. 344; per Blackf., J. Trespass will not lie against a party who has procured a search warrant to search for stolen goods, if the warrant be duly issued and regularly executed, Beaty v. Perkins, 6 Wendell, 382. But it seems, that case will lie if the party procuring the warrant has no ground for his proceedings, and is actuated by malicious motives. Ibid. See Plummer v. Dennett, 6 Green]. 421 ; Luddington ». Peck, 2 Conn. 700; Bell v. Clapp, 10 John. 263 ; Hayden v. Shed, 11 Mass. 500; Owens v. Starr, 2 Lit. 231; Tanner v. Walker, 6 Gill & John. 377; M’Hugh v. Pundt, 1 Bailey, 441; Watson v. Watson, 9 Conn. 141; Morris v. Scott, 21 Wendell, 281. ‘ t The proceedings upon search warrants should be strictly legal, for there is not a description of process known to the law, the execution of which is more dis- tressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effects. For form of search warrant, see Barb. Cr. Law, p. 651. 132 THE EXAMINATION AND COMMITMENT. Taking the depositions. SECTION III. THE EXAMINATION AND COMMITMENT, ETC. 1. In cases where the arrest is in the seme county, etc., where the offence was committed. (a) Taking the depositions. By stat. 11 & 12 Vict., ¢. 42, § 17, in all cases where any person shall appear or be brought before any justice of the peace, charged with any indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons, or have been apprehended with or without warrant, or be in custody for the same or any other offence—such justice, before he shall commit such accused person for trial, or before he shall admit him to bail, shall, in the presence of such accused person (who shall be at liberty to put questions to any witness produced against him), take the statement on oath or affirma- tion of those who shall know the facts and circumstances of the case, and shall put the same into writing; and such depositions shall be read over to and signed by the witness, and shall be [*36] signed also by *the justice; and before each witness is ex- amined, the justice shall administer to him the usual oath or affirmation.(1) (1) There are statutes in most of the states for the examination and commit- ment of prisoners by magistrates. See N. Y. Rev. Stats., part IV., c. 2, title 2. §§ 14, 15, 16, 26; Laws of New Jersey, Elmer’s ed., p. 450; Statutes of Ohio, 35 V., stat. 87, § 1; Laws of Tennessee, Carr. & Nich. Dig., p. 426; North Carolina Rev. Stats., c. 35, § 1; Laws of Mississippi, Alden & Van Hosen’s Dig., c. 70, § 5, p. 5382; Laws of Alabama, Toulman’s Dig., tit. 17, ¢. 3, § 2, p. 219; Laws of Dela- ware, Rev. Code of 1829, p. 63; Laws of South Carolina, Brevard’s ed., vol. 1, p. 460 ; Laws of Missouri, Revision of 1835, p. 476; Massachusetts Rev. Stats., c. 85, § 25; Rev. Stats. of Mich., c. 163 ; Rev. Stats. of Vt., tit. 18, ¢. 29; Rey. Stats. of Ark., c. 52; Hotchkiss Stat. Law of Geo., p. 780, et seg.; Cr. Code of IIl., p. 412, ct seq. of Rev. Statutes of Ill.; Hartley’s Digest of Laws of Texas, Art. 1703, et seq.; Rev. Stats. of Maine, tit. 12, c. 171; Code of Va., tit. 55, c. 204; Rev. Stats. of Wis., c. 145. : [A preliminary examination before a J. P. is not necessary in cases of felonies in Virginia, Jackson v. Com., 23 Gratt. 919 ; by acts of 1866-7, ch. 207, §§ 15, 16; a person accused of felony is not entitled as a matter of right to an examination before a J. P., Chahoon v. Com. 20 Gratt. 733. After Indictment and “ not guilty ” pleaded, the defendant cannot object that there was no preliminary examination. State v. Caulfield, 23 La. An. 146.] ‘(General procedure in Penn, fully described, including arrest, hearing before a committing magistrate, indictment by a grand jury, trial, etc. In extraordinary cases of public importance, the court may give the matter in charge to the grand THE EXAMINATION AND COMMITMENT. 133 Depositions.—Remanding prisoner. The following may be the form of the Depositions. The examination of C. D., of fo wit: : of [daborer}, taken on [oath], this day of ——, in the year of our Lord , at , in the [county] aforesaid, before the undersigned, [one] of Her Majesty’s justices of the peace for the said [county], in the presence and hearing of A. B., who is charged this day before [me], for that he the said A. B. on , at [etc., describing the offence as in a warrant of commitment. | This deponent, C. D., on his [oath] saith as follows: [ete., stating the deposition of the witness, as nearly as possible, in the words he uses. When his deposition is complete let him sign it.] And this deponent E. F., upon his oath, saith as follows, [etc.] The above depositions of C. D. and E. F. were taken and [sworn] before me at , on the day and year first above mentioned. J.8. { farmer], and E. F., (0) Remand. If, from the absence of witnesses, or from any other reasonable cause, it shall become necessary or advisable to defer the examination or further examination of the witnesses for any time, the justice before whom the accused shall appear or be brought, may, by his warrant, from time to time, remand the party accused for such time, as by such justice, in his discretion, shall be deemed reasonable, not exceeding , eight clear days, to the common jail or house of correction, or other prison, lock-up house or place of security in the county, riding, divi- sion, liberty, city, borough, or place for which such justice shall then be acting; orif the remand be for a time not exceeding three clear days, it shall be lawful for the justice, verbally, to order the constable or other person in whose custody such party accused may then be, or any other constable or person to be named by the said justice in that behalf, to continue to keep such party accused in his custody, and to bring him before the same or such other justice or justices, as shall be there acting at the time appointed for continuing such examination: it is provided, however, that the justice may order the accused to be jury in the first instance without any sworn complaint, but will not take this course ordinarily. Memorial of Citizens’ Association, 8 Phil. (Pa.) 478. For effect of Kansas statutes upon the common law rule, see Prell v. McDonald, 7 Kans. 426. See U. 8. v. Bloomgart, 2 Ben. 356; Matter of Van Campen, 2 Ben. 419; Matter of Clark, 2 Ben. 540; State v. Gachenheimer, 30 Ind. 63; Wright v. Com., 19 Gratt. 626; Shelly v. Com., 19 Gratt. 653. ] ‘ 134 THE EXAMINATION AND COMMITMENT. Warrant remanding a prisoner. brought before him, at any time before the expiration of the time for which such accused party shall be so remanded, and the jailor or [*37] officer in whose *custody he shall then be, shall duly obey such order.(a)(1) The following may be the form of the Warrant remanding a Prisoner. To the constable of , and to the [keeper of the house of correction] at , in the said [county] of ——. Whereas A. B. was this day charged before the undersigned, [one] of Her Majesty’s justices of the peace in and for the said [county]: (a) 11 & 12 Vict., c. 42, § 21. (1) At common law, if, when the party is first brought before the magistrate, the latter finds it necessary to inquire further into the case before he discharges or commits the prisoner, he may, from time to time, verbally remand him into custody ; and a written warrant or authority is unnecessary. Moore, 408; 1 Hale, 585; 2 ibid. 120; Bac. Abr. Trespass, D. 3; Dick. J., Exam. 3. In Michigan, the statute provides that, where the examination is adjourned, the accused may -be committed by the verbal order of the magistrate, or “by a warrant under his hand, stating that he is committed for such further examination, on a day to be named in the warrant,” (Rev. Sts. of Mich., c. 168, § 1), and that the party may, in the mean time, be committed either to the county jail or to the custody of the officer by whom he was arrested, or of any other officer; or, unless he be charged with a capital offence, or of murder in the first degree, he may be recognized in a sum and with sureties to the satisfaction of the magistrate for his appearance before such magistrate for such further examination. Rev. Sts. of Mich., c. 163, 10. § With regard to the time within which the examination must be made, the words of the statute in the states of New York, Michigan, Virginia, Wisconsin, and Arkansas, are that the magistrate shall proceed “as soon as may be.” Laws of N. Y. of 1845, p. 186, § 13; Rev. Sts. of Mich., c. 163, §13; Code of Va., ¢. 204, §11; Rev. Sts. of Wis., c. 145, § 12; Rev. Sts. of Ark., c. 52, §31. In Texas the statute provides that all examinations “shall be had as soon as possible after the: person charged is brought before the justice.” Hartley’s Dig. of Laws of Texas, Art. 1713. 1n Mississippi, the language of the statute is that ‘‘the justice shall immediately proceed.” Hutchinson s Miss. Code, p. 689, sub. 5. Under the foregoing statutes, as well as at common law, the magistrate will be allowed a reasonable time, before he makes his final decision. 1 Chit. Cr. L. 72. And whenever it is necessary he may commit the prisoner for further examina- tion. 5 Cowen, 273; 1 Hale, 585, 586. In Texas the statute provides that ‘the examination may be adjourned for a reasonable time to procure testimony.” Hartley’s Dig., Art. 1718. In Maine, Virginia, and Wisconsin, the statute authorizes the magistrate to’ adjourn the examination without the consent of the person charged, from time to time, not exceeding ten days at one time. Rey. Sts. of Maine, c. 171, § 9; Code of Va., tit. 55, c. 204, §8; Rev. Sts. of Wis., c. 145, § 9. In Michigan the magistrate may adjourn the examination from time to time without the consent of the accused, and to the same, or a different place in the county, as he shall deem necessary. Rev. Sts. of Mich., c. 163, § 10. A commissioner appointed to take affidavits under the acts of Congress, may adjourn the examination of a person brought before him on a criminal complaint, to another time and place. But he cannot do so in the absence of the accused. U. 8..v. Rundlett, 2 Curtis, C. C. Rep. 41. THE EXAMINATION AND COMMITMENT. 135 Warrant remanding a prisoner. of ——, for that [etc., as in the warrant to apprehend]: and it appears to me to be necessary to remand the said A. B.: These are therefore to command you, the said constable, in ‘Her Majesty’s name, forthwith to convey the said A. B. to the [house of correction] at , in the said [county], and there deliver him to the keeper thereof, together with this precept; and I hereby command you, the said keeper, to receive -the said A. B. into your custody in the said house of correction, and there safely keep him until the day of instant, when I here- by command you to have him at , at o'clock in the forenoon of the same day, before me or before such other justice or justices of the peace for the said [county] as may then be there, to answer further to the said charge, and to be further dealt with according to law, unless you shall be otherwise ordered in the mean time. Given under my hand and seal, this day of , in the year of our Lord , at , in the [county] aforesaid. J.S. [z.8.] Or, instead of detaining the accused party in custody during the period for which he will be so remanded, any one justice of the peace, before whom such accused party shall so appear or be brought as aforesaid, may discharge him, upon his entering into a recognizance, with or without a surety or sureties, at the discretion of such justice, conditioned for his appearance at the time and place appointed for the continuance of such examination; and if such accused party shall not afterwards appear at the time and place mentioned in such recogni- zance, then the said justice, or any other justice of the peace who may then and there be present, upon certifying on the back of the recog- nizance the non-appearance of such accused party, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recog- nizances, and such certificate shall be deemed sufficient prima facie *evidence of such non-appearance of the said accused [*38] party.(a) (1) (a) 11 & 12 Vict., c. 42, § 21. When the magistrate adjourns the examination, he may take the recogni- eee of the aeeuneds but if the party is charged with capital offence, he must be sommitted to prison in the mean time. Rev. Sts. of Maine, c. 171, § 9. Same in Wis., c. 145, § 8; Va., Code of Va., v. 204, § 8. . ‘When such person shall fail to recognize, he shall be committed to prison, by an order, under the hand of the 136 THE EXAMINATION AND COMMITMENT. Recognizance. The following may: be the form of the Recognizance. Be it remembered, that on the day of , in the year of onr Lord , A. B., of —— [laborer], L. M.,. of [grocer], and N. 0O., of [butcher], personally came before me, [one] of Her Majesty’s justices of the peace for the said [county], and severally acknowledged themselves to owe to our lady the Queen the several sums following: that is to say, the said A. B., the sum of , and the said L. M. and N. O., the sum of each, of good and lawful money of Great Britain, to be made and levied of their several goods and chattels, lands and tenements respectively, to the use of our said lady the Queen, her heirs and successors, if he, the said A. B., failin the condition indorsed. Taken and acknowledged, the day and year first above-mentioned, at ——, before me, J.S. Condition. The condition of the within-written recognizance is such: That whereas the within-bounden A. B. was this day [or on last past] charged before me, for that [etc., as in the warrant]: And whereas, the examination of the witnesses for the prosecution in this behalf is adjourned until the —— day of instant; if, therefore, the said A. B. shall appear before me on the said day of instant, at -— o'clock in the forenoon, or before such other justice or justices of magistrate, stating concisely that he is committed for further examination on a future day, to be named in the order.” Rev. Sts. of Wis., c. 145,§ 11. The statute of Maine is similar. It provides that, in such cases, the accused ‘‘may be committed to prison by an order from the magistrate stating, in a summary man- ner, the offence with which he is charged,” etc. Rev. Sts. of Maine, c. 171, § 11. The statute of Virginia is similar to that of Wisconsin. Code of Va., tit. 55, c. 204, § 10. ue State of New York, the accused has a right to an exdmination before he can be compelled to enter into a recognizance; but if he waive an examination, a recognizance entered into without it is valid. Champlain v. The People, 2 Comst. 82. 4 In Maine, where the offence charged in the warrant is not punishable with death or imprisonment in the state prison, the person arrested, if he shall request it, may be carried before any justice of the county in which the arrest was made, for the purpose of entering into a recognizance, without any trial or examination ; and the magistrate, having taken the recognizance, must certify that fact on the warrant, and deliver the same, with the’ recognizance, to the person whv made the arrest; and it is his duty to cause the same to be delivered, without delay, to the clerk of the court before which the person accused was recognized to appear. Rev. Sts. of Maine, c. 171, §§ 4,5. There are similar statutes in Michigan and Virginia. Rey. Sts. of Mich., c. 163, §§ 5, 6, 73 Code of Va., c. 204, § 7. THE EXAMINATION AND COMMITMENT, 137 Recognizance.—Summons of witness. the peace for the said [county] as may then be there, to answer [further] to the said charge, and to be further dealt with according to law, then the said recognizance to be void, or else to stand in full force and virtue. Notice of such Recognizance to be given to the Accused and his Stureties. Take notice, that you, A. B., of , are bound in the sum of and your sureties, L. M. and N. O., in the sum of each, that you, A. B., appear before me, J. 8., one of Her Majesty’s justices of the peace for the [county] of ——, on the —— day of instant, at o'clock in the forenoon, at , or before such other jus- tice or *justices of the peace for the same [county] as may then [*39] be there, to answer further to the charge made against you by C. D., and to be further dealt with according to law; and unless you, A. B., personally appear accordingly, the recognizances entered into by yourself and sureties will be forthwith levied on you and them. Dated this day of , 185-. J.8. Certificate of Non-appearance to be indorsed on the Recognizance. I hereby certify, that the said A. B. hath not appeared at the time and place in the above condition mentioned, but therein hath made - default; by reason whereof the within-written recognizance is for- feited. See J.8.- (c) Summons of Witness. By stat. 11 & 12 Vict., c. 42, § 16, if it shall be made to appear to any justice of the peace, by the oath or affirmation of any credible person, that any person within the jurisdiction of such justice is likely to give material evidence for the prosecution, and will not voluntarily appear for the purpose of being examined as a witness at the time and place appointed for the examination of the witnesses against the accused—such justice may and is hereby required to issue his sum- mons to such person, under his hand and seal, requiring him to be and appear ata time and place mentioned in such summons before the said justice, or before such other justice or justices of the peace for the same county, etc., as shall then be there, to testify what he shall know concerning the charge made against such accused party; and if any person so summoned shall neglect or refuse to appear at the time and place appointed by the said summons, and no just 138 THE EXAMINATION AND COMMITMENT. Form of summons for witness. excuse shall be offered for such neglect or refusal, then (after proof upon oath or affirmation of such summons having been served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode) it shall be lawful for the justice or justices before whom such person should have appeared to issue a warrant, under his or their hands and seals, to bring and have such person, at the time and place to be therein men- tioned, before the justice who issued the said summons, or before such other justice or justices of the peace for the same county, etc., as shall then be there, to testify as aforesaid, and which said warrant [*40] may, if necessary, *be backed as hereinbefore mentioned, in order to its being executed out of the jurisdiction of the justice who shall have issued the same; or, if such justice shall be satisfied, by evidence upon oath or affirmation, that it is probable that such per- son will not attend to give evidence without being compelled so to do, then, instead of issuing such summons, it shall be lawful for him to issue his warrant in the first instance, and which, if necessary, may be backed as aforesaid.(1) , The following is the form of the Summons. To E. F., of —— [laborer]. Whereas information hath been laid before the undersigned [one] of Her Majesty’s justices of the peace in and for the said [county] of : that A. B. [ete., as in the summons or warrant against the accused], and it hath been made to appear to me upon [oath] that you are likely to give material evidence for the [prosecution]; These are, therefore, to require you to be and to appear before me, on next, at o’clock in the forenoon, at ——, or before such other justice or justices (1) The magistrate having authority to examine into the nature and circum- stances of a criminal charge against an offender has also a power, as incident to his authority, to bring before him all persons who appear, from the oath of the com- plainant, or from the magistrate’s own knowledge, to be material witnesses for the prosecution; and for this purpose may issue his summons, directed to a proper officer, requiring him to cause such witnesses to come before him, and give evi- dence. See Davis’ Just. 59; 1 Chit. Cr. L.76. And, upon the reasonable request of the defendant, the magistrate has a similar power to bring before him any witnesses whose testimony may be material on his behalf. Ibid; 1 R. 8. 94,§14; 1 Chit. Cr. Law, 76; Rosc. Cr. Ev. 87; 12 Wend. 344; U.S. 0. Moore, J. B. Wal- lace Rep. 23. THE EXAMINATION AND COMMITMENT. 139 Examination of complainant and his witnesses. of the peace for the same county as may then be there, to testify what you shall know concerning the said charge so made against the said A. B., as aforesaid. Herein fail not. Given under my hand and seal, this of our Lord » at day of , in the year , in the [county] aforesaid. J.S. [t. 8.](1) (1) For form of summons to witness to give evidence, as used in the State of New York, see Barbour’s Cr. Law, pp. 704, 705. In criminal cases a witness cannot decline to be sworn, though he has not been subpenaed at all. 2 Taylor’s Evid. p. 802; 4 Carr. & P. Rep. p. 218. Where a witness refuses to be sworn, and to testify in answer to lawful questions, the magistrate may commit him to jail. He is to be committed “until he consent to testify or answer.” It seems, that in Ohio, by statute, a justice of the peace can only proceed by imposing a fine on the witness, and enforcing it in the usual way. Swan’s Justice, 481, 95. McKinney’s Am. Mag. 237, 238. In the State of New York, among the acts enumerated in the revised statutes as amounting to criminal contempts, is “the contumacious and unlawful refusal of any person to be sworn as a witness; and when so sworn, the like refusal to answer any legal or proper interrogatory.” 2 N. Y. Rev. Sts. 278, §10. In such case, the justice may, by warrant, commit the refractory witness to the jail of the county. The warrant must specify the cause for which it is issued, and if it be for refusing to answer any question, such question must be specified therein ; and the witness is to be closely confined, pursuant to the warrant, until he submits to be sworn, or to an- swer, as the case may be. 2N. Y. Rev. Sts. 274, {§ 279, 280. EXAMINATION OF COMPLAINANT AND HIS WITNESSES. When the person accused and the witnesses to be examined are duly brought before the magistrate, and everything is in readiness for proceeding, the magis- trate is to examine the complainant and the witnesses produced in support of the prosecution, on oath, in the presence of the prisoner, in regard to the offence charged. 1 Nun. & Walsh, 305. In New York, the statute does not confine the magistrate, in the examination, to questions respecting the offence charged; but he may examine the complainant and his witnesses “in regard to any other matters connected with such charge, which such magistrate may deem pertinent.” N. Y. Rev. Stats., 4th ed., vol. 2, p. 891, § 13; 3 Hill, 296; 5 ibid. 33. In Maine, the complainant and witnesses to support the prosecution are to be examined under oath, in presence of the party charged, “as to all pertinent facts.” Rev. Stats. of Maine, c. 171,§12. The language of the statute in Illinois is, that the magistrate ‘shall inquire into the truth or probability of the charge exhibited against such prisoner by the oath of all the witnesses attending.” Rev. Stats. of ILL, ed. of 1858, p. 418, § 203. And of Ohio, that ‘it shall be the duty of the justice of the peace, before whom any such person shall be brought, to inquire into the complaint.” Rev. Stats. of Ohio, c. 65, §1. ; : In some of the states, itis provided by statute that the magistrate, while ex- amining any witness, may, at his discretion, exclude from the place of examination all the other witnesses, and that he may also direct the witnesses to be kept separate. Rev. Sts. of Wis., c. 145, § 14, Same in Michigan and Maine. Rev. Sts. of Mich., c. 168, §15; Rev. Sts. of Maine, c. 171,§14; Rev. Sts. of N. Y., 4th ed., p. 892, § 18; Rev. Sts. of Ark., c. 52, §§ 34, 37. ‘The witnesses must be examined in the presence of the accused, and he has a right to have the assistance of counsel. Rev. Sts. of N. Y., 4th ed., p. 891; Rev. Sts. of Ark., c. 52, § 32; Rev. Sts., of Wis., c. 145, § 13; Rev. Sts. of Mich., c. 163, (14; Rev. Sts. of Maine, c. 171,413. In Texas, the statute provides that the accused shall “have the privilege of interrogating all the witnesses.” Hartley’s Dig. of Laws of Texas, Art. 1704, : The testimony of the several witnesses ought in all cases to be reduced to 140 THE EXAMINATION AND COMMITMENT. Examination of prisoner. writing, and be signed by the witnesses respectively. In New York, Michigan, Arkansas, and Texas, the statute is imperative. Rev. Sts. of N. Y., 4th ed., p. 892, § 18; Rev. Sts. of Mich., c. 163, § 16; Rev. Sts. of Ark., c. 52,§ 38; Hartley’s Dig. of Laws of ‘Texas, Art. 1704. In Maine, Virginia, and Wisconsin, it is left to the discretion of the magistrate whether to reduce the testimony of any witness to writing or not. Rev. Sts. of Maine, c. 171, § 15; Code of Va., c. 204, § 10; Rev. Sts. of Wis., c. 145, § 14; Rosgoe’s Cr. Ev. 62; 1 Moo. C. C. 338; 8 Wend. 598. EXAMINATION OF PRISONER. Before commencing the examination of the prisoner, the magistrate should in- form him of the charge made against him, and allow him a reasonable time to send for and advise with counsel. If the magistrate refuses this, when requested, the deposition will not be evidence against the prisoner. 3 Hill’s Rep. 389. If desired ‘by the. prisoner, his counsel may be present during the examination of . the complainant and the witnesses on the part of the prosecution, and during the examination of the accused himself. 2N. Y. Rev. Sts. 708, § 14; 3 Hill, 289. In practice, when the party is brought before the magistrate, he is generally cautioned that he is not bound to accuse himself, and that any admission may be produced against him at his trial. Rex d. Green, 5 Carr. & P.312. At all events, no improper influence, either by threat, promise, or misrepresentation, ought to be employed ; for however slight tle inducement may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt whether it was not made rather from a motive of fear or interest than from a sense of guilt. 1 Leach, 263, 291, 386; 2 Hale, 284; 4 Bla. Com. 357; Phil. Ev. 50, 51, 52; Hawk., b. 2, ¢. 46, § 36; State v. Guild, 5 Halstead, 163; 2 Stark Ev. (5th Am. ed.) 27, and n. (g); Commonwealth v. Knapp, 10 Pick. 477; Rex v. Thorn- ton, 1 Ry. & Moo. C, C. 27; Rex v. Swatkins, 4 Car. & Payne, 550; Rex v. Dunn, 4 Car. Payne, 543; Rex v. Davis, 6 Car. & Payne, 177; Rex v. Cooper, 5 Car. & Payne, 535; Rex v. Gilham, Car. C. L. 61; 1 Ry. & Moody, 186; Rex v. Ellis, 1Ry. & Moody, 432; State v. Roberts, 1 Devereaux, 259. - ; A confession so obtained is not rejected froma regard to public faith, but because, when forced from the mind, by the flattery of hope, or by the torture of fear, it comes in so questionable a shape’that no credit should be given to it by a jury. 2 Leach. 263, 264 ; Dick. Sess. 211, 212. The justice should also be upon his guard against confessions uttered by collusion. A remarkable instance of this kind deserves to be mentioned, as singularly illustrative of this caution. Two brothers committed a robbery in a dark night to a large amount, and fled. A younger brother, who was at home, and innocent, in order to favor their escape, contrived to draw suspicion on himself, and when examined, dropped hints amounting to a constructive admission of his guilt, which he refused to subscribe. On this he was committed to prison, and the pursuit of his brothers was discontinued.- On the trial he produced an alibi. on the clearest evidence, and obtained an easy acquittal. In the mean time the actual felons had safely arrived in America with their plunder. Dick, J., Hzamination, III, If, however, by means of a confes- sion so unduly obtained, other facts are brought to light, they may be proved, though the confession itself is inadmissible. Hawk., b. 2, c. 46, § 38 ; 2 Leach, 264, and ibid. 265, n. a.; 2 East’s P. C. 658; Phil. Ev. 51; Dick. Sess. 212; See 2 Stark. Ev. (5th. Am. ed.) 28; Roscoe’s Dig. Cr. Ev. 36, 37; Commonwealth v. Knapp., 9 Pick. 496 ; State v. Crank, 2 Bailey, 67; Jackson’s Case, 1 Rogers’ Rec. 28; Stage’s Case, 5 ibid. 177; 2 Russ. 650. . The magistrate is to put all proper questions to the prisoner, taking down his statement in writing as he proceeds (Roscoe’s Dig. Cr. Ey. 45; 2 Stark. Ev. (5 Am. ed.) 28; 2 Russell, 656; Bellinger v. People, 8 Wend. 599), and after closing his examination, should read over the whole, and ask him if it be true, and if it contain any admission, should then require him to sign it, and should sign it him- self. Dalt., J.,c. 164; 2 Russ. 657; 1 Phil. Ev. 107; Penna v. Stoops, Addis. 381 ; People v. Johnson, 1 Wheeler’s C. C. 193. And an examination thus taken may be given in evidence against the prisoner on his trial (1 Hale, 586), though not against any other persons whom he may have incidentally accused. Hawk., b. 2, c. 46, § 31-34. Morrison v. State, 5 Ohio, 438. The prisoner ought never to be required to swear, and he ought not to be ques~ THE EXAMINATION AND COMMITMENT. 141 Warrant where witness has not obeyed a summons, Warrant where a Witness has not obeyed a Summons. To the constable of [county] of ; Whereas information having been laid before the undersigned, [one] of Her Majesty’s justices of the peace, in and for the said [county] of — , that A. B. [etc., as in the summons]; and it having been made to appear to [me] upon oath that E. F., of , [Zaborer] was likely to give material evidence for the prosecution, I did duly issue my sum- , and to all other peace officers in the said tioned or examined by the magistrate like a common witness. Holt C. N. P. 597; but see 2 Stark. Ev. (Sth Am. ed.) 29, n. (g); Jones’ case, 2 Russ. 658; Ellis’ case, Ry. & Mood. N. P. C. 482; Thornton’s case, 1 Moody C. C. 27; People v. Smith, 1 Wheeler’s C. C. 54; 2 Russ. 649; 1 Hale, 585; 2 Hale, 52, 120, 284; Bac. Ab., Evidence, L.; Burn, J., Examination; Dick. J., Examination, II.; Son v. People, 12 Wend. 346. The statutes of New York and Arkansas expressly pro- vide, that the examination of the prisoner shall not be on oath. Rev. Sts. of N. Y., 4th ed., p. 891, 14; Rev. Sts. of Ark., ¢. 52, § 33. In Mississippi the magis- trate is required to take “the voluntary information of the accused.” Hutchinson’s Miss. Code, p. 689, sub. 5. The language of the statute of Texas is, that the magistrate shall “take the voluntary statement of the accused, if he wishes to make any such statement.” Hartley’s Dig. of Laws of Texas, art. 1704. Where the prisoner, being mistaken for a witness, was sworn, but, the mistake being discovered, the deposition which had been commenced, was destroyed, and the prisoner, subsequently, after a caution from the magistrate, made a statement, Garrow, B., received that statement. Webb’s case, 4 Carr. & Payne, 564; see also, Harwarth’s case, 4 Carr. & Payne, 254; 2 Stark. Ev. (5th Am. ed.) 29, n. (g), and when thus taken it has been rejected. Bul. N. P. 242; Hawk., b. 2, c. 46, §37; Dick. J., Examination, I1I.; 1 Stark. R. 242. Where a magistrate returns with the depositions that a prisoner was sworn and made statements, those statements cannot be received in evidence against him, although a witness state tbat in fact he was not sworn. Regina v. Pikesley, 9 Car. & Payne, 124; see Regina v. Owen, 9 Car. & Payne, 83. The statutes are imperative on the magistrate, to take-the examination of the accused in writing. Rev. Sts. of N. Y., 4th ed., p. 891, §16; Hutchinson’s Miss. Code, p. 689, sub. 55 Hartley’s Dig. of Laws of Texas, art. 1704; Rey. Sts. of Ark., ¢. 52, § 85. The prisoner’s examination, after having been reduced to writing, and read to him by the magistrate, ought to be tendered to him for his signature ; though the statute does not oblige him to sign it, nor is it essentially necessary; but as a matter of convenience it would be well to have him sign it if he is willing to do so. 2 Leach, 625. At all events, it must be signed and certified by the magistrate. ‘If, upon his examination being read to him, he acknowledges it to be true, but refuses to sign it, it is admissible against him at common law ; but if he refuses to sign it, and make no such acknowledgment, it cannot be received in evidence, 1 Stark. N. P. Ca. 483; 1 Phil. Ev. 115; 2 Stark. 483; Lamb’s case, Leach C. L. 625; see Dewhurst’s case, Lewin C. C. 47; Rex v. Pressby, 6 Carr. & Payne, 183; Rex v. Tarrant, ibid. 182. Ifthe examination is taken down in writing by 2 constable only, and is not therefore under the statute, yet if the prisoner signs it, the paper itself may be read in evidence. ° Swatkin’s case, 4 Carr. & Payne, 550. But private persons have no authority to take the examination under the ‘statute. Commonwealth v. Boyer, 2 Wheeler C. C. 140. | . [In California, by the act of 1851, no oath can be administered to the accused before the committing magistrate, and he cannot be examined or cross-examined ; only the five questions specified in the statute can be asked, and his answers thereto must be reduced to writing. People v: Gibbons, 43 Cal. 557.) ‘ 142 THE EXAMINATION AND COMMITMENT. Warrant, for a witness in the first instance. mons to the said E. F., requiring him to be and appear before me, on ——, at ——, or before such other justice or justices of the peace for the same county as might then be there, to testify what he shonld know respecting the said charge so made against the said A. B. as aforesaid: and whereas proof hath this day been made before me, upon oath, of such summons having been duly served upon the said E. F.: and whereas the said E. F. hath neglected to appear at the time [*41] *and place appointed by the said summons, and no just excuse has been offered for such neglect: These are, therefore, to com- mand you to bring and have the said E. F. before me, on , at o’clock in the forenoon, at ——, or before such other justice or justices of the peace for the same [county] as may then be there, to testify what he shall know concerning the said charge so made against the said A. B., as aforesaid. Given under my hand and seal, this —— day of -——,, in the year of our Lord ——, at , in the [county] aforesaid. J.S. [u. 8.] Warrant for a Witness in the first instance. To the constable of ——, and to all other peace officers in the said [county] of . Whereas information has been laid before the undersigned, [one] of Her Majesty’s justices of the peace, in and for the said [county] of ——,, that [etc., as in the summons]; and it having been made to appear to [me] upon oath that E. F., of , [Zaborer] is likely to give material evidence for the prosecution, and that it is probable that the said E. F. will not attend to give evidence without being compelled so to do; these are, therefore, to command you to bring and have the said E. F. before me, on , at —— o'clock in the forenoon, at , or before such other justice or justices of the peace for the same [county] as may then be there, to testify what he shall know concerning the said charge so made against the said A. B., as aforesaid. Given under my hand and seal, this day of ——, in the year of our Lord . at , in the [county] aforesaid. J.S. [u. 8.] If, on the appearance of such person so summoned before the said last-mentioned justice or justices, either in obedience to the said sum- mons, or upon being brought before him or them by virtue of the said THE EXAMINATION AND COMMITMENT. 143 Warrant of commitment of witness. warrant, such person shall refuse to be examined upon oath or affirma- tion concerning the premises, or shall refuse to take such oath or affir- mation, or, having taken such oath or affirmation, shall refuse to an- swer such questions concerning the premises as shall then be put to him, without offering any just excuse for such refusal, any justice of the peace then present, and having there jurisdiction, may, by warrant under his hand and seal, commit the person so refusing to the common jail or house of correction for the county, riding, division, liberty, city, borough, or place where such person so refusing shall then be, there to remain and be imprisoned for any time not exceeding seven days, unless he *shall, in the mean time, consent to be exam- [**42] ined, and to answer concerning the premises.(a) The following may be the form of the Warrant of Commitment of a witness for refusing to ibe sworn or to give Evidence, To the constable of , and to the keeper of the [house of correction] at , in the said [county] of ——. Whereas, A. B. was lately charged before the undersigned, [one] of Her Majesty’s justices of the peace in and for the said [county] of —=, for that [etc., as in the summons]; and it having been made to appear to [me] upon oath that E. F., of , was likely to give material evi- dence for the prosecution, I duly issued my summons to the said E. F., requiring him to be and appear before me, on ——, at , or before such other justice or justices of the peace as should then be there, to testify what he should know concerning the said charge so made against the said A. B., as aforesaid ; and the said E. F. now appearing before me [or being brought before me by virtue of a warrant in that behalf, to testify as aforesaid], and being required to make oath or affirmation as a witness in that hehalf, hath now refused so to do [or being duly sworn as a witness doth now refuse to answer ‘certain questions concerning the premises which are here put to him], without offering any just excuse for such his refusal: These are, therefore, to command you the said constable to take the said E. F., and him safely convey to the [house of correction] at , in the county aforesaid, and there deliver him to the said keeper thereof, together with this precept ; (a) 11 & 12 Vict., c. 42, § 16. 144 THE EXAMINATION AND COMMITMENT. Defence.—Examination of prisoner. and I do hereby command you the said keeper of the said [house of correction] to receive the.said E. F. into your custody in the said [house of correction], and him there safely keep for the space of —— days for his said contempt, unless he shall, in the mean time, consent to be examined, and to answer concerning the premises; and for your so doing, this shall be your sufficient warrant. Given under my hand and seal, this day of ——, in the year of our Lord ——, at ——,, in the [county] aforesaid. J.8. [z. 8.] (d) Defence. After the examinations of the witnesses on the part of the prosecu- tion have been completed, the justice of the peace, or one of the justices, by or before whom such examination shall have been so completed, shall read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to the like effect: “Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything [*43] *unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial;” and whatever the prisoner shall then say in answer thereto, shall be taken down in writing, and read over to him, and shall be signed by the said justice or justices, and kept with the de- positions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards upon the trial of the said accused person, the same may, if necessary, be given in evidence against him, without further proof thereof, unless it shall be proved that the justice or justices, purporting to sign the same, did not in fact sign the same.(a) : Whatever the prisoner says after being thus cautioned, if it be taken down and transmitted with the deposition, may be read against the prisoner at the trial, without further proof.(2) The following is the form of taking down The Prisoner's Statement. ——: A.B. stands charged before the undersigned, [one] of Her Majesty’s justices of the peace in and for the [county] aforesaid, this (a) 11 & 12 Vict., v. 42, § 18. (0) R. v. Sansome, 19 Law J., 143 m. THE EXAMINATION AND COMMITMENT. 145 Examination of prisoner. day of , in the year of our Lord , for that he, the said A. B., on » at , [etc., as in the caption of the depositions]; and . the said charge being read to the said A. B., and the witnesses for the prosecution, C. D. and E. F., being severally. examined in his presence, the said A. B. is now addressed by me as follows: « Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you de- sire to do so; but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial ;” where- upon the said A. B. saith as follows: [Here state whatever the prisoner may say, and in his very words, as nearly as possible. Get him to sign it, if he will.] ~ A. B. Taken before me at , the day and year first above mentioned. Also, for the purpose of preventing the defendant being misled by any promises or threats which may have been previously holden out to him by the prosecutor, constable, or others, to induce him to make “any confession—it is provided by the same section, that the said justice or justices, before such accused person shall make any state- ment, shall state te him, and give him clearly. to understand, that he has nothing to hope from any promise of favor, and nothing to fear from any threat, which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he *shall then say may be given in evidence against [**44] him upon his trial, notwithstanding such promise or threat: provided, nevertheless, that nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any ad- mission or confession or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person.(a) (1) (a) 11 & 12 Vict., c. 42, § 18. (1) The statutes of New York and Arkansas provide that the answers of the prisoner shall be read to him, and that he may correct or add to them, and that they must be certified and signed by the magistrate. Rev. Sts. of New York (4th ed.), p. 891, § 16; Rev. Sts. of Ark., c. 52, § 35. In Mississippi it is the duty of the justice ‘to inform the accused of his or her privilege to ask any questions he or she may think proper ;” which questions, with their answers, must be re- duced to writing by the justice. Hutchinson’s Miss Code, p. 689, sub. 5. After the examination of the prisoner is completed, his witnesses, if he have any, must be sworn and examined ; and he may have the assistance of counsel in such examination. Rev. Sts. of New York (4th ed.), p. 891, § 17; Rev. Sts. of 10 146 THE EXAMINATION AND COMMITMENT. Examination of prisoner. Maine, c. 171, §18. In Wisconsin and Michigan, the statute directs that the prisoner’s witnesses shall be sworn and examined “after the testimony to support the prosecution.” Rev. Sts. of Wis., c. 145, { 13; Rev. Sts. of Mich., c. 163, § 14. The New York Revised Statutes provide that the witnesses, produced on the part either of the prisoner or of the prosecution, shall not be present at the exami- nation of the prisoner. N. Y. Rev. Sts. (4th ed.), vol. 2, p. 892, §18. There ig a similar statute in Arkansas. Rev. Sts. of Ark. §f 34, 37. In New York the statute requires the examination tv be certified by the magistrate taking the same, to the next court having cognizance of the offénce and in which the prisoner may be indicted, on the first day of the sitting thereof. N. Y. Rev. Sts. vol. 2 (4th ed.), p. 893, (28. The statute is the same in Maine and Wisconsin, excepting that the magistrate may return the examination either to the district attorney, or the clerk of the court. Rev. Sts. of Maine, c. 171, §.24; Rev. Sts. of Wis., c. 145, (25. The statute of Michigan on this subject is similar to that of New York. Rev. Sts. of Mich., c. 163, § 25. In Vermont, the justice is required to file with the clerk of the county a certified copy of the records and process, within thirty days after the examination, or if there be not thirty days intervening between su¢h time and the next term of the county court, then on the first day of the term. Rey. Sts. of Vt., c. 29, § 7. The magistrate is not to take and certify merely the testimony adduced in sup- port of the charge, but he ought also to return the evidence which tends in favor of the prisoner. Dalt. J., c. 165. 7 To authorize a commitment, the same proof is not required which would he necessary to convict a person on the trial in chief; but the committing magistrate will require that probable cause be shown. Probable cause is a case made out by proof, furnishing good reason to believe that the crime alleged has been com- mitted by the person charged. When such cause is shown, it can be done away only by its appearing that no such crime has been committed, or that the sus- picion entertained of the prisoner is wholly groundless. U.S. v. Burr, Sergeant’s Const. Law, 242. : “Tt is to be recollected, however, that this examination is not a judicial inquiry, in which the guilt or innocence of the party accused is to be finally decided upon. It is the duty of the magistrate, in this stage of proceedings, to ascertain, first, whether the crime alleged has been committed, and whethér committed in the manner and with the circumstances alleged; and secondly, if the crime has been so committed, whether there is a reasonable ground to believe that the party . accused may have committed it, so as to demand @ further inquiry, and for which the party should be sent to stand his trial upon the charge preferred. And as, on the one hand, the magistrate would act contrary to the principles of reason and justice, and in violation of his duty, if he were to commit the party to prison against the clear conviction of his own understanding, and the obvious and inev- itable conclusion of common sense; yet, on the other hand, he is bound not to discharge the prisoner unless he is perfectly satisfied that there is no sufficient ground for judicial inquiry. In the discharge of this part of his duty, the magis- trate may encounter cases of considerable nicety and difficulty, as where there is conflicting or suspicious testimony, or where the complainant appears pertina- ciously to persevere in his accusation from an obstinate adherence to a charge once made ; and it seems impossible to lay down precise and invariable rules for his guidance under such circumstances. He must act on his own responsibility ; but if he acts with purity of intention, and according to the best of his judgment, in the important trust thus reposed in him, keeping in view that this inquiry is only preliminary and with the object above stated, he can have nothing to appre- hend.” Barb, Cr. Rep, 565. A discharge by the magistate will not bar another prosecution for the same offence, Wright’s Rep. 450. : (The eomplajnt and affidavit may charge one offence and the accused’ may be bound over for another, if the proofs warrant, Redmond v. State, 12 Kans. 172. When a commitment has been held yoid on Agbeas corpus, the papers are functi officio, and a new ap pie must he made if a new gommitment is sought. People v. Walters, 15 Abb, Pr, (N. 8.) 430, For procedure in Pennsylvania, see Memorial of Citizen’s Association, 8 Phila. 478. Clear ad indubitable proof of guilt is not required in order that the acewsed may be held; but i? tee ragicaacs after a THE EXAMINATION AND COMMITMENT. 147 Examination of prisoner.—Discharge or commitment. The only effect of this, however, is to enable the prosecutor to give in evidence upon the trial any confession of the prisoner made after ‘it, notwithstanding any promise or threat previously made; the omis- sion of it does not in the slightest degree prevent the prosecutor from giving in evidence a confession made before the justice in the prison- er’s statement above mentioned, after the usual cautions,(a) or a con- fession made at any other time, which was not induced by any promise or threat. This subject shall be now more fully treated of hereafter, under the head of evidence. It is necessary to mention, that no objection shall be taken or allowed to any summons or warrant against a party accused, for any defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the justice or justices who shall take the examinations of the witnesses in that behalf, as hereinbefore mentioned; but if any such variance shall appear to such justice or justices to be such that the party charged has been thereby deceived or misled, it shall be lawful for such justice or justices, at the request of the party so charged, to adjourn the hearing of the case to some future day, and in the mean time to remand the party so charged, or to admit him to bail, in manner already mentioned.(6) (e) Discharge or commitment. When all the evidence offered upon the part of the prosecution against the accused party shall have been heard, if the justice shall be of opinion that it is not sufficient to put the accused upon his trial for any indictable offence, he shall forthwith order him, if in custody, to be discharged as to the information then under inquiry; but if, in the opinion of the justice, such evidence is sufficient to put the accused party upon his trial for an indictable offence, or if the evidence given (a) R. v. Sansome, supra; R. v. Bond, 19 (b) Ante, pp. 36, 37; 11 & 12 Vict., c. 42, Law J. 138 n. . §§ 9, 10. full examination of the facts, is satisfied that no crime has been committed, the accused should be at once discharged. U.S. v. Lumsden, 1 Bond, 5.) _ (Under the California Criminal Practice Act, a waiver of examination, and a commitment and admission to bail by a magistrate, do not constitute a bar to another and a further examination on the same charge, when conducted accord- ing to statute. Hx parte Walsh, 39 Cal. 705. For a case of special facts, see Gano v. Hall, 42 N. Y. 67. See, also, State v. Gachenheimer, 30 Ind. 63; Matter of Clark, 2 Ben. 540; Matter of Van Campen, 2 Ben. 419; U. S. v. Bloomgart, 2 Ben. 356; Hamilton v. People, 29 Mich. 173.] 148 THE EXAMINATION AND COMMITMENT. Mittimus or warrant of commitment. raise a strong or probable presumption of the guilt of such accused party, then such justice shall, by his warrant, commit him to the com- mon jail or house of correction for the county, riding, division, liberty, . city, borough, or place, to which, by law, he may now be committed, or in the case of an indictable offence committed on the high seas, or on land beyond the sea, to the common jail of the county, riding, division, liberty, city, borough, or place within which such [*45] justice or justices shall have jurisdiction, *to be there safely kept until he shall be thence delivered by due course of law— or admit him to bail, as hereinafter mentioned.(a) The following is the form of the Warrant of Commitment.(1) To the constable of and to the keeper of the [house of correction] at , in the said [county] of ——. Whereas, A. B. was this day charged before me, J. S., [one] of Her Majesty’s justices of the peace in and for the said [county] of , on the oath of C. D., of ——, [farmer], and others, for that [etc., stating shortly the offence]: These are, therefore, to command you, the said constable of ——, to take the said A. B., and him safely to convey to (a) 11 & 12 Vict., v. 42, § 25, (1) The mittimus should state at the beginning the style and jurisdiction of the justice, and be directed to the constables of a town named therein, or to the sheriff or his deputy, and to the keeper of the particular jail to which the justice intends the prisoner shall be committed ; and command the sheriff and constables to con- vey the prisoner into the custody of the jailer, and the jailer to receive and keep him in said jail, until he shall be thence delivered by due course of law. Davis’ J., 114, 115. The mittimus need not be drawn with technical accuracy. It will be sufficient if it show on its face that there is authority to detain the prisoner on some charge of a criminal nature. State v. Killet, 2 Bailey, 290. It has been held that, upon habeas corpus, the court will only inquire whether the warrant of commitment states a sufficient probable cause to believe that the person charged has-commit- ted the offence stated. U.S. v. Johns., 4 Dallas, 412; 1 Burr’s Tr. 11, 15. It has been held in New York, that though the warrant of commitment be de- fective, the Supreme Court will not discharge the prisoner finally for that reason ; but if a crime be made out upon the depositions, the course is to discharge the prisoner pro forma, but remand him to prison upon a special rule of court. 5 Cowen, 39; and see 3 East, 157. In Virginia, a party having been acquitted on a charge of felony, and commit- ted by the circuit court to take his trial for a misdemeanor, the general court dis- charged him on habeas corpus, because the order of commitment did not specify the offence with sufficient certainty. But as the record of the proceedings in the cireuit court showed that there was reasonable ground to suspect the arty of having committed an offence (other than the specific arime of which he was THE EXAMINATION AND COMMITMENT. 149 Formal requisites of commitment. acquitted) proper to be made the subject of judicial inquiry, the court directed the sheriff to take him again into custody, and’ carry him forthwith before a jus- a? of the peace, to be dealt with according to law. Young’s case, 1 Robinson, FORMAL REQUISITES OF COMMITMENT. The following are the formal requisites of a final commitment : 1st. It must bein writing, and under the hand and seal of the magistrate, and show the time and place of making it. 2 Hale, 122; 1 Chit. Cr. L. 109; 2 Hawk. P. C. c. 16, § 13. A magistrate, however, may, by parol, order a party to be de- tained a reasonable time, until he can draw out a formal commitment. 7 East’s R. 537; 1 Chit. Cr. L. 109; 2 Hale, 121. And it is said, that though advisable, it is not absolutely necessary to state that the commitment was made by the jus- tice in that character; for though his authority does not appear at the beginning of the mittimus, it may be supplied by averment. 2 Hale, 122; Kenyon’s Rep. 122. In order, however, to show the jurisdiction of the magistrate to take cogni- zance of and commit for an offence perpetrated out of his county, when the party has been apprehended there, as in the case of a person arrested in one county for an offence committed in another, it is said to be usual to state the fact in the com- mitment. 1 Chit. Cr. L. 109. In Illinois, the warrant of commitment need not be under seal. Rev. Sts. of Til, ed. of 1858, p. 415, §210; and the sume has been held in South Carolina. State v. Vaughn, Harper, 313. But in Maryland, the commitment of a runaway slave was held void for want of a seal. Somerwell v. Hunt, 3 Har. & M’Hen. 113; 8. P. State v. Caswell, Charlt. 280. In Michigan, where the examination is ad- journed, the statute provides that the accused may be committed by the verbat order of the magistrate, or by a warrant under his hand, stating that he is com- mitted for such further examination on a day to be named in the warrant. Rev. Sts. of Mich., c. 168, §11. And it has been held in Ohio that when a court in session orders a commitment, no writ is necessary ; the minute being sufficient to authorize the officer to act. The State v. Heathman, Wright, 690. In Texas, the commitment must be dated and signed by the justice making it, and specify the cause of commitment. Hartley’s Dig. of Laws of Texas, art. 1708. But, mistake of the magistrate in the date of the warrant of commitment is no ground for set- ting aside the subsequent proceedings. Com. v. Murray, 2 Va. Cas. 504. 2d. The mittimus may be either in the name of the people, or that of the justice awarding it ; but the latter is the most usual. Ibid. ; Dalt. J., c. 125; 2 Hawk., c. 16, § 14; Dick. J., Commit. IV; but see Davis’ J., 107; 1 Nun. & Walsh, 403. It has been held in Arkansas that the mittimus must run in the name of the State. Rohe ex parte 5 Pike, 104. In case the justice, to whom the complaint was made, associates another justice with him, the mittimus should be signed by both. See 1 Nun. & Walsh, 404. 3d. The mittimus should be directed to the sheriff or any constable, and to the jailer and keeper of the prison, and be generally to carry the party to prison. 2 Hawk., c. 16, § 13; 2 Strange, 934; 1 Ld. Raym. 424. When thus directed, it commands. the former to convey the prisoner into the custody of the latter, and the latter to receive and keep him. Burn’s J., Commit. . 4th. The prisoner should be described by his name, if known ; and if not known, then it may be sufficient to describe the person by his age, stature, complexion, color of hair and the like, and to add that he refuses to tell his name. Ibid.; 1 Hale, 577. 5th. The mittimus ought to state that the party has been charged upon oath. For although, in England, it is said that a commitment for treason, or the suspicion of it, without setting forth any particular accusation or ground of it, is valid, yet here a magistrate has no jurisdiction to examine or commit offenders unless there is a complaint on oath; and the commitment ought to show, upon its face, that the magistrate had jurisdiction. There may be an exception to this rule, in cases of commitment made super visum, or upon view of the offence, by the committing magistrate, in which cases an oath is not requisite. 1 Leach, 167; 1 Chit. Cr. L. 110. But in all cases of crimes committed upon the view or in the presence of a magistrate, whatever may be his authority to punish them, it is more fit and proper that he should act the part of a witness rather than of a magistrate ; and. 150 THE EXAMINATION AND COMMITMENT.‘ Formal requisites of commitment. that he should enter his complaint, and procure a process from another justice. 2 Wils. 158. : ; It has been held in Vermont, that the magistrate must certify that the charge was made on oath, notwithstanding the warrant of commitment, the complaint, and the capias, each recite that the complaint is on oath. State v.J.H., 1 Tyler, 444. Butin Com. v. Murray, 2 Va. Cas. 404, it was stated by the court to have been the almost universal practice of the justices in Virginia to omit the state- ° ment in the mittimus that the party was charged on oath; and it was held not to be necessary. It is not necessary to state, in the commitment, any part of the evidence ad- duced before the magistrate, or to show the grounds on which he has thought fit to commit the defendant. 2 Wils. 158; 1 Chit. Cr. L. 110. 6th. It is necessary to set forth the particular species of crime alleged against the party, with convenient certainty. 2 Hawk., c. 16, § 16; 1 Hale, 584 ; 2 ibid. 122; 11 St. Tr. 304, 318, 319; 8 Cranch, 448; 3 Peters, 208; 14 Hast’s Rep. 70. Rohe ex parte, 5 Pike Ark. Rep. 104; State v. Rowe, 8 Richardson, 17. Where the warrant of commitment stated no offence, but merely that the prisoner had been brought before a meeting of many justices who had required him to find sureties for his good behavior, it was held that it was illegal. Hx parte Burford, 83 Cranch, 448. If it be for felony, it must state the species of felony, as “for felony of the death of J. S.,” or “for burglary in breaking the house of J. 8.,” etc. And the reason is that it may appear to the judges, upon the return of a habeas corpus, whether it be felony or not. 2 Wils. 158, 9. It has been decided in Massachusetts, that a mittimus or warrant of commitment from a justice of the peace ought to recite the complaint upon which it is founded. 4 Mass. Rep. 497. And, doubtless, this is the safer course; and such, in point of fact, is the practice in New York ; though it is going further than the English authorities require. It has, however, been held in New York, that a warrant of commitment for refusing to give security to keep the peace need not allege the offence; but that it is sufti- cient to state the requirement and the refusal. Bradstreet v. Ferguson, 17 Wend. 181; S. C., 23 Wend. 638. In South Carolina the warrant of commitment need not contain a statement of facts on which the charge is founded. The nature of the crime only need be clearly specified. The State v. Everett, Dudley 8. C.295. In Georgia, the statute requires that the offence, and time and place of committing it, shall be plainly and clearly set forth in the warrant of commitment. Prince, 616. Brady v. Davis, 9 Geo. Rep. 73. But a bench warrant and warrant of commitment after indictment need only recite the fact of indictment and describe the offence generally. Ibid. In Mississippi, the statute requires the magistrate to state, in the mittimus or order of commitment, the nature of the offence, the county in which it is found to have been committed, the amount of bail, and the number of securities required by him, and to direct the sheriff of the county, where such party is ordered to be committed, to release said party on his entering into recognizance, or giving bail, as required by the magistrate. Hutchinson’s Miss. Code, p. 1009, § 1. : When the facts of the case will warrant a commitment for felony (and for the same reason any other crime), the mittimus should not be on suspicion of felony ; for it was said by Lord Manstield that, on such a commitment, a party has a right to be, bailed under the Habeas Corpus Act, and that a person, who should facili- tate the escape of a party so committed, would not be indictable. 1 Leach, 98, note (a); Ibid. 97, 363. ‘The correctness of this opinion is not readily perceived ; for there is no question that a magistrate, both at common law and by the Re- vised Statutes of this state, may arrest and examine a supposed offender upon suspicion; and if so, itis his duty to commit or bail him; except in cases where a court of special sessions is authorized to try him. If, then, the arrest, examina- tion, and consequent commitment be legal, the party is no more entitled to be dis- charged or bailed upon a habeas corpus because he was committed upon suspicion, than if he had been committed upon an absolute charge; and it should seem that the duty of the court, upon a habeas corpus, would be the same in one case as the other; that is, they would exercise their power of bailing, remanding, or dis- ae the party, as the result of the inquiry upon the habeas corpus would .justify, whether he were committed upon suspicion or upon a positive accusation. Davis’ J., 111. THE EXAMINATION AND COMMITMENT. 151 Formal requisites of commitment —Duty of magistrate. It is not necessary to allege, in the mittimus, that the offence was ‘feloniously” committed ; and it is sufficient, if it may be collected on the face of it, that the charge was for a felony. 1 Chit. Cr. L. 113. In Rex v. Juda (2 T. R. 225), the discharge of the prisoner was moved for. because the word “feloniously” was omitted in the commitment, which was for a statutory offence, stating the circum- stances supposed to create the offence. Ashurst, J., said: ‘“ Unless it appears on the face of the commitment itself that the defendant is charged with a felony, we are bound by the Hab. Corp. Act to discharge him, taking such bail as we shall see fit, according to the circumstances of the case.” Grose, J., said: ‘It would be sufticient if, upon the facts stated, they could not but see that the act was felo- niously committed.” In that case, the circumstances did not amount to a charge of felony, and the court bailed the prisoner. But, in The King v. Marks (3 East, 157), where the warrant of commitment contained an insyfficient statement to con- stitute a felony, and the depositions were very full, and stated the offence with sufficient precision, the court refused to bail, and remanded. In the case of convictions, it has been decided, that though the conviction may be correct, yet if the commitment be for a different offence, or do not disclose any offence at all, the magistrate is liable to an action for the imprisonment, etc., under it. 3 Barn. & Cress. 409; 1 Ry. & Moo. C. C. 129, 8. C. When the offence is created by statute, the terms of the statute should be pur- sued in describing it; for, by using other words than those which the legislature has used, it may happen that the offence will not be sufficiently defined. Thus, a prisoner who had been committed, for that ‘‘with force and arms he made an assault on the prosecutor with intent feloniously to steal, take and carry away from the person,” etc., was admitted to bail by the King’s Bench, because the de- scription did not charge him with an offence within the statute (7 Geo. II, c. 21) under which he was committed, and which relates to felonious attempts to rob. Rex v. Remnant, 5 T. R. 169; 2 Leach, 588. It seems, however, that the addition of the word “violently ” to steal, etc., would have been a sufficient description of the offence, within the statute. 2 Leach, 702; 1 Russ. Cr. L. 619. Where the offence described by the statute was setting fire to a cock, mow, or stack of corn, and the charge in the commitment was for setting fire to a parcel of wheat, it was held that this did not sufliciently specify the felony described by the statute, and the prisoner was accordingly admitted to bail. 2 Term Rep. 256; 1 Leach, 484. So, where a warrant of commitment under a statute relating to persons riotously destroying houses, etc., stated that the defendant began to pull down, “in part,” a dwelling-house, the words “in part” not being in the statute, it was held an improper description, and the offender was bailed. 7 Dowl. 538. No precise mode of introducing the statement of the offence appears to be mate- rial. Either of the following forms will answer: “charged with feloniously assaulting,” etc., or ‘with having on,” etc., or, “charged with a misdemeanor, viz.: with having,” etc., or, “for that he, the said A. B., on,” etc., and then recite the complaint. Davis’ J.,114. The latter is decidedly the preferable form of introducing the statement of the crime for which the party is to be committed. Ibid. If the offence be against a statute, the description should close with the words, ‘‘contrary to the form of the statute in such case made and provided.” This, indeed, will be only continuing the description of the offence in the com- plaint, if the complaint be properly drawn; for the description in all offences against penal statutes must conclude, “contrary to the form of the statute (or statutes) in such case made and provided.” Ibid. ith. The commitment should point out the place of imprisonment, and not merely direct that the party should be taken to prison. 2 Strange, 934 ; 1 Lord Raym. 424. DUTY OF THE MAGISTRATE. In Illinois, the magistrate is required to write upon the warrant of commitment the names and residences of the principal witnesses by whom the crime was proved before him. Rev. Sts. of Ill. of 1858, p. 415, § 212. , The statute of Arkansas provides that ‘whenever any person shall be com- mitted to jail for a bailable offence, it shall be the duty of the magistrate commit- ting such person to indorse on the warrant of commitment the sum in which bail is required.” Rev. Sts. of Ark., c. 52, § 46. In Mississippi and Texas the statute provides that ‘no person accused of any 152 THE EXAMINATION AND COMMITMENT. Duty of magistrate.—Recognizance of prosecutor and witnesses. criminal offence shall be set at liberty before his trial on account of any irregu- larity or informality in the warrant of commitment.” Hutchinson’s Miss. Code, p. 1005, sub. 65; Hartley’s Dig. of Laws of Texas, art. 396. So in Illinois the statute declares that ‘‘no person shall be discharged on habeas corpus from his imprisonment merely by reason of defect of legal precision, or want of technical form, in the warrant of commitment, provided sufficient appear on the face of the mittimus to ascertain for what crime or offence such prisoner or prisoners shall have been committed.” Rev. Sts. of Ill. of 1858, p. 415, { 210. There is a similar statute in Georgia. Hotchkiss Stat. Law of Geo., p. 783. The same is required in Alabama and Illinois. Code of Ala. § 3408; Anthony v. The State, 26 Ala. 81; Solomon v. The People, 11 Ill. 291. A person may be committed by one magistrate upon an affidavit taken before another. Ex parte Bollman, 4 Cranch, 129. In Tennessee, a magistrate in one county may commit for trial a person charged with committing a felony in another county. Johnston v. The State, 2 Yerger, 58. : : If the magistrate, acting within the scope of his authority and jurisdiction, but taking an erroneous view of the effect of the evidence, should come to « wrong conclusion, and commit the defendant, and he should be afterwards discharged by the higher court, on a habeas corpus, yet the magistrate would not, on that account, be liable to an action for damages. 14 East, 82; 1 Chit. Cr. L.95. But though the warrant of commitment be defective, the court will not discharge the prisoner finally, on that account. 5 Cowen, 50, 58. There is no doubt that a judge, before whom:a prisoner is brought, willlook beyond the commitment, if necessary, and will bail oreremand, according to circumstances. But the court “should not undertake to determine fully upon the guilt of the prisoner, and set him at liberty, without bail and without day, however imperfectly the offence may have been charged in the commitment, or however strong the circumstances in his favor, proved by affidavits, or collected from the examination. Such a power does not exist in any judge in term time, or chambers, where any offence at all is alleged. Such a power would be superior to the laws, wherever lodged. It would, to all purposes, be a dispensing power, as effectual and dangerous as any that has been claimed or exercised, under the most arbitrary government.” Earle, J., in State v. Potter, Dudley’s 8. C. Rep. 296. ; RECOGNIZANCE OF PROSECUTOR AND WITNESSES. Every recognizance taken by a justice of the peace in a criminal case ought to be made to the state. It ought to contain the name, place of abode, and profes- ‘sion, trade or calling both of the principal and surety or sureties. It should be so descriptive, in these respects, that in case of its forfeiture, it may be sued with effect, and the parties made answerable in law. For an offence under the laws of Congress the recognizance should be to the United States. In New York, Michigan, and Arkansas, it is provided by statute that all the material witnesses against the prisoner shall be bound by recognizance to appear and testify at the next court having cognizance of the offence and in which the prisoner may be indicted. Rev. Sts. of N. Y., 4th ed., p. 892, § 21; 5 Barb. 511; Rey. Sts. of Michigan, c. 163, § 19; Rev. Sts. of Ark., c. 52, § 40. In Illinois it is the duty of the magistrate to bind by recognizance the prosecutor, “and all such as do declare anything material to prove the offence charged,” to appear before the next circuit court, on the first day thereof, or, if the court be not then sitting, on some day to be therein designated, to give evidence. Rev. Sts. of Ill., ed. of 1858, p. 413, § 204. In Maine the magistrate is required to ‘order such of the witnesses against the prisoner, as he may deem material to recognize to appear and testify at the next court having cognizance of the offence, and in which the prisoner shall be held to answer.” In Vermont the justice is required to take the recognizance of the necessary witnesses who shall appear before him, for their appearance at the county court, in the same sum in which the respondent is ordered to find bonds. Rev. Sts. of Vt., c. 29, § 10. In Wisconsin the magistrate is required to bind by recognizance such witnesses against the prisoner as he ‘shall “deem material.” Rev. Sts. of Wis., c. 145, § 19. Where infants and married women are material witnesses, they may in like manner be required to give security for their appearance at court. N. Y. Rev. THE EXAMINATION AND COMMITMENT. 153 * Recognizance of prosecutor and witnesses. ‘the [house of correction] at —— aforesaid, and there to deliver him to the keeper thereof, together with this precept: and I do hereby com- Sts., vol. 2, p. 709, § 23; 4th ed., p. 892, § 24; Rev. Sts. of Ark., c. 52, (42. In Michigan the statute provides that, ‘When any married woman or-minor is a material witness, any other person may be allowed to recognize for the appear- ance of such witness.” Rev. Sts. of Mich., c. 163, § 21. In Maine, ‘Any person may recognize for the appearance at court, as a witness, of a married woman or minor, or the magistrate may, in his discretion, recognize such married woman or minor in a sum not exceeding twenty dollars.” Rev. Sts. of Maine, c. 171, § 21. In a case in England, where the witness was a married woman, and therefore incapable of entering into a recognizance, it was held that the magistrate was justified in committing her on her refusal to give evidence, or to find sureties for her appearance to give evidencé. 3M. &S. 13; Roscoe on Crim. Ev. 87. In New York, the statute provides that when the magistrate shall be satisfied by due proof that there is good cause to believe that any witness‘will not perform the condition of his recognizance, unless other security be given, he may order the witness to enter into a recognizance with one or more sureties, as may be. deemed necessary, for his appearance at court. Rev. Sts. of Mich.,-c. 163, § 20. This is substantially the same as the New York statute. Rev. Sts. of N. Y., 4th ed., p. 892, § 23. There is a similar statute in Maine and Arkansas. Rev. Sts. of Maine, c. 171, §§ 18, 19, 20. . It has been held in England that a justice is not authorized to commit any wit- ness for refusing to find sureties to be bound with him, provided he be willing to enter into his own recognizance. Taylor’s Evid. 798; 2 Ch. Burn’s Just. 122; 12 Ad. & Ell. Rep. 59. But it is provided by statute in several of the states, that if any witness so required to enter into a recognizance, either with or without sure- ties, shall refuse to comply with such order, it is the duty of the magistrate to commit him to prison until he shall comply with such order, or be otherwise dis- charged according to law. 2 N. Y. Rev. Sts. 709, § 24; Rev. Sts. of Maine, c. _171;, Rev. Sts. of Vt., c. 29, §11; Rev. Sts. of Mich., c. 163, § 22; Rev. Sts. of Ill., ed. of 1858, p. 418, § 204; Rev. Sts. of Ark., c. 52, § 48. : It has been held in New York that a recognizance, containing the condition re- quired by the statute, that the obligor will appear and testify at the next court having cognizance of the offence, etc., will not be vitiated by the addition of the words, ‘as well to the grand as the petit jury, and not depart the said court without leave.” 5 Barb. 511. But arecognizance for the appearance of witnesses to testify on the trial of an indictment must contain an acknowledgment of indebtedness to the people, and mention the offence charged ; or no action can be maintained upen it. 6 Hill, 506. ; In New York, all recognizances for the appearance of the prosecutor and. wit- nesses, and of the defendant at the proper court, must be certified and returned, by the magistrate taking them to the court at its then present or next term or session. The fecognizances are generally delivered by the magistrate to the clerk of the court; or, it may be, to the attorney-general of the state, or his assistant or deputy, or the prosecuting attorney of the county. If the magistrate refuses or neglects to return to the proper court any such recognizance, he may be compelled, by rule of court, forthwith to return the same. And in case of dis- obedience to such rule, he may be proceeded against by attachment, as for a con- tempt of court. See N. Y. R.S., vol. 2, p. 709, §§ 26 and 27; ibid., p. 534, § 1, sub. 7. In Maine and Wisconsin, all examinations and recognizances taken by any magistrate must be certified, and returned by him to the district attorney or the clerk of the court before which the party charged is bound to appear, on or before the first day of the sitting thereof. Rev. Sts. of Wis., c. 145, § 25; Maine— Rev. Sts. of Maine, c. 171, (24. There is a similar statute in Illinois and Missis- sippi. Rev. Sts. of IL, ed. of 1858, p. 413, § 205; Hutchinson’s Miss. Code, p. 689, sub. 5. And see also Rev. Sts. of Mich., c. 163, § 2. . [Information quashed for want of a duly certified return of the evidence upon an examination, no waiver thereof being shown. People v. Smith, 25 Mich. 497.] 154 THE EXAMINATION AND COMMITMENT. Where committed for trial at the sessions and assizes. mand you, the said keeper of the said [hovise of correction], to receive the said A. B. into your cifstody in the said [house of correction], and there safely keep him until he shall be thence delivered by due course . of law. Given under my hand and seal, this day of ——, in the year of our Lord ——, at ——, in the [cownty] aforesaid. J.8. [L.8.] (d) Where committed for Trial at the Sessions. By stat. 5 & 6 W. IV, c. 38, § 3, it shall be lawful for any justice of’ the peace to commit for safe custody to any house of correction, situate near to the place where the sessions are to be holden, at which the prisoner is intended to be tried. Formerly they could be committed only to the county jail. Also, justices of boroughs or franchises, not having power to hear and determine felonies, instead of being obliged, as formerly, to com- mit all felons for trial at the assizes, may now commit them for trial at the quarter sessions for the county, etc., in which such borough or franchise is situate.(2) And justices of boroughs and franchises, hav- ing power to try felonies, may commit the person charged with felony for trial at the quarter sessions of the county, etc., where the offence is within the jurisdiction of the sessions of the county, etc., but not within that of the sessions for the borough or franchise.(b) But where a felony or misdemeanor is committed within a town or franchise hav- ing a recorder, and a prison fit for the confinement of prisoners, the magistrates of such town or franchise shall commit the offender to the prison of such town, in all cases where, if the offence had been committed in the county, it would be tried at the quarter sessions of the county. (c) (9) Where commitied for Trial at the Assizes. [46] Prisoners intended *to be tried at the assizes may be com- mitted to the common jail of the county; and formerly they could be committed to no other place.(d) But by stat. 5 & 6 W. IV, c. 38, § 3, justices may commit for safe custody to any house of correction situate near to the place where the assizes are to be holden at which the prisoner is intended to be tried. (a) 4&5 W. IV, c. 27, §1. (c) Idid., § 3. (b) Ibid., § 2, (d) 5H. IV, ve, 10. THE EXAMINATION AND COMMITMENT. 155 Committal from county of a town for the assizes. And by stat. 14 & 15 Vict., c. 55, § 20, justices of the peace, at their general or quarter sessions for any counity, riding, or division, may, by order made for that purpose, declare that any jail or house of cor- rection for such county, etc., is a fit prison for persous committed for trial at the assizes, for such county, etc., which order shall be trans- mitted to one of Her Majesty’s principal secretaries of state; and after the secretary of state shall approve of such order, any justice of the peace or coroner, acting for such county, etc., may commit for safe custody for trial at the next assizes, to such jail or house of correction, any person charged with any offence triable at the assizes for such county, etc., and the commitment shall specify that such person is committed under the authority of this Act; and the recognizances to appear to prosecute and give evidence, shall, in all such cases, be con- ditioned for appearance, prosecution, and giving evidence at the court of oyer and terminer and jail delivery for the county. (h) Committal from county of a town for the assizes. By stat. 14 & 15 Vict., c. 55, § 19, whenever any justice or justices of the peace, or coroner, acting for any county of a city or county of a town corporate (within which Her Majesty has not been pleased for five years next before the passing of this act to direct a commission of oyer and terminer and jail delivery to be executed, and until Her Majesty shall be pleased to direct a commission of oyer and terminer and jail delivery to be executed within the same), shall commit for safe cus- tody to the jail or house of correction of such county of a city or town any person charged with any offence committed within the limits of such county of a city or town not triable at the court of quarter ses- sions of the said county of a city or county of a town—the commitment shall specify that such person is committed pursuant to this act; and the recognizances to appear to prosecute and give evidence, taken by such justice, justices, or coroner, shall in all such cases be conditioned for appearance, prosecution, and given evidence at the court of oyer and terminer and jail delivery for the next adjoining county. The commitment in such cases will be the same as in ordinary cases, . except that after the words “by due course of law,” you add, “the said A. B. being hereby committed in pursuance of statute 14 & 15 Vict., c. 55.” And by the same statute, § 21, the parties so committed *shall [747] afterwards, in due time, without writ of habeas corpus, or other 156 THE EXAMINATION AND COMMITMENT. Committal from county of a town for the assizes. writ for that purpose, be removed by the jailer or keeper of such jail or house of correction, with their commitments and detainers, to the common jail of such county, in order that they may be tried at the assizes to be holden for such county, and such removal shall not be deemed or taken to be an escape. (i) The like, from towns, ete., not being counties. By stat. 60 G. III, & 1 G. IV, c. 14, § 1, the justices of the peace in and for any town, liberty, soke, or place not being a county, but having an exclusive jurisdiction for the trial of felonies and misde- meanors committed within the same, shall have full powers at their discretion, to commit any person, duly charged before them with a capital felony, to the jail of the county, within which such town, ete., shall be situate, there to be tried at the next session of oyer and ter- miner and jail delivery there to be holden, in the same manner as if the same had been committed within any other part of the county. (k) Binding by recognizance ; transmission of depositions, etc. - If the accused be committed or bailed, then, by stat. 11 & 12 Vict., c. 42, § 20, the justice or justices before whom any witness shall be examined as aforesaid, may bind, by recognizance, the prosecutor, and every such witness to appear at the next court of oyer and termi- ner or jail delivery, or superior court of a county palatine, or court of general or quarter sessions of the peace, at which the accused is to be tried, then and there to prosecute, or to prosecute and give evidence, or to give evidence, as the case may be, against the party accused, which said recognizance shall particularly specify the professions, art, mystery, or trade of every such persons entering into, or acknowledg- ing the same, together with his christian and surname, and the parish, township, or place of his residence, and if his residence be in a city, town or borough, the recognizance shall also particularly specify the name of the street, and the number (if any) of the house in which he resides, and whether he is owner or tenant thereof, or a lodger therein—and the said recognizance, being duly acknowledged by the person so entering into the same, shall be subscribed by the justice or justices before whom the same shall be acknowledged, and a notice thereof, signed by the said justice or justices, shall, at the same time, be given to the person bound thereby; and the séveral recognizances go taken, together with the written information (if any), the deposi- ~ THE EXAMINATION AND COMMITMENT. 157 Recognizance of prosecutor and witnesses. : tions, the statement of the accused, and the recognizances of bail (if any), in every such case, shall be delivered by the said justice or justices, or he or they shall canse the same to be delivered to the proper officer of the court in which the trial is to be had, before or *at the opening of the said court on the first day of the [48] sitting thereof, or at such other time as the judge, recorder or justice, who is to preside in such court at the said trial, shall order and appoint: Provided always, that if any such witness shall refuse to enter into or acknowledge such recognizances as aforesaid, it shall be lawful for such justice or justices of the peace, by his or their war- rant, to commit him to the common jail or house of correction, for the county, riding, division, liberty, city, borough or place in which the accused party is to be tried, there to be imprisoned and safely kept until after the trial of such accused party, unless in the mean time such witness shall duly enter into such recognizance as aforesaid, -before some one justice of the peace for the county, riding, division, liberty, city, borough or place in which such jail or house of correction shall be situate: provided, nevertheless, that if afterwards, from want of sufficient evidence in that behalf or other cause, the justice or jus- tices before whom such accused party shall have been brought, shall not commit him, or hold him to bail for the offence with which he is. charged, it shall be lawful for such justice or justices, or any other justice or justices of the same county, riding, division, liberty, city, borough or place, by his or their order in that behalf, to order and direct the keeper of such common jail or house of correction, where such witness shall be so in custody, to discharge him from the same, and such keeper shall thereupon forthwith discharge him accordingly. The following are the forms required by the above section : Recognizance to Prosecute or give Evidence. : Be it remembered, that on the —— day of ——, in the year of our Lord , C. D. of ——, in the township of , in the said county, [farmer] [or C. D. of No. 2 street, in the parish of : in the borough of , [surgeon] of which said house he is tenant], personally came before me, one of Her Majesty’s justices of the peace for the said county, and acknowledged himself to owe to our sover- eign lady the Queen the sum of £—, of good and lawful money of Great Britain, to be made and levied of his goods and chattels, lands 158 THE EXAMINATION AND COMMITMENT. Recognizance of prosecutor and witnesses. and tenements, to the use of our said lady the Queen, her heirs and successors, if he, the said C. D., shall fail in the condition indorsed. Taken and acknowledged, the day and year first above mentioned, , before me. J.8. at Condition to Prosecute. The condition of the within written recognizance. is such, that whereas one A. B. was this day charged before me, J. S., jus- [*49] tice of *the peace within mentioned, for that [etc., as in the cap- tion of the depositions, | if, therefore, the said C. D. shall appear at the next court of oyer and terminer or general jail delivery [or at the next court of general quarter sessions of the peace] to be holden in and for the [county] of **, and there prefer, or cause to be preferred, a bill of indictment for the offence aforesaid, against the said A. B., and there also duly prosecute such indictment, then the said recognizance to be void, or else to stand in full force and virtue. Condition to prosecute and give evidence. Same as the last form to the asterisk,* and then thus: “and there pre- fer or cause to be preferred a bill of indictment against the said A. B., for the offence aforesaid, and duly prosecute such indictment, and give evidence thereon, as well to the jurors who shall then inquire of the said offence, as also to them who shall pass upon the trial of the said A. B., then the said recognizance to be void, or else to stand in full force and virtue.” Condition to give Evidence. Same as to the last form but one to the asterisk,* and then thus: ‘‘and there give such evidence as he knoweth upon a bill of indict- ment to be then and there preferred against the said A. B., for the offence aforesaid, as well to the jurors who shall there inquire of the said offence, as also to the jurors who shall pass upon the trial of the said A. B., if the said bill shall be found a true bill, then the said re- cognizance to be void, or else to stand in full force and virtue.” Notice of the said Recognizance to be given to the Prosecutor and His Witnesses. — ; Take notice, that you, C. D., of ——, are bound in the to wit: ) sum of , to appear at the next court of [general quarter sessions of’ the peace] in and for the county of , to be holden at THE EXAMINATION AND COMMITMENT. 159 Recognizance of prosecutor and witnesses. ——, in the said county, and then and there [prosecute and] give evi- dence against A. B.; and unless you then appear there, and [prosecute and] give evidence accordingly, the recognizance entered into by you will be forthwith levied on you. Dated this day of ’ 185—. J. 8. *Commitment of Witness for refusing to enter into the Recognizance. [**50] To the constable of : at and to the keeper of the [house of correction] , in the said [county] of p Whereas A. B. was lately charged before the undersigned, [one] of Her Majesty’s justices of the peace in and for the said [county] of — , for that [ete., as in the summons to the witness], and it having been made to appear to [me] upon oath, that E. F., of , was likely to give material evidence for the prosecution, [I] duly issued [my sum- mons to the said HE. F’., requiring him to be and appear] before [me] on , at , or before such other justice or justices of the peace as should then be there, to testify what he should know concerning the said charge so made against the said A. B., as aforesaid ; and the said E. F. now appearing before [me] [or being brought before [me] by virtue of a warrant in that behalf to testify as aforesaid], hath been now ex- amined by [me] touching the premises, but being by [me] required to enter into a recognizance conditioned to give evidence against the said A. B., hath now refused so to do: These are, therefore, to command you, the said constable, to take the said E. F., and him safely to con- vey to the [house of correction] at , in the [county] aforesaid, and there deliver him to the said keeper thereof, together with this pre- cept; and I do hereby command you, the said keeper of the said [house of correction], to receive the said E. F. into your custody in the said [house of correction], there to imprison and safely keep him until after the trial of the said A. B. for the offence aforesaid, unless in the mean time such E. F. shall duly enter into such recognizance as afore- said, in the sum of —— pounds, before some one justice of the peace for the said [county], conditioned in the usual form to appear at the next court of [oyer and terminer or general jail delivery, or general quarter sessions of the peace], to be holden in and for the [county] of , and there to give evidence before the grand jury upon any bill of indictment which may then and there be preferred against the said A. B. for the offence aforesaid, and also to give evidence upon the trial \ 160 THE EXAMINATION AND COMMITMENT. Recognizance of prosecutor and witnesses. of the said A. B., for the said offence, if a true bill should be found against him for the same. Given under ‘my hand and seal, this day of of our Lord ——, at ——, in the [county] aforesaid. , in the year Subsequent Order to discharge the Witness. To the keeper of the [house of correction] at , in the [county] of ——. Whereas by [my] order, dated the day of [instant], [*51] *reciting that A. B. was lately before then charged before [me] for a certain offence therein mentioned, and that E. F., having appeared before [me], and being examined as a witness for the pros- ecution in that behalf, refused to enter into a recognizance to give evidence against the said A. B., and [I] therefore thereby committed the said E. F. to your custody, and required you safely to keep him until after the trial of the said A. B. for the offence aforesaid, unless in the mean time he should enter into such recognizance as aforesaid ; and whereas, for want of sufficient evidence against the said A. B., the said A. B. has not been committed or holden to bail for the said offence, but on the contrary thereof has been since discharged, and it is therefore not necessary that the said E. F. should be detained longer in your custody; these are, therefore, to order and direct you, the said keeper, to discharge the said E. F. out of your custody as to the said commitment, and suffer him to go at large. Given under [my] hand and seal, this day of ——, in the year of our Lord ——, at ——, in the county aforesaid. J. 8. . [.8.] (A) Copy of Depositions for Defendant. At any time aftér all the examinations have been completed. and before the first day of the assizes or sessions or other first sitting of the court at which a person committed to prison.or admitted to bail is to be tried, such person may require and shall be entitled to have, of and from the officer or person having the custody of the same, copies of the depositions on which he shall have been committed or bailed, on payment of a reasonable sum for the same, not exceeding at the rate of three half-pence for each folio of oe words.(1) (1) According to Mr. Chitty, the party accused has not, in cases of treason and felony, a right to demand a copy of the depositions. 1 Chitty’s Cr. Law, p. 87. He may, however, compel their production, by serving the magistrate with a subpoena to produce them. THE EXAMINATION AND COMMITMENT. 161 Where the arrest is in a different county. 2. Hvamination and Commitment where: the Arrest is in a Different County from that in which the Offence was committed.(1) . (a) Warrant, if evidence prove the charge. ‘Whenever a person shall appear, or shall be brought before a justice of the peace, charged with an offence alleged to have been committed by him in any county or place within England or Wales, wherein such justice shall not have jurisdiction, it shall be lawful for such justice, and he is hereby required to examine such witnesses, and receive such evidence in proof of such charge as shall be produced before him; and if, in his opinion, such testimony and evidence shall be sufficient proof of the charge made against such accused party, such justice shall thereupon commit him to the common jail or house of *cor- [*52] rection for the county, riding, division, liberty, city, borough, or place where the offence is alleged to have been committed, or shall admit him to bail, as hereinafter mentioned, and shall bind over the prosecutor (if he have appeared before him or them), and the witnesses by recognizance accordingly, as is hereinbefore mentioned. (a) (6) Warrant, if evidence do not-prove the charge. But if such testimony and evidence shall not, in the opinion of such justice, be sufficient to put the accused party upon his trial for the (a) 11 & 12 Vict., v. 42, § 22. ® (1) Although it be generally true that a justice has no jurisdiction over offences committed out of his county, yet there are cases where the presence of an offender, within his county, gives him authority at common law, to proceed against such offender ; and there are also numerous cases in which, by the special provisions of particular statutes, the justice has jurisdiction respecting the offences therein specified, though committed out of his county. 1 Nun. & Walsh, 49. Thus, it has been long settled, that if 1 man commit a jelony in one county, and go into another county, a justice of the latter county may, upon information given, issue a warrant to apprehend him, and take his examination, and the information against him; and may commit him to the jail of such latter county, and bind over the witnesses to give evidence at the trial, ‘and, in short, may proceed as if the offence had been committed within his juris- diction. 1 Nun. & Walsh, 50; 1 Hale, 580; 3 Burn, 553. Upon the same prin- ciple, it has been decided that a justice may proceed with respect to a man coming into his county, after having,committed a felony on the high seas; and may com- mit such person for trial at the next oyer and terminer to be held for the jurisdic- tion of the admiralty, etc. Rex v. Muilman, Park, 241; 2 Hawk. P. C.,, c. 8, § 33, _ note; 3 Burn, 553; Chit. Cr. L. 94; Com. Dig., Justices of Peace, B.1. (Practice where a person is arrested in one U. 8. judicjal district for a crime committed against the U. 8. in another district, considered ; a certitied copy of an indictment found in the latter district is admissible, and is sutlicient to warrant a transfer of the accused to that district. Re Alexander, 1 Low. 530.] 11 162 THE RXAMINATION AND COMMITMENT. Warrant to convey accused before justice of county. offence with which he is so charged, then such justice shall bind over such witnesses as he shall have examined, by recognizance, to give evidence, as hereinbefore is mentioned, and such justice shall, by war- rant under his hand and seal, order such accused party to be taken before some justice of the peace in and for the county, riding, division, lib- erty, city, borough or place where, and near unto the place where the offence is alleged to have been committed, and shall, at the same time, deliver the information and complaint, and also the depositions and recognizances so taken by him, to the constable who shall have the execution of such last-mentioned warrant, to be by him delivered to the justice or justices before whom he shall take the accused in obe-~ dience to the said warrant; and which said depositions and recogni- zances shall be deemed to be taken in the case, and shall be treated, to all intents and purposes, as if they had been taken by or before the said last-mentioned justice, and shall, together with such depositions and recognizances as such last-mentioned justice shall take in the matter of such charge against the said accused party, be transmitted to the clerk of the court where the said accused party is to be tried, in the manner and at the time hereinbefore mentioned, if such accused party shall be committed for trial upon the said charge, or shall be admitted to bail.() The following is the form of the Warrant to convey the Accused before the Justice of the County, ete., in which the Offence was committed. To W. T., constable of ——, and to all other peace officers in the said [county] of : Whereas, A. B. of ——, [laborer,] hath this day been charged before the undersigned, [one] of Her Majesty’s justices of the peace in and for the said county of ——, for that [etc., as in the warrant to appre- hend :] and whereas [{] have taken the deposition of C. D., a witness examined by [me] in this behalf; but in as much as [I] am informed that the principal witnesses to prove the said offence, against [*53] the *said A. B., reside in the [county] of C., where the said offence is alleged to have been committed: These are, therefore, to command you, the said constable, in Her Majesty's name, forthwith to take and convey the said A. B. to the said [county] of C.,and there (b) Ibid. § 11. THE EXAMINATION AND COMMITMENT. 163 Costs of constable. carry him before some justice or justices of the peace in and for that- {cownty,] and near unto the [parish of D.,] where the offence is alleged to have been committed, to answer further to the said charge before him or them, and to be further dealt with according to law: and [I] hereby further command you, the said constable, to deliver to the said justice or justices the information in this behalf, and also the said deposition of C. D., now given into your possession for that purpose, together with this precept. Given under my hand and seal, this —— day of our Lord , at , in the [county] aforesaid. , in the year of J. 8. [L. 8.] (c) Costs of Constable. In case such accused party shall be taken before the justice last aforesaid, by virtue of the said last-mentioned warrant, the constable or other person to whom the said warrant shall have been directed, and who shall have conveyed such accused party before such last-men- tioned justice, shall ‘be entitled to be paid his costs and expenses of conveying the said accused party before the said justice; and upon the said constable or other person producing the said accused party before such justice, and delivering him into the custody of such person as the said justice shall direct or name in ‘that behalf, and upon the said constable delivering to the said justice the warrant, information (if any), depositions, and recognizances aforesaid, aud proving by oath the handwriting of the justice who shall have subscribed the same, such justice, to whom the said accused party is so produced, shall thereupon forthwith ascertain the sum which ought to be paid to such constable or other person for conveying such accused party and taking him before such justice, as also his reasonable costs ‘aud expenses of returning, arid thereupon such justice or justices shall make an order upon the treasurer of the county, riding, division, or liberty, city, bor- ough, or place, or if such city, borough, or place shall’ be contributory to the county rate of any county, riding, division, or liberty, then upon the treasurer of such county, riding, division, or liberty respectively, to which it is contributory, for payment to such constable or other person of the sum so ascertained to be payable to him in that behalf, and the said treasurer, upon such order being produced to him, shall pay the amount to the said constable, or other person producing the _ game, or to any person who shall present the same to him for payment: provided always, that if such last-mentioned justice shall not think 164 THE EXAMINATION AND COMMITMENT. Where the arrest is under a backed warrant. . the evidence against such accused party sufficient to put him upon his trial, *and shall discharge him without holding him [*54] to bail, every such recognizance so taken by the said first- mentioned justice or justices as aforesaid shall be null and void.(a) The following is the form of the Order for Payment of the Constable's Expenses. To R. W., esquire, treasurer of the county of —=S Whereas, W. T., constable of ——, in the county of ——, hath, by virtue of and in obedience to a certain warrant of J.S., esquire, [one] of Her Majesty’s justices of the peace in and for the said county of , taken and conveyed one A. B., charged before the said J. 8., with having [etc., stating shortly the offence], from , in the said county of ——, to , in the said county of , & distance of —— miles, and produced the said A. B., before me, 8. P., one of Her Majesty’s justices of the peace in and for the said county of , and delivered him into the custody of —— by [my] direction, toanswer to the said charge, and further to be dealt with according tolaw; and where- as the said W. T. hath also delivered to [me] the said warrant, together with the information in that behalf, and also the deposition of C. D.in the said warrant mentioned, and hath proved to [me] upon oath, the hand-writing of the said J. 8. subscribed to the same: and whereas [J] have ascertained that the sum which ought to be paid to the said W. T. for conveying the said A. B. from the said county of ——, to the said county of , and taking him before [me], is the sum of , and that the reasonable expenses of the said W. T. in returning will amount to the further sum of , making to- gether the sum of ——: These are, therefore, to order you, as such treasurer of the said county of , to pay unto the said W. T. the said sum of , according to the form of the statute in such case made and provided, for which payment this order shall be your sufficient voucher and authority. Given under my hand, this day of ——, 185-. 5. Ps (a) How, where the arrest is under a backed warrant. Where the accused is arrested upon a backed warrant, the consta- ble, if he be not then prepared with any evidence against him, will ‘ (a) 11 & 12 Vict., v. 42, § 22. THE EXAMINATION AND COMMITMENT. 165 Definition and nature of bail.—Right of prisoners to be admitted to bail. take him before the justice who first issued the warrant, to. be dealt with as above or hereinbefore is mentioned. But if, at the time of the arrest, the prosecutor, or ‘any of the witnesses upon the part of the prosecution, shall then be in the county or place where such .person shall have been apprehended, the *constable or other [55] person who shall have so apprehended such person may, if so directed by the justice backing such warrant, take and convey him before the justice who shall have so backed the said warrant, or before some other justice or justices of the same county or place; and the said justice or justices may thereupon take the examinations of such prosecutor or witnesses, and proceed in every respect in manner above directed with respect to persons charged before a justice or justices of the peace with an offence alleged to have been committed in another county or place than that in which such persons have been appre- hended.(a) (a) 11 & 12 Vict., c. 42, § 22. | 3. Baii.(1) (1) The magistrate having heard the examinations, and ascertained that the party accused is not entitled to be completely discharged, is next to determine whether he will bail or commit him. . I propose to discuss the subject of bail under the following heads : . DEFINITION AND NATURE OF BAIL. RIGHT OF PRISONERS TO BE ADMITTED TO BAIL. PowER OF COURTS AND OFFICERS TO ADMIT TO BAIL. GENERAL REQUISITES AND VALIDITY OF THE RECOGNIZANCB. In RELATION TO THE AMOUNT OF BAIL. RIGHTS AND LIABILITY OF BAIL. . RETURNING AND FILING RECOGNIZANCE. . ENTERING FORFEITURE OF RECOGNIZANCE, O wT OUR Os BO 1, DEFINITION AND NATURE OF BAIL. Bail is a delivery of a person to his sureties, upon .their giving, together with himself, sufficient security for his appearance at court to answer the charge against him—he being supposed to continue in their friendly eustody, instead of going to prison. In most of the inferior offences, bail will answer the same inten- tion 28 commitment, and therefore it ought to be taken. But in offences of a capital nature, no bail can be security equivalent to the actual custody of the person. There is nothing that a man may not be induced to forfeit to save his life; and it is no satisfaction or indemnity to the public to seize the effects of those who have bailed a murderer, if the murderer himself be suffered to escape with impunity. 4 Black. Com. c. 22. 2. RIGHT OF PRISONERS TO BE ADMITTED TO BAIL. “All persons shall be bailable by sufficient sureties, unless for capital offences when the proof is evident or the presumption great.” Const. of Indiana, art. 1, § 14. Same in Ohio—Const. of Ohio, art. 8, § 12. Same in Louisiana—Const. of La., tit. 6, art. 108; Mississippi—Const. of Miss., Art. 1,§17. Illincis—Const. of 166 THE EXAMINATION AND COMMITMENT. Right of prisoners to be admitted to bail. Tl, art. 8,§ 18. Alabama—Const. of Ala., art. 1,§17. Missouri—Const. of Mis., art. 13, § 11. Florida—Const. of Fla., art. 1, § 11. Arkansas—Const. of Ark., art. 2,§ 16. Texas—Const. of Texas, art. 1,§ 9. Const. of Iowa, art. 2, § 12. The language of the Constitution of Maine is, that ‘all persons, before conviction, shall be bailable, except for capital offences, where the proof is evident or the presumption great.” Const. of Maine, art. 1, §10. In Vermont, the Constitution declares, that ‘all prisoners, unless in execution or committed for capital offences, when the proof is evident or the presumption great, shall be bailable by sufficient sureties.” Const. of Vt., pt. 2, § 33. In Wisconsin the statute provides that “persons charged with an offence punishable with death, shall not be admitted to bail, when the proof is evident or the presumption great, but for all other offences bail may be taken in such sum ‘as, in the opinion of the magistrate, will secure the appearance of the person charged with the offence at the court where such-person is to be tried. Rev. Sts. of Wis., c. 145, § 17. In Alabama, by the provisions of the Constitution and Code the defendant is entitled to bail as a matter of right, unless the court is of opinion, on the evidence, that he is guilty of murder in the first degree. Const. of Ala., art. 1,§17; Ex parte McCrary, 22 Ala. 561; Code of Ala., §§ 3669, 3670; and if the application for bail is made to a circuit judge, and is by him refused, the evidence in the case may be set out on exceptions and application made thereon to the Supreme Court. Code of Ala., § 83673; Kx parte Banks, 28 Ala. Rep. 89. In New Jersey, it has been held, that the power of the court to bail in capital cases will be rarely exercised, and with great reserve. State v. Blackafellow, 1 Halst. 232. In Mississippi, on the other hand, it has been held, that although the offence, as shown by the whole testimony, be one which must, under the law, be capitally punished, yet the court may, in the exercise of a sound discretion, admit a party to bail. But if the offence is not shown by evident proof, or great pre- sumption, to be one for the commission of which the law inflicts capital punish- ment, bail is not a matter of mere discretion with the court, but of right to the prisoner. Wray ex parte, 30 Miss. Rep. 673. In Georgia, the Superior Court has a discnetionary power to bail in all cases whatsoever. State v. Abbot, R. M. Charlt. 244. But in felonies of high grade, where the affidavits are positive, and there are no extrinsic circumstances in favor of the prisoner, bail will be denied. State v. Howell, R. M. Charlt. 120. Where, however, upon a charge of murder, there are favorable circumstances in the case, and there is a presumption that the prisoner has only been guilty of manslaughter, the court will admit to bail. State v. Wicks, ibid. 139. i In Kentucky, a person in custody on a charge of murder is entitled to bail when the proof of his guilt is not evident, nor the presumption great., Ullery v. Com., 8 B. Mon. Rep. 3." And the same in Pennsylvania, Missouri and Illinois. Com. v. Keeper of the Prison, 2 Ashmead, 227; Shore & Parkinson’s Case v. The State, 6 Mis. 640; Foley v. The People; 1 Breese, 32... Therefore, in Kentucky, although voluntary manslaughter by a slave is a capital offence, yet he will be entitled to bail unless the court is of opinion that the facts conduce to a strong presumption of guilt. Ready v. Com., 9 Dana, 38. So it has been held in Alabama, that, under the 17th section of art. 1 of the Constitution, it is clearly competent for the court, in a case where “‘ the proof is not evident, or the presumption great,” to admit to bail a prisoner charged with murder, even though it appears on oath or affirmation that the witnesses for the state could not be produced. Ex parte Simonton, 9 Porter, 390. In Missouri, persons charged with homicide in all its grades, except the first. may be admitted to bail. Shore v. State, 6 Mis. 640. Whether the finding of an indictment by a grand jury is so strong a presumption as to deprive the Circuit Court of Missouri of any power to bail, guwre. Shore & Parkinson’s Case v. The State, 6 Mis. 640. In South Carolina, bail was refused a person indicted for murder at the term during which he surrendered himself and demanded his trial; and the state was allowed to continue the case for want of witnesses. State 1. Holmes, 3 Strobh. 272. And in the same state, where two justices, under the Habeas Corpus Act, had admitted a person to bail who was in custody on a charge of murder, it was held that they were guilty of an escape, and might be indicted. State v. Arthur et al., 1 McMullan, 456. THE EXAMINATION AND COMMITMENT. 167 Right of prisoners to be admitted to bail. In Pennsylvania the practice has always been to take bail under the act of 1705, which has remained in force, as well in misdemeanors as in felonies, except in capital cases. 6 Watts & 8.314. But it has been held in that state that where a capital felony is charged, and the proof is evident, or the presumption great, no power exists anywhere to admit to bail. 2 Ashm. Rep. 233. A person arrested upon an indictment for murder is not entitled to bail, under the ordinance of Congress of 1787, relative to the Northwest Territory. Hight v. U.S., 1 Morris, 407. . [For special circumstances under which bail has been permitted in cases of homicide, see the following: People v. Van Horne, 8 Barb. 158; State v. Sum- mons, 19 Ohio, 189; Green’s Case, 11 Leigh, (77; U. 8. v. Jones, 3 Wash. C. C. 294; Semmes’ Case, 11 Leigh, 605; Archie’s Case, 6 Gratt. 705; State v. Hill, 3 Brevard, 89; Lumm v. State, 3 Ind. 293; Ex parte White, 4 Eng. (Ark.) 222; Lx parte Johnson, 18 Ala. 414; Hx parte Stiff, 18 Ala. 464; Ha parte Croom, 19 Ala. 561; Ex parte Taylor, 5 Cow. 3!.] At common law, a prisoner may be admitted to bail after conviction. Davis v. The State, 6 How. Miss. Rep. 399; and’ see State v. Hill, 3 Brevard, 89. It has been held in Mississippi, that where the punishment is only fine and imprison- ment, the court will allow bail after conviction, when the peculiar circumstances of the case would seem to justify it; but that the power of the judges to take bail after conviction will be exercised with great caution, and only in minor offences. Davis v. The State, 6 How. Miss. Rep. 399. In New York, a person convicted and sentenced has a right, under the statute, to he admitted to bail even after his conviction has been adjudged to be legal by the Supreme Court; but at that stage of the proceeding the legal doubts concerning his guilt ought to be consid- ered as so well settled against him that the application for bail, it made to a judge at chambers, should be very cautiously entertained, and only granted in cases of great question and difficulty. People v. Lohman, 2 Barb. 450 In South Caro- lina, after conviction of an infamous crime, and motion for a new trial or in arrest of judgment, bail will not be allowed ; although in minor offences it is customary, under such circumstances in that state to admit to bail. State v. Connor, 2 Bay, 34. In North Carolina, where a person was convicted of passing counterfeit money, it was held that he was not entitled to be bailed as a matter of right; but that it rested in the sound discretion of the judge before whom the appeal was taken. State v. Rutherford, 12 Hawk. 453. In Connecticut, where a person had been convicted of felony in one county, and sentenced to the state prison, but escaped and was arrested on a charge of a similar offence subsequently committed - in another county, bail in the latter case was refused. State v. Burrows, Kirby. 259, In Ohio, the statute which permits writs of error in criminal cases does not au- thorize a recognizance to let to bail on the allowance of a writ of error, after con- viction. The State v. Clark, 15 Ohio, 595. In Indiana, where a judge, upon habeas corpus, refuses to bail a prisoner, he may prosecute a writ of error from such judgment to the Supreme-Court. Lumm ». The State, 3 Ind. 293. Where, upon habeas corpus, application is made to a judge to admit a prisoner to bail, the judge may, under the Revised Statutes of Indiana of 1843, cause notice to be given to the party interested in resisting it, or his attorney, and witnesses to be summoned to testify in the premises ; and may fully investigate the case. Lumm v. The State, 3 Ind. 293. ; Bail in criminal cases is founded on the doubt which may exist as to the pris- onev’s guilt, and not on the grace or favor of the court. If his guilt is past dis- pute, he ought not to be bailed. People v. Lohman, 2 Barb. 450. At each stage of the proceedings, the grounds upon which the accused can be let to bail diminish in proportion as the evidences of his guilt increase. After conviction and sen- tence, his claims in this respect are further diminished; yet even at that point, where it appears that his conviction was unjust, or there is a serious doubt as to his guilt, his application may be granted. Ibid. a Tt has been held in England, that the court, in deciding as to whether or not to admit to bail a. prisoner charged with a criminal offence, will not look to the char-- acter or behavior of the prisoner at any particular time, but will be guided by the nature of the crime charged, the severity of the punishment that may be imposed, and the probability of a conviction. Robinson in re, 25 Eng. Law & Eq. Rep. 215. 168 THE EXAMINATION AND COMMITMENT. Right of prisoners to be admitted to bail. ‘ It has been said, that in the higher class’ of offences, particularly of a capital nature, » court will not bail after indictment, although they may before. This distinction seems to have arisen from the fact, that in one case the court have before it the testimony taken before the coroner’s jury, or before the committing magistrate, and can thus, by an inspection of the testimony, be enabled to form some judgment as to probable guilt or innocence; while, in the other case, the old rule did not permit the testimony before the grand jury to be disclosed, and the court were therefore, after indictment, unable to say on what proof it had been found. See Lord Mohan’s case, 1 Salk. 104; 1 Chitty Cr. Law, 129, Am. ed. of 18386; The Territory v. Benoit, 1 Martin Louis. Rep. 142. But in the state of New York it is provided by statute (2 R. 8. 724, § 30), that “every grand jury may appoint one of their number to be a clerk thereof, to preserve minutes of their proceedings, and of the evidence given before them,” ete. Under the fore- going statute, therefore, the question of bail is open to consideration to the same extent after indictment as it would be if applied for before indictment. The People v. Hyler, 2 Parker’s N. Y. Cr. Rep. 570. In the case of The People v. Goodwin (1: Wheeler’s Cr. Cases, 445), Chief Justice Spencer said, “If it stands indifferent whether a person charged with a felony be guilty or not, he ought to be bailed; and even in capital cases, where there are circumstances to induce the court to suppose he may be innocent, they will bail. If the punishment be death, or corporeal imprisonment, a consciousness of guilt would probably induce flight and an evasion of the punishment, and in admitting to bail, therefore, regard must be had to the probable guilt of the party and the nature of the punishment.” He then proceeds to recapitulate the facts in that particular case—that the prisoner had once been tried and the jury disagreed ; that the foreman had, when called, rendered a verdict of guilty, but that, on being polled, one of the jury dissented. He then says, ‘I am, therefore, bound to presume that the prisoner may be innocent of the offence. In such a case, as I understand the law, he is entitled to be bailed.” These principles were approved by the court in the case of Tayloe (5 Cowen, 39), which was a case of homicide before indictment. In that case, after approving of the rule laid down by Chief Justice Spencer in the case above cited, Chief Justice Savage says, “If the facts in the case now before the court afford the same presumptions of innocence, and it appears to the court from the depositions that it is quite indifferent whether he jis-guilty, then, in my opinion, he ought to be bailed, otherwise not.” ‘The same rule has been repeatedly recognized in England. Rex v. Dalton, 2 Str. 911. In Com. Digest, Bail, it is said, “The court will not bail in murder, treason, etc., unless there be reasonable cause.” And see Hawkins’ Pleas of the Crown, B. 2, ec. 15, §{ 40 to 50. ; The criminal code of Louisiana contains a provision which seems to be a sum~- mary of the common law on this subject. Art. 192 provides that “all persons shall be bailable, except for capital offences, where the proof is evident and the presumption great;” and then, reciting that murder, rape, and some other, offences, are punishable with death, proceeds: ‘‘ Persons accused of the offences above enumerated (capital offences) are also to be bailed when the proof is not evident, nor the presumption strong.” ‘The general proposition deducible from the foregoing authorities,” says Cowles, J.,in The People v. Hyler (2 Parker’s N. Y. Cr. Rep. 570), “is that the court in all cases, capital or otherwise, exercises its discretionary powers to admit to bail, when, from the testimony under which the accused is held, it is indifferent whether he be innocent or guilty. In other words, when, upon examination of the testiniony, the presumption of guilt is not strong; and they are particularly called upon to bail in all cases where the pre- sumptiors are decidedly in favor of the innocence of the accused.” [Bail should be taken if the evidence before the grand jury or the committing magistrate, as the case may be, fails to show cause for refusing it, unless the prosecution produces additional evidence. Hx parte Bramer, 37 Tex. 1.] [The provision of the California constitution only affects the discretion of the judge in bailing before conviction; taking bail after conviction is still left dis- cretionary as at the common law. Hz parte Voll, 41 Cal. 29. When the proof is strong, murder in the second degree is not bailable. Ex parte Colter, 35 Ind. 100. Murder is not bailable, and an order admitting to bail a person accused thereof is error. Jacquemine v. State, 48 Miss. 46. Provision of the Mississipp: THE EXAMINATION AND COMMITMENT. 169 Power of courts and officers to admit to bail. constitution concerning the bailing of accused persons discussed. On application to bail a person accused of murder, the only inquiries are as to the grade of the offence and the strength of the evidence. When a murder has plainly beert com- mitted, and the only issue is as to the complicity of the accused with it, and that depending mainly upon the credibility of the witnesses, an appellate court cannot generally review the action of the court below on the subject. Street v. State, 43 Miss. 1. A prisoner indicted for murder is assumed to be guilty in the highest degree; and on his application to be bailed, he must overcome this by proof. zx parte Vaughan, 44 Ala. 417.] {In N.Y. (1 Edm. Stat. at L. 765, §-19), a person convicted of a misdemeanor has a right to be heard on habeas corpus, on an application to be admitted to bail ‘when a writ of error with stay of execution has been allowed, even after the exe- cution has commenced. People v. Folmsbee, 60 Barb. 480.] (When accused has been surrendered by his bail, he may be bailed again with new sureties. Killog v. State, 43 Miss. 57.] {As to practice in Indiana in respect to commitment of accused in default of bail, see Taylor v. State, 32 Ind. 154.) (Under the Kansas Stat. (Gen. Stat. 1868, c. 82, § 145), providing that a person indicted may, instead of giving bail, deposit a certain sum of money with the clerk as security for his appearance. When such a deposit has heen made, the accused cannot be compelled to enter also into a recognizance in form. Morrow ». State. 6 Kans. 222.) [As to bailing persons accused of a capital crime, see People v. Perry, 8 Abb. Pr. N. 8.27; Hx parte Mosby, 31 Tex. 566. See, also, as to bailing in general, ex parte Miller, 41 Tex. 213; Re Alexander, 59 Mo. 599; Thomas v. State, 40 Tex. 6; Ex parte Hoge, 48 Cal. 3; People v. Perdue, 48 Cal. 552; Kendle v. Tarbell, 24 Ohio St. 196.] [Bailing or not being a matter of discretion, an appellate court will not interfere unless the discretion has been plainly abused. See Lester v. State, 33 Geo. 192.] 8. POWER OF COURTS AND OFFICERS TO ADMIT TO BAIL. The power to take recognizances is incident to every common law court of rec- ord. Young v. Shaw, 1 Chipman, 224. Indeed the power to bail is incident to the power to hear and determine. The People v. Van Horne, 8 Barb. 158. In general, in the several states, the magistrates before whom the examination is had may take bail, in all cases, except those punishable capitally, Unirep Srarzs.—Authority is given by acts of Congress to take bail for any such crime or offence, except where the punishment is death, to any judge of the United States, and to any chancellor, judge of the Supreme or Superior Court, or first judge of any Court of Common Pleas, mayor of a city, in any state, and any justice of the peace or other magistrate of any state, where the offender may be found; the recognizance taken by any of the persons authorized to be returned to the courts of the United States having cognizance of the offence; and on re- fusal to enter into such recognizance, the magistrate may imprison the person so refusing. Act of Congress, of Sept. 24, 1789, § 33, and Act of Congress, of March 2, 1793, § 4. When the punishment of an offence by the laws of the United States is death, bail can only be taken by the federal courts, or one of the judgese thereof. A person committed by a judge of a court of the United States, for an offence not punishable with death, may, if there be no judge of the United States in the district, be admitted to bail by a state judge. In all cases ‘of crimes and offences not capital, but subject to infamous punishment by the laws of the United States, a state inagistrate, on the arrest of the offender, may take bail. Where a judge of the United States has committed, no judge of a state has authority to interpose, in order to discharge on bail, except there is no judge of the Tuited States in the district. 3 Bin. 515. When the commitment is by a state judge, the law does not prohibit the bailing by a state judge; such power is included in the general authority to imprison or admit to bail; there is a reason for such authority, as commitments may sometimes be made either for want of bail, which is afterwards offered, or there may be a hasty commitment by an inferior magis- trate, requiring reconsideration. In such cases, it would be a grievance to have no relief but by a district judge of the United States. 5 Bin. 515; M’Kin, Am. Mag. 255, 256. Sd 170 THE EXAMINATION AND COMMITMENT. Power of courts and officers to admit to bail. Under the act of Congress of 1842 (c. 108), the sufficiency of an affidavit to hold to bail and the amount of bail to be given by a person arrested on mesne process in the: District of Columbia are to be decided by the District Court. Taylor ex parte, 14 How. U.S. Rep. 3. A commissioner appointed to take affidavits by act of Congress may bail a per- son brought before him on a criminal charge, pending the proceedings in those states where justices of the peace have the like power; and a recognizance to appear before him for further examination is valid. U.S. . Rundlett, 2 Curtis C. C. Rep. 41. [See U.S. Rev. Stats. §§ 879-881, 1014 (recognizances from wit- nesses), 943-946, 1014-1020 (bail by persons accused of crime).] -Nxw Yorx.—In New York, the statute provides, that if the offence charged in the warrant be not punishable with death, or by imprisonment in a state prison, the magistrate may take from the accused a recognizance with sufficient sureties for his appearance af the next court having cognizance of the offence, to be held in the county where the offence shall be alleged to have been committed. N.Y. Rev. Sts., 4th ed., vol. 2, p. 890, § 8. Similar in Michigan. Rev. Sts. of Mich., c. 163, {{ 5 and 6. The magistrate is required to certify onthe warrant the fact of his having let the defendant to bail, and to deliver the same, together with the recognizance taken by him, to the officer or other person having charge of the prisoner, who must deliver the same, without unnecessary delay, to the clerk of the court in which such prisoner shall have been recognized to appear. Ibid, §9. Rev. Sts. of Mich., c. 163, §§ 5 and 6. But, by the final commitment of the defendant after the record of conviction has been completed and signed, the power of the magistrate is exhausted, and he has no jurisdiction to take a recog- nizance. The People v. Duffy, 5 Barb. 205. The New York Supreme Court has the same power in relation to bail as the Court of Kings Bench in England, and may bail persons charged with crime in all cases whatsoever, Ex parte Tayloe, 5 Cow. 39. And a court of oyer and ter- miner, held in any county, also has power to let to bail any person committed, before indictment found, upon any criminal charge whatever. And the Court of Sessions has a similar power as to any offences triable in such court. People v. Van Horne, 8 Barb. 158. In New York, under the statutes concerning disorderly persons, the magistrate before whom the conviction takes place has not jurisdiction acting singly, to take a recognizance for good behavior, after the record of conviction is filed. The People v. Brown, 23 Wend. 47. Whether, under the statute relative to disorderly persons, two justices of the peace may take the recognizance after the filing of the record, and previous to the commitment of the offender—queére. People v. Brown, 23 Wend. 47. Where a justice of the peace has power to hear a complaint, and take a re- cognizance only in the absence of the police justice, residing in the same town, the legal presumption, in the absence of proof, will be, that the justice did not transcend his jurisdiction. People v. Mack, 1 Parker, 567. In New York, where a person is arrested for an offence, punishable by impris- onment in the state prison, by virtue of a warrant indorsed pursuant to the stat- ute (N. Y. Rev. Sts., vol. 2, p. 707, § 5), he cannot be admitted to bail in the county where the arrest is made, but must be taken back to the county in which fhe warrant was issued. Clark v. Cleveland, 6 Hill, 344. It has been held, in New York, that a recognizance taken pursuant to an order of an officer authorized to let to bail, and who has general jurisdiction to let to bail and to take recognizances, though he be not the officer before whom the ap- plication to let to bail is pending, is valid; especially where the officer acquires jurisdiction of the person of the party by his voluntary appearance and acknowl- edgment, and where the officer before whom the application is pending subse- quently adopts the recognizance then taken, and lets the prisoner to bail on the faith of it, and the recognizance itself is tiled by him and becomes a record. The People v. Legget, 5 Barb. 360. MassacuusetTs.—In Massachusetts, a justice of the peace cannot admit to bail a person charged with homicide. Neither has he power to bail one convicted of felony who escapes before sentence into another state, and is subsequently brought back. Com. v. Otis, 16 Mass. 198. Nor can he admit to bail a prisoner committed by another justice. Com. v. Canada, 13 Pick. 86. But see Rev. Sts. of Mass., c. THE EXAMINATION AND COMMITMENT. 171 Power of courts and officers to admit to bail. 35, § 22. Nor where the offence may be proceeded against as well by action or information qui tam as by indictment. Com. v. Cheney, 6 Mass. 347. Matyze.—In Maine, any justice of the Supreme Court, or district court, or any two justices of the peace and quorum for any county, on application of any pris- oner committed for a bailable offence, or for not finding sureties to recognize for him, may inquire into the case, and admit such person to bail. Rev. Sts. of Maine, c. 171, §22. Buta justice of the peace has no authority to take the re- cognizance of a prisoner, while in the custody of the officer, under a mittimus issued by another justice, for want of sureties for his appearance at court, and before his commitment to prison. 8 Greenl. Maine Rep. 390. New Hamesuire.—In New Hampshire, the magistrate may order the accused. to “recognize, with sufficient sureties, to appear at the Court of Common Pleas next to be holden in the county where the offence was committed: or, in default of procuring sureties, or in case the offence be not bailable, he may be committed to the jail in that county.” The State v. Fowler, 8 Fost. N. H. Rep. 184, per Eastman, J. But the statute does not give a justice of the peace power to take a recognizance for the appearance and examination of a person accused of crime before a magistratein another county. The State v. Fowler, 8 Fost. N. H. Rep. 184. Vermont.—In Vermont, ‘any justice is empowered to cause to be apprehended and committed to prison, or bound over, with sufficient sureties, for trial by the county court, all persons charged with crimes exceeding his jurisdiction to try ;” and when a prosecution is commenced before him for an offence within his juris- diction, he ‘may, if in his discretion the public good requires it, bind over the "respondent, with sufficient sureties, for trial by the county court, and in case such sureties are not furnished, to commit the respondent to jail.” Rev. Sts. of Vt., c. 29, §§ 5, 6. And any judge of the Supreme Court, or any judge of the county court in the county for which he was appointed, may take a recognizance, with sufficient surety, of any person committed to jail for trial before the county court * on a criminal charge not capital. Rev. Sts. of Vt., tit. 30, c. 114, § 12. Coynecricur.—Under the 124th section of the statute of Connecticut, concerning crimes and punishments, the magistrate may take a recognizance from the ac- cused, not only to keep the peace and be of good behavior, but also to appear before the next county court, and abide the judgment and order of that court. Sturges v. Sherwood, 15 Conn. 149. And justices of the peace may require sure- ties of the peace and good behavior of a person charged with keeping a bawdy house, and, on failure of compliance with such order, may commit the offender to prison for a term not exceeding thirty days. Where, however, the offence alleged in the complaint was that of keeping a bawdy house, and the defendant was found guilty of that specific offence alone, and thereupon an order was made not to keep or frequent bawdy houses, it was held that such order was illegal, and a bond taken in conformity thereto void. Darling v. Hubbell, 9 Conn, 350. A justice of the peace may admit a prisoner to bail at an adjourned examina- tion.’ Potter v. Kingsbury, 4 Day, 98. And, in Connecticut, the sheriff may ad- mit to bail one committed by a justice for not finding sureties. Dickinson v. Kingsbury, 2 Day, 1. eh a 4 ! PENNSYLVANIA.—In Pennsylvania, by act of Assembly, “all prisoners shall be pailable, by one or more sufticient sureties, to be ‘taken by one or more of the judges or justices that have cognizance of the fact, unless for such offences as are or shall be made felonies of death, by the laws of the province.” Act, of 1705 ; 1 Smith’s Laws, p. 56; M’Kin. Dig. 713. Murder of the first degree is the only offence punishable with death. Justices of the peace may take bail for the ap- pearance of persons accused, generally, in cases of ail crimes and misdemeanors, to answer at the proper court, except in cases of treason, homicide, robbery, bur- glary, buggery, horse-stealing, arson, and rape; in which latter, cases one of the judges of the Supreme Court, or the president of the Court of Common Pleas, is ‘alone authorized to take bail. 1 Smith’s Laws of Penn. 187; 2 ibid. 581; 4 ibid. 334; 2 Penn. Black. 403; M’Kinney’s Dig. 724, 445, 716. And in Philadelphia the inferior magistrates have no power to admit to bail in felonies of ahigh grade. Com. v. Keeper of the Prison, 2 Ashmead, 227. Outo.—The magistrate, whether judge or justice of the peace, when he holds the examination, is authorized to take bail of the accused, and the recognizances of the witnesses. Walker’s Introd. p. 624. The statute makes it the duty of the 172 THE EXAMINATION AND COMMITMENT. Power of courts and officers to admit to bail. justice of the peace before whom the accused is brought, after inquiring into the complaint, ‘either to commit to the jail of the county, or discharge, or recognize to be and appear beforé the court, on the first day of the next term thereof, as the nature of the case may require.” Rev. Sts. of Ohio, c. 65,§1. The authority to admit to bail in criminal cases is an’ original inherent power in the Court of Com- mon Pleas of Ohio; and when the term of the court ends the power passes to single judges. Powell v. State, 15 Ohio, 579. Where the accused has been com- mitted for trial by a justice of the peace, the Court of Common Pleas may recog- nize him to appear from day to day, without inquiring into the circumstances. State v. Dawson, 6 Ohio, 251. : gi Virein1a.—In Virginia, ‘‘a county or corporation court or a justice thereof, in vacation, may let to bail a person who is charged with, but not convicted of, an offence not punishable with death or confinement in the penitentiary, or of which, if it be so punishable, only a light suspicion of guilt falls upon him.” If the offence be so punishable, and there is good cause to believe such person guilty, the statute declares, that ‘he shail not be let to bail by a justice or justices, either in or out of court ;” and that “in no case shall a person in jail, under an order of commitment, be admitted to bail by a justice (in vacation) in a less sum than was required by such order. Buta circuit court or the general court, or any judge thereof, may admit any person to bail before conviction.” Code of Va., tit. 55, c. 204, §6; 5 Rand. 711. But in Virginia, after the accused has been sent to a court of record for trial, a justice of the peace has no right to admit to bail. He may, however, take bail after the examining court has decided that the prisoner is baila- ble, and fixed the amount of bail. But it must appear on the record that the prisoner was bailable. Hamlett. Com.. 3 Gratt. 82. Iypiana.—If a person charged with a felony voluntarily appear before an asso- ciate judge, and enter into recognizance with sureties for his appearance, etc., the recognizance is valid, though the affidavit on which it was founded was taken before a justice of the peace. 1 Blackf. Rep. 200. In Indiana, in 1842, a pro. bate judge could not take a recognizance returnable to a court out of his county. State v. Montgomery, 7 Blackf. 221. Under the Revised Statutes of that state of 1843, p. 990, a judge of the Circuit Court may take a recognizance out of court, returnable to a circuit court out of the county where it is taken. Paine v. The State, 7 Blackf. 206. Under the Revised Statutes of Indiana of 1838, p. 327, the judge who issues a habeas corpus, upon complaint of illegal imprisonment, may call witnesses before him, inquire into the gwit of the prisoner, and remand, re- cognize, or discharge him, as he may deem proper. And it is not a good objec- tion to the validity of the recognizance, that he fixes a greater amount than that required by the committing magistrate. The State v. Best et al., 7 Blackf. 611. In Indiana, a judge at chambers may recognize to appear at a subsequent day . of the term, a person who has committed a crime during the sitting ofthe Circuit Court. Crandall v. The State, 6 Blackf. 284. Inuinois.—A recognizance, taken before an officer not having judicial power, is an involuntary obligation taken without authority of law, and cannot be enforced. Solomon v. The People,15 Ill. 291. Such is the nature of a recognizance taken before the president of a town. Ibid.; The People v. Maynard, 14 Ill. Rep. 419. In Illinois a justice of the peace may take recognizances in al! cases where the offence is bailable. McFarlan v. The People, 13 Ill. 9. But in that state no jus- tice of the peace can admit to bail any person charged with treason, murder, or any offence punishable with death. When the charge is for sodomy, rape, arson, burglary, robbery, forgery, or counterfeiting, any two justices of the peace have power to bail the prisoner. Rev. Sts. of Hl. (ed. of 1858), p. 413, § 203. - In Illinois, it is the duty of the magistrate committing a person to jail on a crim- inal charge téindorse on the warrant ih what sum bail may be given; and w judge, or two justices of the peace, may take such bail from the accused and dis- charge him from imprisonment. Rey. Sts. of Ill., ce. 30, § 206. In such case there is no inquiry into the truth of the charge, by the judge or justices. Their duty is simply to take a recognizance in the amount indorsed on the warrant of commitment, and discharge the prisoner. Solomon v. The People, 15 Ll. 291. Keytucky.—A justice of the peace may take bail for the appearance of the accused at the Circuit Court on the first day of the next succeeding term. Hostet- ter v. Com., 12 B. Mon. 1. Although a circuit judge may take a recognizance in < THE EXAMINATION AND COMMITMENT. 173 Power of courts and officers to admit to bail. vacation, yet.if taken in term time it must be taken in court. Com. v. Little, 1 A. K. Marsh. 566. : A recognizance to keep the peace is a criminal proceeding, and cannot be taken to the governor. Adams v. Ashby, 2 Bibb, 96. + A jailor has not power to take recognizances in criminal cases. But he may do so in Kentucky in civil cases, under the statute of 1812. Com. v. Lee, 3 J. J. Marsh. 618, : TrENNESSEE.—In Tennessee, the sheriff, in bailing prisoners committed for o ences, has ouly such power as is given by statute; and he is prohibited from taking bail where the.examining magistrate has determined that the offence is not bailable. State v. Horn, Meigs’ Rep. 473. A deputy sheriff cannot take bail. The State v. Edwards, 4 Humph. 226. The only statutes giving the sheriff power to take bail in criminal cases are the following :—By the act of 1809 (c. 6, § 2), the sheriff is authorized to take bail in cases where the principal may be surren- dered by his sureties. By the act of 1831 (c. 4, § 1), the sheriff is authorized to take bail in all criminal cases where the accused has been committed to jail for want of surety. He can only take bail in the given cases mentioned in these statutes. He must, therefore, recite in the recognizance the state of facts, upon the existence of which his authority to take the bail is founded. Otherwise the court cannot see that the recognizance was entered into before an officer having by law power to take it. Green, J., State v. Edwards, 4 Humph. 226. In Tennessee there is no change of the common law by which a court of record may require sureties for good behavior from a party who shall have been found guilty of a gross misdemeanor. But the court must exercise such power with a sound legal discretion. The character of the offence must contain in itself that turpitude that would justify the appellation of gross to the offence. Estes v. The State, 2 Humph. 496. ‘ Norrs Carotina.—In North Carolina, a sheriff who arrests a person for a breach of the peace has no authority to take his recognizance to keep the peace, but must carry the offender before a judge orajustice, who may commit or bailhim. State v. Hill, 3 Iredell, 398. And where the sheriff attempted to take a recognizance, the instrument was held to be but a simple obligation. State v. Miles, 2 Dev. 555. Under the statute of North Carolina of 1794 (Rev. Sts., c. 62, § 97), a verbal re- quest by a plaintiff, in a warrant to an officer to take bail, is sufficient to justify him in insisting on bail; but an officer, by virtue of his office, is not an agent of the plaintiff for exacting bail, and it may be doubted whether he can become an agent for that purpose. State v. Kirby, 4 Iredell, 90. The validity of a recognizance does not depend upon the fact that the court before which the party is required to appear has jurisdiction of the particular crime charged against the party, but upon the duty and power of the magistrate to examine and admit such party to bail. State v. Edney, 4 Dev. & Bat. 378. Where a magistrate binds a person, taken on a peace warrant, to appear at court, such court cannot review the judgment of the magistrate below allowing costs. State v. Wilson, 1 Jones’ N. Car. 550. Sourn Carotiva.—I'wo justices of the peace may bail a prisoner brought before them on a charge of felony; but not after he has heen committed. Barton v. Keith, 2 Hill 8. C. 587. : Grorcia.—A writing which purports to be a recognizance | taken by a person not authorized by law to take a recognizance or admit to bail in criminal cases, although not technically a recognizance because not an acknowledgment of a debt of record, nor before a judicial officer, is a contract between the securities and the state, and, as such, valid. Dennard et al. v. The State, 2 Kelly, 137. . ALABAMA.—The magistrate cannot delegate the power to take the recognizance of a person charged with crime. Butler v. Foster, 14 Ala. 323. Neither can the Circuit Court, by an order, delegate to a sheriff, after indictment found, power to bail a person charged withafelony. Antoney v. The State, 26 Ala. 81. A per- son in eustody charged with a capital offence, after having been refused bail by a circuit judge, may petition the Supreme Court for a revision of the decision of the circuit judge. x parte Croom, 19 Ala. 561. . In Alabama the sheriff cannot admit to bail a person arrested under a capias on a charge of felony. The Governor v. Jackson, 15 Ala. 703. But when the offence for which the party is arrested is a misdemeanor, it is the duty of the 174 THE EXAMINATION AND COMMITMENT. Power of courts and officers to admit to bail. sheriff to take his recognizance with sufficient sureties. Such recognizance may be taken by a deputy-sheriff; and it need not be certified by the officer. Penal Code of Ala. Dig. 601, §§ 5, 6; Shreeve v. The State, 11 Ala. 676. Mississtppr.—Under the statute of Mississippi of 1842, e. 3, § 8, the vice-chan- cellor is a conservator of the peace, and, ds such, is authorized to take the recog- nizance of a person charged with a criminal offence. State v. Wofford, 10 Smedes & Marsh. 626. In Mississippi, the sheriff has no power to take a recognizance when the process is returnable forthwith ; but, when the prisoner is only required to appear at a distant day, it is competent for him to do so. Moss v. The State, 6 How. Miss. Rep. 298. Anrxaysas.—In Arkansas, the statute provides that ‘upon an indictment pre- ferred, or to be preferred, in all criminal and penal prosecutions, recognizances for the appearance of the party charged with an offence shall be made payable to the state of Arkansas, and may be entered into before the court in which the pros- ecution is had, or before any judge of any court of record, or justice of the peace, in such sums as may be deemed necessary to secure the appearance of the party, conditioned that he will appear on the first day of the next term of the circuit court in which the indictment is preferred, or to be preferred, naming the county and state, the time and place of holding the court, and the nature of the offence charged. Rev. Sts. of Ark., c. 52, § 57. Whenever any person is ‘committed to jail on a warrant of commitment issued by any magistrate for a bailable offence, a recognizance, with proper security, may be taken by any court or magistrate authorized by law to issue a writ of habeas corpus ;” and the statute makes it the duty of the clerk of the court, by which the prisoner was bailed, immediately to transmit the recognizance taken by such court to the clerk of the court in which the party bailed is required to appear. Rev. Sts. of Ark., c. 52, §§ 55, 56. In Arkansas, where the indictment is for a bailable offence, the sheriff may take a recognizance, when the sum for which bail is required is indorsed on the writ ; and he may take bond and security where no such indorsement is made. Gray w. The State, 5 Ark. 265. . Texas.—The statute of Texas provides that ‘all persons shall be bailable by sufficient security, unless for capital crime where the proof is evident or presump- tion strong, by any justice of the peace before whom the offender may be brought, before commitment, or by any judge of the district or Supreme Court, after com- mitment.” Hartley’s Dig. of Laws of Texas, art. 405. In Texas, where the court in session issues a capias, returnable forthwith, the sheriff has no authority under the statute (Hartley’s Dig., art. 2889) to take a bond. for the prisoner’s appearance. Busby v. The State, 18 Texas, 136; Jackson v. The State, 13 Texas, 218. [The court in which an indictment is pending can fix the amount of bail, no matter what the committing magistrate may have done. Ex parte Ryan, 44 Cal. 555. For the proceedings in Indiana on the holding a person to bail where brought from another county into the county where the offence was committed. State v. Elder, 35 Ind. 368.] [In Kentucky, where an offence is committed in a county other than that in which the arrest is made, and is a felony, a magistrate cannot také temporary bail for the appearance of the accused before himself. Com. ». Salyer, 8 Bush, 461. And a U. 8. commissioner cannot take bail for the future appearance before himself of a person charged with crime against the U.S. A recognizance so taken is void. U.S. v. Case, 8 Blatch. 250 ] {When the accused has been surrendered by his bail to the sheriff, that officer may admit him to bail again with new sureties. Kellog-v. State, 48 Miss. 57.] [A recognizance is invalid in Kansas when taken by the clerk, even when he is deputized by the court, and not by the court itself. Morrow v. State, 5 Kans. 563; and in Kentueky, see Dugan v. Com., 6 Bush, 305. ‘See, also, Morrow v. State, 6 Kans. 222; Street v. State, 43 Miss. 1. In Yexas, a sheriff cannot bail one who voluntarily surrenders himself; he must take the party before an examining magistrate. State v. Miller, 31 Tex. 564. “As to sheriffs’ power in Alabama, see Gray v. State, 43 Ala. 41. In New York, the supreme court, or a justice thereof, may admit to bail. People v. Perry, 8 Abb. Pr. N. 8. 27. Bond taken by a police judge in Maine, when void, see State v. Young, 56 Me. 219.] THE EXAMINATION AND COMMITMENT. 175 General requisites and validity of the recognizance. 4, GENERAL REQUISITES AND VALIDITY OF TIE RECOGNIZANCE. A recognizance taken for a purpese not authorized by law is void. Harrington v. Brown, 7 Pick. 332. So where the court has no authority to act. Common- wealth v. Loveridge, 11 Mass. 337; Vase v. Deane, 7 Mass. 280 ; Dow v. Prescott, 12 Mass. 419; Commonwealth v. Otis, 16 Mass. 198. A recognizance, which is defective in any particular which by law is essential to its validity, cannot be aided by oral evidence. Nicholson v. The State, 2 Kelly, 137. But a recognizance not exactly according to statute may be good at common law. Phelps v. Parks, 4 Vt. 488. In Illinois, a certain kind of adulterous intercourse being punishable by indict- ment, where the recognizance requires the principal to appear and answer an in- dictment for adultery, it must be intended that he was charged with a statutory offence. Besimer v. The People, 15 Ill. Rep. 439. Superadded words of condition, beyond what are authorized by the statute, will not destroy the effect of a recognizance; but will be regarded as surplusage. Howie v. The State, 1 Ala. 113. Indeed, where the recognizance contains words that are absurd and repugnant to the design of the instrunent, they are to be re- jected ; the rule of construction of such an instrument being, if possible, to make it answer the purpose for which it was intended. Therefore, the expression in a recognizance, that it was to be void if default were made in the condition, is an absurdity, as not only contrary to the design of the recognizance, but as also re- pugnant to the concluding defeasance, which was, that if the condition was per- formed then the recognizance to be void, else to remain in full force. McCarty v. The State, 1 Blackf. 338. . The condition in a recognizance, that it is only to be valid in case the accused is legally imprisoned, must be regarded as mere surplusage. Such a qualification cannot either vitiate the recognizance, or enlarge or restrict its obligation. State v. Wellman, 3 Ohio Rep. 14. The date of the recognizance may be on the day on which the defendant is re- cognized to appear, as the court will presume it was executed in the morning, before the session commenced. State v. Bradley, 1 Blackford (Ind.), 84. But it was held in Massachusetts, under the Revised Stat., c. 86, § 11, and c 138, § 113, that exceptions in a criminal case, filed in the municipal court or Court of Common Pleas, must be entered in the supreme judicial court next to be held for the same county, and that if the party, who tiled such exceptions, recognized to enter and prosecute them in the supreme judicial court then in session, the recognizance was void. Commonwealth v. Harley, 7 Metcalf, 467. Where a recognizance is taken during the sitting of the court, it will be pre- sumed to have been taken before the court, although the record recites that it was “taken and acknowledged before me, A. B., Clerk.” Bodine v. Com., 12 Harris Penn. St. Rep. 69. | ‘ A recognizance in Indiana is not objectionable because it states that it has been entered into before an associate judge of the county, but does not state him to be a judge of the circuit court. McCarty v. The State, 1 Blackf. 338. No particular form of words is requireg to render a recognizance valid, provided it contains the essential requisites of such an instrument. Dean v. The State, 2 Smedes & Marsh. Rep. 200. It ought to state the ground on which it is taken, so that it may appear that the magistrate taking it had jurisdiction and authority to demand and receive it. State v. Smith, 2 Greenlf. 62; Com. v. Downey, 9 Mass. 520, S. P.; Com. v. Daggett, 16 Mass. 447; Goodwin v. The Governor, 1 Stew. & Port. 465; Nicholson v. The State, 2 Kelley, 363. Therefore, it has been held that, when the recognizance is taken before one of the special justices of the city of New York, it should so far state the crime charged as to show the case to be one in which the special justice had power to take bail. If it state that the crime alleged before the justice was burglary, without setting forth that it was below the first degree, it will be void. So if it only mentions that the prisoner was charged with the offence, without stating that there was probable cause for be- lieving him guilty. The People v. Koeber, 7 Hill, 39. But a recognizance need not set out the special fact which gives the officer jurisdiction over the particular case in which it is taken; it is sufficient if he has jurisdiction in cases of that gen- eral description, and it appear that the condition is to perform something to which 176 THE EXAMINATION AND COMMITMENT. General requisites and validity of the recognizance. a party may legally be bound by recognizance. Where, therefore, a recognizance which was taken before the recorder of Albany (who is authorized to take bail in all cases), conditioned for the appearance of the defendant at the next court of criminal jurisdiction to be held in that city, to answer to a charge of forgery, omitted to state the proceedings by which the application was brought before the recorder, it was held to be valid. The People v. Kane, 4 Denio, 530. The recognizance should set out the kind of offence for which the party is to answer. , Goodwin v. Governor, 1 Stew. & Port. 465; Simpson v. Commonwealth, 1 Dana, 523; Commonwealth v. West, 1 Dana, 165; People v. Rudle, 6 Hill, 506. A recognizance taken by a justice of the peace and entered on his docket in these words: ‘Jacob Kerns v. John Steward. Recognizance—bail, 25. Simon Elliot appears and acknowledges himself bail in the above case ;” is informal and void. Kerns v. Schoonmaker, 4 Ohio, 831. See State Treasurer v. Woodward, 7 Ver- mont, 528; Same v. Rolfe, 15 ibid. 9. In Kentucky, where the condition of the recognizance was, that it would be void if the accused should appear in the circuit court to answer “the charge herein,” and there was no other description of the charge, it was held that as the recognizance did not contain anything to show that the prisoner was charged with a felony, it was bad on its face. Simpson v. Com.,1 Dana, 523. And in the same state it was held that a recognizance to appear and answer a charge of “gaming,” without describing the game to show that it was indictable, was bad. Com. v. West, 1 Dana, 165. The recognizance need not, however, set out the offence charged with the tech- nical accuracy required in the indictment, but it will be sufficient if the offence be substantially described. State v. Weaver, 18 Ala. 293; People v. Blankman, 17 Wend. 252. To answer a charge of felony would be sufficiently certain, because an indictment would lie for every felony. Cotton v. The State, 7 Texas, 547; Fowler v. Com., 4 Monr. 128. But if the recognizance undertake to recite a specific charge, a charge must be recited for which an indictment will lie; otherwise the recognizance will be void. _ Bailey v. The State, 4 Texas Rep. 417. : The recognizance of a perSon charged with conspiracy need not designate in the terms of the indictment the particular act which the accused conspired to do. Hall v. The State, 15 Ala. 431. A recognizance to answer to a charge for “‘resist- ing process ” is sufficient to indicate the offence intended to be charged, although, under the spe tog the offence consists in knowingly and wilfully resisting or op- posing any officer in the state in serving or attempting to serve or execute any legal writ or process whatsover. Browder v. The State, 9 Ala. 58; and see Hall ». The State, 9 Ala. 827, Where a recognizance recited that the grand jury made a “presentment against D., for the crime of perjury,” and it was conditioned for his appearance to ‘‘ answer unto said presentment according to law,” it was held, that the statements in the recognizance might be understood as showing the finding of an indictment against D. Wood v. The People, 16 Ill Rep. 171. It has been held by the Circuit Court of the United States, that the material parts of the obligation and of the condition ought to be set forth in the body of the recognizance, and as close an analogy, between the recognizance to appear before the examining magistrate and the common one to appear at the courte to which it is returned, should be observed, as the nature of the case willadmit. Dillingham v. The U.S., 2 Wash. C. C. 422. : The recognizance may be either to appear and answer the particular accusa- tion, or to appear and answer what shall be objected against the accused. The People v. Boeber, 7 Hill, 39. A recognizance which binds the accused to appear at the next court of general sessions of the peace, and then and there answer all such matters and things as shall be objected against him, and abide the order of the court, and not depart the said court without leave, and in the mean time keep the peace, ete., is valid, although it does not state what particular charge the principal shall answer. The legal effect of such a recognizance is, that the principal shall appear at the next court of general sessions, and answer such charge as shall be brought against him, and be forthcoming before the court at all times until discharged, not merely that he shall appear at the term of the court next following the date of the recognizance. Gildersleeve v. The People, 14 Barb. 33. THE EXAMINATION AND COMMITMENT. 177 General requisites and validity of the recognizance. A penalty and condition are indispensable requisites to a recognizance, Cald- well v. Brindell, 1 Jones, 293. ‘ A writing in the form of a bond, with collateral conditions, is not such an in- strument as carries with it any of the evidence which in law distinguishes a recognizance from other obligations. Hickes v. The State, 9 Ark. 313. Where the statute provides that there shall be a recognizance, money cannot be meeslied by the court in lieu of, or as a substitute for bail. Butler v. Foster, 14 ad. 020. Where the accused was adinitted to bail in the sum of four hundred dollars, with two sureties in the sum of two hundred dollars each, and he gave bail to the amount of four hundred dollars, with ten sureties in the sum of forty dollars each, it was held that the order for bail had not been complied with, and that the sureties were not bound. State v. Buffum, 2 Fost. 267. " Where the statute requires the recognizance to be several, and it is so drawn, a cognizor cannot object that there is but one surety, although the statute requires . two sureties. Com. v. Porter, 1 A. K. Marsh. 44. In Illinois, the recognizance need not show that the amount of bail was fixed by ue eines and indorsed on the writ by the clerk. Vancil v. The People, 16 Ill. ep. 120. As the recognizance, when filed, becomes a record, and is presumptive evidence that the charge was regularly made, it need not show that the charge was made on oath. McCarty v. The State, 1 Blackf. 338. It is not a valid objection to a recognizance that there is a variance between it and the warrant to arrest. State v. Rowe, 8 Richardson, 17. A recognizance taken on Sunday, to prosecute an appeal in a criminal case, is void. State v. Suhur, 33 Maine, 539. Where the statute provides that, in case of appeal, the person convicted shall recognize to the state for his personal appearance at the court appealed to, the prisoner’s remaining in custody is not equivalent to such recognizance. Com. v. Brigham, 16 Pick. 10. Form of re- cognizance for the appearance of a party who has removed a criminal cause by certiorari, for error in his conviction, and upon which the Supreme Court ordered that he be tried at the circuit. The People v. Vermilyea, 7 Cow. 108. A recognizance need not necessarily be void because the proceedings are erroneous. Com. v. Huffey, 6 Barr, 348. : Where the prisoner is recognized to appear and answer to a charge of “‘play- ing at a game of cards,” the recognizance is defective, because simply ‘playing ata game of cards” is not an indictable offence. Cotten v. The State, 7 Texas, 547; Towsey v. The State, 8 ibid. 173. In Tennessee, where a person was re- quired to find sureties that he would not gamble for twelve months, it was held that such a recognizance was not authorized by law, but that a recognizance, with sureties for good behavior generally, would have been the proper form of the undertaking. Estes v. The State, 2 Humph. 496. The recognizance.must show on its face the court to which the defendant is bound to appear. State v. Rye, 9 Yerger, 386. If it bind the accused to appear on a day when the court does not sit, it is void. State v. Sullivant, 3 Yerg. 281. Therefore, where the prisoner had been indicted for receiving stolen goods and the recognizance was to appear at the Supreme Court on a given day, and no such court was or could be held on that day, the recognizance was held void. Com. v. Bolton, 1 Serg. & Rawle, 328; see State Treasurer v. Danforth, Brayt. 1406. - It has been held in Tennessee that, although it is necessary for a recognizance to show the court to which the defendant is bound to appear, it need not contain a recital of the offence to be answered, nor show on its face the court in which it wastaken. State v. Rye etal., 9 Yerg. 386; but see Grigsby v. State, 6 Yerg. 354. Tf the court in which the case is to be tried is sitting at. the time when the re- cognizance is taken, it ought to be for the appearance of the party at the present term or session of the court. nes . A recognizance taken from the prosecutor of a criminal complaint before a police justice, conditioned to appear and testify at the next court having cogni- zance of the offence, etc., will not be vitiated by the addition of the words, “as well to the grand as the petit jury, and not depart the said court without leave.” ‘the People v. Millis, 5 Barb. 511. Where the condition of the recognizance is, that the accused shall appear before the proper court at its next term. etc., but 12 178 THE EXAMINATION AND COMMITMENT. General requisites and validity of the recognizance. omits to add, “to answer the charge,” or “‘ to answer the indictment,” the recog- nizance will not be void for such omission. State v. Davidson, 20 Mis. 212. It has been held in Mississippi that a recognizance, which recites that the offence was committed in a different county from that to the court of which the prisoner was recognized, is not thereby void. Dean v. The State, 2 Smedes & Marsh. 200 In Alabama a recognizance is not objectionable because it is taken by the court in which the indictment is found, at the same time with an order changing the venue to another county, and is conditioned for the appearance of the accused at the ensuing circuit of the county to whiclr the case is transferred. Hall v. The State, 15 Ala. 431. Where a recognizance is entered into by several persons of the same name, it wil! not be void for ambiguity if from the whole tenor of the recognizance they can be sufticiently distinguished. State v. Cherry, Meigs, 232. In South Carolina and Indiana a seal is not essential to the validity of a recog- nizance. State v. Root, 2 Rep. Const. Ct. 123; Kearns v. State, 3 Blackf. 336. Whether, where a seal is essential to the validity of a recognizance, and the recog- nizance is by several recognizers, and seals set opposite the names of some of them, the seals upon the paper may not be referred to all who subscribe the obligation, and thus make its execution sufficient—qu@re. Hall v. The State, 9 Ala. 827. It is provided by statute in New York, that all recognizances, in order to he valid, must be signed by the party intended to be bound by them. See People v. Huggins, 10 Wendell, 471, 472. In Arkansas, in all cases where the recogni- zance for the appearance of the accused for trial is taken other than in open court, the statute requires that it shall be signed by the parties and be tested by the officer befure whom it is acknowledged. Rev. Sts. of Ark., c. 52,58. In Kentucky, the recognizance, if acknowledged, need not be signed. Madison v. Com., 2 A. K. Marsh. 131; Com. v. Mason, 3 A. K. Marsh. 456. See Com. v. Emery, 3 Bin. 431. A recognizance, for the appearance of the accused to answer to a charge for larceny, is valid, although executed only by the sureties. Minor . The State, 1 Blackf. 236. An allegation that a recognizance was signed and sealed by the parties, and attested by the justices, and by them delivered to the clerk with the warrant upon which it was founded, makes it certain to a common intent that the recognizance was taken before these justices. The State v. Cherry, Meigs, 232. Where the accused is an infant, he should not join with his sureties in the recognizance. Semme’s case, 11 Leigh, 665. Where the name of the conusor is signed to the recognizance it need not be mentioned in the body of it. Cunningham v. The State, 14 Missouri, 402; Badger & Clayton v. The State, 5 Ala. 21; Hall v. The State, 9 Ala. 827. An acknowledgment under the hands and seals of the accused and two others, and subscribed by the judge with these words, ‘attested and approved,” was held in Ohio not to be a recognizance. But a subsequent recognizance in form would not be invalidated by the mistake of the judge in taking and filing the _ former, The State v. West, 3 Ohio Rep. (N. 8.), 509. Ithas been held in Illinois, that as the statute prescribes no form of certificate of the justice before whom a recognizance has been taken it is not material what language is used, so that it appears that the oflicer took and accepted the recognizance for the purposes contemplated by the law. Lawrence v. The People, 17 Ill. 172. Where the let- ters J. P. were aflixed to the signatures of the persons approving of the recogni- zance, it was held that as these letters were understood to be an abbreviation of the term justice of the peace—one in common use, and clearly indicating that that office was intended—it sufficiently appeared that the bond was entered into before, and approved, by two justices. Shattuck ». The People, 4 Scam. 477. Where a justice of the peace makes a memorandum preceding a recognizance of the manner of its execution and who are the recognizers, this is equivalent to a formal certification of those facts made at the foot of it. Badger & Clayton v. The State, 5 Ala. 21. In Alabama, a recognizance commencing thus :—Be it re- membered that on, etc., came A. B., etc., before me, J. P., a justice of the peace in and for the county, ete., who acknowledged themselves, etc. ; and signed by the justice, is properly certified -to the circuit court. Howie v. The State, 1 Ala. 113. In Indiana, where a justice of the peace takes a recognizance for the ap- pearance of the accused before him at a subsequent day, the recognizance need not show that it was attested by the justice. Ross v. The State, 6 Blackf. 315. THE EXAMINATION AND COMMITMENT. 179 General requisites and validity of the recognizance. In Tennessee where a recognizance is taken by a sheriff, his attestation must show the county of which he is sheriff; otherwise the recognizance will be void. State wv. Austin, 4 Humph. 213. Recognizances in criminal cases should be made returnable before the court at a term thereof; and if made returnable before a judge at chambers, the prisoner is not bound to appear there. Corlies ». Waddell, 1 Barb. 355. In thé State of New York, a recognizance taken by a justice of the peace must require the at- tendance of the accused at the next criminal court having cognizance of the offence. Where, therefore, a recognizance was conditioned fur the appearance of the accused at the next court of oyer and terminer, to be held in the county in June then next, and it appeared that a court of sessions which had jurisdiction of the offence was held in the same county on the second Monday of May of the same year, it was held that the recognizance was void. The People v. Mack, 1 Parker’s N. Y. Cr. Rep. 567. In Mississippi, under a statute requiring the re- cognizance to be made returnable to the term of the court next to occur by law after the recognizance is taken, a recognizance, conditioned for the appearance of the accused ata time when no court sat by law, was held void. Butler v. The State, 12 Sm. & Marsh. 470. In Ohio it is provided by statute that a recognizance, taken by a justice of the peace or other officer authorized to take such recogni- zance, to be of any validity, must, be of record; and to make it a record, there must be a memorandum of its return entered on the minute book of the court. Sargeant v. The State, 16 Ohio, 267. The presumption from the recognizance when filed is, that the charge was re- gularly preferred and investigated and the proper decision made, before it was entered into and acknowledged. Shattuck v. The People, 4 Scam. 477; McCarty ». The State, 1 Blackf. 338; The People v. Blankman, 17 Wend. 252. The history, nature, and effects of a recognizance discussed. The People v. Kane, 4 Denio, 530. [A bail bond held good which omitted the name of the obligor in the condition, thus: “if the above bounden ——,” etc. Gorman »v. State, 38 Tex. 112. Where the condition described two distinct charges of theft without naming any offence, the bond was held insufficient. Patton v. State, 35 Tex. 92.] [Where the indictment charges a different offence from the bail bond, the sure- ties cannot be held liable. Duke v. State, 35 Tex. 424.] {Certain requirements of the Alabama statute held to be directory where bail was taken and approved by a sheriff under an order of a chancellor, viz., that the application for bail should be verified, the giving proper notice to the state solicitor, and a writ of habeas corpus, or a precept to the sheriff to produce the body of the prisoner; an omission of all these steps held not to affect the validity of the undertaking. Merrill v. State, 46 Ala. 82. ] [When a person, charged with distinct offences, is required to give bail in sepa- rate and distinct sums, one bond for a single aggregate sum being given is void, and the sureties are not liable. U.S. v. Goldstein, 1 Dillon, 413.) [A slight variance between the name of defendant in the indictment and as in the recognizance, is no defence to an action on the latter. People v. Eaton, 41 Cal. 657. {In lida, on a scire facias alleging. the recognizance to be joint and several, a several recognizance cannot be admitted in evidence, although by statute all joint obligations are made joint and several. Farris 0. People, 58 Il. 26.) [A recognizance is not invalid because it contains conditions additional to those prescribed by statute. State v. Crowley, 60 Me. 103.) ° os : [A recognizance executed by one surety only, when the statute requires two, is valid. State v. Benton, 48 N. H. 551.) ¥ . [The description of the offence need not be formal or technical. Goldthwaite v. State, 32 Tex. 599; Barrera v. State, 32 Tex. 644; U. S. v. Dennis, 1 Bond, 103. Where no offence is stated the recognizance is void. State v. Gibson, 23 La. An, 698; for “the crime of larceny,” void, as there is no such crime, Montgomery v. State, 33 ‘Tex. 179; also, for “unlawful gaming,” Stroud v. State, 33 Tex. 650; also, for “shooting with intent to kill and murdér,” Moore v. State, 34 Tex. 138; but for “the crime of murder,” is sufficient, State v. Brown, 34 Tex. 146.] [A signer whose name is not mentioned in the recognizance, and who signs after its execution by the others, is not a joint obligor. U. 8. v. Pickett, 1 Bond. 180 THE EXAMINATION AND COMMITMENT. In relation to the amount of bail. 123. And where the name in the condition differs from that in the obligatory part, they may be identified by extrinsic evidence. Gay v. State, 7 Kans. 394.] [For cases where certain omissions and redundances were held not to invalidate a recognizance, see Underwood v. Clement, 16 Gray, 169; People v. Freeman, 20 Mich. 413; Kellogg v. State, 43 Miss. 57; State v. Hatch, 59 Me. 410; Doughty v. State, 33 Tex. 1; State v. Glaevicke, 33 Tex. 53.] [Requisites at common law and under statutes, see Rainbolt v. State, 34 Tex. 286; Milliken v. State, 21 Ohio St. 635; U.S. v. Horton, 2 Dillon, 94 (ander U. 8. Stat. 1789, § 33); State v. Wells, 36 Iowa, 238; State ». Birchen, 9 Nev. 95; Peo- ple v. Welch, 47 How. Pr. 420; Smith v. State, 36 Tex. 317; State v. Rhodius, 37 Tex. 165; Ingram v. State, 10 Kans. 6830; Redmond ». State, 12 Kans. 172; State’ v. Weatherwax, 12 Kans. 463; Morrow v. State, 6 Kans. 222; U. S. ». Case, 8 Blatch. 250.] [For the proper practice in correcting the record, declaration, etc., in case of an amended recognizance. Com. v. Cheney, 108 Mass. 33; Cook v. Berth, ib. 73; Sewell v. Sullivan, ib. 355.] : ; {A bond signed in blank and filled up afterwards is void. Com. v. Ball, 6 Bush, 291. In California, no approval by the magistrate need be indorsed. People v. Penniman, 37 Cal. 271. As to misnomer of the accused, see Lytle v. People, 47 Ill. 422. Misdescribing the offence. See Horton »v. State, 30 Tex. 191; Payne v. State, 30 Tex. 397; Bennett v. State, 30 Tex. 446; Tierney v. State, 31 Tex. 40; Gonzales v. State, 31 Tex. 205; State v. Loeb, 21 La. An. 599; Gray v. State, 43 Ala. 41; State v. Hotchkiss, 30 Tex. 162; Davis v. State, 30 Tex. 352; Thompson v. State, 31 Tex. 166.] [See, also, as to the requisites of the bond, State v. Gordon, 41 Tex. 510; Turner w. State, 41 Tex. 549; State v. Becknall, 41 Tex. 319; Ishmael v. State, 41 Tex. 244; Com. v. O’Daniel, 9 Bush, 551; State v. Wright, 37 Iowa, 522; State v. Potts, 60 Mo. 368.] 5. IN RELATION TO THE AMOUNT OF BAIL. Article eight of the Amendments of the Constitution of the United States de- claves that excessive bail shall not be required, nor cruel and unusual punish- ments inflicted. See 3 Story on the Const. 750, 751; Rawle on the Const., c. 10, pp. 130, 131. . Const. of Mass. similar to that of U. S.—Const. of Mass., pt. 1, art. 26. Same in New Hamp.—Constitution of N. H., pt. 1, art. 33... Rhode Island—Const. of Rhode Island, art. 1, § 8. Same in New Jersey—Const. of N. J., art 1, § 15. Pennsylvania—Const. of Penn., art. 9, § 13. Maryland—Const. of Maryland, Decl. of Rights, sub. 22. Const. of Virginia same as U. 8.—Bill of Rights of Va., sub. 9. Same in North Carolina—Decl. of Rights of N. C., sub. 10. South Carolina—Const. of S. C., art. 9,§ 4. Kentucky—Const. of Ky., art. 10, sub. 15. -Tennessee—Const. of Tenn., art. 1, sub. 16. Obio—Const. of Ohio, art. 8, § 13. Indiana—Const. of Ind., art. 1, § 15. Mississippi—Const. of Miss., art. 1,§ 16. Alabama—Const. of Ala., art..1, § 16. Missouri—Decl. of Rights of Mis., § 12. Florida--Const. of Fla., art. 1, § 12. Michigan—Const. of Mich., art. 1, § 18. Texas—Const. of Texas, art. 11, § 1. Iowa--Const. of Iowa, art, 2,§ 17. Wisconsin—Const. of Wis., art. 1, § 6. : Const. of N. Y. same as U. 8., with this added—“ nor shall witnesses be un- -reasonably detained.” Const. of N. Y., art. -§ 5. . ‘ Const. of Delaware same as U. S., with this added—‘“ and in the construction of ee proper regard shall be had to the health of prisoners.” Const. of Del., art. 1, § J1. : , “‘ Excessive bail shall not be required, nor excessive fines imposed.” Const. of Conn., art. 1,§ 18. Const. of Ark., art.2, § 17. ae ae shall excessive bail be exacted for baitable offences.” Const. of Vermont, $. 2, § 33. ® It is proper, in fixing the amount of bail, for the court to take into considera- tion the fact, that the accused is a man of fortune. Ex parte Banks, 28 Ala. Rep. 89. The recognizance should be for such an amount as will be likely to secure a compliance with its conditions. The justice ought, therefore, in determining its THE EXAMINATION AND COMMITMENT. 181 In relation to the amount of bail. _amount, to take into consideration the nature of the offence, and the character -and property of the defendant. A person of wealth, charged with a state prison offence, would forfeit his recognizance if the amount were not such as would be oppressively large when required of a poor and obscure individual. If, by the commission of a crime, the accused has obtained property, and retains it, the justice should require a recognizance at least for a larger amount than the value of such property. The offender should not be permitted to make the crime itself an instrument for his escape. ‘The amount should not be oppressive; but never so smali as to hold out an inducement to the accused to forfeit his recognizances. Swan’s Justice, p. 483. It should be determined from a regard to the nature of the alleged offence, its punishment, the standing and property of the person charged, and the circumstance of the case. The usual custom in similar cases ought to be considered. The amount of the defendants recognizance is, in general, not less than a hundred dollars, even in common assault and battery, or any misdemeanor. In cases of aggravated assault and battery, or with intent to kill, or commit a crime or offence, the amount of bail should be larger. In a case of a conspiracy to cheat, the defendants were required to enter into re- cognizances, with two sureties each in the sum of $10,000. So, also, in a case of a charge for a conspiracy to procure abortion. And so, likewise, on a charge of a conspiracy to commit arape. In acase of forgery the defendant was held in recognizance -with one surety, in the sum of $1000. Where a person was in custody on a charge of embezzlement to the amount of between seventy and eighty thousand dollars, bail in the sum of twenty-five thousand dollars was held not to be excessive. Snow ez parte, 1 Rhode Island Rep. 360. Two thousand dollars bail on a charge of perjury, likewise on a charge of stealing property to the value of five hundred dollars, is not excessive. Evans v. Foster, 1 New Hamp. Rep. 374. For an alleged larceny of $20, bail was required in $500. On a charge for uttering and passing a false writing, and obtaining thereby pro- perty of great value under false pretences, the accused was held to bail in $2000. Defendants, charged with a conspiracy to cheat and defraud two persons out of $500 each, were held each in $600 to answer for the offence. A person was re- quired to find surety in $300 to answer a charge for uttering and passing a false check of $20.35, with intent to defraud. To answer a complaint for obtaining $50 by false pretences, a defendant was ordered to find bail in $300. In the case of a charge of publishing a libel on an individual, in a public newspaper, the two defendants were obliged to enter into recognizance in the sum of $1000 to appear at court for trial. One, accused of obtaining $218 by false pretences, was held to bail in $700. The sureties ought to be, at least, two men of ability, but whose sufficiency is left to the discretion of the magistrate, and, therefore, he may examine them, upon oath, as to the value of their property. And every one pf the bail ought to be of ability to answer the sum in which heis bound. 1 Chitty’s Crim. Law, p. 99; McKinney’s Am. Mag. 256. : The duty of magistrates in relation to the taking of bail is extremely important, requiring the exercise of great judgment and firmness. The two extremes, of demanding excessive and of accepting insufficient bail, should be equally avoided; and in many cases the justice may be exposed to the censure of the public or of individuals, if he transcends or falls short of his duty in either of these respects. Davis’ J. 838. But whenever he has authority under the statute to take bail from the person accused, he is bound to do so, in case it is offered ; and he has no discretion on the subject, except as to the amount of the bail, and the responsibility of the sureties. a ahs : To refuse or delay to bail any person, who is entitled to bail, is an offence at common law against the liberty of the subject, and for which the magistrate is also liable in damages to the party injured. Evans v. Foster, 1 New Hamp. Rep. 374; 2 Stark. Ev. (5th Am. ed.) 498, n.1; Hardison v. Jordan, Cam. & Nor. 454; Gregory v. Brown, 4 Bibb, 28; State v. Johnson, 2 Bay, 385; Lining v. Bentham, 2 Bay, 1; Boyer v. Potts, 14 Serge. & Rawle, 158; State v. Campbell, 2 Tyler, 177. It was also made punishable by ancient English statutes. 1 Nun. & Walsh, 398; 2 Hawk., c. 15, § 13; 8 Bos. & Pul. 551; Davis’ J. 83; see 3 Edw. I, st. 2, c. 15, and 31 Car. II. And in England, lest the intention of the law should be frus- trated by magistrates, it is expressly declared by statute, 1 William and Mary, that excessive bail ought not to be required. And we have seen ante the consti- 182 THE EXAMINATION AND COMMITMENT. Rights and liability of bail. tutional and statutory provisions of the United States, and of the.several states, on this subject. What bail should be called excessive must be left to the magistrate to deter- mine, on considering the circumstances of the case. And-on the other hand, if the magistrate takes insufficient bail, he is liable to be fined if the criminal does not appear. Smith v. Trawl, 1 Root. 165; but if he does appear, according to the condition of the recognizance, those who admitted him to bail are safe; inas- much as the end of the law is answered whenever the appearance of the prisoner is in fact procured. 2 Hawk., c. 15, §6; Davis’ J. 83. It is also an offence at common law, for a magistrate to grant bail where it ought to be denied ; and it is punishable as a negligent escape. 2 Hawk., vu. 15, §6; 1 Nun. & Walsh, 399. It has-been decided that it is no excuse for justices of the peace, admitting a person to bail who was committed for an offence not bailable by law, that they did not know he was committed for such offence; for that they ought to inform themselves, at their peril, of the cause for which the party was committed, that they might thereby be satisfied that he was bailable by law. It has been held in Illinois, that where the sheriff requires the prisoner to give bail in a greater amount than is required by the order of the court, the recog- nizance is void. Waugh v. The People, 17 Il., 561. The magistrate is not bound to demand bail, or that the person to be bailed shall find sureties; nor is he bound to forbear committing the party till he shall refuse to find sureties; but may justify a commitment, unless the party himself shall tender his sureties. 2 Strange, 1216; 2 Hawk., c. 15, §§ 12,14; 2 Hale, 123. 6. RIGHTS AND LIABILITY OF BAIL. A recognizance of bail in a criminal case is not designed as a satisfaction of the offence, when it is forfeited and paid, but as a means of compelling the party to submit to the trial and punishment which the law ordains for his offence. Hx parte Milburn, 9 Peters, 710. ; To render the bail liable, the record must show that the principal was called and did not appear. State v. Grigsby, 3 Yerg. 280; S. P. White et al. v. The State, 5 Yerg. 183; Park v. The State, 4 Geo. Rep. 329; Dillingham v. The United States, 2 Wash. C. C. Rep. 422. In’ Kentucky, where a person enters into a recognizance to the state, he may be defaulted without being called. But it is incumbent on him to appear and have his appearance recorded as a discharge of the recognizance; and that he did not appear is a negative which the state is not bound to prove. Leeper v. Com., Lit. Sel. Cas. 102. The prisoner may be called upon any day during the sitting of the court, and it is not necessary to justify a call on a day subsequent to the first day of the court, that notice should be given to him or his bail. ‘The People v. Blankman, 17 Wend. 252. Where the prisoner is recognized to appear on the first day of the term, his recognizance will be forfeited by his failure to appear on that day; and his appearance on a subsequent day of the term will not save his recognizance (Shore v. The State, 6 Mo. 640; Com. v. Cayton, 2 Dana, 138); and his sureties will be liable even though no indictment be found against him. If, however, no indictment be found against him, and he appear during the term, the recognizors may be discharged by the favor of the court. Aliter, where the principal does not appear. Adair v. State, 1 Blackford (Ind.), 201. See State v. Saunders, 2 Halsted, 177; State v. Cooper, 2 Blackf. 227. A recognizance to appear at the first day of the next court binds the party to appear at the first court actually held; a failure to hold the court at the regular time will not exonerate him. Commonwealth v. Cayton, 2 Dana, 135. The following is the form of the ‘Certificate of Consent above mentioned. Thereby certify, that I consent to the within-named A. B, [*58] *being bailed by recognizance, himself in , and [two] sure- ties in + each. J.8. The like, on a separate Paper. Whereas A. B. was, on the ——, committed by me to the [house of correction] at , charged with [etc., naming the offence shortly]: I hereby certify, that I consent to the said A. B. being bailed by , and [two] sureties in each. Dated day of ——, 185-. J.8. recognizance, himself in the (d) In other misdemeanors. Where any person shall be charged before any justice of the peace with any indictable misdemeanor other than those hereinbefore men- tioned, such justice, after taking the examinations in writing as afore- said, instead of committing him to prison for such offence, shall admit him to bail in manner aforesaid ; or if he have been committed to prison, and shall apply to any one of the visiting justices of such prison, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, before the first day of the sitting or session at which he is to be tried, or before the day to which such sit- ting or session may be adjourned, to be admitted to bail, such justice shall accordingly admit him to bail in manner aforesaid.(a) (e) Warrant of Deliverance. In all cases where a justice or justices of the peace shall admit to pail any person who shall then be in any prison charged with the offence for which he shall be so admitted to bail, such justice or justices shall send to or cause to be lodged with the keeper of such prison a warrant of deliverance under his or their hand and seal or hands and seals, requiring the said keeper to discharge the person so admitted to bail, if he be detained for no other offence; and upon such warrant (a) 11 & 12 Vict., c. 42, § 28, THE EXAMINATION AND COMMITMENT. 193 . Want of deliverance on bail. of deliverance being delivered to or lodged with such keeper, he shall forthwith obey the same.(a)(1) The following is the form of the Warrant of Deliverance on Bail being given for a Prisoner already com- mitted. To the keeper of the [house of correction] at of ——. Whereas, A. B., late of [Jaborer], hath before [ws, two] of Her Majesty’s justices of the peace in and for the said county, entered into his own recognizance, and found sufficient sureties for his appearance at the next court of oyer and terminer and general jail delivery [or court of general *quarter sessions of the peace] to be holden in [*59] and for the county of , to answer our sovereign lady the Queen, for that [ete., as in the commitment], for which he was taken and committed to your said [house of correction]: these are, therefore, to command you, in Her said Majesty’s name, that if the said A. B. do remain in your custody in the said [house of correction] for the said cause, and for no other, you shall forthwith suffer him to go at large. Given under our hands and seals, this day of , in the year of our Lord , at , in the [county] aforesaid. »in the said [county] J.8. [u. 8.] J.N. [. 8.] (6) Ibid. § 24. (1) In Ohio, by special provision, when any person has been committed for a bailable offence, either by a judge, sheriff, or justice, any single judge may admit such person to bail, and may direct the prisoner, by special warrant, to be brought before him for that purpose. Rev. Sts. of Ohio, c. 88, § 5, sub. 18. In that state, there is also an examining court for the relief of prisoners confined on criminal accusations. The statute provides that ‘‘when any person shall have been committed to jail, charged with the commission of any crime or offence, and wishes to be discharged from such imprisonment, the sheriff or jailer shall forth- with give to the probate judge, clerk, and prosecuting attorney of the proper county, at least three days’ notice of the time of holding an examining court ;” and it is their duty to attend at the court-house on the day named. The judge, having heard the testimony, may, in his discretion, discharge the accused, admit him to bail, or remand him to prison. Rev. Sts. of Ohio, c. 88, sub. 14. There is also an examining court in Virginia. Code of Va., c. 205. 13 194 CONVICTION OF JUVENILE OFFENDERS. In what cases. SECTION IV. CONVICTION OF JUVENILE OFFENDERS FOR LARCENY. (a) In what cases. Every person who shall be charged with having committed, or hav- ing attempted to commit, or with having been an aider, abetter, coun- sellor, or procurer in the commission of any offence which now is or hereafter shall or may be by law deemed or declared to be simple lar- ceny, or punishable as simple larceny—and whose age at the period of the commission, or attempted commission of such offence, shall not, in the opinion of the justices before whom he or she shall be brought or appear, exceed the age of sixteen years,(a) shall, upon conviction thereof upon his own confession, or upon proof, before any two or more justices of the peace for any county, riding, division, borough, liberty or place, in petty sessions assembled, at the usual place, and in open court, be committed to the common jail or house of correction within the jurisdiction of such justices, there to be imprisoned, with or without hard labor, for any term not exceeding three calendar months, or, in the discretion of such justices, shall forfeit and pay such sum, not exceeding three pounds, as the said justices shall adjudge, or if a male (not exceeding fourteen years of age),(b) shall be once privately whipped, either instead of, or in addition to such imprisonment, or imprisonment and hard labor.(c)(1) (a) 13 & 14 Vict., v. 36, § 1. (0) Ibid. § 1. (c) 10 & 11 Vict., c. 82, § 1. (1) The jurisdiction of a justice of the peace in criminal matters generally ex- tends to three principal classes of cases: I. Those cases in which the proceedings before them are merely primary and preliminary, that, on the appearance or arrest of an accused person, he may, if due proof be made, be held to answer the charge before a proper court of justice. II. Cases of summary conviction, in which they have power to hear, try, and determine charges for particular statu- tory offences, and to punish by fine and imprisonment. III. Cases.of surety o the peace, or for good behavior, in which they may require a suspected party to enter into the proper recognizances. : There are some cases in which proceedings are by statute authorized and di- reeted to be had for the punishment of offences by fine or imprisonment, and for the recovery of fines and forfeitures, before justices of the peace and similar mag- istrates, on their judgment and sentence; in which they have power to hear, try, and determine, and may acquit, or convict and punish. In some instances, their judgments or sentences, under this jurisdiction, are final; in others, there may be an appeal on the facts to a proper court of justice. Generally, the proceedings before justices of the peace, in criminal cases, are only primary, being merely preliminary, in order to the trial of the accused in a CONVICTION OF JUVENILE OFFENDERS. 195 By whom.—Summons or warrant,—Hearing. (0) By whom. Auy two or more justices of the peace for any county, riding, divi- sion, borough or place, in petty sessions assembled, and in open court, or any one magistrate of the police courts of the metropolis—or any stipendiary magistrate sitting in open court, and having by law the power to do acts usually required to be done by two or more justices of the peace—have hereby authority to hear and determine the case *according to the provisions of this act;(a) seem- [*60] ingly, whether the offence be committed within their juris- diction or not. : (c) Summons or warrant. Where any person, whose age is alleged not to exceed [sixteen] years, shall be charged with any such offence on the oath of a credible wit- ness, before any justice of the peace, such justice may issue his sum- mons or warrant to summon or apprehend him to appear before two justices, etc., at a time and place to be named therein.(b) The sum- mons may readily be framed from the form ;(c) and the warrant from the form.(d) Of course, this is not necessary, where the party has already been apprehended without warrant, and is in custody; but in that case he must be brought before two or more justices in petty ses- sions, or before a police or stipendiary magistrate, as above mentioned. (d) Hearing. Any justice may issue a summons requiring the attendance of any person as a witness upon the hearing, and it may be served either by (a) 10 & 11 Vict., v. 82, § 2. (c) Ante, p. 32. (b) 10 & 11 Vict. c. 82, § 4. (a) Ante, p. 31. competent court’; but in this class of cases they are final, for trial and judgment, acquittal or conviction and sentence; an appeal being allowed, in some instances, from such a conviction, to a higher tribunal. ; ; In this country, proceedings of this kind have been provided for by statute, in numerous cases, for offences against the public, and for violations of penal laws more immediately injurious to individuals, forming a particular and very import- ant class of jurisdiction delegated to justices of the peace and similar magistrates. Of this description of cases are gambling, horse-racing, profane cursing and swearing, drunkenness, Sabbath-breaking by worldly employment on that day, obstructing public roads or canals, vagrancy, and the like; and, in some states, common assault and battery, challenging to fight, and affrays. [The commitment of a person under sixteen years of age to a house of refuge, in pursuance of the Ohio statute authorizing the same (1 Swan & C. 690), is not a criminal proceeding at all; it is a statutory mode of exercising public guardian- ship over the young. Prescott v. State, 19 Ohio St. 184.] 196 CONVICTION OF JUVENILE OFFENDERS. Form and requisites of conviction. delivery of a copy to the witness, or by leaving it with some person for him at his usual place of abode ;(a) or if he refuse or neglect to attend, the justice may issue his warrant. This summons and war- rant may readily be framed from the forms.() As soon as the party and witnesses are before the justices, and be- fore the party is asked whether he or she has any cause to show why he or she should not be convicied, one of the justices shall say to him: “* We shall have to hear what you have to say in answer to the charge against you ; but if you wish the charge to be tried by a jury, you must object now to our deciding upon it at once,” or words to the like effect.(c) If he object, the summary proceeding ceases, and the prosecutor must proceed in the ordinary way, by indictment; but if he say he has no objection, then the justices take his plea, proceed to hear the witnesses, and convict him, or dismiss the charge. The justices may remand. the party for further examination ; or they may allow him to go at large, upon his procuring a surety or sureties to be bound by recognizance for his appearance at his further exami- nation.(d) (e) Conviction and commitment. / "The conviction may be drawn in the following form, or in any other form to the same effect; and which conviction shall be good and effectual to all intents and purposes.(1) (a) 10 & 11 Vict., c. 82, §6 7, 8. (c) 13 & 14 Vict., v. 87, § 2. (b) Ante, pp. 40, 41. (d) 10 & 1 Vict., v. 82, § 5. (1) A conviction (in the sense in which it is here used) is « record of the sum- mary proceedings upon any penal statute, before one or more justices of the peace, or other persons duly authorized, in a case where the offender has been convicted and sentenced. ““Where a special power is given to a magistrate by statute to convict an offender in a summary manner without a trial by jury, it must appear that he has strictly pursued the power. The record should show upon. its face everything necessary upon general principles to constitute a legal conviction. It should set out the offence charged, and show what statute or section of a statute was alleged to have been violated. It should show not only legal notice given, but also, whether the defendant was present or absent ; and if present, that the complaint was read to him, and his answer to it. It should set out not only the names of the witnesses examined, but at least the substance of the testimony, that the court above may judge of the sufficiency to convict. And it should appear with preci- sion, by the record, of what offence the defendant is convicted.” Keeler v. Milledge, 4 Zabriskie, 142, citing 1 Burn’s Justice, 409, 410; Handlin ads. State, 1 Har. 97; Rex v. Vipont, 2 Burrows, 1163; Rex v, Killett, 4 Burrows, 2063. [See the following cases as to the record of conviction and the proceedings on the trial. Ellinwood v, Com., 10 Met. 222; Bennac v. People, 4 Barb, 164; Com. v. Hardy, 1 Ashm. 410; Case v. State, 5 Porter (Ind.) 1.] : » CONVICTION OF JUVENILE OFFENDERS. . 197 Form and requisites of conviction.—Warrant of commitment. The following is the form given in the schedule to the statute: * Conviction. [*61] — Be it remembered, that on the day ,in the to wit: § year of our Lord one thousand eight hundred and ——, at in the county of , [or riding, division, liberty, city, etc., as the case may be}, A. Q. is convicted before us, J. P. and Q. R., two of Her Majesty’s justices of the peace for the said county [eéc.], for that he, the said A. O., did [specify the offence, and the time and place when and where the same was committed, as the case may be, but without setting forth the evidence]: and we, the said J. P. and Q. R., adjudge the said A. O. for his said offence, to be imprisoned in the » Land there kept to hard labor] for the space of , [or we adjude the said A. O., for his said offence, to forfeit and pay—[here state the penalty actually imposed], and in default of immediate payment of the said sum, to be imprisoned in the [and there kept to hard labor] for the space of , unless the said sum shall be sooner paid.] Given under our hands and seals, the day and year first above men- tioned. , The justices may order restitution of the property stolen; or, if the property be not forthcoming, they may order the offender to pay the value of it to the prosecutor, at once or by instalments.(a) Also, the justices are empowered to order that the prosecutor be allowed his expenses.(0) The following forms of warrants of commitment are not given by the schedule to the act: Warrant of Commitment on a Conviction where the punishment is by Im- prisonment, etc. To the constable of , and to the keeper of the [house of correction] at ——, in the said [county] of ——. Whereas, A. O. was this day duly convicted before the undersigned, [two] of Her Majesty’s justices of the peace in and for the said [county] of , for that [stating the offence as in the conviction], and it was thereby adjudged that the said A. O., for his said offence, should be imprisoned in the [house of correction] at , in the said county’ [and (a) 10 & 11 Vict., c. 82, § 12. (b) Ibid. §§ 15, 16, 17. 198 CONVICTION OF JUVENILE OFFENDERS. Warrant of commitment. there kept to hard labor] for the space of ——; these are, therefore, to to command you, the said constable of ——, to take the said A. 0., and him safely convey to the [house of correction] at aforesaid, and there to deliver him to the keeper thereof, together with this precept ; and I do hereby command you, the said keeper of the said [house of correction] to receive the said A. O. into your custody in the said [*62] [house *of correction], there to imprison him [and keep him to hard labor] for the space of ——; and for your so doing this shall be your sufficient warrant. Given under my hand and seal, this of our Lord » at day of , in the [county] aforesaid. J.8. [u. 8.] , in the year Warrant of Commitment upon a Conviction for a Penalty. To the constable of , and to the keeper of the [house of correction] at , in the said [county] of ——. Whereas, A. O. was on this day duly convicted before the under- signed, [two] of Her Majesty’s justices of the peace in and for the said [county], for that [stating the offence as in the conviction]; and it was thereby adjudged that the said A. O., for his said offence, should for- feit and pay the sum of , [ete., as in the conviction], and in default of immediate payment of the said sum, to be imprisoned in the [house of correction] at in the said [county] [and there kept to hard labor] for the space of , unless the said sum should be sooner paid; and whereas the said A. O. hath not paid thé said sum.or any part thereof, but therein hath made default; these are, therefore, to command you, the said constable of ——, to take-the said A. O., and him safely to convey to the [house of correction] at —— aforesaid, and there to deliver him to the keeper thereof, together with this precept; and I do hereby command you, the said keeper of the said [house of correction], to re- ceive the said A. O. into your custody in the said [house of correction], ‘there to imprison him [and keep him to hard labor] for the space o : unless the said sum shall be sooner paid; and for your so doing this shall be your sufficient warrant. Given under our hands and seals, this —— day of ——, in the year our Lord ——, at , in the [coznty] aforesaid. IP. [ua] QR [us] HABEAS CORPUS. 199 Nature of. This fine, if paid, is to be paid to the clerk of the convicting justices, and by him to the county rate, or rate in the nature of a county rate for the county, city, etc., in which the offence was committed.(a) (c) Dismissal of the charge. If the justices, upon the hearing of any such case, shall deem the offence not to be proved, or that it is not expedient to inflict any pun- ishment, they shall dismiss the party charged, on finding surety or sureties for his future good behavior, or without such sureties, and there make out and deliver to the party a certificate of his dismis- sal ;(6) which certificate shall release the party from all further or other proceedings for the same cause.(c) (a) 10 & 11 Vict., c. 82, § 6, (6) Ibid. § 1. (c) Ibid. § 3. HABEAS CORPUS. I propose to discuss this subject under the following heads: . NATURE OF. WHEN PRISONER ENTITLED TO. . APPLICATION FOR. . AUTHORITY OF COURTS TO ISSUE. RETURN. . TRAVERSE OF RETURN. . PROCEEDINGS AT THE HEARING. .. DISCHARGE OF PRISONER. BAI op abe 1. NATURE OF. The writ of habeas corpus was well known to the common law, and has been regarded by English jurists as one of the greatest safeguards to the liberty of the subject. Its great object is the liberation of those who may be imprisoned with- out just cause ; and it has been so favorably regarded in this country that the provisions of the English act (31 Charles II, c. 2) have been substantially adopted by the several states. We have gohe further, and, in our state constitutions, provided that the privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then only if the public safety demand it. Wright v. The State, 5 Porter’s Ind. Rep. 290. The writ of habeas corpus cannot be converted into a quo warranto, in order to decide a question of usurpation of office; although it may sometimes be appro- priately used as a writ of error. Matter of Phillip Walker, 3 Barb. 162. The ‘New York Habeas Corpus Act, however, was not intended as a writ of review to correct the errors of inferior tribunals. Matter of Prime, 1 Barb. 340. . Formal defects in process cannot be corrected by habeas corpus. Miles v. Brown, 3 Barb, 37. In reference to the nature and purpose of this writ, see the remarks of Marshall, 200 HABEAS CORPUS. When prisoner entitled to.—Application for.—Authority of courts to issue. C.J. Ex parte Tobias Watkins, 3 Peters, 201, 202; 3 Story on Const. 206-209 ; 2 Kent Com., 2d ed., 26-32; United States Bank v. Jenkms, 18 Johns. 305; Case of Yeates, 4 ibid. 364; Burry v. Mercein, 3 Hill, 399; People v. Cassels, 5 ibid. 635 ; Commonwealth v. Harrison, 11 Mass. 68; Commonwealth v. Briebett, 8 Pick. 138; Randall v. Bridge, 2 Mass. 553. 2. WHEN PRISONER ENTITLED TO. When a person committed by a magistrate is advised that his commitment is illegal, or that he is entitled to be discharged or bailed by a superior jurisdiction, he has a remedy by writ of habeas corpus or certiorari, and the proceedings thereon. 38 Black. Com. 131; 1 Chit. Cr. L. 118. Indeed whenever a person is restrained of his liberty by being confined in a common jail, or by a private per- son, whether it be for a civil or criminal cause, and it is apprehended that the imprisonment is illegal, he may in general, by habeas corpus or certiorari, have his body and the proceedings under which he is detained removed to some superior jurisdiction, having authority to examine into the legality of the com- mitment; and on the return he will be either discharged or remanded. 1 Chit. Cr. 118; 2 R. 8. 563. A person who is imprisoned on a criminal charge is entitled to a writ of habeas corpus as aright, except when he is committed or detained by virtue of the final judgment of a competent tribunal. This question must be decided by the officer to whom the writ is presented for allowance, and if he de- cides that the prisoner is not entitled to it, such decision may be a proper sub- ject of review. The People v. Mayer, 16 Barb. 362. Convicts, or those in execution by legal process, civil or criminal, are not en- titled to the benefit of habeas corpus. Riley’s Case, 2 Pick. 172; Commonwealth w. Whitney, 10 Pick. 434. But see Hx parte Kellogg, 6 Vermont, 509, as to habeas corpus in cases of fugitives from justice. Ha parte Clarke, 9 Wendell, 212, An affidavit of the prisoner that he is illegally detained will entitle him to a habeas corpus, all other allegations will be superfluous. White v. The State, 1 Smed. & Marsh. 149. ; The protection of the English Habeas Corpus Act (31 Car. Tl, ¢. 2) against unlawful impeachment extended no further than the enlargement of the prisoner on bail, where the offence was bailable, Where, therefore, the warrant of arrest or commitment contained a specific charge of an offence not bailable, the prisoner, on habeas corpus, could not obtain any relief whatever. People v. McLeod, 1 Hill, 377. 13 3. APPLICATION FOR, The party who is interested in continuing the imprisonment must be notified of the application for a habeas corpus, although he do not reside in the county where the prisoner is imprisoned, or where the proceeding is had for a habeas corpus ; it must be given without reference to residence. People v. Pelham, 14 Wend. 48. Upon the petition of one who is in custody under a writ of ne exeat, for a writ of habeas corpus, a copy, not only of the writ, but of the bill upon which it is founded, and the judge’s order directing the writ of ne exeat to issue, must be annexed to the petition, or a legal excuse must be shown for the omission. Ez parte Royster, 1 Eng. 28. 4, AUTHORITY OF COf=RTS TO ISSUE. Whether one court has a right, by a writ of habeas corpus to the executive officer of another court, to take a prisoner from the custody of the latter—quere. Sim’s Case, 7 Cush. 285. , It seems that the Supreme Court of the United States have no jurisdiction of a writ of habeas corpus, where the writ is under the seal of the Circuit Court, issued and tested by an associate judge of the Supreme Court, returnable before him at chambers, and adjourned by him into the Supreme Courtin banc. Jn re Kaine, 14 How. U. 8.103. But the Supreme Court of the United States may issue a habeas corpus for the purpose of releasing one who stands committed by a commissioner of the Circuit Court of the United States, as a fugitive from justice in Great Britain, HABEAS CORPUS. 201 Authority of ‘courts to issue. after the Circuit Court has directed that a writ of habeas corpus, issued by itself, should be dismissed, and the prisoner remanded to the custody of the marshal under his original commitment. The United States court may bring before it by habeas corpus one of its deputy-marshals imprisoned under state process, whether of a justice of the peace, or of the courts or Supreme Court, whether criminal or - civil, for his conduct in executing a writ issued under the fugitive slave law; may inquire into the ground ‘of commitment, and, if illegal, direct a complete discharge. And in such case, the court will not only hear evidence to disprove the truth of the affidavits upon which the state authorities proceeded, but will, independently of such evidence, consider these affidavits ; and if, in the judgment of the court, these affidavits do not contain a prima facie cause for arrest, will discharge the federal officer without hearing any counter evidence. In general, moreover, in the case of such 4n officer, the court will discharge him, unless there is a positive oath of merits from the plaintiff, or a sworn detail of circumstances from others to supply its place. Hz parte Jenkins, 2 Wallace, Jun., 521. Where a person is imprisoned on a criminal charge by the authorities of a state, a United States court has no power to take him from such imprisonment ; neither can a state court remove by habeas corpus a person from the custody of a court of the United States. U. 8. v. Rector, 5 McLean, 174. But where an ofticer of the United States has been imprisoned by the authorities of a state for performing his duty, he may be released by habeas corpus.. Ex parte Robinson, 5 McLean, 355. . ; A state court has no power, upon habeas corpus, to discharge a person who stands committed under an act of Congress. The State v. Paine, T. U. P. Charlt. 142. But to take away the jurisdiction of the state courts on habeas corpus with- in state territory ceded to the Umted States, it is necessary that such jurisdiction should be expressly surrendered by the state. Matter of Carleton, 7 Cow. 471. The New York Supreme Court refused to grant a writ of habeas corpus, where it was a matter arising under or by color of the authority of the United States, and a judge of the Supreme Court of the United States, or the district court of the United States, had clear and unquestionable jurisdiction in the matter, and could grant the party the requisite relief. Matter of Ferguson, 9 Johns. 239. Whether a state court has jurisdiction to grant a habeas corpus in such a case—quere. Ibid. Upon a habeas corpus, when there is a question of conflict between state and federal process, counsel, in order to appear in defence of the state process, must be authorized by the state or its proper officers ; and, after return made, the court’ will refuse to hear as counsel a member of the bar who shows no such authority, nor any authority beyond that of the person who executed the state writ. Ez parte Jenkins, 2 Wallace, Jun., 521. : In Pennsylvania, the Supreme Court has no power to bring up by habeas corpus a person bound over by the Court of Quarter Sessions, to answer to the charge of misdemeanor during the session of the latter court. The Com. v. the Sheriff, 7 Watts & Serg. 108. ; The statute of Maryland of 1853, c. 238, so far as it confers upon the Court of Common Pleas for the city of Baltimore authority to issue the writ of habeas cor- pus, cum causa, is unconstitutional, the powers specially enwmerated in the 10th section of the 4th act of the Constitution of Maryland being all that are conferred upon that Court. State v. Mace, 5 Md. 337. . : In Virginia, where a free negro has been tried and sentenced to imprisonment in the penitentiary, the General Court cannot, on the application of persons who claim.the negro as a slave, discharge him from imprisonment, by a proceeding by habeas corpus. Ex parte Ball, 2 Gratt, 588. read Although the statute of South Carolina requires the concurrence of two justices to grant the writ of habeas corpus, a single justice is Hable, if he refuses to sign it; evidence of the motives of the justice for refusing the writ is admissible. Ashe v. O’Driscoll, 2 Const. Rep. 8. C. 698. iy oa 2 J . In Alabama, a court, under the provision of the Constitution, which gives it “a general superintendence and control of inferior jurisdiction,” may award a writ of habeas corpus upon the refusal of a judge of the Circuit Court, or chancellor sitting in vacation or in term time, and hear and decide upon the application for the prisoner’s release, or adopt such course of proceedings as would make its control complete. Chaney ex parte, 8 Ala. 424. 202 HABEAS CORPUS. Authority of courts to issue.—Return. In Mississippi, judges of the Circuit Court, during term time or vacation, may issue writs of habeas corpus, and if the prisoner is released, though improperly, the jailer or other officer who has him in custody can discharge the prisoner, and will not make himself liable for so doing. Martin v. State, 12 Miss. 471. In California, it is provided by statute that every judge of every court of record in the state shall have jurisdiction in cases of writs of habeas corpus. The decision in any case cannot be the subject of appeal or review; nor does the decision of any judge oust any other judge of jurisdiction over the same case. In re Perkins, 2 Cal. 424. The habeas corpus will not be issued, where it appears from the petition that the petitioner, if brought before the court, could not be discharged. Sims’ case, 7 Cush. 285. : If a party has been improperly committed, the court will not make it a part of the rule for granting a habeas corpus that he shall not bring an action against the magistrate. 3 Car. & Payne, 225. See Barb. Cr. Law, page 568 et seq. (The writ of habeas corpus cannot be used, in ordinary criminal cases, to review questions reviewable on writ of error. Matter of Eaton, 27 Mich. 1; Fx parte. Winston, 9 Nev. 71; Ha paste Hartman, 44 Cal. 32: Hx parte Max, 44 Cal. 579; x parte Harris, 47 Mo. 164; People v. Supt. of H. of Refuge, 8 Abb. Pr. N. 8S. 112; Re Truman, 44 Mo. 181; Matter of Percy, 2 Daly, 530; Ha parte Whitaker, 43 Ala. 323; Crandall’s petition, 34 Wis. 177; Ha parte Ezell, 40 Tex. 451. Cases of prisoner’s discharge efter a void judgment or sentence. Ez parte Lange, 18 Wall. 163; Hx parte Bowen, 46 Cal. 112; Hx parte Roberts, 9 Nev. 48; Ex parte Murray, 43 Cal. 455; Hz parte Page, 49 Mo. 291; Holman v. Mayor, etc., 34 Tex. 668; Gilliam v. McJunkin, 2 8. C. 442; Ez parte Callicott, 8 Blatch. 89.] [For an exhaustive discussion of this subject, and a full statement of the power of the writ to discharge where a party is held under a judgment void for want of jurisdiction, see People ex rel. v. Liscomb, 6 N. Y. 559. Cases of discharge for want of prosecution. Hx parte Buel, 42 Cal. 196; Hx parte McGehan, 22 Ohio St. 442. Use of, in admitting to bail. Hx parte Ray, 45 Ala. 15 (under Ala. Rev. Code, § 4264); Street v. State, 43 Miss. 1 (case of murder); Ex parte Halpine, 30 Ind. 254 (murder case). This writ cannot be used by a state court to discharge a person held under a claim of authority of the U.S. (See this case at large for. a full discussion of the relative provinces of the state and national judiciary in the use of the writ.) Tarble’s case, 13 Wall. 397; Matter of Farrand, 1 Abb. U. 8. 140; Ex parte Hill, 5 Nev. 154; Ex parte Le Bur, 49 Cal. 160.] [Power of the U. 8. courts under U.S. statutes to use the writ. See Hz parte Robinson, 1 Bond, 39; Ez parte Callicott, § Blatch. 89; Hx parte Neill, 8 Blatch. 156; in cases of enlistment, Ex parte Schmied, 1 Dillon, 587; Hx parte Ferrens, : Pea a Ex parte McDonald, 1 Lowell, 100. See, especially, Hz parte Yerger, all. 85. ; (When a prisoner has been pardoned (Stat. of 1789, Sept. 24, §-14). Great- house’s case, 2 Abb. U. 8. 382. When person is in custody under a state law (Stat. of March 2, 1833). U.S. v. Jailer of Fayette Co., 2 Abb. U. 8. 265.] |, (When a person is a prisoner under sentence, the mode of obtaining his pres- ence at a trial for another crime is by habeas corpus to the keeper of the prison. He continues in the legal custody of the keeper, subject to such orders as the court, from the necessities of the case, may make. When the trial is ended, the court may remand him to the keeper. State v. Wilson, 38 Conn. 126.] 5. RETURN. Where a commissioner of the N. Y. Supreme Court allowed a habeas corpus directed to J. C., commander of the navy of the United States on Lake Ontario, and to M. L., commanding the troops of the United States at Sackett’s Harbor, and to each and every subordinate officer under the said commandants, or either of them, commanding them to bring the body of Samuel Stacy, Jr., etc., im- mediately, etc., together with the cause, etc., before the commissioner, etc., and the following return was indorsed on the writ: “I, Morgan Lewis, general of division in the army of the United States, do return to the within writ that the within-named Samuel Stacy, Jr., is not in my custody ”"—Held, that this return was evasive and insufficient, and that the officer, to excuse himself for not pro- Y HABEAS CORPUS. : 203 Traverse of return.— Proceedings at the hearing. ducing the body of the prisoner, ought to have returned that he was not in his custody, possession, or power; and it appearing from affidavits that the party was in fact in the custody of the subordinate officer, acting under the order of General M. Lewis, and that the return was intentionally eluded and disregarded, the court ordered an attachment immediately against General Lewis for a con- tempt. Matter of Stacy, Jr., 10 John: 327. Where the return of a sheriff-to a writ of habeas corpus was, that he held the prisoner by virtue of an order of the Court of Chancery, which order referred to a former attachment, stating the grounds of commitment, and from which the prisoner had been discharged by a judge of the New York Supreme Court, in vacation, on another habeas corpus, and the sheriff also returned the attachment and proceedings prior to the last order of commitment, it was held that the sheriff, in order to return the true cause of caption, must set forth the original attachment and subsequent orders, and that the whole return might be received and inquired into by the court. Yates’ case, 4 John. 314. Upon the return by a public officer to a habeas corpus, alleging that he detains the prisoner by virtue of process, the sufficiency of the evidence on which the process issued cannot be inquired into. The existence and validity of the process are the only facts upon which issue can be taken. Bennac v. People, 4 Barb. 31. The return upon a writ of habeas corpus is not conclusive as to all the facts con- tained init. ‘The object of the writ is, inquiry whether the party be in fact under restraint, and if so, the reasons and warrant for the same; an object which might often fail to be secured if the court had no power to look beyond the return, and inquire into the truth as well as the sufliciency of its averments. We have seen that such return has been declared to be of inconclusive effect in cases where the party charged with being in custody is not produced in court, and the return merely denies that the respondent has him in custody. U.S. v. Green, 3 Mason, 482. The case is stronger where, by producing the party, the custody is in a sense admitted, and the effect of the return is to justify.” The State v. Scott, 10 Fost. 274. Where the material facts set forth in the return are not denied by the party brought up, they must be taken as true. In re De Costa. 1 Parker’s Crim. R. 129. Upon' a habeas corpus, a rule to appear cannot be taken before the return day, though the writ be actually returned when the rule is entered. Jones v. Spicer, 6 Cow. Rep. 391. . 6. TRAVERSE OF RETURN. Upon the traverse of the return to a habeas corpus the investigation is summary, and the prisoner may prove the documents on which the arrest was founded, by the best testimony at hand, or which he can procure with reasonable diligence, without reference to the ordinary rules of evidence. Matter of Hayward, 1 Sandf. N. Y. Sup. Ct. Rep. 701. Upon a traverse to a return upon a writ of habeas corpus, the process under which the prisoner is held being regular on its face, it is for the prisoner to show the defects alleged in the traverse, or the facts therein set forth. Matter of Hay- ward, 1 Sandf. Sup. Ct. R. 701. : The design of the New York statute (Rev. Sts., vol. 2, p. 471, § 50) in per- mitting a party on habeas corpus to deny the truth of the return and allege mat- ters showing that he is entitled to be discharged, etc., was not designed to give him the right of summary trial as to the question of guilt-or innocence, but merely to enable him, by evidence aliunde the return, to dispute the fact of his being de- tained on the process or proceeding set forth, or to impeach it for lack of juris- diction, or semble, to prove that by some subsequent event, ¢. 9., a pardon, re- versal of judgment, etc., it has ceased to be lawful cause of detention. People v. McLeod, i Hill, 377. : For form of the writ of habeas corpus, the allowance thereof, and the return thereto, see People v. Tompkins, 1 Parker’s Cr. Rep. 224. 7, PROCEEDINGS AT THE HEARING. As to how far the court allowing a habeas corpus is bound by thé return, or may go behind it, see the case of People v. Martin, 1 Parker's Crim. R. 187. Where “ 204 : HABEAS CORPUS. Proceedings at the hearing. an indictment has been found, the court cannot go behind the indictment. But, on a commitment before an indictment is found, the whole question of guilt or in- nocence is open for examination on the return to the writ of habeas corpus, and the inquiry is not necessarily limited to an examination of the original depositions. In such cases under the New York Revised Statutes the proceedings on a habeas corpus are in the nature of an appeal from the decision of the committing magis- trate. Ibid; People v. McLeod, 1 Hill, 377. . Where an officer of the United States is in custody, under an indictment found by a state court, for riot, assault and battery, and assault with intent to kill, the indictment not stating that the alleged offences were committed while the officer. was professing to act under a law of the United States, or, under some order, process, or decree of some judge or court thereof, the court, on a habeas corpus, where the petition of the officer denies the offence, and avers that what is alleged as offence was done in proper execution of an order, process, or decree of a federal court, will go outside the indictment, and hear proof to show the truth of the facts set forth by the oflicer. Hx parte Jenkins, 2 Wallace, Jun., § 21. When it is alleged that the prisoner is in custody by virtue of legal process, the existence of the process and its validity upon its face become a legitimate subject of inquiry ; but there can be no re-examination of any matter which occurred anterior to the judgment and warrant of commitment. The People v. Cavanagh, 2 Parker’s N. Y. Cr. Rep. 650, per Brown, J. When the imprisonment is under process valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction in the magistrate or court where it emanated. If he fail in thus impeaching it, his body is to be remanded to custody. Error, irregularity, or want of form, is no objection. Nor is any defect which may be amended or remedied by further entry or motion. 3 Hill, 661, n. 31; The People v. Nevins, 1 Hill, 154; Case of the. Sheriff of Middlesex, 11 Adolph. & Ellis, 278; The People v. Cassels, 5 Hill, 164; The People v. Cavanagh, 2 Parker’s N. Y. Cr. Rep. 650. In Indiana, the court issuing the habeas corpus may, if the authority by which the prisoner is held is defective, call before him witnesses, inquire into the guilt of the prisoner, and remand, recognize, or discharge him, as he may think just. State v. Best, 7 Blackf. 611. : Where a person is in custody under a warrant, nothing is properly a subject of inquiry before the court, upon the return of a*hkabeas corpus, except the warrant upon which the relator is imprisoned. If that is regular on its face, and if the sheriff would be protected in an action of trespass, it is sufficient, and the relator cannot be discharged. The court cannot go beyond the colorable authority of the judge who issued the warrant on which the defendant was imprisoned. It cannot look into technicalities nor the strict regularity of the proceedings before that officer; it will merely inquire into the sheriff’s return-containing the wafrant by virtue of which he detains the relator, and into the affidavits upon which the warrant was issued, so far as to ascertain whether the officer issuing the warrant had colorable jurisdiction. And if it ascertains that the officer had jurisdiction of the process, and assumed to take proof upon the issuing of the same, which proof he adjudged to be sufficient, it will not review his adjudication upon that question, nor undertake to say whether he erred in deciding the proof to be sufli- cient. If it appear that the warrant under which the relator is imprisoned, is prima facie, sufficient to warrant the imprisonment, and if, on inquiring beyond the warrant and examining the affidavit upon which the same was issued, the court is satisfied that there was at least colorable proof before the officer igssuinz the warrant, on which he might exercise his judgment in awarding the process, that is as far as the court will inquire upon a writ of habeas corpus ; and where these facts appear, it will not discharge the personimprisoned. Matter of Prime, 1 Barb. 340. Where the warrant for the arrest of the prisoner was issued by a police justice de facto, under color of an election in pursuance of an act of the legislature, this is enough, on habeas corpus, to justify the court in deciding whether the prisoner is mghtfully held in confinement, without going into the inquiry whether the magistrate Was a police justice de jure. Matter of Philip Wakker, 3 Barb. 162. Where, however, the prisoner is detained under a warrant issued by a police justice, HABEAS CORPUS. 205 Proceedings at the hearing.—Discharge of prisoner. upon a complaint on oath, the court before whom the habeas corpus is pending may go behind the warrant, and inquire into the legality of the imprisonment. The People v. Tompkins, 1 Parker’s Crim. R. 224. In order to enable the judge to remand a prisoner brought before him by habeas corpus, and who is held on an irregular commitment, the testimony must be intro- duced upon the return of the writ, or at the hearing thereon. It is not in time to present the necessary testimony on a subsequent day, when the judge an- nounces his decision to discharge the prisoner. Matter of Hayward, 1 Sandf. N. Y. Sup. Ct. Rep. 701. In Missouri, where a free negro, who has been duly tried and committed under the 21st and 22d sections of the “‘ Act concerning free negroes and mulattoes,” is brought before the Supreme Court on a habeas corpus, that court will not investi- gate the correctness of the decision made by the committing magistrate, the legis- lature having provided other modes for reviewing, and, if necessary, correcting the same; and neither the letter nor spirit of the Habeas Corpus Act having any reference to commitments after regular trial by competent judicial officers. Stoner uv. The State, 4 Mis. 614. . In the State of New York, where one of the officers of the Court of Chancery was committed by the chancellor for malpractice and contempt, and a judge of the Supreme Court, in vacation, on a habeas corpus, discharged the prisoner, and the chancellor afterwards recommitted him for the same cause, it was held, that the chancellor was not liable to be sued by an officer for the penalty given by the fifth section of the Habeas Corpus Act. Sess. 24, c. 65, 2 R. 8. 571, §§ 59, 60. Yates v. Lansing, Jr., 9 John. 395. ng Neither the original Habeas Corpus Act of New York (John. Rev. Sts. 354, § 2), imposing a penalty for not delivering a copy of the warrant of commitment or detainer, nor the amendatory act (Sess. 41, c. 277), so far as it refers to that pen- alty, extend to a commitment or detainer under the warrant of a military officer for a military offence; but these two statutes are confined to warrants or process of commitment or detainer by the civil magistrate, issuing or purporting to be issued for a criminal or supposed criminal offence. Cole v. Thayer, 8 Cowen, 249. Inthe state of New York, the decision of the court, that the prisoneris not entitled to the writ, is a proper subject of review in the Supreme Court upon certiorari. People v. Mayor, 16 Barb. 362. And it is the office of the district attorney to pro- cure a certiorari, in order to remove into the Supreme Court proceedings com- menced by habeas corpus; and to act as attorney for the people upon such cer- tiorari. People v. Hicks, 15 Barb. 153. But the decision of an officer, who has jurisdiction to issue and decide upon a writ of habeas corpus, may be considered as res adjudicata upon any subsequent writ of habeas corpus, and is conclusive upon the same parties, when the subject-matter is identical, and there are no new facts. The parties are the same where the writ is issued on behalf of the same individuals, against the same respondent, although the relators are different persons. In re Da Costa, 1 Parker Cr. Rep. 129. And see Johnson v. U.S., 3 M’Lean, 89. It has, however, been held in New York that a discharge of a prisoner, who was committed by an order of the Court of Chancery, by a judge of the Supreme Court in vacation, on habeas corpus, was not conclusive either upon the Court of Chancery or Supreme Court, and that the prisoner might, after such discharge, be again committed for the same charge. Yates’ case, 4 John. 314. The Court of Common Pleas of the city of Baltimore has no: authority to revise, on habeas corpus, the judgments of justices of the peace; and if it has done so, the Supreme Court has the right to review, on appeal, its action in such case. State ’v. Mace, 5 Md. Rep. 337. Whether, in an action on the Habeas Corpus Act for refusing to grant the writ of habeas corpus, itis necessary to produce the original warrant of commitment, quere. Ashe v. O'Driscoll, 2 Const. Rep. (8. C.) 698. ' 8. DISCHARGE OF PRISONER, Where the warrant of arrest is sufficient on its face to protect the magistrate by whom it was issued, the prisoner is not to be discharged on the habeas corpus ; but if the warrant is void, the prisoner is entitled to his discharge. Cole v. Thayer, 8 Cowen, 249. It has been held in Missouri that the prisoner cannot be 206 HABEAS CORPUS. Discharge of prisoner. discharged upon habeas corpus for any “informality, insufficiency, or irregularity of the commitment.” Stoner v. The State, 4 Mis. 614. See Rev. Sts. of Missouri of 1835, ‘Habeas Corpus,” art. 3, § 18, p. 303. But, where it appears on the face of the proceedings that the magistrate had no jurisdiction, a person committed by him will be discharged on habeas corpus. Herrick v: Smith, 1 Gray Mass. Rep. I. Where persons were in prison two terms of the court, were ready for trial at each term, and at the second term did, by their counsel, petition to be brought to trial, they were held properly discharged on habeas corpus. The State v. Segar, T. U. P. Charlt. 24. Where the prisoner is in custody on two grounds, one good and the other bad, the court may, on habeas corpus, discharge the prisoner as to the invalid cause; remanding him as to the other. Hz parte Badgley, 7 Cow. 472. Under the 14th section of the Habeas Corpus Act of Mississippi, a person who is in custody as accessory to a murder cannot be discharged, because he has not been indicted, although the stated times for holding two terms of court have elapsed; to bring the prisoner within the terms of the statute, it must appear that the state has been in default; that two terms have actually been held without his being indicted. Byrd v. The State, 1 How. Miss. Rep. 163. A person under indictment for murder cannot be discharged upon habeas corpus, by establishing his innocence merely, however clear the proof may be, but must abide the event of a trial by jury. People v. McLeod, 1 Hill, 377. Where a commissioner or other officer makes an order on habeas corpus for the discharge of a prisoner, the order is good until reversed, provided the case be within his jurisdiction; but if he has not jurisdiction, the order may be treated asif void. Spalding v. People, 7 Hill, 301. eo Where a person committed to the custody of the sheriff upon a ca. sa. is brought before a commissioner of the N. Y. Supreme Court upon habeas corpus, and is discharged by him from imprisonment, such discharge is a protection to the sheriff in an action brought against him for the escape of the prisoner, although the discharge was erroneously granted. Wiles v. Brown, 3 Barb. 37. INDICTMENT AND PLEADINGS. 207 Subjects of chapter. *CHAPTER III. [63] INDICTMENT AND PLEADINGS. (The figures in the following synopsis refer to the marginal paging.) Section I.—Inpicrment, p. 63. 1. Venue, p. 63. (2) (2) (°) () (¢) (7) (9) (A) (i) 0) (A) (2) What, p. 63. General rule, p. 63. Offences in a county of a city or town corporate, p. 64. Offences on a journey or voyage, etc., p. 64. Offences on the boundaries of counties, p. 65. Offences begun in one county and completed in another, p. 65. Offences in England, partly out, p. 65. Offences abroad, p. 66. Offences at sea, p. 66. Murder and manslaughter, p. 68. Libel, p. 68. Larceny, p. 69. (m) Embezzlement, p. 69. (2) (0) (Pp) (2) (7) (s) (2) (u) (») (wv) (x) (y) (2) False pretences, p. 70. Stealing from wreck, p. 71. Receivers, p. 71. Forgery, p. 71. Treason or conspiracy, p. 72. Unlawful oaths, p. 72. Foreign service, p*72. Inciting to mutiny, p. 72. Smuggling, p. 72. Post Office, p. 73. Counterfeit coin, p. 73. Escape and rescue from prison, p. 73. Returning from transportation, p. 73. (aa) Sending a challenge to fight, p. 74. (bb) Threatening letter, p. 74. (cc) Bigamy, p. 74. 208 INDICTMENT AND PLEADINGS. Subjects of chapter. (dd) For an offence of omission, p. 74. (ce) Accessories before the fact, p. 74. (ff) Accessories after the fact, p. 75. (gg) Central criminal court, p. 75. (hh) Defective venue cured, p. 75. 2. Commencement of the Indictment, p. 76. 3. Body of the Indictment, p. 78. (a) Defendant, how named, p. 78. (0) Prosecutor or party injured, how named, p. 79. (c) Place, p. 85. (d) Statement of the offence, p. 85. (e) Intent, p. 87. (f) Statement must be positive, p. 87. (g) Statement must be certain, p. 87. (h) Statement must not be repugnant, p. 91. (i) Technical words, p. 91. 4. Conclusion of the Indictment, p. 92. (a) Against the peace, p. 92. (0) Against the form of the statute, p. 92. (c) Want of a proper conclusion, p. 93. 5. Joinder of offences, p. 93. (a) Several counts for the same offence, p. 93. (0) Second count for a different offence, p. 95. 6. Joinder of defendants, p. 96. 7. Indictment, how preferred and found, p. 97. (a) In what cases defendant to have a copy, p. 99. 8. Indictment, in what cases amendable, p. 99. (a) For variance as to written instruments, p. 100. (0) For variance in other respects, p. 100. 9. Indictment, when and how quashed, p. 102. Szction IJ.—APPEARANCE AND Puma, p. 102. 1. Process upon Indictment to outlawry, p. 102. (a) Process, p. 102. (0) Oudlawry, p. 103. (c) Bench warrant, p. 103. (ad) Warrant of justice out of sessions, p. 104. 2. Arraignment and plea, p. 107. (a) Arraignment, p. 107. (6) Standing mute, p. 109. INDICTMENT AND PLEADINGS. 209 Information. (c) Plea, p. 109. (a) Traverse, p. 110. 3. Special pleas, p. 110. (a) Pleas in abatement, p. 110. (0) Autenfois acquit, p. 111. (c) Auterfois convict or attaint, p. 114. (a) Pardon, p. 114. (e) Pleas to indictment for not repairing highways, 114. 4, Demurrer, p. 114. “ (a) Demurrer to indictment, p. 115. INFORMATION. In Vermont, it is provided by statute that ‘the state’s attorney may prosecute, by information, all crimes not capital, and where the punishment is by imprison- ment in the state prison for a term not exceeding seven years.” Rev. Sts. of Vt., c. 8, §1. And see State v. Keyes, 8 Vt. Rep. 57, where it was held that the pro-- vision in the Constitution of the United States, art. 5, only applied in the United States courts. In New Hampshire it lies in cases where the punishment is not death or confinement at hard labor. Rev. Sts. New Hamp. 457. In New York (Const., art. 1, § 6), the limitation is contined to cases of capital or otherwise in- famous crime. R In Pennsylvania, the Constitution forbids the proceeding by information in any case where an indictment lies (Const., art. 9, § 10) ; and the same restriction exists in several of the other states. State v. Mitchell, 1 Bay, 267; Cleary v. Deliesse- line, 1 McCord, 35. In Massachusetts, it has been held that all public misdemeanors which may be prosecuted by indictment may be prosecuted by information on behalf of the com- monwealth, unless the prosecution be restrained by the statute, to the indictment. Com, v. Waterborough, 5 Mass. 257, 259. In Virginia, the statute provides that “no information shall be filed unless by leave of the court entered of record, nor unless the accused, being summoned for that purpose, fail to show good cause to the contrary.” Code of Va., c. 207, § 2. In Virginia, under the statute of that state (1 Rev. Code, c. 169, § 65), upon a pre- sentment in a circuit court, for an offence for which the penalty fixed by law does not exceed $20, the court cannot enter upon proceedings by information, but only in asummary way. Webb’s case, Leigh, 721. In New Hampshire, an information is an official act, devolving solely on the attorney-general, and his action is not limited by leave of court, or any prelim- inary inquiry instituted by them. The State v. Doyer, 9 N. Hamp. 468. < Where the information is by the state’s attorney, he need not state that he in- forms under his official oath. State v. Sickle, Brayt. 132. In an information for being a common cheat, particular acts must be charged. - State v. Johnson, 1 Chip. 129. The words “contra formam statuti,” in an information where the offence alleged is not within any statute, may be rejected as surplusage. South- worth v. State, 5 Conn. 325. The rule is well settled that, in an information for an offence created by statute, it is sufficient to set forth the offence in the words of the statute; and if in any case the defendant insists upon a greater particularity, it is for him to show that, from the obvious intention of the legislature or the known principles of law, the case falls within some exception to such general rule. Where, therefore, an 14 210 INDICTMENT AND PLEADINGS. Information. information on the statute prohibiting the sale of spirituous liquors without lib- erty, granted by the town, charged in the language of the statute that the defend- ant, at a certain time and place, did sell spirituous liquors to one E. R., without such liberty, not specifying the kind, quantity, or value of the liquors so sold, nor stating the terms of the contract, nor alleging the delivery of the liquors, it was held that as the statute specified neither the kind, quantity, nor value of the liquors which must be sold to constitute the offence, and as these circumstances affected neither the jurisdiction of the Court, nor the nature or degree of punish- pen up information was sufficiently definite. Whiting v. The State, 14 Conn. ep. 487. Where the information is for a first offence (in contradistinction to a second or third, with an increased penalty), it is not necessary to state that it is a first offence ; but this will be presumed, in the absence of any allegation of a different import. Kilbourn v. State, 9 Conn. 560. In Massachusetts, under the statutes of that state of 1832, c. 73, and 1833, c. 85, which provide additional punishment for convicts who have been discharged from former sentences ‘“‘in due course of law,” it is sufficient to state, in an information for such punishment, that the con- vict has been discharged from a former sentence in consequence of a pardon. Evans v. Com., 3 Met. 458. But it has been held in Massachusetts that an infor- mation for additional punishment for a third offence of a convict, who has been before sentenced to additional punishment for a second offence, must directly aver the two former convictions, otherwise it will be irregular, if not fatally defective. Wilde v. Com., 2 Metc. 408. But such information need not set forth the previ- ous convictions and sentences in extenso, but it will answer to set forth the con- victions with such particularity as to identify them, and indicate the character of the offence charged, and also to state the sentences with such exactness as to show that they bring the convict within the law for additional punishment. Ibid. An information may be maintained at common law for a show that tends to corrupt the morals of the community, or shocks humanity with its indecency ; and if in such case it is alleged that the offence is contrary to the statute, such averment may be treated as surplusage, and will not vitiate the proceedings. In such information the particular circumstances of indecency, barbarity, or im- morality must be set forth, in order that the Court can see whether the offence is within the statute, or whether it is an offence at common law. Knowles v. State, 3 Day, 103. To a joint information against two, separate pleas of not guilty may be inter- posed, the one putting himself on the court, and the other on the jury for trial. State vo. Taylor, 1 Root, 226. ‘ A variance between the presentment and the information may be taken advan- tage of as cause against filing the information, or by motion to quash it. Jones’ Case, 2 Gratt. 555. Charges cannot be added to an information by way of amendment. Com. v. Rodes, 1 Dana, 595. [Misdemeanors may be prosecuted by information in the national courts. U.S. ». Waller, 1 Sawyer, 701.) . [When an information in the words of a statutory offence is sufficient, see State ». Lockwood, 38 Conn. 400.] [An information may be verified in Kansas by the prosecuting attorney upon his information and belief. State v. Montgomery, 8 Kans. 351. In Michigan, an information will be quashed for want of a duly certified return of the evidence upon the examination, no waiver thereof being shown. People v. Smith, 25 Mich. 497. As to power of court to compel the names of the witnesses to be en- ‘dorsed upon the information, see People v. O’Hare, 2 Mich. N. P. 170.) [Offences against the United States, not capital nor infamous, may be prosecuted in the U. S. courts by information. U.S. v. Shepard, 1 Abb. U.S. 431. For the procedure thereon see U. 8. v. Shepard, 1 Abb. U.S. 431; U. 8. v. Stevenson, 1 Abb. U.S. 495.] {In Indiana, offence must be charged absolutely and certainly, not on informa- tion and belief. Vanatta v. State, 31 Ind. 210; Vogel v. State, 31 Ind. 64.] [In Wisconsin, under statute of 1871, ch. 137, information may be used in case of all statutory offences, and the insertion of unnecessary averments will not viti- ate the information. State v. Gurrber, 37 Wis. 298; State v. Welch, 37 Wis. 196.] INDICTMENT AND PLEADINGS. 211 Indictment. SECTION I. INDICTMENT, An indictment is an accusation at the suit of the crown, found to be true by the oaths of a grand jury.(a) (1) It consists of the venue, the commencement, the statement of the offence, and the conclusion; and in this order I shall treat of it. 1. Venue. (a) What. The venue is the county, etc., stated in the margin of the indict- ment, and is descriptive of the extent of the jurisdiction of the court (a) 2°;Hawk., c. 25, §1. (1) The Constitution of the United States provides that “‘no person shall be held to answer for a capital, or otherwise infamous crime, unless on a present- ment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war, or public danger ; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due pro- cess of law; nor shall private property be taken for public use, without just com- pensation.” Const. U.S., art. 5. There is a similar provision in the constitution of each of the several states. [In Indiana all criminal prosecutions, either for felony or misdemeanor, originat- ing in the several criminal courts, must be by indictment and not by information. State v. Benson, 38 Ind. 69.] [The legislature has full power to alter the forms of indictments, but not their substance. State v. O’Flaherty, 7 Nev. 153. The rule that a person may waive a statutory right, applied in cases of certain misdemeanors where the prosecutor had erroneously proceeded by indictment, instead of by a civil action for a pen- alty. See State v. Warnke, 48 Mo. 451; State v. Saxauer, ib. 454; State v. Schei- naman, ib. 479; State v. Riedle, ib. 480; State v. Cronyn, ib. 480; State v. Har- ley, ib. 481; State v. Carter, ib. 481.] [In Alabama, under the Rev. Code, a defendant accused of a misdemeanor in a county court, and demanding a jury trial, is entitled to have the case trans- ferred to the circuit or the city court, and there to be indicted.. Judgment will be arrested on all convictions, on the ground that the accused was not indicted, unless the trial was in a county court on appeal from that court. Clark v. State, 46 Ala. 311. d [As to vailaity of a particular statute of Ill., see Morton v. People, 47 Ill. 468. In ‘Tenn, when defendant may be tried on a copy of the indictment. See Boyd v. State, 6 Coldw. 1.] [For a general definition, see People v. Quigg, 59 N. Y. 83. For the power of legislatures over indictments, in dispensing with allegations, etc., see McLaughlin w. State, 45 Ind. 338.] {When an offence is punishable by fine, penalty, or forfeiture, to be recovered in a civil action, persons charged with the commission thereof, cannot be prose- cuted criminally in Mo. State v. Hoffschmidt, 47 Mo. 78; State ». Stewart, 47 Mo. 382.} In relation to Presentments, see post, tit. PRESENTMENT. 212 INDICYMENT. Venue.—General rule. before which the offender is to be tried: in indictments to be tried at the assizes, the venue is the county or county of a city, etc., to which the judges’ commission relates ; in indictments to be tried at the ses- sions, the county, riding, division, city, or borough to which the com- mission of the peace extends. In indictments for offences triable at the central criminal court, the venue is merely “Central Criminal Court, to wit,” being descriptive of a certain district, namely, the county of Middlesex, the city of London, and parts of the counties of Essex, Kent and Surrey, within which the court has jurisdiction. (0) General rule. , The general rule as to venue is, that a person who has committed an indictable offence, if tried at the assizes, must be indicted and tried in the county in which the offence was committed ; if tried at the sessions, in the county, riding, division, city, or borough within which [*64] the *offence was committed, and for which a court of quarter sessions is holden.(1) But to this there are many exceptions, mostly created by statute, which I shall now proceed to notice. (1) It is necessary in criminal cases that a venue be established, and when a bill of exceptions does not show the place or county in which the offence was committed, a new trial will be granted. Ewell v. The State, 6 Yerg. 364. ‘It is as essential to an information that a proper venue be laid, as to a declaration or an indictment.” People v. Higgins, 15 Ill. 110, per Caton, J. At common law, however, if a party steal goods in the county of A. and carry them into the county of B., he may be indicted or appealed of larceny in the latter ccunty. But this does not contradict the general rule, but is founded upon another principle, viz., that the possession of goods stolen by the thief is a larceny in every county into which he carries the goods, because the legal possession still remaining in the true owner, every moment’s continuance of the trespass and felony amounts, in legal consideration, to a new caption and asportation. 2 East, 771, 772. 8o, although matter of inducement constituting no part of the offence happen abroad, but the crime itself be committed here, the offender may be indicted here; as where a man marries one wife in France, and afterwards another here, during the lifetime of the former. Kel. 15. " [For a case where the caption sufficiently showed the county, although it did not say ‘grand jurors of the county,” etc., see Lovell v. State, 45 Ind. 550.] (A murder was committed in St. Louis county. To this county were adjoined for judicial purposes two other unorganized counties. The indictment was enti- tled in the counties of St. Louis, Lake Carlton and Iiaska, and the grand jury were selected from all these three counties; held, properly entitled and found. State v. Stokeley, 16 Minn. 282.] ; [Works were erected on a stream in one county, by which the waters thereof in another county were corrupted. An indictment for the nuisance was properly brought in the county where the works were situated. Com. v. Lyons, 1 Pa. Law J. R. 497.] [‘‘ Not guilty” puts in issue the allegation of the county where the crime was committed and the indictment was foand ; and a failure of the state to prove the averment is a fatal defect. Wield v. State, 34 Tex. 39. A convict sentenced to imprisonment in the penitentiary is, in contemplation of law, at all times in such INDICTMENT. 213 Venue.—Officers in county, city or town. (c) Offences in a county of a city or town corporate. By stat. 38 G. III, c. 52, § 2, the indictment for an offence com- mitted or charged to be committed within the county of any city or town corporate, may be referred to the jury of the county next adjoin- ing to the county of such city or town corporate, sworn and charged to inquire for the King, for the body of such adjoining county, at any sessions of oyer and terminer or general jail delivery. The statute,(a) however, requires the prosecutor in such a case to enter into recogni- zance in £40, before the court where such bill shall be preferred, con- ditioned to pay the extra costs of the prosecution, if the court at the trial shall be’of opinion that he ought to pay the same. The words “town corporate,” in the above act, mean a town corporate which is a county of itself, such as Kingston-upon-Hull, etc.(o) But the statute(c) specially excepts London, Westminster, and the borough of South- wark: and the cities of Bristol, Chester and Exeter are excepted from it by stat. 5 & 6 W. IV, c. 76, § 109. But now, by stat. 14 & 15 Vict., c. 55, $19, all offences committed in any “county of a city or county of a town corporate, within which Her Majesty has not been pleased, for five years next before the passing of this act, to direct a commis- sion of oyer and terminer and general jail delivery to be executed,” and which are not triable at the quarter sessions, may be tried in the next adjoining county. And by sect. 24, the next adjoining county shall be the same as is named in sched. C. to stat.5 & 6 W.IV, c. 76: by which the county of Northumberland is the next adjoining county to Berwick-upon-T weed, and to Newcastle-upon-Tyne, and Yorkshire, (a) § 12. (b) R. v. Milner, 2 Car. & K. 310. (ce) § 11. penitentiary, although he may have been hired out to labor in another place under the statute. He may, therefore, be indicted and tried in the county where ° the penitentiary is situated for ah offence, e. g., murder of his guard, perpetrated in another county. Ruffin v. State, 21 Gratt. 790. Under the Tex. Cr. Code (Pasch. Dig. (f 2863, 2864, 3105), an indictment must charge the offence to have been committed within the jurisdiction of the court, or else a conviction is impos- sible. Field v. State, 34 Tex. 39. But in Ohio, under the Crim. Code, § 196, the omission to specify the county in which the crime was committed, is a mere “defect in form,” for which judgment will not be arrested. Foster v. State, 19 Ohio St. 415. And in Tennessee, it is not necessary to allege that the offence was committed in any particular county; but the proof must show it within the juris- diction of the court in which the indictment was found. Wickham v. State, 7 Coldw. 525.] , : (See further, as to the venue, State v. Slack, 30 Tex. 354; State v. Robinson, 14 Minn. 447, 453; Wheeler v. State, 24 Wis. 52; State v. Denton, 6 Coldw. 539; People v. Gregory, 30 Mich. 371; Evarts v. State, 48 Ind. 422. In case of big- amy, under N. Y. statutes, see King v. People, 12 N. Y. 8. C. (5 Hun.) 297.) 214 INDICTMENT. Venue.—Officers in county, city or town. the next adjoining county to Kingston-upon-Hull. By the same schedule, Gloucestershire is declared to be the next adjoining county to Bristol, Cheshire to Chester, and Devonshire to’ Exeter; but at those cities the assizes are holden.(1) (1) Receivers of Stolen property may be indicted in any county where they received or had such property, notwithstanding the theft was committed in another county. ‘It has, accordingly, been held, that if a person steal goods in one of the United States, and convey them into another, where they are received by another person, such receiver is liable to an indictment in the latter state. Commonwealth v. Andrews, 2 Mass. 14. And in Connecticut, it has been the uniform practice to sustain criminal prosecutions against persons stealing in other states, and fleeing into that state with the property stolen. Rex v. Peas, 1 Root, 69; see, also, State v. Ellis, 3 Conn. 185; People v. Burke, 11 Wendell, 129; United States v. Davis, 5 Mason, 356; Commonwealth v. Cullen, 1 Mass. 115. For the form of the indictment in cases of receiving stolen goods, see Petts v. State, 3 Blackf. 28; Holford v. State, 2 Blackf. 103; Redman ‘v. State, 1 Blackf. 429, It has been held in South Carolina, that where a horse is stolen in one district, and is carried by the thief into another, and there sold, the indictment under the statute for horse-stealing may be in the latter district. The State v. Bryant, 9 Richardson, 113. But, in Pennsylvania, it has been held that a person, who steals goods in another State and carries them into the former, cannot be indicted there for felony. He is to be treated asa fugitive from justice. Simmons v. The Com- monwealth, 5 Binney, 617. So in North Carolina, State v. Brown, 1 Hayw. 100; see also M’Cullough’s case, 2 Rogers’ Rec. 45. So, where ‘A. stole a gun in New Jersey, and was apprehended with it in New York, it was held that he should be delivered up to the government of New Jersey as a fugitive from justice, and could not be tried in New York. 2 Johns. 479; same point, The People v. Gard- ner, 2 Johns. 477. But, in Massachusetts, one was indicted for larceny in one county, and the evidence at the trial was, that the goods were stolen in another county, and brought into the county where the indictment was found, by two per- sons other than the prisoner, who came afterwards and joined them in the posses- sion and disposal of them. His conviction upon this evidence was held good. 10 Mass. 154; Commonwealth v. Cousins, 2 Leigh, 708. In Pennsylvania, an indict- ment against accessories in felony may be in the county where the offence of accessory was ¢ommitted, though the principal felony was committed in another county. 1 Smith Laws Penn. 119. If the nature of the property be changed, an indictment for stealing the article - in its original state cannot be preferred in the county into which, when so changed, the property is carried. R. v. Edwards, R. & R. 497; R. v. Halloway, 1 C. & P. 127. Nor where several commit a joint felony in the county of A., and there di- vide the goods, and afterwards separately carry each his respective share into the county of B., can they be indicted for a joint félony in the latter county, R. v. Barnet, 2 Russ. 174. But if two persons steal a thing in one county, though one of them alone carry the property into another county, yet, if both afterwards co-oper- ate to secure the thing in the latter county, both may be indicted in the latter county ; for the subsequent concurrence may be connected with the previous taking. R. v. County, 2 Russ. 175; R. v. M’Donagh, Car. Sup. 23. The taking into the second county, however, must be animo furandi; the mere possession there is not suffi- cient. The constable took the defendant with two stolen horses in Surrey, and afterwards, at his request, rode with.him on the horses into Kent, where, he escaped; the defendant was afterwards indicted in Kent, and the judges were unanimously of opinion that there was no evidence of stealing in Kent. R. v. Simmonds, 1 Mood. C. C. 408. : [Where a failure to prove the city in which the offence was committed, the court being a local one, was held no ground for a reversal, the objection not having been taken at the trial. See Wagner v. People, 4 Abb. App. Dec. 509.] INDICTMENT. 215 Venue.—Offences on a journey or voyage. By stat. 14 & 15 Vict., c. 100, § 23, in such a case the county of the city or town shall be deemed the venue, and may either be stated in the margin of the indictment, with or without the name of the county in which the offender is to be tried, or be stated in the body of the indictment by way of [special] venue. The usual form of the marginal venue is thus: “ County of York (being the next adjoining county to the county of the town of Kingston-upon-Hull), to wit:” or as the case may be.(1) ‘(d) Offences on a journey or voyage, ete. Where any felony or misdemeanor shall be committed on any per- son—or in respect of any property—in or upon any coach, wagon, cart *or other carriage whatsoever, employed in any [*65] journey—or shall be committed on any person, or on or in respect of any property, on board any vessel whatever employed on any voyage or journey upon any navigable river, canal or inland navi- gation: Such felony or misdemeanor may be dealt with, inquired of, tried, determined and punished in any county, through any part whereof such coach, wagon, cart, carriage or vessel shall have passed, in the course of.the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county.(a) (2) (a) 7G. IV, c. 64, § 18. (1) The venue is stated in the margin next after the caption, thus: ‘Saratoga County, ss.”—“ City and County of New York, ss.” See The United States v. Gresh, 5 Mason, 290, 302. Where an indictment commences, “State of Tennessee, Hardin County,” and the offence is laid to have been committed ‘in the county aforesaid,” the venue is well laid. Barnes v. State, 5 Yerger, 186 ; Mc Donald ». The State, 8 Miss. 283; State v. Ames, 10 Miss. 743. The indictment charged that the offence was committed ‘‘in Pendleton county, in the district aforesaid,” when there was no such division as Pendleton county, but in the margin of the indict- ment the venue was correctly laid, ‘‘Pendleton District.” It was held that the indictment laid the offence with sufficient certainty, since the words ‘‘in Pendle- ton County ” might be rejected as surplusage, and the term ‘district aforesaid” could be referred to the venue in the margin. State ». Harden, 1 Brevard, 47. In South Carolina, it is said that an indictment is sufficient without a venue, if it lays the commission of the offence within the jurisdiction of the court. State v. Glasgow, Cam. & Nor. 38. But the indictment ought to show expressly, that the county in which the offence was committed was within the jurisdiction of the court. State v. Adams, Martin (N. Car.) 88. The place where the offence was commit- ted must be charged in the body of the indictment; it is not sufficient to charge it in the margin only. Missouri v. Cook, 1 Miss. 547; see Stephens’ case, 2 Leigh, 759; State v. Godfrey, 3 Fairf, 361. (2) The New York Revised Statutes (pt. 4, tit. 4, c. 2, § 44) provides that, when an offence shall have been committed within the State, on board of any vessel, an indictment may be found in any county through which, or any part of which, such 216 INDICTMENT. Venue.—Offences on the boundaries of counties. And in all cases where the side, centre or other part of any high- way, or the side, bank, centre or other part of any such canal, river or navigation, shall constitute the boundary of any two counties, snch felony or misdemeanor may be dealt with, inquired of, tried, deter- mined and punished in either of the said counties, through, adjoining to, or by the boundary of any part whereof such coach, wagon, cart, carriage or vessel shall have passed, in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county.(a) (e) Offences on the boundaries af counties. Where any felony or misdemeanor shall be committed on the bound- ary or boundaries of two or more counties—or within the distance of 500 yards of any such boundary or boundaries—every such felony or misdemeanor may. be dealt with, inquired of, tried, determined and punished, in any of the said counties, in the same manner as if it had been actually committed therein.(®) (1) This has been holden not to extend to trials in limited jurisdictions, but to be confined to trials in counties only; and where a man was tried for larceny at the sessions of the borough of Southwark, it ap- pearing that the offence was, in fact, committed in the city of London, about twenty yards within the boundary between it and the borough ; and being afterwards indicted for the same larceny in London, he pleaded auterfois acquit: the judges held the plea to be bad, as the (a) Ibid. (b) 7G. TV, o. 64, § 12. vessel shall be navigated in the course of the same voyage or trip, or in the county where such voyage or trip shall terminate. Under the Revised Statutes of Iowa (p. 152, § 39), which provide that where a person shall commit an offence within the State on board of any vessel, or float, he may be indicted for the same in any county, through any part of which such vessel or float may have passed on that trip, or voyage; the offender may be in- dicted for offences committed anywhere on said trip, and the indictment may, be laid in any county through which the boat may have passed on such trip, though the — was actually committed in another county. Nash v. The State, 2 Towa, 286. (1) There is a similar statute-in New York. 2R.S., 4th ed., p. 910, (45. In Massachusetts and Maine, any offence committed on the boundary of two counties, or within one hundred rods of the dividing line, may be alleged in the indictment to have been committed, and may be prosecuted and punished in either county. R. 8. of Mass., c. 133, § 7; R. 8. of Maine, c. 166,§ 4. Also in Wisconsin. R.S of Wis., c. 141, § 7. INDICTMENT. 217 Venue.—Offences abroad. sessions had no jurisdiction to try the offence, this section of the statute extending only to trials in counties, and not to trials in limited jurisdiction.(a) " (7) Offences begun in one county and completed in another. Where any felony or misdemeanor shall be begun in one county, and completed in another, it may be dealt with, inquired of, heard, determined and punished in either county, as if it were wholly com- mitted therein.(d) (1) (9) Offences partly in England, parily out. Where any person, previously stricken, poisoned or other- wise hurt *upon the sea, or at any place out of England, shall [*66] die of such stroke, poisoning or hurt in England—or being felo- niously stricken, poisoned or otherwise hurt at any place in England, shall die of such stroke, poisoning or hurt upon the sea, or at any place out of England—every offence committed in respect of any such case, whether the same amount to the offence of murder or manslaughter, or of being accessory before the fact te murder, or after the fact to murder or manslaughter—may be dealt with, inquired of, tried, de- termined and punished, in the county or place in England in which | such death, stroke, poisoning or hurt shall happen, in the same manner as if the offence had been wholly committed in that county or place.(c) (h) Offences abroad. By stat. 9 G. IV, c. 31, § 7, if any of His Majesty’s subjects shall be charged in England with any murder or manslaughter, or with being accessory before the fact to any murder, or after the fact to any mur- der or manslaughter, the same being respectively committed on land (a) R. v. Welsh, Ry. & M. 175. (c) 9G. IV, c. 81, §8. (b) 7 G. IV, v. 4, § 12; see R. v, Welsh, supra. (1) See2R.8., 4th ed., p. 911, (§ 47 and 50; R.S. of Wis., c. 141, §§ 8, 9; R. S. of Mass., c. 133, § 8; R. 8. of Maine, c. 166, ff 5 and 6. ave [Works erected in one county on a stream, polluted the waters thereof in another county; held that an indictment for the nuisance was properly laid and prose- cuted in the former county. Com. v. Lyons, 1 Pa. Law J.R.497.) [A convict is, in contemplation of law, at all times within the penitentiary to which he issentenced. When he is hired out to labor in another county under the statute, and there commits a crime, he may be indicted in the county where the penitentiary is situated. Ruflin v. State, 21 Gratt. 790. } . [In relation to offences committed on the border of two counties. (N.Y. 2R. 8. 727, § 45) see People v. Davis, 56 N. Y. 95.] 218 INDICTMENT. Venue.—Offences at sea. out of the United Kingdom, whether within the King’s dominions or without—a commission cf oyer and terminer under the great seal shall be directed to such persons, and into such county or place, as shall be appointed by the Lord Chancellor, for the speedy trial of such offender; peers, however, are, in such cases, to be tried by their peers. The venue in the margin of the indictment, in such a case, should be the county in which the special commissioners are directed by their commission to sit. Where the indictment stated the offence to have been committed at Boulogne, in the kingdom of France, to wit: at London, etc., and the grand jury objected to it, as stating the death to have happened at two places—Bayley, J., ordered the words “at. London,” etc., to be struck out.(a) The admission of the prisoner that he is a British subject is good evidence that he is so.(0) Also, for misdemeanors committed abroad, by persons holding pub- lic offices or employments under the British government, the offenders may, in like manner, be tried, etc., in this country.(c) (i) Offences at sea. The venue in indictments for offences committed at sea, within the jurisdiction of the Admiralty, varies according to the court in which the offender is prosecuted; if proceeded against before a special com- mission, which was the only mode of prosecution formerly, the venue in the margin is merely “Admiralty of England;” if at the central criminal court, ‘“‘Central Criminal Court, to wit:” if at the [*67] assizes, *the county in which the assizes are holden. Besides thus noticing the venue, it may be convenient in this place to make a short statement as to the extent of the Admiralty jurisdiction, and the offences of which the admiral is said to have cognizance.(1) The admiral has exclusive jurisdiction of all offences committed -on the high seas, and within the harbors, creeks, and havens of foreign countries. But within the harbors, creeks, and havens of this country, the courts of common law, and not the admiral, have jurisdiction; as (a) R.-v. Helsham, 4 Car. & P. 304. 2Car. & K. 101; and see Stat, 11 & 12 Vict., (b) Ibid, ; see R. v. Matts,7 Car. & P. 458; c. 42,§2; and ante, p. 35. R. v. Depardo, R. & Ry. 134; BR. v. Sawyer, (c) 42 G. III, cv. 85; see R. v. Shawe, 5 M. & 8. 408. (1) The United States have no unwritten criminal code to which resort can be had as a source of jurisdiction. U. 8.0. Hudson & Goodwin, 7 Cranch, 82; U. 8. v. Coolridge, 1 Wheat. Rep. 415; United States v. Beavans, 3 Wheat, 386 ; United States v. Wiltberger, 5 Wheat. 76. INDICTMENT, 219 Venue.—Offences at sea, for instance, if an imaginary line were drawn across the mouth of such creek, etc., from one point of land to the other, of all offences commit- ted: within the line, the common law would have jurisdiction; but all offences committed without the line, would be within the jurisdiction of the admiral. As to the sea shore: below low water mark, the ad- miral has exclusive jurisdiction ; above high water mark, the courts of common law have exclusive jurisdiction; and between high and low water mark, the courts of common law and the admiral have alternate jurisdiction—the courts of common law have jurisdiction of all offences committed on the Strand when the tide is out—the admiral jurisdiction of all offences committed on the water, when the tide isin. Formerly, if a man on land fired a pistol or gun at a man who was upon the sea, and killed him, the offence was deemed to be within the Admiralty jurisdiction; for the offence was holden to be committed where the death happened, and not at the place from whence the cause of death proceeded.(a) But now, in such a case we have seen,(d) he may be tried in the same manner as if the whole of the offence was committed on land.(c) Also, all offences committed on the high seas against any Act relating to the customs, shall, for the purposes of prosecution, be deemed to have been committed on the place on land in the United Kingdom into which the offender shall be taken, brought, or carried, or in which he shall be found.(d) Besides the offence of piracy, and some other offences which can only be committed at sea, the admiral has jurisdiction of all treasons, felonies, conspiracies ;(¢) murder ;(/) attempts to murder or maim or do grievous bodily harm, within stat. 1 Vict., c. 85, by § 10; all other offences against the person, within stat. 9 G. IV, c. 31, by § 32; doing injury by explosive substances, within stat. 8 & 9 Vict., c. 25, by § 17; offences punishable by the statute against forgery,(y) all offences re- lating to the coin within stat. 2 W. IV, c. 34, by § 20; and generally, all other offences committed on the high seas, out of the body of any county.(”) And all offences committed at sea *are now [*68] punishable in the same manner as if committed on land.(i) (1) (a) R. v. Combes, 1 East P. C. 367. (f) Ibid. ; 1 East P. C. 367; see R. v. Serva (b) Ante, p. 65, 66. et al.,2 Car. & K. 53. (ec) 9G. IV, ¢. 31, § 8. (g) 1 W. IV, o. 66, by § 27. (d) 3&4 W. IV, c.53,§77; 8 & 9 Vict., c. (h) 89 G. III, ¢. 37. 87, § 95. (i) 7&8 G. IV, c. 28, § 12. (e) 28 H. VIII, c. 15. (1) See Rev. Stat. of Mass., c. 133, § 9; Rey. Stat. of Maine, c. 166, § 6. 220 INDICTMENT. Venue.—Murder and manslaughter. a By stat. 28 H. VIII, c. 15, all treasons, felonies, robberies, murders, and conspiracies committed on the seas, or in any haven where the admiral has jurisdiction, were triable, according to the course of the common law, in such places as were appointed by commission. But that mode of proceeding being found productive of delay, jurisdiction was given to the central criminal court of all offences: “committed or alleged to have been committed on the high seas, and other places within the jurisdiction of the Admiralty of England.”(a2) And now, by stat. 7 & 8 Vict., c. 2, § 1, authority is given to Her Majesty’s judges of assize and commissioners of oyer and terminer, to inquire of, hear, and determine all offences alleged to have been committed on the high seas and other places within the jurisdiction of the Admiralty of England; and, by § 2, in all indictments preferred before them, the venue laid in the margin shall be the same as if the offence were committed in the county where the trial is to be had, but the material facts shall be averred to have taken place “on the high seas.” It is not necessary to allege that it was committed within the jurisdiction of the Admiralty.(0) And the accessory before or after the fact may be tried by the same court which has jurisdiction to try the principal felon.(c) (j) Murder and Manslaughter. Where the death and cause of death both happen in the same county, etc., the venue, of course, must be laid there. Where the cause of death happens in one county and the death in another, the venue may be laid in either.(d) And where the cause of death hap- pens in England, and the death on the high seas or at any place out of England—or if the cause of death happen on the high seas or at any place out of England, and the death in England—the party, whether charged with murder or manslaughter, or as accessory before the fact to murder, or after the fact to murder or manslaughter, may be tried in the county or place in England where the cause of death or death happened, in the same manner as if the offence had been wholly committed in that county or place.(e) (1) (a) 4& 5 W.I1V, c. 36, § 22, And see R. wv. (c) Ante, pp. 15, 18. Wallace, 1 Car. & M. 200. (d) Sce stat. 7 G. IV, c. 64, §12; ante, p. 65. (b) R. v. Jones et al, 2 Car. & K. 165; 1 (ec) 9G. IV, c. 31, § 85; ante, pp. 65, 66. Den. C. C. 101. (1) In the state of New York, where the mortal wound is given in one county, and the death happens in another, the indictment may be found in the latter county ; and the same proceedings are to be had therein, in all respects, as if the INDICTMENT. ' 221 .Venue.—Libel.—Larceny. (A) Libel. In an indictment for publishing a libel, the venue must be laid in the county, etc, where it was published. But if the publication were by sending it from the defendant to the prosecutor, unsealed, etc., the venue may be laid either in the county from which it was sent, or in that in which it *was received. And the same, if it were [*69] sent sealed, and the indictment was for writing or printing and publishing it.(a) (1) (1) Larceny. The venue in larceny, as in other cases, may be laid in the county . in which the goods were stolen.(2) But at common law, if a man steal (a) See R. v. Burdett, 4 B. & Ald, 95. wound was given in the county where the death took place. 2 N. Y. Rev. 727, § 47. And see Rev. Stat. of Ohio, c. 35, § 37; Rev. Stat. of Wis., c. 141, §§ 8 and 9; Rev. Stat. of Mass., c. 133, § 8; Rev. Stat. of Maine, c. 166, §§ 7 and 8. oe In Massachusetts, by statute 1795, c. 45 (R. S., c. 123, §§ 8, 9), when any person is feloniously struck, poisoned, or injured in one county, and dies of the same stroke, etc., in another county—and when any person is struck, etc., on the high seas, without the limits of the state, and dies of the same stroke in the state, the offender may be indicted and tried in the county where the death happened. This statute is not repugnant to the declaration in the Constitution of the state, that, in criminal prosecutions, the verification of the facts in the vicinity where they happen is one of the greatest securities of the life, etc., of the citizen. Com- monwealth ». Parker, 2 Pick. 550. If a person be stabbed in Virginia, and die of his wounds in another state, he cannot be tried for the murder in any county in Virginia, but he may be tried for stabbing in the county where the blow was inflicted. Com. v. Linton, 2 Va. Cas. 205. ° See post, titles MurpER, MANSLAUGHTER. (1) In an indictment for a libel, if the defendant has once authorized the publi- cation, he is guilty of -4 publication in whatever county the libel is afterwards, in consequence, published, and he may be indicted accordingly. Bull. N. P. 6;°6 East, 65. And if a party writes and composes a libel in one county, with an intent to publish, and afterwards publishes it in another, he may be indicted in either. 4 B. & A. 95; and see3 B.& A. 717. A mere acknowledgment by the defendant, in the county in which the venue is laid, of the fact of publication, which, in truth, was in another county, is not sufficient to warrant the trial in the first county, 7 East, 68. Nor is the post-mark on a libellous letter, of a par- ticular place within the county where the venue is laid, sufficient evidence of the publication there by the defendant; but if it be sent to the prosecutor at a place without the county, and yet actually received by him within it, that will be suffi- cient to support the indictment. 1 Campb. 215, 216. (2) It is a general rule that larceny must be tried in the same county or juris- diction in which it was committed. 2 Russ. on Cr. 173. Where an indictment for larceny alleged the offence to have been committed in a,vessel in the first ward of the city of New York, and it appeared on the trial that it was lying in the river, at a wharf of the third ward, it was held this was not a material variance. ‘he People v. Honeyman, 8 Denio, 121. A foreigner, committing larceny abroad, coming here, and bringing the stolen property with him, may be indicted and 299 INDICTMENT. Venue.—Larceny. goods in one county, and carry them into another, he may be indicted and tried in either ;(a) for he is deemed guilty, as well of a taking as of a carrying away, in both. The larceny, however, must be one at common law, and not a larceny created by statute.(d) And now, by stat.7 & 8 G. IV, c. 29, § 76, if any person, having stolen or otherwise feloniously taken any chattel, money, or valuable security, or other property whatsoever, in any one part of the United Kingdom, shall afterwards have the same property in his possession in any other part of the United Kingdom, he may be dealt with, tried and punished for larceny or theft in that part of the United Kingdom where he shall have such property, in the same manner as if he had , actually stolen or taken it in that part. : Jersey, however, is not a part of the United Kingdom, for this pur- pose ; and, therefore, where it appeared that the prisoner stole the goods in Jersey, and they were found in his possession at Weymouth in Dorsetshire, the judges held that he could not be indicted for it in Dorsetshire, within the meaning of this act.(c) So, where a man stole a brass furnace in Radnorshire, broke it to pieces there, and then brought the pieces of brass into the county of Hereford: Hullock, B., held that he could not be indicted in Hereford for stealing the furnace there, it never having, in fact, been in Hereford.(d) But no distance of time, between the stealing in one county, and having the property in another, will prevent the party from being in- dicted in the latter county; and, therefore, where the property was stolen by the prisoner in Yorkshire in November, 1823, and brought by him into Durham in March, 1824, the judges held that he might be indicted for the larceny in Durham.(e) But where the prisoners stole two horses at different times and at different places in Somerset- shire, and brought both at the same time into Wilts, and had them there in their possession: Littledale, J., held that this did not warrant the including both larcenies in one indictment; and he, therefore, put the prosecutor to his election as to which offence he would prosecute.(/) (a) 2 Hawk., c. 25, § 38. (d) R. v. Halloway, 1 Car. & P. 127. (b) R. v. Millar, 7 Car. & P. 665. (e) R. v. Parkin, Ry. & M. 45, (c) R. v. Prowes, Ry. & M. 349; and see R. (f) R. v. Smith and Jefferies, Ry. & Mo. N. v. Madge, 9 Car. & P. 29. P. C, 295. punished in the same manner as if such larceny had been committed here; and the indictment may charge such larceny to have been committed in any town or city into or through which the stolen property was brought. 2 N. Y. Rev. Sis. 698, § 43 11 Wend. 129; 3 Chit. Cr. L., 944, note (c). INDICTMENT. 223 Embezzlement.—False pretences. (m) Embezelement. The venue must be laid in the county, etc., in which the embezzle- ment took place, if that be known. *But, in the absence of express evidence upon that subject, [*70] the venue may be laid either in the county where the defend- ant received the money, etc., or, and perhaps more properly, in the county in which he ought to have accounted for it to his master, and did not. Where the master resided in Staffordshire, and the prisoner by his orders received money for him in the county of Salop, and being afterwards asked by his master in Staffordshire, whether he had received it, said he had not; and there was no evidence in which of the two counties the embezzlement actually took place, being indicted for this offence in the county of Salop, ten of the judges held it to be correct.(a) On the other hand, where a master, residing in Middlesex, sent his servant to a customer in Surrey with goods, for which he was to be paid, and he received payment from the customer accordingly; and being asked by his master, on his return, if he had received payment, answered that he had not: being iridicted for the offence in Middle- sex, and it being objected that he should have been indicted in Surrey where he received the money, the judges held that he was properly indicted in Middlesex; that the denial of the receipt of the money, when the prisoner was called upon by his master to account for it, was the first act from which the jury could with certainty say that the prisoner intended to embezzle it; and that even if it were proved that he had spent the money in Surrey, that would not necessarily have confined the trial of the offence to that county.(0) (n) False pretences. The obtaining of the money by the false pretence is, in this case, the offence, and the venue must, therefore, be laid in the county, etc., where the money was obtained. A difficulty sometimes arises in this respect, where the false pretence is made by letter. Where the prisoner gave the letter containing the false pretence to an accomplice in Middlesex, desiring him to put it into the post-office at Gravesend ; it was dated as from Gravesend, aud directed to the prosecutor at (a) R. v, Hobson, 1 East P. C. xxiv; BR. & (b) R. v. Taylor, R. & Ry. 63. Ry. 56. 294. INDICTMENT. Stealing from wreck. Bath, requesting him to send him a post-office order by post, directed to James Power, Gravesend; the letter arrived at Bath, but the prose- cutor being then in Middlesex, it was forwarded to him there, and he accordingly sent the post-office order from Middlesex to Gravesend ; the prisoner being indicted in Middlesex, for obtaining this post-office order by false pretences, it was objected that the offence ought to be tried in Kent, where the order and the money for it was received; but the judges held that by desiring the order to be sent by post, the prisoner constituted the postmaster his agent for receiving it, and the postmaster having received it in Middlesex, the prisoner was properly indicted there.(a) (1) [*71] (0) Stealing from wreck, ete. For stealing from a ship in distress, wrecked, stranded or cast on shore, the offender may be indicted and tried, either in the county, etc., in which the offence was committed, or in any county next adjoining.(6) So, any person committing an offence against stat. 9 & 10 Vict., c. 99, intituled “‘An act for consolidating and amending the laws relat- ing to wreck and salvage,” by which persons cutting away or defacing buoys or buoy ropes—or purchasing anchors, cables or goods weighed up, swept for, etc.—are punishable—may be laid to be committed and may be tried in any city, county or place where any such article, matter, or thing in relation to which such offence shall be committed, shall have been found in the possession of the person committing the offence or where the offender may, at any time, happen to be.(¢) (p) Receivers. A person charged with receiving goods feloniously stolen, or ob-- tained by false pretences, knowing the same to have been so stolen or (a) R. v. Jones, 19 Law J. 162 m. (c) 9 & 10 Vict., v. 99, § 38. (b) 7&8 G. IV, c. 29, § 18. (1) Where a party residing in Ohio, and who had never been in the state of New York fraudulently made receipts acknowledging the delivery to him, as a forwarder, of a quantity of produce, for the use of a firm in New York, and subject to their order, when, in fact, he had not received such produce, and he employed innocent agents to present such receipts to the firm in New York, and obtain money thereon, which they did; it was held that the offence must be con- sidered as committed in New York, where the money was obtained; that the employer was guilty as a principal, and that he was liable to be indicted and tried in New York, for the offence. People v. Adams, 3 Denio, 190. ’ INDICTMENT. 295 Forgery. obtained, may be indicted and tried, either in any county or place where he shall have, or shall have had the property in his possession, or in any county or place where the principal offender may be tried, in the same manner as he may be indicted and tried in the county or place where he received the property.(a) (q) Forgery. By stat. 11 G. IV, & 1 W. IV, c. 66 (the Forgery Act), § 24, if any person shall commit any offence against that act, or shall commit any offence of forging or altering any matter whatsoever, or of offering, uttering, disposing of, or putting off any matter whatsoever, knowing the same to be forged or altered, whether the same shall be indictable at common law, or by virtue, of any statute made or to be made: the offence of every such offender may be dealt with, tried and punished, and laid and charged to have been committed, in any county or place “in which he shall be apprehended or be in custody, as if his offence had been actually committed in that county or place; and every accessory before or after the fact, if the same be a felony, and every person aiding, abetting or counselling the commission of such offence, if the same be a misdemeanor, may be dealt with, indicted, tried and punished, and his offence laid and charged to have been committed in - any county or place in which the principal may be tried. Where the jury found that the prisoner was guilty of the forgery with which he was charged, but that there was no evidence of his having committed it within the jurisdiction of the court: The judge held, that the defendant being before the court at his trial, was there “in custody” within the meaning of the ‘above section, and that it was, therefore, unnecessary to allege or *prove when or [*72] where he was taken into custody.(d) (1) (7) 7&8 Vict., c. 29, § 56. (b) R. v. Smythies, 19 Law J. 31m; and see R. v. Whiley, 1 Car. & K. 150. (1) The venue in indictments for forgery must be laid in the county where the offence is committed ; as the indictment can only be preferred, and trial had in that county. Thus, where a note with forged indorsements is sent by the de- fendant, per mail, from one county to an individual in another county, for the purpose of obtaining credit upon it, the proper place of trial is the county to which the note was sent; the offence not being consummated until the note is re- ceived by the person to whom the note was transmitted. 21 Wend. 509. The fact of forging a note within a particular county cannot be inferred from its having been uttered there. 5 Pick. 279. 15 226 INDICTMENT. Treason or conspiracy.—Unlawful oaths.—Foreign service. (7) Treason or Conspiracy. The venue in treason committed in England may be laid in any county in which a good overt act can be proved. Treason out of the realm may be tried either before the Court of Queen’s Bench, by a jury of the county where the court sits, or by commission, in any county therein named, by a jury of such county.(a) (1) So the venue in conspiracy may be laid in any county where a good overt act can be proved.(d) (2) (s) Unlawful oaths. In an indictment for administering an oath to commit treason or murder, the venue may be laid, and the offender tried, before a court of oyer and terminer, in any county in England, as if the offence were committed there.(c) (t) Foreign service. The offence of engaging in foreign military or naval service, without license from the crown, or going abroad for that purpose, or engaging others in such service—if committed in England—may be tried before the Court of Queen’s Bench, and the venue laid at Westminster, or at the assizes or sessions for the county where the offence was committed, and the venue laid there ;(d) or, if committed out of the United King- (a) 35 H. VIII, v.2; Hawk., c. 25, § 48. (ce) 52 G. IIT, v. 104, § 8. (b) R. v. Brisac and Scott, 4 East, 171. (@) 59 G. IW, ¢. 69, § 4. (1) In England a distinction has been taken, that where a levying war is laid as an overt act of compassing the king’s death, though laid within the county, it may be proved elsewhere ; but that where the levying war is laid as the substan- tive treason, it is local and must be laid in the proper county—for a levying war in Surrey may be good evidence of compassing the king’s death in Middlesex, and so tend to establish the treason there; but a levying war in Surrey does not prove a levying war in Middlesex, though it may be adduced to show the nature of the act laid as treason in the proper county. Kel. 14, 15. And after the proof of one overt act of treason, by levying war in the proper county, proof of levying war in another county is admissible. Kel. 14,15; Fost. 9; 8 St. Tr. 218. See the observations in 1 East P. C. 126; Stark. 20, note p; Kelynge, 15. So in the case of conspiracies, the venue may be laid in the county where any overt act by any one of the conspirators can be proved, and evidence may be there given of transactions in other counties. 4 East, 171; 6 East, 590; acc.; 1 Salk. 174, cont. (2) In conspiracy the venwe should be laid in the county where the conspiracy took place; or in the county where any one of the conspirators did an act to fur- ther their common object; and the trial must be in such county. People v Mather, 4 Wend. Rep. 229; 6 Salk. 174. The want of venue in an indictment for a conspiracy to cheat to the averment of the false pretences is fatal. People v. Ward, 1 Johns. 66. Ifit does not appear from the records that the venue was proved, the judgment must be reversed. Yates v. State, 10 Yerger, 549. - INDICTMENT. 227 Inciting to mutiny.—Smuggling.— Post-Office. dom, the offender may be prosecuted in the Court of Queen’s Bench, Westminister, and the venue laid at Westminster, in the county of Middlesex.(a) (w) Inciting to Mutiny. The offence of endeavoring to seduce any person, serving in Her Majesty’s forces by sea or land, from their duty and allegiance, or in-~ citing them to mutiny, which is made felony by stat. 37 G. III, c. 70, § 1, may, whether committed on the high seas or in England, be pros-. ecuted and tried before-any court of oyer and terminer or jail delivery for any county in England, as if the offence had been committed there.(d) (v) Sinuggling. In an indictment for smuggling, or for any offence against stat. 8 & 9 Vict., c. 87, or any other act relating to the customs, if the offence have been committed in England, the venue may be laid and the offender tried in any county, in such manner and form as if the offence was committed in that county.(c) And where any offence shall be committed on the high seas against that act or any other act *relating to the customs, such offence shall, for the purpose of [*73] prosecution, be deemed and taken to have been committed at the place on land in the United Kingdom, into which the offender shall be taken, brought or carried, or in which such person shall be found.(d) (w) Post-Offce. The offence of every offender against the post office Acts may be dealt with, indicted, tried, and punished, and laid and charged to have been committed, either in the county or place where the offence shall be committed, or in any county or place in which the offender shall be apprehended or be in custody ; and where an offence shall be committed in or upon or in respect of a mail, or upon a person engaged in the conveyance or delivery of a post letter-bag, or post-letter, or in respect of a post letter-bag or post-letter, or a chattel or money or val- uable security sent by the post, such offence may be dealt with and inquired of, and tried and punished, and laid and charged to have been committed as well in any county or place in which the offender shall be apprehended or be in custody, as also in any county or place (a) Ibid. § 9. (c) 8 &9 Vict., c. 87, § 136. (b) 37 G. II, c. 70, § 2, (d@) Ibid. § 95. 928 INDICTMENT. Returning from transportation.—Sending a challenge to fight. through any part whereof the mail or the ‘person, or the post letter- bag or post-letter, or the chattel, money or valuable security sent by post, in respect of which the offence shall be committed, shall have been passed in due course of conveyance or delivery by the post, in the same manner as if it had been actually committed in such county or place.(a) \ (x) Counterfeit coin: In all offences against stat. 2 W. IV, c. 34, relating to the eoin, the venue in ordinary cases is laid in the county, etc., in which the offence. was committed. But where two or more persons, acting in concert in different counties or jurisdictions, shall commit any offence against that act, all or any of the said offenders may be dealt with, indicted, tried and punished, and their offence laid and charged to have been committed, in any one of the said counties or jurisdictions, as if the offence had been actually and wholly committed within such one county or jurisdiction ; provided that crimes and offences against that act, committed in Scotland, shall be tried in Scotland as hitherto.(d) (y) Escape and rescue from prison. Any person escaping from a jail or house of correction, or breaking prison, or being rescued therefrom, may be tried either in the jurisdic- . tion where the offence was committed, or in that where he shall be apprehended and retaken.(c) , (2) Returning from transportation. In prosecutions for returning from transportation before the expira- tion of the sentence, the offender may be tried either in the [*74] county or place *where he shall be apprehended, or in that from whence he was ordered to be transported.(d) (aa) Sending a challenge to fight. Where a challenge to fight is sent by letter in one county, and re- ceived in another, even if sent by post, the venue in an indictment for the offence may be laid in the county from which the letter was sent,(e) or.in the county in which it was received. (a) 1 Vict., c. 86, § 37. (d) 5G. LV, c. 84, § 22. (b) 2W.IV, vo. 34, § 15. (e) R. o. Williams, 2 Camp. 506. ic) 9G, IV, c. 64, § 44. INDICTMENT. 929 . Threatening letter.—Bigamy.—For an offence of omission. (06) Threatening letter. In an indictment for sending a threatening letter, the venue may be laid in the county where the letter was received,(a) or in the county from which it was sent. (cc) Bigamy. In prosecutions for bigamy, the venue may be laid, and the offence may be dealt with, inquired of, tried, determined and punished, in the county where the offender shall be apprehended or be in custody, as if the offence had been actually committed in that county ;(2) or it may be laid in the county where the second marriage took place.(c) (1) (dd) For an offence of omission. Where the offence consists of omitting to do an act which the law enjoins or commands to be done, the venue should be laid in that county in which the act ought to have been’ done. And, therefore, in an indictment against a bankrupt for not surrendering, the venue must be laid in the county in which the Bankruptcy Court is situate, at which he ought to have surrendered.(d) : In an indictment for not repairing a highway or bridge, the venue must be laid in the county, etc., in which the part of the highway or bridge which is out of repair is situate. _ (ee) Accessories before the fact. By stat. 7 G. IV, c. 64, § 9, the offence of accessory before the fact, howsoever indicted, may be inquired of, tried, determined, and pun- ished, by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at. the same place as the principal felony, although such offence may have been committed on the high seas or at any place’on land, whether within His Majesty’s domiuions, or without; and in case the principal felony shall have been committed within the body of any county, and the offence of accessory within the body of any other county, the acces- sory may be tried and punished in either county.(¢) (a) Girdwood’s case, 1 Leach, 142; 2 Bast Car. & K. 150; and see R, v. Smythies, 19 P. C. 1120; Esser’s case, 2 East P.C.1125,2 Law J., 31 m.; ante, pp. 71, 72. Russ, 723. (c) 2 Hawk,, c. 25, § 39. (b) 9 G. IV, e. 31, § 22; see R. v. Whiley, 1 (d) R. v. Milner, 2 Car. & K, 310, (e) See ante, p. 15. (1) In New York and Virginia, the venue in bigamy may be laid either in the. county where the offence was committed, or in the county where the defendant is apprehended. 2 N. Y. Rey. Sis. 687, § 8; Rev. Code of Va., c. 106, § 19. 230 INDICTMENT. Accessories after the fact.—Centval criminal court —Defective venue cured. [*75] *( f°) Accessories after the Sact. By stat. 11 & 12 Vict., c. 46, § 2, the offence of accessory after the fact, howsoever indicted, may be inquired of, tried, determined, and punished, by any court which shall have jurisdiction to try the principal felon, in the same manner as if the act, by reason of which such person shall have become an accessory, had been committed at the same place as the principal felony.(a) (99) Central Criminal Court. » The central criminal court has jurisdiction of all indictable offences committed within the city of London, the county of Middlesex, and within certain limits in the counties of Essex, Kent and Surrey.(6) The court has jurisdiction to try all offences committed or alleged to be committed on the high seas, and other places within the jurisdic- tion of the Admiralty of England.(c) The venue in the margin of the indictments in this court, is in all cases “ Central Criminal Court, to wit;” and the facts in the body of the indictment are stated to have taken place “within the jurisdic- tion of the said court.”(@) ‘ (hh) Defective venue cured. By stat. 7 G. EV, c. 64, § 20, it was enacted that judgment, whether after verdict, outlawry, confession, default, or otherwise, should not be stayed or reversed, for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had juris- diction over the offence. But now, by stat. 14 & 15 Vict., c: 100, § 24, no indictment for any offence shall be holden insufficient, “for want of a proper or perfect venue.” Still, however, if it appear in evidence (a) See ante, p. 18. (b) 4&5 W. IV, c. 36,52. These limits are thus described by § 2: City of London. County of Middlesex. In the county of Essex: the parishes of Barking, East Ham, West Ham, Little Ilford, Low Layton, Walthamstow, Wanstead, St. Mary, Woodford and Chingford. : In the county of Kent: Charlton, Lee, Lew- isham, Greenwich, Woolwich, Eltham, Plum- stead, St. Nicholas Deptford, that part of St. Paul Deptford which is in the county of Kent, the liberty of Kilbrook, and the hamlet of Mottingham. In the county of Surrey: the borough of Southwark, the parishes of Battersea, Ber- mondsey, Camberwell, Christchurch, Champ- ham, Lambeth, St. Mary Newington, Rother- hithe, Streatham, Barnes, Putney, that part of St. Paul Deptford which is within the county of Surrey, Tooting, Graveney, Wands- worth, Merton, Mortlake, Kew, Richmond, Wimbledon, the Clink liberty, and the dis- trict of Lambeth Palace. (c) 4&5 W.IYV, c. 36, § 22. (d) Ibid., § 3; see also Stat. 9 & 10 Vict. c, 24, INDICTMENT. 231 Change of venue. that the prisoner is on his trial in a wrong jurisdiction, and that the court has not cognizance of the offence, he must be acquitted.(a) (1) (a) See 2 Hawk., c. 25, § 35. (1) It seems proper here to remark, that the venue may be changed, on motion of the public prosecutor, if it appears that a fair and impartial trial cannot bé had in the county where the indictment was found. And this, although there has been no actual experiment made, by way of trying the cause, or even impannel- ing a jury in the county where the venue is laid. The People v. Webb, 1 Hill, 179. There is no fixed rule defining what shall be received as proof of the fact ae - and impartial trial cannot be had. Ibid.; see The People v. Bodine, ill, 147. There-may be a change of venue where the judge has been counsel for the prisoner, although the statute provides that a second change of venue in the same cause shall not be allowed. State v. Gates, 20 Mis. 400. : As to what is reasonable notice of an application for a change of venue, in a criminal case, depends upon circumstances. If the party making the application knows of the ground for a change, he should give notice before the day of trial. If, however, he gives notice as soon as he learns that he has ground to apply, it will answer, even if at the time the cause is called for-trial. Reed v. State, 11 Mis. 879. An affidavit of the prisoner that the information of the facts, which were made the basis of- application to change the venue, came to his knowledge om the day the petition was prepared, and the notice was given to the state’s attorney that the motion would be made, is equivalent to a statement that he then received the information for the first time. Barrows v. The People, 11 Illinois, 121. ‘ In the state of New York, when it appears that an impartial trial cannot be had in the county where the offence is laid, the court will order a suggestion of this fact to be entered on the record, and a venue is then awarded to the sheriff of another county. The People v. Vermilyea, 7 Cow. 108. In Illinois a change of venue may be granted to a prisoner on his oral application, if assented to by the prosecuting attorney. Brennan v. The People, 15 Ill. Rep. 511. In the case of The People v. Scates (3 Scam. 351), the prisoner made an oral application for a change of venue from the Circuit, which was assented to by the state’s attorney + and the court made an order changing the venue accordingly. The court to which the venue was changed, refused to take cognizance of the case, and dis- missed it from the docket. The Supreme Court held that the Circuit Court had acquired jurisdiction of the case, and, by mandamus, compelled it to proceed to hear and determine the same. The decision was put upon the ground, that it was competent for the prosecution to admit the existence of a cause for the change of venue, and thereby dispense with any necessity for a petition and affidavit ; and that the prisoner, after making the application, could not complain that he was not compelled to make as full proof as the prosecution might have required. In Arkansas, the order of removal or change of venue is required to be made upon the petition of the prisoner, unless the judge should be satisfied, upon his own knowledge, that he cannot have the benefit cf a fair and impartial trial, and then he may make an order of removal or change of venue without any applica- tion or petition on the part of the prisoner. Rev. Sts. of Ark., c. 45, §§ 121 to 139. Section 131 of the act makes it the duty of the clerk to make out a trans- cript of the proceedings and to transmit them, under the seal of his court, to the, clerk of the court to which the cause is removed; and section 132 declares that, upon the reception of such record, the same proceedings shall be had in the cause, ‘in all respects, as should have been had where it originated. The petition for change of venue need not be contained in the transcript of the proceedings. The State v. Hicklin, 5 Pike Ark. Rep. 190. In Virginia, the unsupported affidavit of a prisoner, indicted for murder, that he fears and believes that he cannot have a fair trial in the county where the indictment was found, will not sustain a mo- tion for a change of venue. Wormley v. Com.,10 Gratt. Va. Rep. 658. In Vir- 232 INDICTMENT. Change of venue. ginia, in cases of misdemeanor, the Superior Court of Law formerly had no power to change the venue. Com. v. Rolls, 2 Virg. Cas. 68; contra, in the case of Com. v. Bedinger, 1 Virg. Cas. 125; and in case of felony, it was held that the court could not change the venue. Com. v. Wildy, 2 Virg. Cas. 69. But by statute (1 Rev. Code of 1819, c. 169, §§ 9, 15), in Virginia the venue may now be changed in any case of treason or felony, under certain regulations, and in cases of misdemeanors. Com. v. Wildy, 2 Virg. Cas. 69, note. The nécessity of changing the venue, in any case, in order to secure an impar- tial trial, is not to depend upon the suggestion, or even the belief, of the defend- ant, but upon facts shown to the court, or admitted, sufficient to satisfy the court that the change is necessary to procure an impartial trial. The*State v. Burris, 4 Harring. 582. The place of trial cannot be changed, in a criminal case, for the convenience of witnesses or parties. People v. Harris, 4 Denio, 150. Where a statute authorizes a change of venue in criminal cases, itis imperative whenever a case is made out in conformity with its requisitions, and the court cannot grant or refuse the application as a mere matter uf discretion. Freleigh v. The State, 8 Mis. 606; Clark v. The People, 1 Scam. 117; Brennan v. The People, 15 Ill. 511. It has been held, however, in Indiana, that the refusal of the Circuit Court to grant a change of venue, upon an affidavit of excitement and prejudice in the county against the prisoner, cannot be assigned for error; but that under the statute (2 Rev. Sts. 371, § 78) such applications are addressed to the discretion of the court. Hubbard v. The State, 7 Porter’s Ia. Rep. 160; Hall uy. The State, 8 ibid. 489;.Spence v. The State, 8 Blackf. 281; Findley v. The State, 5 Blackf. 576. In Indiana, where the cause assigned in the affidavit for a change cf venue is the prejudice of the judge, the aftidavit will be sufficient, and the party be entitled to a change of venue under the statute (2 Rev. Sts. of Indi- ana, p. 370, { 76); and a refusal to grant a change for that cause cannot be as- signed for error, unless exception be taken at the time of the decision. 2 Rev. Sts. of Ia., p. 378; Leyner v. The State, 8 Porter’s Ia. Rep. 490; Hornberger v, The State, 5 Porter’s Ia. Rep. 300 In Illinois, by the statute, a prisoner is entitled to a change of venue as a mat- ter of right, upon tiling a petition verified by affidavit, stating that “he cannot receive a fair and impartial trial in the county where the indictment is found, be- cause of the prejudice of the judge of the circuit, or of the inhabitants pf the county.” Brennan v. The People, 15 Ill, Rep. 511. The recorder of the city of Chicago is vested with a sound discretion, on an application for change of venue. He may inquire into the circumstances of. the case, as to whether the causes alleged exist or not; and error cannot be assigned upon his decision. Maton v. The People, 15 Ill. Rep. 536. In Illinois, an indictment having been found in one county against several jointly, the venue was changed to another county, on motion of one of the persons, without consent of the others, where he was tried, and afterwards the indictment was returned to the county where it was found, and the others held to answer, it was held that the proceedings were lawful. Hunter v. The People, 1 Scam. 453 ; and see State v. Martin, 2 Iredell, 101. : In Alabama, under the code, §§ 3608, 3609, the granting a motion for change of venue, in a criminal case, is in the discretion of the court to which the application is made, and its refusal cannot be revised in the Appellate Court, by mandamus or otherwise. Hx parte Banks, 28 Ala. Rep. 28; Rice. C.J., dissenting. The code of Iowa, c. 204, after giving the prisoner the right to petition for a change of venue, and reciting what such petition must contain, provides (§ 3272) that ‘‘such court, in the exercise of a sound discretion, may grant such change of venue; and if the same is prayed on the ground of objection to the judge, such . change must be awarded to some convenient county or adjoining district; or if such change is prayed for on the ground of excitement and prejudice in the county, such change must be awarded to the nearest and most convenient county where: such prejudice and excitement do not exist.” It has been held that the Appellate Court will not interfere with this discretion, unless it is clearly shown to have been improperly exercised. Gordon v. The State, 3 Clarke’s Iowa Rep. 410. The rewoval must be made previous to the commencement of the trial, and that is when the panel of twelve jurors is completed by being duly sworn. Price v. INDICTMENT. 233 Change of venue. The State, 8 Gill, 295. Where there is a motion for change of venue, it is safe and judicious to require the plea to be entered before the motion is awarded. Gardi- ner v. The People, 3 Scam. 83. The objection to an order for a change of venue in a criminal case, that it does not pursue the statute, must be made in the court below; otherwise the objection will be waived. Brown v. State, 8 Engl. 96. The order of removal need not direct that ‘“‘a copy of the record of the said cause be removed,” etc. The State v. Shephard, 8 Iredell R. 195. It has been held in Missouri that where the venue is changed in a criminal case, the original indictment should remain in the office of the clerk in the county in which it is found. A copy only should be included in the transcript of the record and proceedings. Ruby v. The State, 7 Mis, 206. And see Beauchamp ». State, 6 Blackf. 299; Price ». The State, 8 Gill, 295. In Alabama where several are in- dicted and the venue is changed by some of them, those who change the venue must be tried on a copy of the indictment; the original, in such a case, remains in the court, which retains jurisdiction over those who do not change the venue. John v. The State, 2 Ala. 290. It has been held in Alabama, that where the venue is changed in a criminal case, each paper, order, etc., found in the transcript, need not be mentioned and verified by name in the clerk’s certificate. But that if his certificate states that “the foregoing pages contain a full, true, and com- plete transcript of the indictment, and all papers on file in his office, and of all the entries relating to the case, as found in his office,” it will be a substantial com- pliance with. the Code (§ 3613). Ward v. The State, 28 Ala. 53. The failure of the clerk, after a change of venue has been ordered, to transmit a transcript to the clerk of the court to which the trial is removed, and the failure to have the cause entered on the docket of that court, at the term next after the order of removal, is no discontinuance of the prosecution. Harrall v. The State, 26 Ala. 52. Where, upon a change of venue in a criminal case, the venue sent up is imper- fect, the acctised will not for that réason be discharged from his recognizance, especially as the change of venue in such cases is on the application of the de- fendant. The correct mode of proceeding in such cases is, for the prosecuting attorney to suggest a diminution of the record, and move for a writ of certiorari, directed to the Circuit Court of the county from which the change of venue was taken, to send up the record. Laporte v. The State. 6 Mis. 208. Where an order of court directs the venue of an indictment to be changed, it is conclusive of its own regularity, unless the contrary appear of record. McCauley v. United States, 1 Morris, 486. Where the papers on a trial are transmitted from one’county to another, by change of venue, and afterwards removed into the Supreme Court, it will be presumed from the clerk’s certificate, in the absence of any contest as to their verity below, that the clerk has transmitted the proper papers. State v. Greenwood, 5 Porter, 474. The court into which a trial has been removed will infer that all things have been regularly done before the change of venue was ordered ; it is, therefore, bound to presume that the caption of the indictment, and other proceedings, were regular in the court in which the case originated, and it devolves on the prisoner to show a fatal irregularity. State v. Williams, 3 Stewart, 454. Where an indictment is found in the court of one county, and is tried in the court of another, the record not showing a change of venue, nor that any objec- tion was made to the jurisdiction of the latter court, it will be presumed that there was a change of venue. Doty v. The State, 6 Blackf. 529. eres {In Tennesse when the venue is changed, if a tanscript be filed with the indict- ment sufficient to show the jurisdiction of the court, the trial may go on in the absence of objection by the defendant, and the defects in the transcript may be afterwards supplied by certiorari. Loyston v. State, 3Heisk.414. In Georgia the court can change the venue in criminal cases on the ground that an impartial trial cannot be had; but it was held by the court on review that an application to the trial court had been properly denied when an impartial jury had afterwards been actually obtained in the original county—that fact is the test of the question, whether an impartial trial can be had. Hunter v. State, 43 Geo. 483... An order changing the venue on the ground of an impartial trial, cannot be attacked col- laterally in the court to which the trial is removed, if the original court had jurisdiction to make the order, and it was made in pursuance of the constitution 234 INDICTMENT. Caption of indictment. [*76] *2 Commencement of the Indictment. The following is the form of the Commencement of an Indictment. Yorkshire, The Jurors for our Lady the Queen upon their oath to wit: ! present, that [etc., stating the matter of the indictment.) A second or subsequent count begins thus: “ And the jurors aforesaid upon their oath aforesaid do further present, that,” etc. Where the indictment commenced, “The jurors of our Lady the Queen,” it was holden that it was not bad on that account, as the cap- tion would cure it.(a) v At the assizes, the venue in the margin is the county, or the county of the city, or the county of the town corporate, in and for which the assizes are holden. At the quarter sessions, the venue is regulated by the commission of the peace under which the court derive their juris- diction ; for instance, at the sessions for the East Riding of the county of York, the venue is, ‘‘ East Riding of the county of York,” and so of the other ridings, and of the divisions of Lincolnshire, each having a Sep- arate commission of the peace: and at the sessions for Hull, the venue is, “‘ Borough of Kingston-upon-Hull,” and so of other boroughs having (a) Broom »v. Regina, 12 Shaw’s J. P. 628. and of the statute. Wheeler ». State, 42 Geo. 307. For Indiana practice concern-. ing change of venue, see Adell v. State, 34 Ind. 543 ;—do. in South Carolina in murder cases, State v. Addison, 2 8. C. 356.] [In Minnesota Gen. Stat. ch. 113, the trial may be transferred from the county where the indictment was found to an adjoining county in another judicial dis- trict, on motion of the prosecution, if an impartial jury cannot be obtained in the former county, State » Miller, 15 Minn. 344. In Alabama a change of venue can- not be made in the absence of the defendant. Ex parte Bryan, 44 Ala, 402. In Texas—Pasch. Dig. § 2994—ah appellate court will not review an order of the lower court changing the venue.—the lower court is to judge alone of the suffi- ciency of the reason for the change. Cotton v. State, 32 Tex. 614. In Iowa, after a change of venue, the clerk may amend his certificate so as to show that the transcript contains the original papers. State v. Gibson, 29 Iowa, 295. As to change of venue in Pennsylvania, see Dougherty v. Com., 69 Pa. St. 286.] [In Wisconsin the statute, Rev. Stat. ch. 178, permitting a change of venue against the defendant’s consent is invalid, being contrary to a provision of the constitu- tion. Wheeler v. State, 24 Wisc. 52; and under a similar provision of the Tennessee constitution, the venue cannot be changed without the prisoner’s consent, and the record must show that the application was by him, and the reasons therefor. State v. Denton, 6 Coldw. 539.) [See also as to change of venue, when and how made, Hx parte Chase, 48 Ala. 303; Edwards v. State, 25 Ark. 444; People v. Sammis, 6 ‘T. & C. (N. Y.) 328; People v. Cotta, 49 Cal. 169; People v. Perdue, 49 Cal. 425; Martin v. State, 35 Wisc. 294; State v. Rowan, 35 Wisc. 303.] INDICTMENT. 235 Caption of indictment. separate commissions of the peace, and separate courts of quarter ses- sions. The caption of an indictment is the heading of the record, when the record is made up, and is the same to every indictment found at the same assizes or sessions. It shows, and it must show correctly and with certainty, the court before which the indictment was found, the grand jurors by whom it was found, and the time and place when and where found.(a) It must appear from it that the indictment was found before a court that had jurisdiction of the offence ;(b) it must appear from it, that the jurors who found it were of the county, etc., for which the court was holden, that they were at least twelve in number, and that they found the indictment upon their oaths ;(c) it must show the day and year on which the court was holden, and must state the in- dictment to be then found, in the present tense ;(d) and it must state the place where the indictment is found, and show that it is within the county, etc., in which the court has jurisdiction.(e)(1) (a) 2 Hawk., ¢. 26, § 118. (@) Ibid. § 127. (b) Ibid. § 119-123. (e) Ibid. § 128. (c) Ibid. § 126. (1) The caption forms no part of the indictment. Kirk v. The State, 6 Mis. 469; People v. Jewett, 3 Wend. 319; State v. Brickell, 1 N. Car. 354; see Mc- Clure v. State, 1 Yerger, 260; State v. Hunter, Peck. 116; State v. Smith, 2 Harr. 583; State v. Jones, 4 Halst. 457; State v. Williams, 2 M’Cord, 301; Vandyke ». Drew, 1 Bailey, 65. It is an entry of record showing when and where the court is held, who presided ‘as judge, the venire, and who were summoned and sworn as grand jurors; and this caption is a part of every indictment, and need not he repeated in any part of it. Reeves v. The State, 20 Ala. 33. The principal ob- ject of the caption is, to show that the indictment was found in a court of compe- tent jurisdiction. Weinzorpflin v. State, 7 Blackf. 186; State v. Sutton, 1 Murph. 281. It is essential where the court acts under a special commission; but where the authority by which the court sits is a public law, it is the duty of every one to take notice of it. State v. Warden, 2 Taylor, 163. If wholly omitted, the pre- sentment may, nevertheless, be sufficient. The minute made by the clerk upon the bill at the time of the presentment, and the general records of the term, will supply any defect in it. State v. Gilbert, 13 Verm. 647. The caption ought to state distinctly the court in which the indictment was found, who the jurors were, and the place and time when it was presented. State ». Williams, 2 McCord, 801. But see Kirk v. The State, 6 Mis. 469, where it was held that the omission of the caption to state in what court, or at what term of the court, the indictment was found, was immaterial. And it was held in an early case in Virginia, that the title of the court need not be stated in the caption. Tay- lor v. Com., 2 Virg. Cas. 940. Where the caption recites that, “at a court of oyer and terminer and general jail delivery, held the fourth Tuesday in May, 1827, before the Hon. G. H. Ford, one of the justices, etc., and J. G., etc., their fellows, it is presented,” the court to whom the grand jury made their presentment is sufficiently shown. State v. Price, 6 Halst. 203. The following caption: ‘State of North Carolina, Franklin County, March Sessions,” sufficiently describes the court. State v. Jeffreys, Cam. & Nor. 364. A caption thus: “ Virginia, Prince William County, to wit,” omit- ting the usual form of “the Superior Court of Law for the county of Prince Wil- 236 INDICTMENT. Caption of indictment. liam,” will be deemed sufficient. Burgess v. Com., 2 Virg. Cas. 483. Where the caption shows that the court was convened according to law on the first day of the term, by the clerk, and adjourned by him from day to day until the judge ap- peared in court, the presumption will be that the court was held on each day, at such place and time as the law prescribes. Smith v. State, 9 Humph. 9. Next to the statement of the court, follows the name of the place and county where it was holden, and which must always be inserted (Dyer, 69 A; Cro. Jac. 276; 2 Hale, 166; Hawk., b. 2, c. 25, § 128; Bac. Ab., Zndictment, I.), and, though it may be enough, after naming a place, to refer to ‘‘the county afore- said,” yet, unless there be such express reference to the county in the margin, or it be repeated in the body of the caption, it will be insufficient. 2 Hale, P. C., 180; 3 P. Williams, 439; 1 Saund. 308, note; 1 Cro. Eliz. 137, 606, 738. This is necessary, in order to show that the place is within the limits of the jurisdiction ; and, therefore, whether the caption wholly omit the place, or do not state it with sufficient certainty, the proceedings will be alike invalid, though amendable (Cro. Jac. 276; 2 Hale, 166; Hawk., b. 2, c. 25, § 128; Bac. Abr., Indictment, 1.), as if it state it to be taken only at the town, without adding “the county aforesaid,” the omission will vitiate. Cro. Eliz. 137,606, 738, 751; 2 Hale, 166; Hawk., b. 2, c. 25, § 128; Bac. Ab., Indictment, I.; Williams, J., Indictment, IV.; State v. Fields, Peck. 140; Joseph v. The State, 5 How. 20; Thomas . State, ibid. 31. When the caption states the county, the words ‘then and there,” in the body of the indictment, will be understood as referring to that county. State v. Bell, 3 Iredell, 506. It is usual to state the county in which the indictment was pre- sented, not only in the margin, but in the body of the caption, and, therefore, it is safer to adhere to this form, although the better opinion is, that if it be referred to, as the county aforesaid, no objection on that account can be supported. 1 Saund. 308; 3 P. Wms. 439. But, though the name of the county be left blank in the margin of an indictment for misdemeanor, it is enough if the county be stated in the body of the indictment. Seeft v. Com., 8 Leigh, 721. It has been held in North Carolina, that the omission in the caption of the names of the state, where the name of the county is inserted in the margin or body of the indictment, is not a cause for arresting the judgment. State v. Lane, 4 Iredell, 118. It has been held in North Carolina, that the time need not be stated in the cap- tion of an indictment found in the county or supreme court. State v. Haddock, 2 Hawk. 461. The caption need not state by whom, and by what authority, the persons sworn, affirmed, and charged as members of the grand jury, were summoned. State v. Price, 6 Halst. 203. It must, however, show that the venire facias was returned and from whence the jury came, or it will be fatal on demurrer. M?’Clure v. State, 1 Yerger’s Tenn. Rep. 206, per White, J.; State vo. Hunter, Peck's Tenn. Rep. 166; State v. Fields, ibid. 140; State vo. Williams, 2 M’Cord, 301. Where the caption was as follows: the grand jurors of the state of Mississippi, impan- eled and sworn in and for the county of Warren, etc.; it was held good. Byrd uv. The State, 1 How. Miss. Rep. 163, cited and approved in Cornelius v. State, 7 Engl. Ark. Rep. 782. he following caption was held sufficient: “The State of Mississippi, Wilkinson County, ss. The circuit court of Wilkinson County, Octo- ber term, 1835, thereof, in the year of our Lord, 1835. The grand jurors of the state of Mississippi impaneled and sworn in and for the county of Wilkinson, and state of Mississippi, upon,” etc. Woodsides v. State, 2 How. 655. Where an indictment commenced, “the grand jurors within and the body of the county,” etc., it was held, on motion in arrest, that the omission of the word “fox” after the word “and” did not vitiate the indictment. State v. Brady, 14 Verm. 353. _ A formal statement, in the indictment, that it was found by the authority of the state, is not necessary, if it appear from the record that the prosecution was in the name of the state. Greeson v, State, 5 How. (Miss.) 38. ‘The caption of an indictment is correct which styles the court of oyer and terminer, ‘the court of oyer and terminer and general jail delivery in and for the county of M.,” without saying “‘of the state of New Jersey.” Berrian v. The State, 2 Zabris. R. 9. The caption ought to show that the grand jury have been sworn. Jerry 2. State, 1 Blackford, 395; Curtis v. People, 1 Breese, 197; Hoffman ». Common- wealth, 6 Rand, 685; People v. Guernsey, 3 John. C. 265; Woodsides ». State, 2 How. (Miss.) 655; State v. Fields, Peck, 140; State v. Hunter, Peck, 166. Where INDICTMENT, 237 Caption of indictment. the caption recites that “at a court, etc., held before, etc., at, etc., on, etc., by the oaths and affirmations of A. B., etc., etc., good and lawful men, sworn, and affirmed, and charged, to inquire, it is presented,” omitting ‘‘then and there,” sworn, etc., it is sufficient. State v. Price, 6 Halst. 203. In New York it has been held that an indictment taken at the sessions, must, in the caption, state that the grand jury were, then and there sworn and charged; the omission of the words ‘“‘then and there” will be fatal on motion in arrest of judgment (People v. Guernsey, 3 John. Rep. 265); but the contrary was held in Mississippi, where it was said that if it appear from the record that the grand jurors were sworn, it will be presumed that they were then and there sworn. Woodsides v. The State, 2 How. Miss. Rep. 655. Where an indictment purports to be on the affirmation of some of the grand jury, it must appear that they alleged themselves conscien- tiously scrupulous of taking an oath. State v. Fox, 4 Halst. 244; State v. Harris, 2 Halst. 361. If one of the grand jurors be a Quaker, the indictment should con- clude, “The jurors, upon their oath and affirmation, present,” etc. 9 Car. & Payne, 78. It has been held in New Jersey, that where the indictment purports to be on the affirmation of some of the grand jurors it must appear that they were persons entitled by law to take affirmations in lieu of oaths, or it will be fatally defective. State v. Harris, 2 Halsted, 361. In most of the states, how- ever, an averment that it was made on the oaths and affirmations of the grand jurors will be sufficient. If the caption omit to state the grand jury were sworn, it will be presumed they were sworn; at all events the recital in the indictment that ‘“‘the grand jury were elected, impaneled, sworn and charged,” will be sufficient. McClure »v, State, 1 Yerger, 206, per Catron, J. The statement in the caption of an indictment, that the grand jurors were “¢ood and lawful men,” has always been held to be sufficient, even when the record comes from a court of special and limited jurisdiction. If it comes from a superior court even, the omission of these words is not fatal, because all men shall be. presumed to be “‘ good and lawful” until the contrary appears. Beau- champ v. The State, 6 Blackf. 299. A caption which states that the grand jurors were good and lawful men is sufficient, without stating that they are freeholders and householders. Cornwell v. The State, 1 Mart. & Yerg. 147; S. P. Bonds »v. State, 1 Mart. & Yerg. 143; State v. Price, 6 Halst. 203. The words ‘good and lawful men ” include every qualification in this behalf required by law in Indiana. Jerry v. State, 1 Blackford, 396. These words in the caption will be understood. to mean freeholders. State v. Glasgow, Cam. & Nor. 38; see State v. Price, 6 Halst. 203; Collier v. State, 2 Steward, 288; Bonds v. State, Martin & Yerger, 143; Cornwell v. State, ibid. 147. It is unnecessary to set out the words “good and lawful men” in an indictment for murder in South Carolina. State v. Yancy, Const. Rep. 287. It has been held in Wisconsin, that it is not necessary that the caption of an indictment should state the qualifications of the grand jurors, nor recite the facts which give the court in which it is found jurisdiction, where such court is invested with general criminal jurisdiction. The State v. McCarty, 2 Chand. Wis. 199. And it has been held in Indiana, that a caption which recites - that the grand jury impaneled and sworn at the Circuit Court of, etc., at its September term, held, etc., found the indictment, is sufficient, without specifying the qualifications of the jurors, or alleging that they were good and lawful men. Weinzorpflin v. State, 7 Blackf. 186. It is not a good ground to quash an indict- ment that the name of one of the grand jurors in the caption is substantially different from his name in the panel, if, in reality, it was the same person. It is 4 mere misprision of the clerk, which is, of course, amendable. The State v. Nor- ton, 3 Zabriskie, 33. : ; It is not a good objection to an indictment that the dates in the caption are made in Arabic figures. State v. Smith, Peck, 165; Johnson v. State, 2 Dutcher N. J. Rep. 312. ‘ ; The day upon which the offence was committed may be rendered certain by reference to the year stated in the caption to the indictment. Jacobs v. The Com- nwealth, 5 Serg. & Rawle, 315. es a ayer the eaption states that “the foregoing bills of indictment are true bills,” and the record does not show that the bill set gut was one of them, the omission is fatal. Cruiser v. The State, 3 Harrison, 206. aS ; (A caption is not necessary while the indictment remains in the court where it 238 INDICTMENT. Caption of indictment. The following is the form of a Caption of an Indictment at the Assizes. Warwickshire, Be it remembered that at the general sessions of to wit: the lady the Queen of oyer and terminer, holden at Warwick, in and for the said county of Warwick, on Friday, [*77] the day of , in the —— year *of the reign of the Lady Victoria, now Queen of the United Kingdom of Great Britain and Ireland, before Sir , knight, one of the justices of our said Lady the Queen assigned to hold pleas before the Queen herself, Sir , knight, one of the justices of our said Lady the Queen of her court of Common Bench, and others their fellows, justices of the said Lady the Queen, assigned by letters patent of our said Lady the Queen, under her great seal of the United Kingdom, made to them the aforesaid justices and others, and any two or more of them (whereof one of them the said Sir ——, and Sir , the said Lady the Queen would ‘have to be one) to inquire (by the oath of good and lawful men of the county aforesaid, by whom the truth of the matter was found. Wagner v. People, 4 Abb. App. Dec. 509. It is no part of the in- dictment. McGarry v. People, 2 Lans. 227.] : [The words “The grand jurors of the state,” etc., are not necessary; it is sufficient if the indictment commence with ‘‘The jurors of,” etc., if other clauses show that they were a grand jury. State v. Pearce, 14 Flor. 153. For a case where the caption sufficiently showed the county, although omitting the words, “the grand jurors of the county of,” etc., see Lovell v. State, 45 Ind. 550. A defective description in the caption of the term of court at which the indictment was found, does not invalidate it, if the clerk’s certificate gives the true date. Com. v. Smith, 108 Mass. 486. The facts necessary to a proper organization of the grand jury may appear either in the caption or in the body of the indictment; the words ‘do present and say, etc., need not to be followed by “upon their oaths aforesaid.” McBean v. Staté, 3 Heisk. (Tenn.) 20. “Em- ounded” instead of ‘“‘impaneled” in the caption is not a material error. Wil- iams v. State, 3 Heisk. 376.] [It is unnecessary to state the names of the grand jurors either in the caption tion or in the body of the indictment ; it is sufficient if the indictment shows upon its face that the grand jury were of the number and qualifications required by law. McGarry v. People, 2 Lans. 227. The omission of the words “then and there” in the caption before the words ‘duly summoned, impaneled, tried, sworn and charged,” elc., is immaterial. Fizell v. State, 25 Wisc. 364. The omission of the words “body of the county,” when the caption recites that the grand jury were sworn and charged, “ enquiring in and for the county of,” ete., is immaterial. Fizell v. State, 25 Wisc. 364. A misrecital of the name of the county in the caption is no ground for an arrest of judgment. State v. Sprinkle, 65 N. C. 463. An omission in the caption to state the date of the finding, is not a fatal defect. when the certificate of the clerk endorsed thereon gives the date of the return and presentment. Com. v. Hines, 101 Mass. 338. Where a case is sent for trial from the Sessions to the Oyer and Terminer in NV. Y. the.caption of the indictment may be annexed before the trial in the Oyer and Terminer. Myers o. People, 4.N. ¥. 8. C, (T. & C.) 292; 2 Hun, 6.] INDICTMENT. 239 Caption of indictment. might be better known, and by other ways, methods and means whereby they could or might the better know, as well within liberties as without) more fully the truth of all treasons, misprisions of treasons, insurrections, rebellions, counterfeitings, clippings, washings, false coinings, and other falsities of the moneys of the United Kingdom, and of other kingdoms and dominions whatsoever ; and of all murders, felonies, manslaughters, killings, burglaries, rapes of women, unlawful meetings and conventicles, unlawful uttering of words, unlawful as- semblies, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negligences, conceal- ments, maintenancies, oppressions, champerties, deceits, and all other misdeeds, offences, and injuries whatsoever, and also the accessories of the same, within the county aforesaid, as well within the liberties as without, by whomsoever or howsoever done, had perpetrated and committed, and by whom, to whom, when, how, and in what manner ; and of all other articles and circumstances in the said letters patent of the said Lady the Queen specified, the premises and every or any of them howsoever concerning ; and for this time to hear and determine the said treasons and other the premises according to the law and cus- tom of the realm of England; and also keepers of the peace, and jus- tices of the said Lady the Queen assigned to hear and determine divers felonies, trespasses, and other misdemeanors committed within the county aforesaid, by the oath of A. B. [etc., naming the grand jurors] esquires, good and lawful men of the county aforesaid, then and there impaneled, sworn and charged to inquire, for the said Lady the Queen, and for the body of the said county, it is presented that [edc., setting out the indictment to the end.](a) - Caption of Indictment at the Sessions. East Riding of the At the general quarter sessions of the county of York, to wit: peace, holden at the town of *Beverly, [*78] in and for the said riding, on Tuesday the day of ——, in the year of the reign of our sovereign Lady Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith, before A. B. and C. D., esquires, and others their associates, justices of our said Lady the Queen, assigned to keep the peace in the said riding, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said riding committed—by (a) 4 Bl. Com. Ap. i. 240 INDICTMENT. Caption of indictment. the oath of twelve good and lawful men of the riding aforesaid, sworn and charged to inquire for our said Lady the Queen, and for the body of the riding aforesaid, it is presented that [etc., setting owt the indict- ment to the end]. Although in the first of the above forms the names of the grand jurors are set out, according to the precedent from which it is taken, yet it has been holden, on error to the House of Lords, that this is not necessary.(a@) I have accordingly omitted the names in the second of the above forms.(1) (r) Aylett v. Rex, in error, 3 Bro. Parl. Ca. 529. (1) When there is any material defect in the caption, the court may, in their dis- cretion, either quash it or leave the defendant to demur, as in case of the indict- ment itself. Hawk., b. 2, c. 25, § 146; Bac. Ab., Indictment, K. To induce the court to quash an indictment for a defect in the caption, the defect must be of a clear and decisive character. State v. Hickman, 3 Halsted, 299. Any objection to the jurisdiction of the inferior court, apparent from the caption, as well as to the subject matter of the indictment itself, may be taken advantage of upon de- murrer. 1 T. R. 316; 2. Leach, 425. But though the caption, like the indictment itself, may, if defective, be either quashed by the court or demurred to on the part of the defendant, it differs ma-. terially from it in its capacity of amendment; for the return to the court is merely a ministerial act, and ministerial acts may be amended at any time, according to the common law. 1 Saund. 249, 250, a; 3 Mod. 167; Comb. 70,78. It has, in- deed, been frequently holden, that a mistake of the clerk in making up the record can be amended only in the term in which the return is made, and not at any sub- sequent ‘period (Sir W. Jones, 420; 1 Roll. Ab. 196; Style, 85; 8 Co. 156, 157; Bro. Ab., Amendment, 32; 2 Sess. Cas. 9; 1 Sid. 155,175; 2 Hale, 168; 2 Ld. Raym. 968, 1039; 6 Mod. 273, 278; 1 Vent. 344; Hawk., b. 2. c. 25, § 97; Bac. Abr., Indictment, G, 11); but the contrary has also been often determined (3 Mod. 167; Comb. 73; Cro. Jac. 592, 276, 277; 1 Stra. 188; 2 Ld. Raym. 1518; 4 Burr, 2527; 1 Sid. 244; 2 Balstr. 35; 2 Stra. 843; 4 Blk. Com. 407; 2 Roll. Rep. 59), and is so settled after considerable investigation, upon the ground that min- isterial acts are at any time amendable, and thatthe alteration in the captidn is not to alter the return, but_to make the copy correspond with the original. 1 Saund. 249, n. 1; 4 East, 175; 3 Mod. 167. In England, the return to the writ of eertiorari has been amended by rule of court, by inserting the time when the quarter sessions were holden, and the names of “he justices who were present, and the names of the jurors by whom the indictment was presented, though the latter is now unnecessary ; and the entry-roll and record of Nisi Prius have been altered to make them agree with the amended caption after the term in which the certiorari was returned, and even after a general verdict of guilty. 4 East, 175, 176; 3 Mod. 167. | But it has been said that the caption of an inquisition cannot be amended at any time after it is filed, any more than the body, because it is drawn at the time with the indictment itself, and forms a part of the accusation, while in other cases it is merely made up from the schedule by the clerk of the court, as its ministerial officer. Hawk., b. 2, c. 25, § 97; but see Stark. 261. In South Carolina, it has been held that the caption being no part of the indict- ment, but only the style or preamble, it may be amended on motion, so as to make it agree with the original record, at any time during the term at which it is found; consequently a material error in the caption is not a fatal objection in arrest of judgment. The State v. Creight, 1 Brev. 169, And in the same state, where the caption was defective in not stating that it was found at a special court, the court gave leave to amend atter conviction. State v. Williams, 2 M’Cord, 301. INDICTMENT. 241 Defendant, how named. 3. Body of the Indictment. (a) Defendant, how named. The person charged by the indictment must be described by his christian or first name, and his surname.(1) See Dean v. State, Martin & Yerg. 127; Burgess v. Commonwealth, 2 Virg. Ca. 483 ; Taylor v. Commonwealth, 2 ibid. 94; Commonwealth v. James, 1 Pick. 375. In New Jersey, the caption may be amended in the Supreme Court, on proper evidence of the facts ; or the certiorari may be returned to the court below and the amendment made there. State v. Jones, 4 Halsted, 457. And such is the practice in South Carolina. State v. Williams, 2 M’Cord, 341; Vandyke v. Dare, 1 Bailey, 16. In Pennsylvania, defects in the caption—as not naming the judges, the jurors, and the county, which would be fatal if the indictment were removed into a superior court—may be supplied in the court in which it is taken, by ref- erence to other records there. Pennsylvania v. Bell, Add. 173. In Indiana, the state’s attorney may, by leave of the court, amend the caption of an indictment. Moody v. State, 7 Blackf. 424. The striking out a count in the indictment will not affect the caption. Duncan v. The People, 1 Scam. 456. : (1) A name which the defendant has usually gone by and acknowledged is suf- ficient; and if there be a doubt which of two names is the real one, the second may be ‘added after an alias dictus, thus: ‘‘Richard Wilson, otherwise called Richard Sayer.” But a defendant cannot be described with an alias dictus of the christian name. 1 Chitty Cr. Law, 203 and note m. If his name be unknown, and he refuse to disclose it, he may be indicted as “a person whose name is to the jurors unknown, but who was personally brought before them by the keeper of the prison.” Mat. Dig. 270. But an indictment against him as a person to the jurors unknown is insuflicient, without something to ascertain whom the grand jury meant. Russ. & Ry. C. C. 489. If, however, it appears in evidence that he’ is known, it seems he must be acquitted. 1 Holt, 595; 3 Campb. 264. And where, in an indictment for receiving stolen goods, the principal was so described, and it appeared that he was known, the receiver was acquitted for the variance. Ibid. But if the principal be really unknown, he may be so described in an indictment against the receiver. 2 East’s P. C. 781. Where T. H. P. was indicted by the name of T. P., Jr., it was held a misnomer. 1 Pick. 388; 3 ibid., 2d ed., 262, 263, u.1. But in another case (3 Peter’s, 7), Thompson, J., said: “It may well be questioned whether the middle letter of a name forms any part of the christian name of a party.” And in a case in the Supreme Court of New York, it was expressly decided that the law recognizes but one christian name. 5 John. 84; see, also, Co. Litt. 3 (a); 1 Ld. Raym. 562. Similar decisions have been made in Alabama and Mississippi. Mundson v. State, 17 Ala. 179; State v. Martin, 10 Miss. 391. If, however, the initial of a person’s middle name be inserted in an indictment, it must be provided as laid. Price v. State, 19 Ohio, 423; State v. Hughes, 1 Swan, 262. In England, when a father and son are both indicted, the practice is to distin- guish them by naming one as the elder and the other as the younger. In New York, it has been said that if a man be known by the addition of “junior” to his name, an indictment against him, without that addition, is not conclusive that he was the person indicted. 2 Caine’s Rep. 165. And in New Hampshire, it was held that. when L. W., and L. W., Jr., being father and son, live in the same town, and the indictment averred certain Acts to be done by L. W., evidence was not admissible to show they were done by L. W., junior, it being presumed that L. W. in the indictment meant 1. W., senior. State v. Vittum, 9 New Hamp. Rep. 519. But in Massachusetts and Maine, it has been said that junior is no, part of the name. Com. v. Perkins, 1 Pick. 388; State v. Grant, 22 Maine, 171 ; see Coit v. Stackweather, 8 Connecticut, 280. Hawkins lays it down that a defendant cannot take advantage of a mistaken 16 249 INDICTMENT. Defendant, how named. surname in the indictment, though he may of a mistaken christian name, though the surname by which he is described has no aftinity with his true one, and he was never known by it. 2 Hawk. P. C. 317. Hale (P. C. 175, 6) states the law as Hawkins does, and refers to some very old authors, the correctness of which he questions, and remarks that it is always safest to allow the plea of misnomer, both as to the surname and christian name. It is difficult to discover why the distinction between the one name and the other should ever have been introduced. It must have been upon some refinement of reasoning which has become antiquated and obsolete. Modern decisions make no distinction between a misnomer of the surname and christian name. In either case, if it be substantial, it is good cause for an abatement of the proceedings. ‘ It seems, that if the sownd of the name is not affected by the misspelling, the error will not be material. Ibid.; 10 East, 84; 16 ibid. 110; Russ. & Ry. C. C. 412; Haney v. The State, 5 Ark. Rep. 72. Where, therefore, there is a variance of a letter which, according to the pronunciation of the language, does not vary the sound, it is not a misnomer, as Petris for Petrie. Petrie v. Woodward, 3 Caine’s Rep. 219; State v. Upton, 1 Devereux, 513. Owens D. Havely and Owen D. Haverly are idem sonans. State v. Havely, 21 Mis. 498. Likewise Blacken- ship and Blankenship. State v. Blankenship, 21 Mis. 504. But Lyons and Lynes were held, in Alabama, not to fall within the rule of idem sonans. Lyons v. State, 5 Porter, 286. The name of Huston in an indictment for the name of Herdson is not a misnomer. State v. Huston, 15 Mis. 512. But judgment cannot be ren- dered against Donnel under an indictment in which he is named Donald. Donnel v. U.S., 1 Morris, 141. An indictment against ‘‘Edward Toney Joseph Scott, late of B. county, laborers,” was held bad, it not showing with certainty whether one or two persons were intended. The State v. Toney, 13 Texas, 74. Where the defendant’s name is ordinarily written with an abbreviation, and there is a prefix to the surname, a name so written in an indictment will be suffi- cient. State v. Kean, 10 N. Hamp. 347. Where a man is in the habit of using initials for his christian name, and is so indicted, and the fact whether he was so known.is put in issue, and he is con- victed, the court will not interfere on that ground; for if a man by his own con- duct renders it doubtful what his real name is, he is answerable for the conse- -quences. 4 M’Cord, 487; see also 2 Cromp. & Jer. 215; Smith v. The State, 8 Ham. Ohio Rep. 294. If the defendant plead misnomer of his surname, the prosecutor may reply that the defendand is known as well by one name as the other. 2 Hale, 238. Where a town was indicted for neglecting to repair a certain bridge, and the legislature, while the indictment was pending, changed the name of the town, it was held, on a motion to quash the indictment, that the change of the name of the town was no occasion for quashing the indictment. Com. v. The Inhabitants of Phillipsburg, 10 Mass. 78. Where the name of the defendant, or of any other person, has been once men- tioned in full in the indictment, it need not be constantly repeated, but may be abbreviated when.it occurs again in the same count or sentenee, with a reference to the first statement of it, by the words “said,” or “aforesaid.” The State v. Coppenburg, 2 Strob. 278. But it has been held in Arkansas, that the name of the defendant ought to be repeatedeto every distinct allegation; but that it will suffice to mention it once, ‘as the nominative case in one continuing sentence. If his full name has appeared in the first part of the indictment, it would be sufti- cient throughout the residue to refer to it by the christian name alone; but if the surname be omitted in the first, and afterwards used, this will not cure the defect. State v. Hand, 1 Engl. Ark. Rep. 165; 4 Harg. St. Tr. 747. Whatever mistakes may be made in the name of the defendant, however, he can- not afterwards take advantage of the error, if he appears and pleads not guilty. 1 Chit, Cr. L. 202; 1 Bay, 377. Misnomer is only matter of abatement, and is not a good cause for arresting the judgment. Com. v. Dedham, 16 Mass, 141 ; People v. Smith, 1 Parker, 329; Smith v, State, 8 Ohio, 294, | {An indictment for assault and battery under Tennessee Code, § 4628, is not in- validated by the omission to repeat the defendant’s name in the clause, “ the said -— then and there having,” etc. State v, Brown, 3 Heisk. Lt [A defendant indicted by a wrong name, who when arraigned fails upon request INDICTMENT. 243 Defendant, how named. Formerly, also, his addition of place or late residence, and his addi- tion of degree or mystery, must have been given; as—“‘late of the parish of , in the county of , laborer,” or the like; and if it were omitted, or a wrong addition given to him, he might plead the matter in abatement. But now, by stat. 14 & 15 Vict., c. 100, § 24, no indictment for any offence shall be holden insnfiicient ‘“ for want of, or imperfection in, the addition of any defendant;” and such addition may therefore be safely omitted altogether.(1) to give his true name, loses all benefit of the misnomer. State v. Burns, 8 Nev. 251. A misnomer can only be taken advantage of by a pleain abatement. State ». Brunell, 29 Wisc. 435. When a person is known in the community by two dis- similar names, being called as frequently by one as by the other, he may be in- dicted by either name. Taylor v. Com., 20 Gratt. 825. The name in the indict- ment was ‘‘Sensenderfer,” while the true name was ‘“‘Sensenderf,”—the variance was held fatal. Com. v. Bowers, 3 Brews. (Pa.) 350. Parties cannot be indicted by their firm name for selling intoxicating liquors; they must be indicted as in- dividuals. Peterson v. State, 32 Tex. 477. ] [An indictment against an overseer for neglect to keep a road in repair, which described him as “appointed by the county court of Lincoln county aforesaid as overseer of reads,” was held bad for uncertainty. State v. McElroy, 3 Heisk. 68.] [An objection that defendant is misnamed cannot be taken for the first time after arraignment and trial; neglect to make it until then, or to give his true name, is a waiver. State v. White, 32 Iowa, 17. Allegation that defendant’s christian name is unknown, is immaterial, and need not be proved. Defendant may be identified as the person intended in the indictment. Kelley v. State, 25 Ark. 392. {In Teasivats the English statute requiring a statement of the defendant's ad- dition, estate, degree, or mystery, is still in force. Com. v. France, 2 Brews. 568.] [See also as to naming the defendant, West v. State, 48 Ind. 483; Musquez v. State, 41 Tex. 226.] (1) In England, at common law, as well as by statute 1 Henry V, c. 5, it was formerly necessary to state in indictments, not only the name of the defendant, but his addition of estate, degree, or mystery. The statute of 1 Henry V, c. 5, is said to be in force in most of the United States. In New York, it is customary to state the defendant’s addition, although there is no statute making it neces- sary. The addition required is of his degree, as yeoman, gentleman, esquire; of his mystery, as husbandman, sailor, spinster, ete. And it should be the addition to which the party was entitled at the time of the indictment. ‘‘ Late Esq.,” would be bad. Leach, 420. Therefore, if the addition be only general, as a servant, farmer, citizen, etc., these are no good additions. Crown Cir. Comp. 42. The additions commonly in use are, for a man, laborer; for a woman, if single, spinster; if married, A. B., the wife of C. D., laborer; if a widow, widow. Ibid. The addition ought to be to the substantive name, and not to the alias dictus. Ibid.; 1 Chit. Cr. L. 209. . a It has been held in Virginia that the difference between the addition of laborer and yeoman is sufficient to abate the indictment. Com. v. Sims, 2 Virg. Cas. 874. So in Maine, where the defendant was styled a “lottery vendor,” when he was in fact a lottery broker. State v. Bishop, 15 Maine, 122. Laborer and yeoman are bad when applied to a female; but she may be de-, scribed as the wife of A. B., yeoman, because that term applies with certainty to the husband; but not as the wife of A. B., spinster, because it may refer either to the wife or the husband. 1 Chit. Cr. L. 206. Where a woman is described in 244 INDICTMENT. Defendant, how named. And whether the names, or the addition, (if any) given to the de- fendant in the indictment, be a correct description of him or not, is: now immaterial; for by stat. 7 G. IV, c. 64, § 19, no indictment or in- formation shall be abated by any dilatory plea of misnomer or of want of addition, or of wrong addition of the party offering such plea; but the court, if satisfied of the truth of the plea by affidavit or other- wise, shall forthwith cause the indictment or information to be amended, and shall call upon the party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded. It may be necessary here to observe, that a name of dignity, as Baron, Baronet, Garter King at Arms,(a) or the like, is not an addition, but as much a part of the name of the defendant as his christian or surname. But if it be omitted or erroneously stated, this is the subject of amendment, within the meaning of the section last mentioned.(1) (a) 2 Hawk., ©. 25, § 69, an indictment as A., wife of B., the latter words need not be proved. Com. ». Lewis, 1 Metc. 151. : With respect to the, addition of mystery, the following are sufficient ; husband- man, merchant, tailor, broker, hostler, smith, miller, manufacturer, carpenter, cook, brewer, baker, butcher, parish clerk, schoolmaster, scrivener, mercer, fish- monger, dyer, and all other lawful trades and professions. 1 Chit. Cr.’ L. 206. But all epithets which charge the defendant with improper or unlawful practices are insufficient; as maintainer, extortioner, abettor, vagabond, common informer, thief, and all terms of a similar description. So also the addition of an officeis bad, unless the defendant is prosecuted for something done in his official capacity. Ibid. It is said that where the defendant is engaged in several occupations, he may be described by either of them. But if a gentleman by birth engage in trade, he should be described asa gentleman, and not by his art or mystery. Ibid. 208; 2 Inst. 688. In Indiana, the defendant in an indictment need not be described by the addi- tion of his degree or mystery. State v. McDowell, 6 Blackf. 49. In Kentucky, the 35th section of the act of 1796, relating to criminal proceed- ings (St. Law, 530) requires the defendant’s estate, mystery, or degree, to be added to his name, in the cases therein referred to; but the requirement is ex- ressly confined to indictments in which the exigent may be awarded and out- leneies pronounced. Com. v. Rucker, 14 B. Mon. 228. Where a defendant was charged with an offence for which white persons, In- dians, and-free negroes were to be prosecuted and punished alike, it was held that w presentment describing him asa free negro, when he was in fact an Indian, was valid. Com. v. Scott, 10 Gratt. 749. , The defendant must be described as of the town or hamlet, or place and county of which he was, or is, or in which he is or was conversant. In, Massa- chusetts, Rhode Island, Pennsylvania, Louisiana, and, in fact, in most of the states, the forms in common use give the addition of place, as “late of the said county,” or ‘of the county of “’ In the city of New York, the practice is to charge “late of the —— ward, in the city of New York.” Wharton Cr. Law, p. 69, 70. (1) The Revised Statutes of Massachusetts provide that no indictment shall be quashed or deemed invalid, nor shall the ‘judgment or proceedings thereon be arrested or affected by reason of the omission, or misstatement of the title, occu- pation, estate or degree of the defendant, or of the name of the city, town, INDICTMENT. 245 Prosecutor or party injured, how named. *When, however, it is necessary to describe the defendant in [*79] any particular way to bring him within the purview of any statute on which the indictment is framed, such statute extending only to such persons as are named in it—the indictment must so describe the party asto bring him within the words and meaning of the statute, and the evidence must support the description.(#) In indictments against a parish or township for the non-repair of a highway(6) or the inhabitants of a county for not repairing a bridge, the indictment may be against the inhabitants of the parish, town- ship, or county generally, without naming any individual. An indictment against a corporation must charge them by their cor- porate names ;(c) and if there be any mistake in doing so, it may be remedied by amendment as above-mentioned.(1) (6) Prosecutor or party injured, how named.(2) The prosecutor or party injured, or any other person named in the indictment, if known, must be described with certainty ;(d) if an indi- (a) Ibid, § 112. {c) See ange, pp. 8, 9. (b) Ibid, § 68. 6 (@) 2 Hawk., c. 25, § 71. county, or place of his residence. Rev. Stat. of Mass, c. 137, § 14. And there is a similar statute in New York. 2 N. Y. Rey. Stat., 728, § 52. So also the Rey. Sts. of Maine, c. 172, § 38, prohibit the quashing of any indictment or ar- resting judgment for any omission or misstatement of title, occupation, etc., if such omission or misstatement do not tend to the prejudice of the defendant. State v. Nelson, 29 Maine Rep. 329. There are similar statutes to the foregoing in Michigan. Rev. Sts. of Mich., c. 164, § 34; in Wisconsin—Rev. Sts. of Wis., c. 148, § 15; in Mississippi—Hutchinson’s Miss. Code, p. 1005, sub. 65; and in Arkansas—Rev. Sts. of Ark., c. 52, § 98. . (1) A corporation must be described in an indictment by its corporate name, and not by the names of the individuals who compose it. 2 Hast P. C. 1059; R. v. Patrick, 1 Leach, 253. And there is a difference upon this subject between an ancient corporation and a corporation newly created. For an ancient corporation may, by use, have a special name, differing in substance from that by which they were originally incorporated, and they may plead and be impleaded by the name by which they were incorporated. Hob. 211; Noy, 54; 2 Brownl. 292; , Cro. Eliz. 351; Bac. Abr., Corp., c. 3; and see 10 Co. 87; 1 Leach, 513. In Pennsylvania, it was held that, if the statute directed the president, mana- gers and company of a turnpike road to remove a gate, the president and mana- gers were not individually liable to indictment if the direction was not complied with. Com. v. Denuth, 12 Serg. & Rawle, 389. But in Maine, it has been held that, where a corporation commits a crime or misdemeanor, the individual mem- bers, and not the corporation, must be indicted. State v. Great Works Milling and Manf. Co., 20 Maine, 41. And in Virginia, it has been held that a corpora- tion cannot be impleaded criminaliter by its artificial name, at common law. Com. ». Swift Run Gap Turnpike Co., 2 Va. Cas. 362. In Massachusetts, where the indictment was against the town of D., instead of against the inhabitants of the town of D, it was held that the indictment was proper. Com. v. Dedham, 16 Mass. 141. (2) The object of setting out the name of the person injured is, to identify the particular fact or transaction on which the indictment has been founded, so that 246 INDICTMENT, Prosecutor or party injured, how named. the accused may have the benefit of an acquittal or conviction, if accused a sec- ond time. The name is generally required as the best mode of describing the person; but he may be described otherwise—as, by his calling, or the like: if he be identified thereby as the individual, and distinguished from all others, and if the name be not known, that fact may be stated as an excuse for omitting it alto- gether. State v. Angel, 7 Iredell, 27. : In Mississippi, the statute makes it the duty of the attorney-general and district attorneys of the state to mark on all bills of indictment the name of the prosecutor or prosecutors. , Hutchinson’s Miss. Code, p. 1005, sub. 69. And it is a fatal ob- jection in that state that there is no prosecutor indorsed on the indictment. Kirk ». The State, 13 Sm. & Marsh. 406. In Arkansas, it is provided by statute that ‘‘no indictment for any trespass on the person or property of another, not amounting to a felony, shall be preferred, unless the name of the prosecutor be indorsed thereon, except where the same is preferred on the information or knowledge of one or more of the grand jury, or on the information of some public officer in the necessary discharge of his duty, or on the testimony of some witness other than the party injured—in which case, a statement of the fact shall be made at the end of the indictment, and signed by the attorney for the state.” Rev. Sts. of Ark., c. 52, § 87. In Tennessee, the statute of 1801, v. 30, § 1, provides that no bill of indictment shall be preferred to any grand jury in the state without a prosecutor marked thereon ; and if omitted, the omission need not be pleaded in abatement; advant- age may be taken of it at any time. Medaris v. The State, 10 Yerg. 239. And it has been held in that state that in an indictment for malicious mischief, the name of the owner must be averred, and a mistake in that would be fatal. Haworth v. State, Peck, 89. The name of a feme covert marked on an indictment is not a compliance with the statute of Tennessee, and is therefore a nullity, she being wholly irresponsible in law either for costs or damages. Mayers v. The State, 11 Humph. 40. ‘ In Kentucky, the name of the prosecutor must be subscribed to an indictment for a trespass or a misdemeanor, before it is presentéd to the grand jury. Allen v. Com., 2 Bibb, 210. And it has been held in the same state, that in an indict- ment for assault and battery, or trespass to property, the name of the prosecutor (who will be answerable for costs), the town and county in which he resides, with his title or profession, must be written at the foot of the indictment; and that the omission of his addition will be a fatal defect, not cured by security for the costs required of, and given by, the prosecutor. Com. v. Gore, 3 Dana, 475. In Missouri, the name of the prosecutor must be indorsed on an indictment for a riot before the bill is returned by the grand jury. State v. McCourtney, 6 Mis. 649. Under the statute of that state requiring the name of a prosecutor to be in-- dorsed on the indictment in certain cases, it is sufficient if it be on any part of the. indictment. Williams v. State, 9 Mis. 268. ‘ The statute of Alabama of 1811, requiring the name of the prosecutor to be in- dorsed “on all bills of indictment,” is merely directory, and the omission to make such an indorsement will not affect the validity of the indictment. State v. Hughes, 1 Ala. 655. In South Carolina, the state’s attorney has a discretionary power to indorse the * Governor as prosecutor on bills of indictment, whenever he may think the public interest may require it. State v. English, 1 Murphy, 435. In Michigan, it is provided by statute that the names of the complainant and of all the witnesses shall be indorsed on the indictment. Rev. Sts. of Mich., c. 164, § 19. It has been held in New Hampshire that the prosecutor need not be named where his right to the fine or penalty is barred by the statutes of limitation. State v. Robinson, 9 Fost. N. H. Rep. 274. In Virginia, an indictment for a trespass or misdemeanor need not be sub- scribed by the prosecutor, where it appears that the indictment was found on evidence sent tu the grand jury, either at their own request, or by direction of the court. Wortham v. Com., 5 Rand. 669. And it has been held in that state that where the name, title, or profession of the prosecutor has not been written at the foot of an indictment, this will be no cause for exception, either by way of a mo- tion to quash, or by plea in abatement. Dever’s case, 10 Leigh, 685. In Pennsylvania, the statute provides that “no person or persons shall be obliged INDICTMENT. “ 247 Prosecutor or party injured, how named. vidual, he must be described by his christian and surname ; if a cor- poration, by their name of incorporation. But it is not necessary to give any addition of degree or mystery ;(a) nor is it safe to do so; for where, in bigamy, the second wife was described as Elizabeth Chant, widow, and it appeared in evidence that she was at the time, in fact and by reputation, a single woman, the judges held the misdescription to be fatal, although it was not necessary to have stated more than the name of the party.() But if the party be described by the name by which he is usually known, it will be sufficient; and, therefore, where the prosecutor is named in the indictment “John Hancox,” his real name being John Walter Hancox, but he was usually called and known by the name of John Hancox, Parke, J., held it to be suf- ficient.(c) So, where the real name was Richard Jeremiah Pratt, but he was named in the indictment Richard Pratt, the name by which he was generally known, it was holden sufficient.(d) So, where the prosecutrix was named in the indictment by a name which she had assumed, but by which alone she was known in the neighborhood, the (a) 5 Hale, 182; and see R. v. Peace, 3 B. (c) R. v. Berriman, 5 Car. & P. 601. & Ald. 579. ’ (d) Anon., 6 Car. & P. 408. (b) R. v. Deeley, R. & Ry. 303; 4 Car. & P. 579. to answer to any indictment or presentment, unless the prosecutor’s name be in- serted thereon.” Dunlop’s Laws of Penn., p. 50. The statute of Pennsylvania did not intend there should be a prosecutor indorsed on indictments, unless there was really a prosecutor existing ; and the defendant cannot be sworn to prove the “person prosecuting—it must be proved by indifferent witnesses. The King v. Lukens, 1 Dall. 5. The Criminal Code of Illinois (Div. 16, § 175, Sts. of Ill., ed. of 1858) provides that ‘‘no bill of indictment for false imprisonment, or wilful and malicious mis- chief, shall be found a true bill by any grand jury, unless a prosecutor is indorsed thereon by the foreman of the grand jury, with the consent of the prosecutor, ex- cept the same shall be found upon the information and knowledge of two or more of the grand jury, or upon the information of some public officer in the necessary discharge of his duty, in which case it shall be stated at the end of the indictment how the same is found, and then no prosecutor shall be required.” In the United States Courts, the name of the prosecutor need not be written at the foot of the indictment. U.S. v. Mundell, 6 Call. 245. It is too late, after verdict, to object that the prosecutor was not named at the foot of the indictment. Hayden v. Com., 10 Mon. 125. Where the statute makes an offence more highly punishable when committed upon persons of a particular class, the indictment, though it does not allege whether the injured persons belongs to that particular class, will be sustained ; and if the defendant be convicted the court will award only the milder punish- ment. State v. Fielding, 32 Maine R. 585. [In Pennsylvania, individuals and their witnesses cannot go before the grand jury and prefer charges. Such a course deprives the accused of a responsible prosecutor who can be answerable in costs, and also in damages for a false and malicious prosecution. McCullough v. Com., 67 Pa. St. 30.] 248 INDICTMENT, Prosecutor or party injured, how named. judges held it sutficient.(2) So, where the prosecutor was named Charles Frederick Augustus William, Duke of Brunswick, that being the name by which he was generally known, though his proper family name was D'Este, the court held, that as the law in this case only required certainty to a common intent, the description was suf- ficient.(b) So, ifa bastard acquire a name by reputation, he [*80] may be described by it in the indictment. And *when a child was baptized by the name of Louis, and his mother’s maiden name was Drake, the only name by which she was known, and the. nurse to whom he was sent spoke of him to several persons as Louis Drake—this was holden ,to be evidence to go to the jury, to say whether he was not a bastard, and whether he had not acquired this name of Drake by reputation.(c) So, if the name in the indictment be spelt differently from the real and usual mode of spelling it, but be idem sonans with .it (and whether it be idem sonans seems to be a question to be left to the jury), it will be sufficient; otherwise not.(d) But the indictment shall not be holden insufficient, because any person therein mentioned is designated by a name of office, or other descrip- tive appellation, instead of his proper name.(e) (1) (a) R. wv. Norton, R. & Ry. 510. (d) R. v. Davis, 20 Law J. 207, m. (b) R. v. Gregory, 10 Shaw’s J. P. 262. (e) 14 & 15 Vict., c. 100, § 24. (c) R. v. Drake, 14 Shaw’s J. P. 483. (1) The statute of additions extends to the defendant alone, and does not at all affect the description either of the prosecutor, or any other individuals whom it may be necessary to name (2 Leach, 861;. 2 Hale, 182; Burn’s J., Indictment ; Bac. Abr., Indictment, G. 2; Ogilvie’s case, 2 Carr. & Payne, 230; Roscoe’s Dig. Cr. Ev. 81; 2 Russell, 707, 708, n. [o]), and, therefore, no addition is in any case necessary, unless more than two persons are referred to, whose nameg are similar (Ibid.), and even this does not seem absolutely necessary, for where, upon an in- dictment for assaulting Elizabeth Edwards, it appeared that there were mother and daughter of that name, and that the assault was upon the daughter, it was held sufficient. 3B. & A. 579;‘Jacksou v. Prevost, 2 Caines, 165. Indeed, with respect to this matter, certainty to a common intent is all that the law requires, and if the description be sufficiently explicit to inform the prisoner who are his accusers, the indictment may be supported. 1 Leach, 248; 2 Leach, 861; Hawk., b. 2, c. 25,§ 72. But itis, in general, necessary to set forth the names of third persons with sufficient.certainty ; and, therefore, it seems to be generally agreed at this day, that an indictment for suffering divers bakers to bake, etc., contrary to the statute, or for distraining divers persons without just cause, or for taking divers sums of money of divers persons without just cause, or for taking divers sums of money of divers persons for toll, cannot be, supported (Hawk., b. 2, c. 25,§ 71; Bac. Abr., Indictment, G. IL; Bro., Indictment, 21; 2 Rol. Abr. 80); but in an indictment for lodging poor persons in an unhealthy place, it was held not necessary to state the names of such persons. Cald. 432. See Common- wealth v. Maxwell, 2 Pick. 189. An indictment for retailing spirituous liquors to divers persons, without license, is-bad. State v. Stuckey, 2 Blackf. 289. Where, at the foot of the indictment, these words were written: “By the infor- INDICTMENT. 249 Prosecutor or party injured, how named. If, however, the name of the party be unknown, he should be de- scribed as “a person to the jurors aforesaid unknown;”(a) but if, afterwards at’ the trial, it appear that the party is known, the de- fendant must be acquitted. Where the prisoner was indicted for ° plundering a vessel which had been wrecked, and the property was laid, in the first count, to belong to persons therein-named, and in the second count to belong to persons unknown; at the trial, the witnesses did not know the christian names of the owners, so that the first count could not be proved; and the counsel for the prosecution then pro- posed to rely upon the second count; but Richards, C.B., held that the defendant must be acquitted; his lordship said: “The owners it appears are known, but the evidence is defective on this point; how can I say that the owners are unknown? I remember a case at Chester, where the property was laid as belonging to a person un- known, but upon the trial it was clear that the owner.was known, and might easily have been ascertained by the prosecutor; and Lord Kenyon accordingly directed an acquittal.”(6) So, where an indict- ment, against an accessory before the fact to a larceny, stated the larceny to have been committed by a person unknown, and the grand jury found the bill on the evidence of a person who acknowledged. that he had committed the larceny: Le Blanc, J., ordered the de- fendant to be acquitted.(c) Where a man named Daniel Campbell was indicted for the manslaughter of a woman, who, in the first count was called Catherine Macgennis, in the second, Catherine Campbell, and in the third, a person to the jurors unknown; and it appeared in evidence that her christian name was not known, and there was no proof of her surname being Macgennis, and the only proof of her name being Campbell was, that the prisoner at one time stated her to be his wife, though he afterwards denied it; Erskine, J., left it to the jury *to say whether she was the wife of the prisoner, for, [*81] if so, she was entitled to the name of Campbell, though not to that of Catherine; but if she was not his wife, and the jury believed (a) 2 Hawk., v. 25,§ 71; and see R. v. Mary (b) R. v. Robinson, Holt, 595. Smith, 6 Car. & P. 161. (c) R. v. Walker, 3 Camp. 264. mation of James Barker, laborer, of Harrison county, sworn in court, and indorsed as prosecutor at his request ;” it was held that this was sufficient to make James Barker prosecutor. Hanght v. Com., 2 Va. Cas. 3. . An indictment for killing a deputy sheriff need not aver the official character of the person killed. Wright v. The State, 18 Geo. Rep. 383. 250 INDICTMENT, Prosecutor or party injured, how named, that her name could not with due diligence have been ascertained, then she was a person unknown within the meaning of the third count; the jury acquitted the prisoner.(a) In another case, where a woman named Stroud was indicted for the murder of her illegitimate child, which in the first count was called ‘ Harriet Stroud,” and in the second as “a female of tender age, whose name is to the jurors afore- said unknown ;” the evidence was, that the child was baptized by the name of Harriet, and not Harriet Stroud; the prisoner was found guilty; but the case being reserved for the opinion of the judges, they held that she onght not to have been convicted on either count: not on the first count, because the child’s name was not proved to be Harriet Stroud; and not on the second, because the child had a name, “Harriet,” by which it might have been described in the indict- ment.(d) But where a woman was indicted for murdering her ille- gitimate child immediately after its birth, and it was neither described by any name, nor as a child whose name to the jurors was unknown; the woman being acquitted of the murder, but convicted of concealing the birth, this seeming defect in the indictment was made the subject of a motion in arrest of judgment; but Coleridge, J., held the indict- ment to be correct; the child being illegitimate, could have no name but by reputation, and it could not have acquired that at the time of its death; and to state in the indictment that its mame was to the jurors unknown, was assuming that it had a name.(c) And this decision was afterwards confirmed by the judges.(d) (1) By stat. 7 G. IV, c. 64, § 14, in any indictment or information ‘ wherein it shall be requisite to state the ownership of any property (a) R. v. Campbell, 1 Car. & K. 82. (ce) R. v. Willis, 1 Car. & K. 722. (b) R. v. Sarah Stroud, 1 Car. & K. 187. (@) Ibid. 782. ° (1) The christian and surnames of the parties injured must be stated, if the injured party be known. The name so stated must be either the real name of the party injured, or that by which he is usually known; and, if his name is unknown, it must be so stated. Willis v. The People, 1 Scam. 399; State v. Irvin, 5 Blackf. 343. Where an indictment avers that the name of the person injured is unknown to the grand jurors, such allegation is material, is traversed by the plea of not guilty, and must be sustained and may be rebutted by proof. Cameron 2. State, 8 Engl. Ark. Rep. 712; Barkman ». State, ibid. 703. If such persons are described by the initials of their christian names, the indict- ment is on its face sufficiently certain. The State ». Anderson, 3 Richardson, 172. There are some cases in which the names of third persons cannot be ascertained, in which it is sufficient to state ‘‘a certain person or persons to the jurors afore- said unknown.” Hawk., b, 2, ¢. 25, § 71; 2 East P. C. 651, 781; Cro. C. CO. 36; Plowd. 85, b; Dyer, 97, 286; 2 Hale, 181; Roscoe’s Dig. Cr. Ev. 81; Rex 2. INDICTMENT. 251 Prosecutor or party injured, how named. Smith, 6 Car. & Payne, 151. Thus, an indictment for harboring thieves unknown is sufficient, from the necessity of the case, and the fair presumption which exists that their names cannot be ascertained. Ibid. ; Sta. 497,186. So, upon the same ground, if the dead body of a person murdered be found, and it is impossible to discover who he was, an indictment for having killed some one unknown would be valid. 2 Hale, 181; Dyer, 99, a, 285; Plowd. 85, 129; Hawk., b. 2, ¢. 23, § 78; Hawk., b. 2, c. 25,§ 71; Bac. Abr., Indictment, G. 2; Burn’s J., Indict- ment ; Cro. C. C. 86. And if stolen goods be found upon a highwayman, and it is not known to whom they belong, he may be indicted for stealing the goods and chattels of some one or certain persons unknown. Ibid.; Keilw. 25; 2 East P. C. 651, 781. And in treason or in trespass, it is enough to say that he hath pro- cured some one unknown, because all are principals. Com. Dig. Indictment, G.1. And the receiver of stolen goods may be indicted, without naming the principal felon. 2 East P. C. 781; Campb. 264, 265. See Holford ». State, 2 Blackf. 103; Com. v. Andrews, 3 Mass. 126. Thus, also, in the indictment of the regicides for having procured the death of Charles the First, the fact was agreed to be well laid as done by some one unknown, whose face was concealed by a vizor. Kel. 10; Hawk., b. 2, c. 25, § 71; Com. Dig., Indictment, G. 1. And thus, if a man steal the goods of an abbey during a vacancy, he may be prose- cuted for stealing the goods of the church, though the church can have no prop- erty. Hawk., b. 2, c. 25, § 71. But these cases are exceptions to the general rule, and are supported by the particular circumstances which render a strict observance of the common maxim incompatible with the purposes of justice. For wherever the name of the party injured is known, it is absolutely necessary to insert it. 3 Campb. 264, 265; 2 Russ. 1313; Hawk., b. 2, c. 25, §71; Burn’s J., Indictment; Cro. C. C. 36; Sum. 95; Plowd. 85; Keil. 25; Dyer, 99; Dalt. J.,c. 131; 9H. 6,46. An indict- ment for passing counterfeit money alleged the passing to A. B. Robinson. It was proved that Robinson’s name was Alexander B. Robinson, and that he was often called A. B. Robinson—held, that the indictment should have set out the true name, or should have averred it to be unknown to the grand jury. Zellers v. The State, 7 Porter’s Ia. Rep. 659; and see Gardner v. The State, 4 Porter’s Ia. Rep. 632. In an indictment for larceny, though the goods may be laid to be the property of persons unknown, if that is actually the case (State v. Haddock, 2 Hayw. 162), yet if the owner be really known, the allegation will be improper, and the prisoner mnst be discharged from that indictment, and tried upon a new one rectifying the mistake. 2 East P. C. 651, 781; 3 Campb. 265, note; 1 Hale, 512; Hawk., b. 2, c. 25, § 71; 2 Leach, 578; Kenyon, 598. Where an indictment laid a watch stolen to be the property of A., and the proof was that B. was the general owner, but that he had exchanged watches with A. for a few weeks, and that the watch was stolen while in the possession of A., it was held that A. hada special property in the watch sufficient to sustain the indictment. Yates v. State, 10 Yerger, 549. And an indictment will be bad against an accessory, stating the principal to be unknown contrary to truth, and the judge will direct an acquittal. 83 Campb. 264, 265; 2 East P. C. 781; 2 Russ. 1313. And where the parties’ names may be ascertained on inquiry, it seems they must be named; and where property was stated in one count to belong to certain persons, naming them spe- cifically, but in another count to belong to persons unknown, and the prosecutor by defect of evidence could not prove the christian names of the persons as described in the first count, it was considered he could not recur to the other count (Holt C. N. P. 595); but the finding of a grand jury of a bill for receiving goods, imputing the same to have been stolen by J.8., does not of itself negative, in another indictment for the same offence, an averment that the goods were stolen by persons unknown. Russ. & Ry. C. C. 372. In an indictment for lar- ceny, the owner of the property stolen must, if known, be accurately stated, and a variance would be fatal. 1 Mass. Rep. 476; Com. v. Morse, 14 Mass. 217, 218; Com. v. Manley, 12 Pick. 173, 174. And it was anciently decided, that where a man is indicted for murdering another, the name of the party killed ought to be disclosed by the inquest; but this could only mean where the name was capable of discovery. Hawk., b. 2, c. 25, § 71; Staundf. 181, b. 2, c. 18. And, upon the same principle, in indictments for burglary, and stealing in a dwelling-house to the value of’ forty shillings, stealing from the lodgings, and for arson, the name 252 INDICTMENT. Prosecutor or party injured, how named. of the owner of the house must be truly inserted. Leach, 89, 21, 78, 79, 237, 252, 836, 338, 545, 774; 2 East P. C. 531, 780; 2 Hale, 244, 245. And an indictment for pulling down a dwelling-house as well as for burglary must set forth correctly whose house it is; and, therefore, where the indictment charged that it was the dwelling-house of A., and it appeared that A. was a feme covert, a néw trial was granted (State v. Martin, 2 Murphey, 533); but if he be known by one name as well as by another, the indictment may describe him’ of either. 2 Hale, 244 245; Hawk., b. 2, c. 35, § 3. So, in an indictment on the Black Act, for mali- ciously shooting at the prosecutor, if the offence be laid in the house of a third person, an error in his name will be a fatal variance. 1 Leach, 351; 1 East P. C. 415; 2 Hale, 244, 245; but see Stark. 178, (notes f and g). It has been laid down, that an indictment against a thief, that he found a dead body and stole from it certain property, is good, without calling them the goods and chattels of any one. 2 Hale, 181; Bac. Abr., Indictment, G. 2. See Wonson v. Sayward, 18 Pick. 402. Andifa grave be opened in the night, and the shroud be stolen, the indictment cannot lay the goods as the property of the deceaséd, but must state them to belong to his executors, or those who buried the deceased. 12 Co. 113; 3 Inst. 110; 2 Hale, 181; Cro. C. C. 36; Bac. Abr., Indictment, G. 2; 2 East P. C. 652. Judgment will be arrested, where the property stolen is laid as belonging to a person who is deceased. State v. Davis, 2 Car. Law Repus. 291. And if goods be stolen from the custody of one who has them. as executor, the offender may either be indicted for stealing the goods of the testator in the cus- tody of the executor, or the goods of the executor without naming him in that capacity. 2 Hale, 181; Bac. Abr., Indictment, G.2. We have seen that a cor- poration must prosecute in their corporate name, and that the names of the indi- viduals composing it will not suffice. 1 Leach, 253; 2 East P. C. 1059; and see 1 Ry. and Mood. C. C. 15. But, on the other hand, where property is vested by statute in trustees, if they are not incorporated, they must be described by their proper names as individuals, and their character as trustees subjoined as a de- scription of the capacity in which the legislature authorized them to act. 1 Leach, 514; Roscoe’s Dig. Cr. Ev. 519. : : As to the mode in which the parties injured, or any third person, should be mentioned, we have already seen that if a person is described with such certainty that it is impossible to mistake him for any other, such a description will, in gen- eral, suffice ; and a person may be described by the name by which he is usually known. Hawk., b. 2, c. 25, § 72; 2 Leach, 248; Russ. & Ry. C. C. 510. Thus, it has been adjudged that an indictment for an assault on John, parish priest of D., is sufficiently certain, and if the defendant after verdict, if not guilty, be indicted again, with the addition of the prosecutor’s surname, he may plead his former acquittal (Dyer, 285, a; Keilw. 25; Hawk., b. 2, c. 25, § 72; Bac. Abr., Indict- ment, G. 2); and an indictment for larceny, laying the goods stolen to be the property of Victory Baroness Tuckheim, by which appellation she had always acted and was known, was held good, though her real name was Selima Vic- torie. 2 Leach,.861. So an indictment for forgery of a draft addressed to Messrs. Drummond and Company, Charing Cross, by the name of Mr. Drummond, Char- ing-Cross, without stating the names of Mr. Drummond’s partners, was held suffi- cient. 1 Leach, 248; 2 East P. C. 990. But «a mere statement of the christian name, without any addition to ascertain the precise individual, is bad, because uncertain. Hawk., b. 2, c. 25, § 71; Bac. Abr., Indictnient, G. 2; but see Star- kie, 184; 6 St. Tr. 805; Moor, 466. An indictment, stating goods to be the prop- erty of the overseers of the poor for the time being, is a sufficient description that the property was in the overseers at the time of the offence. Russ. & Ry. C. C. 359; 3J. B Moore, 22; 3 Burn’s J., 24th ed., 254. An indictment, for a robbery committed on a woman, in her maiden name, is good, though she marry before the finding of the indictment by the grand jury. 1 Leach, 586. A bastard should be described of the name he has gained by reputation; describing him of his mother’s name, he not having gained that name by reputation, would be bad. Russ. & Ry. C. C. 358. Ifa party be known by one name as well as another, he may he described of either. 2 Hale, 244, 245; Hawk., b. 2, c. 35, § 3; Russ. & Ry. C. C. 510. Where in an indictment for murder, the deceased was described. as Maria Gardiner, alias Maria Buel, and the proof showed that.she was called Mavia Gardiner, and that her real name was Maria Francis Buel, it was held tha: INDICTMENT. 253 Prosecutor or party injured, how named. if the deceased was generally known by the name of Maria Gardiner or Maria Buel, the description in the- indictment was sufticient. The State v. Gardiner, Wright’s Ohio Rep. 392. In an indictment for horse-stealing, the name of the owner of the horse shuuld be the one given him by general reputation. State v. France, 1 Overt. 434. , And it seems if the sound of the name is not affected by the misspelling, such misspelling will be immaterial; and where a party was indicted for an offence upon one Whyneard, whose real name was Winyard, but pronounced Winnyard, the indictment was held good, Russ. & Ry. C. C. 412; so ‘“ Benedetto” for ‘* Bene- ditto” is no variance (2 Taunt. 401); nor is ‘ Segrave” for ‘* Seagrave,” 2 Stra. 889. But an indictment charging the prisoner with having persouated ‘‘ M’Cann” instead of “‘ M’Carn” is bad (3 Stark. Evid. 1578), and “ Tarbart” for “ Tabart”. (5 Taunt, 541), “ Shkakpear” for “‘ Shakespeare” (10 East, 83), and “ Shutliff’” for ao are variances (4 T. R. R. 611; for other instances, see 3 Stark. Evid. It has been held in New York, that in an indictment for forging a check drawn in the name of a copartnership on a banking company, it is not necessary to set out the names of all the partners who compose the copartnership or banking com- pany. The People v. Curling, 1 Johns. 320. Where, on a trial for murder, it is objected on behalf of defendant, that the name of the deceased, as mentioned in the indictment, is not his true name; that is a fact to be tried by the jury. State v. Angel et al., 7 Iredell,.27. : [The question arose on a trial for murder whether the name of the person killed as stated in the indictment was “Little” or ‘‘Lutle.” The court on inspectiou held it to be “ Little,” and all the evidence showed that this was the name of the deceased. On error it was held that the decision below could not be reviewed ; that if defendant was acquitted and re-indicted for killing Little, the record in- cluding the evidence would sustain a plea of autrefois acquit. O’Neil v. State, 48 Geo. 66. In an indictment for assault, a variance between the proof and the allegation as to the name of the person assaulted, is not fatal, even though it is not averred that he was known by more than one name. Gahan v. People, 58 Ill. 160 ; Johnson v. State, 46 Geo. 269; compare State v. Henderson, 68 N. C. 348. Indict- ment for stealing from “Samuel F. M.”; proof of stealing from ‘‘Stephen F. M.”; the variance held material. People v. Hughes, 41 Cal. 234.] [An indictment which charged defendant with the murder of “one Ambrosio,” was held sufficient on a motion in arrest of judgment. See this case as to the use of surnames and christian names. State v. Bayonne, 23 La. An. 80. In an indict- ment for rape the woman’s name was alleged to be “Susan”; her name was “Susannah,” but she was generally called ‘‘Susan ”; held, no variance State v. Johnson, 67 N. C. 55. In an indictment for swindling a firm alleged to be “B. K. & Co.,” the true firm name was “ B. & K.,” and the variance was held to be fatal. Mathews v. State, 33 Tex. 102. An indictment for adultery with a married woman should set out the name of her husband. Com. 1. Corson, 4 Pa. L. J. R. 271. The name in an indictment was ‘‘Sensenderfer,” the true name was “Sensenderf,” and the variance was fatal. Com. v. Bowers, 3 Brews. (Pa.) 350.] (The court cannot judicially know that every person must have two names, especially when the fact is.familiar that many colored persons in the Southern states have no surnames, An indictment charging defendant with killing ‘one William , aman of color,” is therefore sufficient in the absence of evidence that de- ceased had any other name. Boyd v. State, 7 Coldw. 69. Describing a person,as W. R. “the second of that name,” is sufficient when the person is generally known as W. R. Jr., there is no variance. Com. v. Parmenter, 101 Mass. 211.] [An indictment charged defendant with stealing from ‘T, C. Luckey,” and the proof showed that the property was taken from C. C. Luckey. The court charged that if the jury were satisfied from the evidence that the difference in the name was a mere variance in the description of one and the same person who was the owner of the stolen property, then the variance was immaterial ; held a correct instruc- tion. Brown 2. State, 32 Tex. 124; compare State v. Bell, 65 N. C. 318. Initials are sufficient. State v. Black, 31 Tex. 560; Vandermark ». People, 47 Ill. 122. . Giving an incorrect christian name of the murdered woman, who was defendant’s wife, is no ground for a new trial. Krielv. Com., 5 Bush 362, In case of larceny, Phelps v. People, 18 N. Y. 8. C. (6 Hun) 401. ‘ 254 INDICTMENT. Prosecutor or party injured, how named. whatsoever, whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons be part- ners in trade, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be; and whenever, in any indictment or information for any felony or misdemeanor, it shall be necessary to mention, for any pur- pose whatsoever, any partners, joint tenants, parceners or tenants in common, it shall be sufficient to describe them in the manner afore- said; and this provision shall be construed to extend to all joint stock companies and trustees.(a) And with respect to the property of counties, ridings and di- [*82] visions, it is enacted, that in any indictment or information *for any felony or misdemeanor committed in, upon, or with respect to any bridge, court, jail, house of correction, infirmary, asylum or other building, erected or maintained, in whole or in part, at the ex- pense.of any county, riding or division—or on or with respect to any goods or chattels whatsoever, provided for at the expense of any county, riding or division, to be used for making, altering or repairing any bridge, or any highway at the ends thereof, or any court or other such building as aforesaid, or to be used in or with any such court or other building—it shall be sufficient to state any such property, real or personal, to belong to the inhabitants of such county, riding or di- vision, and it shall not be necessary to specify the names of any such inhabitants.(0) And with respect to the property of parishes, townships and ham- lets, it is enacted, that in any indictment or information for any fel- ony or misdemeanor committed in, upon, or with respect to any work- house or poor-house, or on or with respect to any goods or chattels whatsoever, provided for the use of the poor of any parish or parishes, township or townships, hamlet or hamlets, place or places—or to be used in any workhouse or poor-house, in or belonging to the same—or by the master or mistress of such workhouse or poor-house—or by any workman or servants employed therein—it shall be sufficient to state any such property to belong to the overseers of the poor for the time being of such parish or parishes, township or townships, hamlet or hamlets, place or places, and it shall not be necessary to specify the (a) See R. v. Boulton, 5 Car. & P. 587; R. (b) 7 Goo. IV, vo. 64, § 15. v. Steel, Car. & M. 337. INDICTMENT. 255 Prosecutor or party injured, how named. names of all or any of such overseers.(a) And where goods were laid to be the -property of “the overseers of the poor for the time being” of the parish of K., the judges held it to be sufficient, the words “ for the time being ” sufficiently importing that the goods were the prop- erty of those who were overseers at the time of the theft.(d) The guardians of the poor of a union or parish are, by stat. 5 & 6 W. IV, c. 69, made a corporation, and are called “ the guardians of the poor of the union (or of the parish of ——), in the county of se and as such they may accept, take and hold, for the benefit of such union or parish, any buildings, lands or hereditaments, goods, effects or other property, and by that name may prefer indictments; and in every such indictment, relating to any such property, it shall be suffi- cient to lay or state the property to be that of the “ guardians of the ——— union, or of the parish of ——.”(c) And in any indictment or information for any felony or misde- meanor committed on or with respect to any materials, tools or imple- ments for making, altering or repairing any highway within any parish, township, hamlet or place, otherwise than *by [*83] trustees or commissioners of any turnpike road, it shall be suffi- cient to aver that any such things are the property of the surveyor or surveyors of the highways for the time being of such parish, township hamlet or place, and it shall not be necessary to specify the name or names of any such surveyor or surveyors.(d) And with respect to property under turnpike trusts, it is enacted, that in any indictment or information for any felony or misdemeanor committed on or with respect to any house, building, gate, machine, lamp, board, stone, post, fence or other thing, erected or provided in pursuance of any act of Parliament for making any turnpike road, or any of the conveniences or appurtenances thereunto respectively belonging—or any materials, tools or instruments provided for making, altering or repairing any such road—it shall be sufficient to state any such property to belong to the trustees or commissioners of such road, and it shall not be necessary to specify the names of any such trustees or commissioners.(é) And lastly, with respect to property under the commissioners of sewers, it is enacted that in indictment or information for any felony (a) 7 Geo. IV, c. 64, § 16. (d) 7 Geo. IV, ¢. 64, § 16. (b) B. v. Went, R. & Ry. 359. (e) 7 Geo. IV, c. 64, $17, (c) 5 & 6 W.IV,c. 69,57; 5 & 6 Vict, o. 57, § 16. 256 INDICTMENT. Prosecutor or party injured, how named. or misdemeanor committed on or with respect to any sewer or other matter within or under the view, cognizance or management of any commissioners of sewers, it shall be sufficient to state any such prop- erty to belong to the commissioners of sewers, within or under whose View, cognizance or management any such things shall be, and it shall not be necessary to specify the names of any such commissioners.(a) If, in any of these cases, there should appear, upon the trial, to be a variance between the indictment and evidence, in the name or description of any person or body politic or corporate therein alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein—or in the name or description of any person, or body politic or corporate, therein alleged to be injured or damaged, or intended to’ be injured or damaged by the commission of such offence—or in the christian name or surname, or both christian name and surname, or other description whatsoever, of any person or persons whomsoever therein named or described— the court may order the indictment to be amended, if it. consider the variance not material to the merits of the case, and that the defendant cannot be thereby prejudiced in his defence on the merits.(d) (1) (a) Ibid. § 18. (6) 14 & 15 Vict., cv. 100, § 1. (1) A variance in the namé will not be fatal, if the name be immaterial to con- stituting the offence, but may be rejected as surplusage. 1 Ry. & Moo. C.C.1; 2 East P. C. 593; Roscoe’s Dig. Cr. Ev. 82. If the name of a person be mistaken in an indictment, and the allegation in which the misnomer occurs be immaterial, so that it may be rejected as surplusage, it will not vitiate the indictment. Com. »v. Hunt, 4 Pick. 252; U. 8. v. Howard, 3 Sumner, 12. But where there is a re- pugnancy or absurdity in the description of the party injured, the error will be fatal, as where one is indicted for stealing the goods and chattels of the said I.S., where I. 8. had not been previously mentioned (Hawk., b. 2, c. 25, § 72), although those words have in some cases been rejected as surplusage. 1 Leach, 109. And it should be observed, that a material error in the names of the persons aggrieved, or in whom property stolen ought to be laid, is much more important than a mis- take in the name or addition of the defendant; for the latter can only be objected to by a plea in abatement, which can only delay the trial, while the former will be sufficient ground for arresting the judgment, when the objection appears on the face of the indictment ; or, if it be an error in fact, will be a ground of acquit- tal on the trial at last, as far as respects that part of the charge (1 East P. C. 514; 2 Leach, 774; 1 Leach, 252, 286, 351, 370; 1 East P. C. 415); and though the mistake only affects the higher offence, the indictment may still be valid as to the inferior crime, as if a party be indicted for burglariously breaking and enter- ing the dwelling-house of Jno. Snoxalt, and stealing therein goods, the property of Ann Lock ; if the name of the owner of the house be mistaken, the defendant cannot be found guilty of the capital part of the indictment, viz., the burglary, yet he may be convicted of the simple larceny (Leach, 252, 333, n. (a); see 1 Blackf. Rep. 37); so in an indictment for stealing to the amount of forty shillings, in the dwelling house of A. B. (under the 12 Anne, c. 7,) the defendant might be acquitted of the capital part of the charge, when not strictly proved, and found guilty of the simple larceny. Leach, 339, n. (a). INDICTMENT. 257 Time. Time. Formerly, the indictment must have stated, either expressly or by way of reference, the day, month, and year on which each material fact stated in it took place ; otherwise the indictment would be bad.(a) In felonies, *this was universally required ;(6) as for [*84] instance, in an indictment for murder, time must have been stated, not only to the assault, but also to the stroke, and to the -death.(c) But in misdemeanor, it was said not to be necessary to lay a time to every fact, as the time first laid was deemed to be connected with all the facts subsequently stated.(d) And if the time so stated were repugnant, uncertain, or impossible, .as if the indictment stated a fact to have occurred on a day subsequent to the filing of the bill, or an impossible day, or a day that never hap- pened, it was bad.(e) So, if it laid the offence to be committed in divers days between such a day and such a day, it would be bad.(/) Where, however, the offence consisted of an omission, it was not neces- sary to allege any time to it.(g)(1) (a) 2 Hawk., ¢. 25, § 77. (e) 2 Hawk., c. 25, § 77. (b) Ibid. ; 2 Hale, 177, 178. (Ff) Ibid. § 82. (c) Ibid. (g) Ibid. § 79. (d) 2 Hale, 178. i (1) It is a rule of pleading applicable to indictments, that every traversable fact must be alleged, with time and place. State v. La Bore, 26 Vt. 765. In an early case in the state of New York, it was said that the time of committing an offence Jaid in an indictment is, in general, wholly immaterial, and any other time may be proved; and that, though an indictment lay the time so long before the indict- ment is found that the crime appears to be barred by the statute of limitations, this is no ground for arresting judgment. The People v. Santvoord, 9 Cowen, 654. But in Alabama it was held, in a recent case, that it was material in an indict- ment to lay a day when the offence was committed, and that if the date was laid in blank, so that it did not appear whether the offence was barred by limitation or not, the judgement would be arrested. Roberts v. The State, 19 Ala. 526 ; ap- proving State v. Beckwith, 1 Stew. 318, and disapproving State v. Larsley, 7 Porter, 526; and see, to the same effect, State v. G.S., 1 Tyler, 295; State v. Roach, 2 Hayw. 522; Shelton v. State, 1 Stew. & Port. 208; State v. Bacon, 7 Ver- mont, 219; State v. Barker, 34 Maine, 52; Erwin v. State, 13 Mis. 306. And it has been quite recently held in Maine, that a general allegation of the term of the court in which the offence was committed is'insufticient ; but that the day, month and year must be given. State v. Hanon, 39 Maine, 337. In North Carolina, there need not be an allegation of time in an indictment, ex- cept when it is a constituent part of the offence. State v Sam, 2 Dev. 567. And in Alabama, the time, where it does not enter into the nature of the offence, may be laid on any day previous to the finding of the bill, during the period within which it may be prosecuted. Shelton v. The State, 1 Stew. & Port. 208. And the same in Georgia (Cook v. State, 11 Geo. 53); and Indiana (Hubbard v. The State, 7 Porter, 160). An indictment charging that the defendant was a common Sabbath-breaker and 17 ° 258 INDICTMENT. Time. profaner of the Lord’s day, commonly called Sunday, and that he, on divers days, being Lord’s day, did keep a certain open shop, and then and there exposed to sale divers goods, etc., to negroes and others, to the great damage of the good citizens, etc., was held insufficient, and judgment was arrested. State v. Brown, 2 Mur phey, 224; see State v. Walker, 2 Murphey, 229. But an indictment charging an offence on a particular day, and also om divers other days, is good, a day certain being alleged ; the residue will be surplusage. People v. Adams, 17 Wend. 475; State v. May, 4 Dev. 328. And it has been held that an indictment founded on the slave trade act of 20th April, 1818 (c. 86, (§ 2 and 3), for causing a vessel to sail from a port of the United States to be employed in the slave trade, is sufficient if it allege that the offence was committed afler the passing of the act, at some time between certain specified days, though no day in certain on which it was commit- ted is specified. United States », Smith, 2 Mason, 143; see Buttman’s case, 8 Greenl. 113. ay Where a person is indicted for letting a house to a woman of ill-fame, the time of the contract of letting need not be stated in the indictment. Com. v. Harring- ton, 3 Pick. 26. ‘Where an indictment charged the offence to have been committed on a day which was subsequent to the trial, judgment was arrested. Pennsylvania v. M’Kee, Addis. 36; Jacobs v. Com., 5 Serg. & R. 316; State v. Munger, 15 Ver-’ mont, 291. But if a day certain is laid before, the other may be rejected as sur- plusage. State v. Woodman, 3 Hawks. 384. State v. Raney, 1 Hawks. 460. So where the offence was charged to have been committed on a day certain, to wit: the Ist day of May, 1851, and on other divers days and times, before and after that day ; it was held that the words ‘‘divers other days” might be rejected as surplusage, a day certain having been charged. Cook v. State, 11 Ga. 53. Where, in an indictment for lewd and lascivious cohabitation, the offence was charged to have been committed a day prior to the day when the statute, under which the prosecution was had, went into effect, but as continuing to a day after the act took effect, the indictment was held good. Nichols & Janes’ case, 7 Gratt. 589. Under an indictment for resisting process, if the time of the commission of the offence is shown by the indictment itself to have been after the return day of the process, it is fatally defective, on error. McGehee v. The State, 26 Ala. 154. Where the offence is alleged to have been committed on an impossible day, or on a future day, the objection is as fatal as if no time at all had been inserted. State v. Sexton, 3 Hawks. 184. Markley v. State, 10 Mis. 291. Where the indictment alleges the same offence to have been committed on dif- ferent days, it will be defective in that respect. State v. Hendricks, C. & N. 369. Where the words “ Hendricks Circuit Court, October term, 1846,” were placed at the head of the indictment, and the offence was charged as having been com- mitted on the third day of October, in the year aforesaid, the latter words will be referred to the year stated at the head of the indictment. State v. Paine, 1 Car- ter, 163. An indictment under the act of Congress of April 20, 1818, c. 86, §f 2, 3, in which the offence was alleged to have been committed on the 3d day of January, now last past, and on divers days and times before and sinée the last mentioned day, and after the said 20th day of April, 1818, was sustained, although wanting in technical accuracy. U.S. v. La Coste, 2 Mason, 129. An indictment which con- tained a statement in the caption of the term, in these words, “ Fall term of 1852,” and the time was charged in the body in these words, ‘on the tirst day of August in the present year,” was held a good indictment. State v. Haddock, 2 Hawks. 461. Where the indictment substantially contradicts a known law of nature regulat- ing the duration of human life, it is clearly defective, and cannot constitute the legitimate foundation of a judgment of a court; as where the crime charged against the prisoner is alleged to have been committed the 80th day of September, A. D. one thousand and thirty-three ; and whether it is a mistake which occurred in the indictment, or was made by the transcribing clerk, cannot be inqnired into, Serpentine v. The State, 1 Howard Miss. Rep. 256. Where the indictment alleges the offence to have been committed on a day of September now past, and does not in terms, or by reference, state any year, it is ‘not sufficiently certain for an indictment. Com. v. Griffin, 3 Cush. 523. INDICTMENT. 259 Time. It has been held in Maine, that a criminal complaint is not essentially defective because it contains dates in numeral characters, and the abbreviating of “A. D.” for ‘the year of our Lord;” but the court remarked that the practice in that respect had not been uniform in Maine, and that it would be better for criminal pleaders to adhere to the ancient practice of framing complaints exclusively in the English language. State v. Reed, 30 Maine, 489. In several of the states, dates like those in question have been held sufficient. State v. Hodgdon, 3 Vt. 481; State v. Kaiford, 7 Porter, 101; Barnes v. State, 5 Yerg. 186; State v. Haddock, 2 Hawk. 416; Lazier v. Com., 10 Gratt. 708; Cady v, Com., 10 Gratt. 749; Kelly v. State, 3 Sm. & Marsh. 518; State v. Seamons, 1 Greene’s Iowa Rep. 418 ; Smith v. State, 2 Dutcher, 313. In other cases, they have been regarded insufficient at common law, though they have sometimes been held valid under statutory pro- visions. State v. Deckins, 1 Hayw. 406; State v. Lane, 4 Iredell, 114; Finch v. State, 6 Blackf. 533. In Tennessee, an indictment headed “ Circuit Court, Novem- ber term, 1829,” in figures, was held good, the record specifying it to have been found that term. Barnes v. The State, 5 Yerg. 188. In the State v. Seamons (1 Greene’s Iowa Rep. 418), the court said: ‘As the words are usually more reliable and certain than mere figures, it is no doubt a more reliable practice to represent amounts and dates by writing them out in full; especially when time or the amount constitutes an essential ingredient of the offence.” “There is no doubt,” remarked the Supreme Court of Alabama, in The State v. Raiford (7 Porter, 101), “that there is more propriety in writing the year or the day of the month, whenever it is necessary to state either in the caption or the body of the indictment, than to insert the Arabic characters now in use, as writ- ing is less liable to alteration, and more certain; but the contrary practice ‘has prevailed so long that it would be unwise now to disturb it.” It has been held in Illinois, that the indictment is defective when the day of the month or the year when the offence is alleged to have been committed are ex- pressed in figures and not in words at length. Chambers v. The People, 4 Scam. 351. And in New Jersey it is error in an indictment to express numbers or dates by Arabic figures or Roman numerals; they must be written in words at length, except when the indictment, as in forgery, professes to set forth the exact tenor or a fat: simile of any instrument. Berrian v. State, 2 Zabris. 9. : In the caption of an indictment the year 1841 was mentioned, but the indict- ment itself stated no year, except by the words “in the year of our Lord afore- said.” Held, that the indictment was bad. State v. Hopkins, 7 Blackf. 494. But in North Carolina, the omission of the words ‘the year of our Lord,” and even the word “ year,” is cured by the act of Assembly of 1811 (Rev. Sts., c. 35, § 12). State v. Lane, 4 Iredell N. C. 113. In Illinois, an indictment which omits to allege the year to be “the year of cur Lord” is fatal. Whiteside v. People, Breese, 4. But in Indiana it has been held otherwise, the court in the latter state remarking that ‘to hold an indictment bad, for the omission of the words in question, can never be necessary to the safety of any of the rights of the accused, and would tend to bring odium on judicial proceedings. Engleman v. The State, 2 Carter, 92. And in Georgia, where the indictment stated the offence to have been com- mitted on the 22d day of March, in the year 1846, it was held that it might fairly be presumed to have been in the year of our Lord 1846, or in the year 1846 of the Christian era. Hall v. The State, 3 Kelly, 18. . An indictment is not defective which alleges that the crime was committed on the first of March, instead of the first day of March. Simmons v. Commonwealth, 1 Rawle, 142. ; In an indictment, the offence was alleged to have been committed on “ the first day of August, in the year one thousand eight hundred and fifty-too.” Held, that the word “too” must be construed to mean ‘‘two.” The State v. Hedge, 6 Por- ter’s Ind. Rep. 330. Where an indictment is removed into a higher court, the day and year should ‘appear in the caption. Tipton v. State, Peck. 308. [An indictment for hunting on Sunday alleged that ‘on or about the Ist day of Oct. 1871,” defendant did etc., “said Ist day of Oct., 1871, being then and there, the first day of the week commonly called Sunday ;” held void for uncertainty as to the time. State v. Land, 42 Ind. 311.] : [Charging the commission of an offence at a date later than that of the finding 260 INDICTMENT. Time. But now by stat. 14 & 15 Vict., c. 100, § 24, no indictment for any offence shall be holden insufficient, “for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence—nor for stating the time imperfectly—nor for stating the offence to have been committed on a day subsequent to the finding of the indictment—or on an impossible day—or on a day that never happened.” The like defects were cured after verdict, by a pre- vious statute.(a) But, although the statement of time may now be dispensed with, in (a) 7 G. IV, c. 64, § 21. of the indictment, is a fatal error; and although a clerical mistake it cannot be amended. State v. Davidson, 36 Tex. 325, and see Com. v. Doyle, 110 Mass. 103, which holds that an indictment will be quashed on an objection taken after con- viction on appeal for such an error, although the Massachusetts Stat. of 1864, ch. 250, § 2, provides that ‘any objection to a complaint, indictment, or other. criminal proceeding, for any formal defect apparent on the face thereof,” shall be taken before judgment by a trial justice.] [When time is material, either as an element of the crime, or as a bar. to the prosecution, it must be accurately stated. State v. Caverly, 51 N. H. 446. The Tennessee Code, § 5124, allowing a more general statement of time does not dispense altogether with the allegation of time. King v. State, 3 Heisk. 148.] [An averment that the offence was committed on a day specified, which is within the time prohibited by the statute is sufficient; an allegation in express words that it was committed between the days limited by the statute is not required. State v. Norton, 45 Vt. 258.] : {An allegation in an indictment for abortion that defendant “did advise and procure of A. then and there to take certain drugs,” etc., may relate to the same time, and shows an advice and procurement at the time specified as the time of taking. Crichton v. People, 1 Abb. App. Dec. 467. That the proof shows the offence done on a different day from that laid, is not a fatal variance. Com. wv. Dacey, 107 Mass. 206; Com. v. Irwin, 107 Mass. 401.] (When it is necessary, and when not, to allege that the time of committing a statutory offence was after the statute went into operation, discussed, where there is only one statute, and where there are two or more relating to or describing the same offence. See State v. Wise, 66 N. C. 120.] (Under the Texas Statute (Pasch. Dig. § 1611) laying the time of committing the offence ‘on or about” a specified day, is sufficient ; and there is no distinction in this respect between felonies and misdemeanors, nor between capital and other crimes. State v. Elliott, 34 Tex. 148 ; State v. McMickle, 34 Tex. 676.] [Figures should not be used for dates. U.S. v. Prescott, 2 Abb. U. S. 169. What is a sufficient allegation of time of an offence continuing from day to day, considered. Com. v. Frates, 16 Gray 236. An indictment quashed for want of an il of time and place of committing the offence. State v. Johnson, 32 Tex. 96. («Then and there” mean “at the time and place aforesaid.” When these words were used twice in describing the offence, so that it was stated once to have been committed in Maryland and in the second place on the high seas, in latitude 33°, held a fatal repugnancy. The case holds that these words are to be construed. according to their literal and obvious meaning. U.S. v. Dow, Taney, 34. See also State v. Slack, 30 Tex. 354.] ‘ . [The day and year need not be expressly stated ; it is enough if they can be collected from the whole indictment. Gill v. People, 10 N. Y. 8. C. (3 Hun) 187. See for instances of defective allegation, Werner v. State, 51 Geo. 426; People v, Gregory, 30 Mich. 371.] INDICTMENT. 261 Time. all cases where it is not of the essence of the offence, yet as it will be more satisfactory perhaps to the grand jury that some time should be stated, it will be advisable still to retain it, particularly in cases where the prosecution is limited to a certain time after the commission of the offence, as in treason, and in the case of murder, where the death must appear to have taken place within a year and day after the cause of it,(2) and the like. The manner of stating it is, by stating that the defendant, “on the day of , in the year of our Lord ; or “in the —— year of the reign of our Sovereign Lady Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith,” did so and so, stating the act done; and the facts subsequently mentioned may be stated to have been done, “then,” referring to the time before specifically stated.(6) The year of the reign, or the year of our Lord, is stated indifferently ; in the prosecutions of regicides, in the reign of Charles II, every step in which was guided by the advice of the first lawyers in the kingdom, the year of our Lord, not the year of the reign was stated in the in- dictments; (c) and as mistakes often occur in using the year of the reign, it may be convenient in all cases to state the year of our Lord. But, whether the day and year stated be the true date of the fact, is *immaterial, unless it be of the essence of the offence ; [85] in other cases a variance between the time stated and that proved, will not be a matter of objection.(d) And by stat. 14 & 15 Vict., c. 100, § 17, if, upon the trial of an indictment for larceny, it shall appear that the property alleged to have been stolen at one time was taken at different times, the prosecutor shall be at liberty to give in evidence three takings, within the period of six months between the first and the last of them.(1) ” a) 4 Blk. Com. 306. (c) 2 Hawk, c. 25, § 80. (b) 2 Hawk., c. 25, § 78. (@) Ibid. § 81. (1) In setting forth the time when the facts occurred, as well as place, number, quantity, etc., it is very usual, in criminal as well as civil proceedings, to intro- duce the statement under what is termed a videlicit or scilicit, as “ that after- wards to wit, on, etc., at, ete.,” the defendant did, etc., or a fact occurred, which it is thought proper to mention. Lord Hobart, speaking of a videlicit, says (Hob. 172; 5 East, 252; see, also, 2 Wils. 335): “That its use is to particularize that which was before general, or to explain that which was before doubtful or ob- secure; that it must not be contrary to the premises, and neither increase nor diminish, but that it may work a restriction where the former words were not express and special, but so indifferent that they. might receive such a restriction without apparent injury.” Respecting the use of this mode of statement, it has een said, that where the time when a fact happened is immaterial, and it might 262 INDICTMENT. Place. (c) Place. It was necessary, formerly, to state a place, by way of special venue, where every material fact was stated to have occurred ;(a) and not only the county must have been stated, but some parish or place within it. But, as, by the Jury Act,(0) the jury, in criminal cases as well as civil, are returned as the body of the county generally, and not de vicineto as formerly, it became no longer necessary to state the parish or place, but the county merely.(c)(1) (a) Ibid. § 83. (c) 1 Arch. Peel’s Acts, 181, n. (b) 6 G. IV, v. 50, § 13. as well have happened at another day, there, if alleged under a scilicet, it is ab- solutely nugatory, and, therefore, not traversable. (State v. Haney, 1 Hawks. 460) ; and if it be repugnant to the premises, it will not vitiate, but the scilicit itself will be rejected as superfluous and void; but that where the precise time, etc., is material, and enters into the substance of the description of the defence, there the time, etc., though laid under a scilicet, is conclusive and traversable, and it will be intended to be the true time, and no other, and if impossible or repug- nant to the premises, it will vitiate. 1 Bla. Rep. 495; 2 Saund. 291, note 1; 1 Saund. 169: 1 Stra. 233; 2 Wils. 332; 6 T. R. 462; 3 Burr. 1730; 4T. R. 590; 4 Esp. Rep. 152; 5 T. R.71; 3 T. R. 68; 2B. & P.118; 2 Campb. 231; 5 East. 244, Hither the allegation must exactly correspond with the fact, or it may vary ; if the former, it will be well laid with a‘scilicet, which may be rejected ; and if the latter, though the scilicet were omitted, evidence of a different day, quantity, or place, may be admitted. Thus, in indictments for extortion, or taking a greater sum for brokerage than is allowed by law, though the sum be stated without a vide- licet, it is not necessary to prove it with precision. 6'T. R. 265 ; 1 Chitty on Plead- ing, 4th ed., 276 note (g) ; 1 Esp. Rep, 285. And on the other hand, where the true sum must be set forth, it will not relieve the prosecutor from strict proof, though he allege a different sum under a scilicet. 6 T. R. 462; 4 T.R. 590; 1 Chitty on Pleading, 4th ed., 276, n. (vy) There, are, however, authorities which afford an inference that the adoption of a scilicet will, in the description of a contract, ex- cuse the party from strict proof, when, if it were omitted, it would be otherwise. 3T. R. 67; 3M. & §. 178. (1) The indictment must allege the place of the commission of the offence with such certainty that the respondent may be fully informed of the charge in this respect, as well as others; and with such distinctness, that the judgment rendered upon the indictment may be pleaded in bar to any second indictment for the same offence. When, also, the place is matter of essential description, it must be par- ticularly and truly stated, and proved as stated. The State v. Cotton, 4 Foster’s R. 143. At common law the indictment must allege that the offence was committed within the jurisdiction of the court. This must appear on the face of the charge, and it is not incumbent upon the defendant to show the contrary by plea in abatement. In Tennessee, where the indictment alleged that the offence was committed in the county of Shelby, and the act of 1843, c. 35, established a criminal court for the 5th, 13th, and 14th civil districts of the county of Shelby, to be held in the city of Memphis, and gave it exclusive jurisdiction over all crimes and misdemeanors ; it was held ‘that the indictment did not show that the offence was committed within the jurisdiction of the court. McBride v. The State, 10 Humph. 615; and see People v. Barrett, 1 Johns. 66; State v. G. 8., 1 Tyler, 295 ; State v. Jones, 4 Halst. 357. The prevailing practice in the United States is, to lay the offence to have been committed in the county where it took place. Au indictment was entitled on the INDICTMENT. 263 Place. margin “The State of Alabama, Butler County,” and in the body of the indict- ment it was recited that “the grand jurors,” etc., ‘of the county of Buter, upon their oath present,” etc., the name of the county was not again repeated, nor any other county named, the offence was charged to have been committed ‘in the county aforesaid.” It was held that the indictment was not defective; the courts are bound to know the names of all the counties in the state, and there being no such county as Buter, the words in the county aforesaid must refer to the county stated in the margin of the indictment. Reeves v. State, 20 Ala. 33. It has been held in Maine, that the place where an offence is usually alleged in an indictment to have been committed is a town named, which is within the county also named, where the court have jurisdiction; it is not necessary that the town ‘Should be stated, if the place mentioned is equally specific. State v. Roberts, 26 Maine, 268. In Massachusetts, it is said that where, in framing an indictment for a misdemeanor, it cannot be ascertained whether the whole town or district lies in one county, then the indictment ought to describe the offence as committed not only in such town, but also in the county where itis found. But in indictments. for capital offences, the strictness of requiring the indictments+o allege the offence as committed not only in a certain town, but also in a certain county, has always been adhered to. Com. v. Springfield, 7 Mass. 9. Where the offence in a district court in North Carolina, was laid to have been committed in Beaufort county, without adding in the district of Newborn, judgment was arrested.- State ». Adams, Murphy, 30. Wehave seen that in the city of New York, the practice is to charge the ward as part of the venue. In New Orleans, it is customary to name the parish. If, however, the offence is shown to be within the jurisdiction of the court, the particular place need not be proved. 2 Hale, 179, 244, 245; 4 Bla. Com. 306; Hawk., b. 2, c. 25, § 84, c. 46, §§ 181, 182; 1 East P. C. 125; Holt, 534. In Arkansas where an indictment for a misdemeanor charged the offence to have been committed ‘‘ at the city of Little Rock,” it was held that the allegation was suffi- cient to show that the offence was committed within the city. But the courtintimated that this form of stating the venue might not be sufficient in indictments of higher grade, where the consequence of a conviction might be the forfeiture of life, or the infliction of some corporal or infamous punishment, in which class of cases the law requires more exactness and greater certainty than it does in indictments for mere misdemeanors, where, upon a conviction, a pecuniary fine only is imposed. Graham v. The State, 1 Ark. 171. An indictment alleging that the pill was found at “ Horry Court Hose” instead of ‘‘Conwayborough,” the place appointed by law for holding the courts of Horry district, was held sufficient, both, in one sense, meaning the same, and being regarded as equivalent, con- vertible terms. The State v. Thayer, 4 Strobh. 286. Where, after the perpetration of an offence in the county of 8., that county is- divided, and that part of the said county in which the offence was committed is created a new county, and called W., the offence is indictable in the county of W. State v. Jones, 4 Halst. 357. An indictment for larceny was found at the August term, 1851, of the Sebastian Circuit Court. The indictment alleged that the offence was committed on the 10th January, 1851, in the county of Sebastian. The act creating the county of Sebastian out of portions of territory belonging to Crawford, Scott and Polk, was passed 6th January, 1851. It was proved that the offence was committed in the year 1850, within the limits of Sebastian, as afterwards organized by the act of Assembly ; held, that the defendant was prop- erly indicted in Sebastian county, the offence having been committed upon the territory out.of which it was formed, and that he could not have been indicted in the county from which the territory was taken, after the organization of Sebastian county. McElroy v. The State, 8 Eng. 708. Where F, was a town created by public statute, and the indictment described the defendant as late of U,, in the county of O., and then laid the offence at F., in said county, F. being in truth in the county of H., it was held this.was equivalent to laying the offence in the latter county. People v. Breese, 7 Cow. 429. : Where there is an averment of any particular fact, it should be stated to be done then and there, after the county and ville have been clearly expressed in the body of the indictment, and the allegation of time and place ‘then and there” should be repeated to every material fact which is issuable or triable. State v. Roberts, 26 Maine, 268. The words then and there so used are words of refer- 264 INDICTMENT. Place. And now, by stat. 14 & 15 Vict., c. 100, § 23, it shall not be neces- sary to state any venue in the body of any indictment, but the county, city, or other jurisdiction named in the margin thereof, shall be taken to be the venue for all the facts stated in the body of such indictment: provided that, in cases where local description is or hereafter shall be required, such local description shall be given in the body of the indictment: and provided also, that where an indictment for an offence committed in the county of any city or town corporate shall be. preferred at the assizes of the adjoining county, such county of the city or town shall be deemed the venue, and may either be stated in the margin of the indictment, with or without the name of the county in which the offender is to be tried, or be stated in the body of the indictment by way of venue. ence; and when time and place have once been named with certainty, it is suffi- cient to refer to them afterwards by these words; and they will have the same effect as if the time and place were actually repeated. The State v. Cotton, 4 Fost. 143. But in drawing the conclusion from the preceding facts, these words may be omitted. The State v. Johnson, Walker’s R. 392. In case of removal of the indictment to a higher court, it ought to appear that the indictment was presented-on the oath of jurors of the county where the crime was committed. Tipton v. State, Peck. 308. But where the indictment states that the grand jurors were ‘‘impaneled, sworn and charged,” etc., time and place need not be laid to show when and where they were sosworn. Vaughan v. State, 4 Mis. 530. An indictment, which states the facts as to time or place with repugnancy or uncertainty, will be bad. If two times or places have been previously mentioned, and afterwards a part only is laid ‘then and there,” the indictment is defective, because it is uncertain to which it refers.’ State v. Hardwick, 2 Mis. 226; Jane v. The State, 3 Mis. 61; State v. Roberts, 26 Maine, 268; but not so if one of the places is named only as the residence of the party. State v. Jackson, 39 Maine, 291. So, where two places have been named, and the place is afterwards referred to as ‘‘the county aforesaid.” State ». McCracken, 20 Mis. 411. When the offence is in its nature local, and the place is stated by way of local description, and not as venue merely, the slightest variance between the descrip- tion in the indictment and the evidence will be fatal. Where, therefore, an indictment for arson alleged that the tenement was situated in the sixth ward, and it was proved to have been in the fifth, this was held to be a fatal variance. People v. State, 5 Hill, 401. But where an indictment for larceny on board ship charged the offence to have been committed in the first ward of the city of New York, and it appeared to have been in the third ward, the variance was held not to be material. People v. Honeyman, 3 Denio, 121. It would be different if the offence fle place in a dwelling-house, because that is strictly local; but a ship is not. Ibid. : [An indictment quashed for want of an allegation of the time or place of committing the offence charged. State v. Johnson, 32 Tex. 96; State v. Slack, 30 Tex. 354.] {An indictment for highway robbery alleging that defendant, “late of the county of Y., at and in the county aforesaid, in the common highway of the State, did then and theré assault one F. L.,” eté., is sufficiently certain as to place ; it is not necessary to specify the particular highway. State v. Wilson, 67 N. C. 456.° ave ae of place of marriage in indictment for bigamy. People v. Calder, 30 ich. 85. INDICTMENT, 265 Statement of the offence. The cases where local description is necessary, as above mentioned, are such as indictments for burglary, house-breaking, stealing in a dwelling-house, and the like, where the indictment must state the parish and county, by way of local description ; or indictments for not repairing highways, which must state the highway to be within the parish, etc.; and in these cases the matter of local description must be proved as laid. As to a variance, however, between the statement and proof, in this respect the indictment may now be amended, by stat. 14 & 15 Vict., c. 100, § 1. 3 (d) Statement of the offence. Every offence must, of course, consist of certain facts and circum- stances: in the case of an offence at common law, the facts, etc., are defined by the rule of the common law upon the subject; in offences against statutes, by the statute creating the offence. And the general rule of *pleading with respect to this part [85] of the indictment is, that all the material facts and circum- stances comprised in the definition of the offence, whether by a rule of the common law or by statute, must be stated; if any one material fact or circumstance be omitted, the indictment will be bad.(1) (1) An indictment must charge explicitly all that'is essential to constitute the ‘offence. It cannot be aided by intendments, but must positively and explicitly state what the prisoner is called upon to answer. State v. Gray, 3 Stewart, 123 ; Com. v. Waters, 7 Dana, 29. This is especially the case in criminal prosecutions of the grade of felony. Kit. v. State, 11 Humph. 167; Bullock v. State, 10 Geo. 46; Stephen v. State, 11 Geo. 225; State » Hand, 1 Engl. Ark. 165; State v. Wilson, 2 Rep. Con. Ct. 185; State v. Henderson, 1 Rich. 179; State v. Wimber- ley, 3 McCord, 190; State v. Philbrick, 31 Maine, 401; State v. Fields, Mart. & Yerg. 187; Com. v. Clark, 6 Gratt. 675; Lamberton ». State, 11 Stanton, 282 ; Markle v. The State, 3 Ind. 535; Lambert v. The People, 9 Cowen, 578. An indictment ‘ought to be as certain as a declaration, for all rules in civil pleadings apply to criminal accusations.” The State v. McCormick, 2 Carter’s R. 305; Sherbon v. Com., 8 Watts, 212. Where the allegation in an indictment was as follows: “taken upon himself to do the act complained of,” held, that the in- dictment was defective, as it did not contain, in the words “taken upon himself,” a positive averment that the defendant committed the act or offence. State v. Perry, 2 Bailey, 17. ‘ sae ; The only exceptions to this rule are: 1. That a man may be indicted for being a “common barretor,” without detailing the particulars of the barretry. 2. That a woman may be indicted for being “a common scold,” without detailing the particulars of her conduct. 3. That a person may be indicted for keeping a com- mon gambling house, or bawdy house, without stating those circumstances which it may be necessary to give in evidence to show that it is a house of that descrip- tion. See 2 Hawk., c. 26, §§ 57, 59. 4. That in an indictment for soliciting or inciting to the commission of a crime (R. v. Higgins, 2 East, 5), or for aiding and assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid or assistance. But see Reg. v. Rowell, 3 266 INDICTMENT, Statement of the offence. Q. B. 180; 2G. & D. 518. In all other cases, every fact or circumstance which is a necessary ingredient in the offence must be set forth in the indictment. General charges of violating public decency are: insufficient to authorize any judgment against the defendant. The specific acts and circumstances of indecenc must be set out. State v. Branson, 2 Bailey, 149; see Commonwealth v. Maxwell, 2 Pick. 189; State v. Scribner, 2 Gill & John. 246; Randolph v. Commonwealth, 6 Serg. & Rawle, 398; Commonwealth v. Gillespie, 7 ibid. 469; Updegraff v. Commonwealth, 6 ibid. 5; State v. Dent, 3 Gill & Johns. 8. Where, in an indict- ment for a riot, the charge was that the defendants made a great noise and disturbance of the peace, it was held to be too vague and uncertain, and the indictment, therefore, defective. Whitesides v. People, Breese, 4. Upon the same principal, in an indictment for obtaining money by false pretences, it will not suffice merely to state that the defendant falsely pretended certain allegations, but it must also be stated by express averment what parts of the representation were false, for otherwise the defendant will not know to what circumstances the charge of falsehood is intended to apply. 2 M.& 8.379. And in cases of indict- ments for forgery and threatening letters, the law requires an exact copy of the instrument to be inserted in the indictment, in order that the court may see that it is the subject of forgery, or threat, within the meaning of the statutes. 2 Leach, 661. But in an indictment for forging « promissory note, if the note be lost or destroyed, it is sufficient to set forth the substance thereof, alleging the loss or destruction of the instrument. People v. Badgley, 16 Wendell, 53; Pendle- ton v. Commonwealth, 4 Leigh, 694; State v. Parker, 1 Chip. 298; State v. Potts, 4 Halst. 293; United States v. Britton, 2 Mason, 468; People v. Kingsley, 3 Cowen, 522; State v. Squires, 1 Tyler, 147. The indictment will be sustained, although it does not allege that the note purported to be signed by the person whose name was forged, if it set forth the purport of the note, giving the name of * the maker as part of the description, it is sufficient, Ibid. It has been held, in Massachusetts, that an indictment for uttering a forged promissory note need not set forth the date of the note, nor when it is payable. Commonwealth v. Ross, 2 Mass. 373. Nor an indorsement, if there is one, as it is no part of the note. Commonwealth v. Ward, 2 Mass. 397. It is not necessary to charge, in an indictment, anything more than is necessary to make out the offence. State v. Ballard, 2 Murphey,186. In cases of extortion or false pretences, where the money is paid by an agent, it is sufficient to allege that the money was paid by the principal. Commonwealth »v. Bagley, 7 Pick. 279; Com. v. Call, 21 ibid. 515; Commonwealth v. Ray, 13 Pick. R. 362; James ». Commonwealth, 12 Serg. & Rawle, 220; Com. v. Davis, 11 Pick. 434; State v. Chitty, 1 Bailey 8. Car. Rep. 879; 6 Russel, 185, 186 ; State v. O’Bannon, I Bailey, 144. Where an act is charged to have been committed with a certain intent, aa an assault with intent to rob or to murder, it is not necessary to state the instru- ment or means used to effectuate the intent. Commonwealth v. Rogers, 5 Sergy & R. 463; State v. John, alias Jack, Dent, 3 Gill & John. 8 The means of effect- ing the criminal intent, of the circumstances evincive of the design with which the act was done, are considered to be matters of evidence to the jury to demon- strate the intent, and uot necessary to be incorporated in an indictment. And it has been held in New York, in an indictment under the statute (2 R. S. 698, § 3), for attempting to commit an offence, that the particular manner in which the attempt was made is immaterial, and need not be alleged. People v. Bush, 4 Hills N. Y. R. 188. But it has been held, in the same state, that in an indictment for setting on foot a lottery contrary to the statute, it is essential to specify the purpose for which the lottery was made, that being a part of the statute description of the offence. A general statement of the purpose for which the lottery was made is not enough. Some further description must be given, where it is practicable to do so. The People v. Taylor, 3 Denio, 91. Where the offence charged is complicated, consisting of a repetition of acts, or where if includes a continuation of acts, it is not necessary to set them out in the indictment. Sterne v. The State, 20 Ala. 43. A statement of a legal result is bad. As an instance of this rule, it has been holden that an indictment for escaping from prison, without showing the original cause of imprisonment, is not maintainable. Stra, 1226; Hawk., b. 2, c. 25, § 57; Bac. Abr., Indictment, G.I. So, an indictment for traitorously coining alchemy INDICTMENT. 267 Statement of the offence. If, for instance, in larceny, the indictment were merely to state that the defendant feloniously took the goods in question, without stating also that he carried them away, the indictment would be bad; as the carrying them away is a material part of the definition of larceny. So, an indictment for murder, omitting the words ex malitia pracogi- tata, would be bad, even although it charge the defendant with hav- ing feloniously murdered the deceased, which implies malice.(a) And the like in indictments upon statutes: if any one fact or circumstance, which is a material ingredient in the offence, as defined by the stat- ute, be omitted, the indictment will be bad.(®) (1) . (a) 2 Hawk., ©. 25, § 110. (b) Ibid. §§ 110, 112. like to the current coin of the realm, is bad, unless it show the particular kind of money the metal was intended to resemble. Hawk., b. 2, c. 25, § 57; Bac. Abr., Indictment. So, in the case of perjury, it is necessary to set out the oath as an oath taken in a judicial proceeding and before a proper person, in order to see whether it was an oath which the court had jurisdiction to administer. Cro. Eliz. 137; Cowp. 683; State v. Ammons, 2 Murphey, 123; State v. Street, 1 ibid. 156; Com. v. Clerk, 2 Ashm. 105. And, in the prosecution of a constable for not serv- ing, it is necessary to set out the mode of his election, because, if he was not legally elected to the office, he cannot be guilty of the crime in refusing to exe- cute its duties; and, in an indictment for the disobedience of a justice’s order, it must appear that the order disobeyed was a legal one, and such previous acts as were the foundation of the magistrate’s authority must be recited, or at least re- ferred to. Cald. 183. When defect in this respect cured (Ibid. 536). And where the circumstances are constituent parts of the offence, they must beset out; but where the crime exists without them, they may be alleged in aggravation, but are not absolutely requisite. Cowp. 683; 5 Mod. 96. An indictment against a public officer for a culpable neglect of duty, unless the act of the officer is clearly illegal, must show with certainty that it proceeded from corrupt or culpable mo- tives. State v. Buxton, 2 Swan. 57. And itisa general rule that where the act is not in itself necessarily unlawfal, but becomes so by its peculiar circum. stances and relations, all the matters must be set forth in which its ille- gality consists. Hawk., b. 2, c. 25, § 575 Bac. Abr., Indictment, G. I. ; Cowp. 683. Thus, in an indictment for a nuisance in the erecting an inn, some circum- stances must be shown which render it a nuisance (Ibid. ; Palm. 368, 3743 2 Roll. Rep. 345); but where the act is manifestly 4n offence,-as for keeping a house of ill-fame, this precaution is needless. Hawk., b. 2, v. 25, § 57; Cowp. 683. Where the offence is described in the indictment as a crime or misdemeanor of a particular grade, the indictment need not state the legal conclusion that such act amounts to such crime or misdemeanor. State v. Absence, 4 Porter, 397. (1) Whether the statute be public or private, the indictment must state all the cir- cumstances which constitute the definition of the. offence in the act, so as to bring the defendant precisely within it; and must with certainty and precision charge him with having committed or omitted the acts constituting the offence, under the circumstances and with the intent mentioned in the statute. 1 Hale, 517, 526, 535; State v. Raines, 3 McCord, 538; Sweeney v. The State, 16 Geo. 467, 4 Port. 410; Eubanks v. The State, 17 Ala. 181; Cook v. State, 11 Ga. 53; U.S. v. Good- ing, 12 Wheat. 460 ; Updegraff v. Com., 6 Serg. & Rawle, 5; State . La Creux, 1 McMullan, 488; Moffatt v. The State, 6 Engl. 169; The People v. Allen, 5 Denio, 16; State v. Eldridge, 7 Eng. 608 ; Maskill v. The State, 8 Blackf. 299. It is, in general, sufficient to follow the words of the statute. State v. Hunter, 8 Blackf. 212; Buckley v. State, 2 Iowa, 162; State v. Hereford, 18 Mis. 3; Sim- 268 INDICTMENT. Statement of the offence. mons v. State, 12 Mis. 268; State v. Noel, 5 Blackf. 548; State ». James, 3 Strob- hart’s R. 269; State v. Mitchell, 6 Mis. 147; State v. Click, 2 Ala. 26; State v. Cosados, 1 Nott & McC. 91; Hamilton v. Com., 3 Penn. 142; State v. Foster, 3 McCord, 442; State v. Fleetwood, 16 Mason, 448; Com. v. Tuck, 20 Pick. 356; Hampton’s case, 3 Gratt. 590; Howell v. Com., 6 Gratt. 664; State v. Brougham, 3 Blackf. 307; State v. O’Bannan, 1 Bailey, 144. Whether an indictment in th: words of a statute is sufficient or not depends upon the manner of stating the offence in the statute ; if every fact necessary to constitute the offence is charged, or necessarily implied by following the language of the statute, the indictment in the words of the statute is undoubtedly sufficient ; otherwise it is not. Where the language of the statute is descriptive of the nature of the offence, it is neces- sary to specify it in the particular words of such statute. Ike v. State, 23 Miss. ° 525; Bush v. State, 18 Ala. 415; State v. Raiford, 7 Port. 101. And where the statute does not employ any terms descriptive of the offence, and merely declares what shall be the punishment of an offence known to the common law, reference ought to be made to that branch of jurisprudence in connection with the statute, State v. Stedman, 7 Porter, 495; Bell v, The State, 5 Engl. Ark. Rep. 536; U. 8. v. Dickey, 1 Morris, 412; Camp v. The State, 8 Kelly, 417; State v. Absence, 4 Port. 397. But if superfluous allegations are added, and these show a case not within the statute, the indictment will be bad on demurrer. State v. Mahan, 2 Ala. 340. A complaint for a violation of a city ordinance should refer to-the ordinance and section upon which it is founded, and should substantially set out the provi- sions whose violation is complained of, and a reference to a wrong ordinance will vitiate the proceedings. Keeler v. Milledge, 4 Zab. 142. If, in pursuing the words of the statute, there should be any ambiguity, or uncertainty in charging the offience, the substance and legal effect of the statute should be regarded. State v. Eldridge, 7 Engl. 608. ; A defective statement in this respect will not be aided by verdict (2 East’s Rep. 338); nor by a conclusion contra formam statuti. 2 Hale, 170; Fost. 428, 424; 8 Term. Rep. 536. The fullest description and legal definition of the offence, says Foster, will not be suflicient without keeping close to the expressions of the stat- ute (Fost. 424); which should be pursued in the precise and technical language used in the statute. Ibid. ; 2 Hawk., c. 25, § 110. Thus, for rape, no expres- sions of force and carnal knowledge will excuse the omission of the word “ravished.” 2 Hawk., c. 23, § 77. So if a statute make it criminal to do an act “ unlawfully and maliciously,” it must be stated to have been done *‘ unlawfully.” ‘‘ Feloniously, voluntarily and maliciously,” is not enough. Ry. & Moo. C. 239, 247. The point that the indictment is defective because it does not employ the. precise words of the statute, is countenanced by highly respectable authorities, but there is, per- haps, an equal weight of authority against it. It is opposed to the current of Ohio decisions. Sutliffe v. The State, 18 Ohio Rep. 469; Sharp v. The State, 19 Ohio Rep. 379; Poage v. The State, 3 Ohio (N. 8.) 229. The rule was thus stated by Judge Hitchcock, in Longee v. The State (11 Ohio Rep. 69): ‘The offence itself should be set forth with clearness and certainty ; and must he so described as to bring it substantially within the provisions of the statute.” In Lamberton v. The State, (11 Ohio Rep. 282), an indictment, which merely used the words of the statute, was held, in that particular instance, to be too uncertain, because of the generality of its terms. The court thought that the particular act complained of, and which was included in the general words of description in the statute should be set forth ; and in illustration of their views said: ‘The indictment is as general as would be an indictment for forgery, which followed merely the words of the stat- ute, without specifying any act constituting the crime, or an indictment for per- jury, which only set forth that a party swore falsely, knowing to the contrary, without setting forth what matters he stated to be facts, and falsifying them.” Poage v. State, 3 Ohio Rep. (N. S.) 229, per Thurman, C.J. ; But where a word not in the statute is substituted in the indictment for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient. The State v. Vill., 2 Brevard, 262; State v. Bullock, 18 Ala. 413. As, if the word “knowingly” be in the statute, and the word “ advisedly ” substitu- ted for it in the indictment (1 Bos. & P. 181); or the word “ wilfully” in the INDICTMENT, 269 Statement of the offence. statute, and “maliciously ” in the indictment (the words “advisedly ” and “ mali- ciously ” not being also therein), the indictment would be sufficient. Upon.this principle, the word “imitation,” in the statute, may be expressed in the indict- ment by the words ‘‘likeness” and ‘“‘similitude.” Peeks v. The State, 2 Humph. 78. Yet it is better to pursue strictly the words of the statute; as the court, in favorem vite, are sometimes inclined to listen to and countenance very nice dis- tinctions upon the subject. Where the subject of the indictment cannot be brought within the meaning of the statute without the aid of extrinsic evidence, it is neces- sary, besides charging the offence in the words of the statute, to aver such facts and circumstances as may be necessary to bring the matter within the meaning of it. Matt. Dig. 200, 275; 2 Leach, 664; 2 East’s P. C. 928. : If there be any exception contained in the same clause of the act which creates the offence, the indictment must show, negatively, that the defendant, or the sub- ject of the indictment, does not come within the exception. Ibid. 275; 1T. R. 141; 15 East, 456; 1 ibid. 648; Leach, 580; Russ. & Ry. C. C. 174, 821; State v. Garvey, 37 Maine Rep. 149. Butif an exception or proviso be in a subsequent clause or statute (1 T. R. 320), or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference (1 Barn. & Ald. 94), it is in that case matter of defence for the other party, and need not be nega- tived in the pleading. Matt. Dig. 275; 3 Chit. Burn, 456; State v. Godfrey, 24 Maine, 232; State v. Garvey, 37 Maine, 149; State v. Shiflet, 20 Mis. 415; Brit- ton v. The State, 5 Engl. Ark, Rep. 299; see Metzker’s case, 14 Ill. 101; Bouser ». State, 1 Smith, 408 ; Elkins v. State, 13 G. 435; Commonwealth v. Hill, 5’Gratt. 682; State v. Williams, 2 Strobh. 474; State v. Barker, 18 Vt. 195; State v. Pal- mer, ibid. 570. It is immaterial what precise words are employed to negative the exceptions in the enacting clause, if they clearly and explicitly accomplish that purpose. State v. Keen, 34 Maine, 500. 2 [Statutory offences.—In statutory misdemeanors the offence may be charged in the words of the statute, or there may be such a statement of facts as will bring the defendant within its operation. State v. Thatcher, 35 N. J. (Law) 445. When the words.of a statute describe the offence, the indictment should follow the statute and expressly charge the described offence, or it will be defective. Com. ». Turner, 8 Bush, 2. An indictment which’sets forth the offence in the language of the statute is good. Smith v. State, 34 Tex. 612; Williams v. State, 42 Miss. 328; U. 8. v. Henry, 3 Ben. 29; Riley v. State, 43 Miss. 397; Murrell v. State, 44 Ala. 367; White v. State, 44 Ala. 409; McFain v. State, 41 Tex. 385. If the facts constituting a statutory offence are properly stated, the name is unnecssary, a wrong name would be surplusage. Iowa Rev. Sts. { 4650; State v. Shaw, 35 Towa, 575; see also People v. Phillips, 39 Cal. 326.] [While the offence may generally be stated in the terms of the statute, this can- ‘not sometimes be done. For example, Conn. Gen. Stat., tit. 12, concerning the fraudulently hiring a horse and making false statements as to distance, time, place or manner of using it, with intent to defraud, etc. ; the general language of the statute is not sufficient, but the misrepresentations and to whom made must be particularly alleged. The same rule applies to the statute concerning the obtaining of goods under false pretences (Conn. Gen. Stat., tit. 12, § 197), and to other statutory offences of the same class. State v. Jackson, 39 Conn. 229.] [Although an indictment may be technically faulty, yet if all the averments re- quired by statute are sufficiently made, so that the defendant is fully apprized of the offence charged, it is substantially good. State v. Coulter, 46 Mo. 564. Where a statute enacts that any of a class of persons who shall do or omit an act under certain circumstances, shall be guilty of a crime, the indictment thereunder must describe the accused as one of that class, and must aver that he did or omitted the act charged under the circumstances which make it criminal. State v. Sloan, 67 N. C. 357. : [When a indictment is fatally ambiguous in omitting to state under what statute it is framed, there being two statutes on the same subject, the omission can- not be supplied by the defendant’s plea in abatement which admits the fact left in doubt, viz., the time when the offence was committed. State v. Wise, 67 N.C. 280. (When a statute in one clause forbids several things, or creates in the alterna- tive several offences not repugnant ; the clause is treated in pleading as though it 270 INDICTMENT. Statement of the offence. created but one offence; all the offences enumerated by it may be united con- junctively. in one count, and this count is sustained by proof of and one of them. State v. Murphy, 47 Mo. 274. When the legislature changes the common law rule so as to make only a single count necessary to charge and admit proof of any number of offences, as in the Vermont liquor law, the accused is entitled to a specngetion of the offences for which a conviction is claimed. State v. Rowe, 43 t. 265.] [When an exception is contained in a statute, and is so incorporated into the definition of the crime that the latter cannot be accurately described without refer- ence to the exception, the indictment must show that the case does not come within the exception; otherwise no reference need be made to it, but it is wholly matter of defence. U.S. v. Cook, 17 Wall. 168. If the enacting clause of a statute creating an offence, describes it with certain exceptions, an indictment should set out the facts constituting the offence, and should expressly negative the excep- tion. But if the exception is contained in a separate clause of the statute, it need not be mentioned in the indictment; it belongs to the defendant to set up the ex- ception in such a case if possible. Kline v. State, 44 Miss. 317. Matter in a pro- viso of a statute must be set up as a defence. But when an exception is made in the enacting part, the prosecution must allege and prove tliat the case does not fall within it. State v. Stapp, 29 Iowa, 551.] [When a statute merely divides a common law crime into degrees and apportions the punishment, the indictment does not follow the general rule concerning statu- tory offences, and it need not set forth the facts constituting the crime as described by the statute ; charging the crime as at the common law is sufficient. Davis v. State, 39 Md. 355. If a common law misdemeanor is made a felony by statute, the indictment must aver that defendant did the act charged “feloniously.” By omitting this averment no felonious intent is charged, and a conviction can only be had, at most, for the common law offence en:braced in the act proved. Nevills: v. State, ‘7 Coldw. (Tenn.) 78. An indictment for an offence unknown to the com- mon law—e. g., liquor selling—is defective if it fails to substantially describe the offence, i though it follows the form laid down in the statute. Bryan v. State, 45 Ala. 86. d (See the following instances of some particular statutory offences: a bad in- dictment under a statute against abortion, Basset v. State, 41 Ind. 303; indictment for burning a barn under N. H. Gen. Stat. ch. 262, §2. State v. Emerson, 53 N. H. 619; indictment under Tenn. Act of 1870 concerning the cohabitation of a white person with a negro. Robeson v. State, 3 Heisk. 266; indictment under Act of Congress of May 31, 1870, concerning the right to vote. U.S. v. Souders, 2 Abb. U. 8. 456; indictment under Me. Rev. Stat. ch. 51, § 138; concerning rail- roads crossing highways. State v. Portland, etc. R. R., 58 Me. 46; indictment for taking up and using a gelding, an estray, ‘‘ without first complying with the laws regulating estrays,” need not set forth the age, sex, color, marks or brands of the animal. State v. Crist, 32 Tex. 99.] (See further as to charging statutory offences, U.S. v. Rhodes, 1 Abb. U.S. 28; Mason »v. State, 42 Ala. 543; Com. v. Tanner, 5 Bush, 316; Frazer v. People, 54 Barb. 306; State v. Boyington, 56 Me. 512 (stating exceptions) ; Bates v. State, 31 Ind. 72; State v. McCollum, 44 Md. 343 (where the statute forbids several things in the alternative); instances of such offences: State v. Meshac, 30 Tex. 518 (estray law); Schutze .v. Harte, 30 Tex. 508 (regulating butchers); State v. Mathis, 30 Tex. 506 (regulating roads) ; State v. Forrest, 30 Tex. 503 (regulating roads); State v. Harper, 64 N. C. 129 (larceny) ; State v. Drake, 64 N. C. 589 (hunting on Sun- day); State v. Scott, 25.Ark. 107 (tresspass to property); State ». Kroscher, 24 Wisc. 64 (offences to real property).] ‘ (Charging the offence in general.—A count which is sufficiently certain to inform the defendant of the offence charged, and the person against whom it was com- mitted, will not be quashed on demurrer. Horne v. State, 39 Md. 552. The crime must be set forth with precision and fullness. The defendant cannot be convicted of another offence, committed at the same time, but not identical with the one stated. Com. v. Dean, 109 Mass. 349. If an indictment states all that is neces- sary to constitute the offence, although diffuse, inartistic and defective in form, a demurrer to it should be overruled. Dawson ¥v. State, 33 ‘lex. 491; Clem v. State, 42 Ind. 420. The indictment should be definite enough to put defendant into INDICTMENT. 271 Statement of the offence. possession of the facts for which he is held to answer. State v. Rocheforde, 52 Mo. 199. All inferior grades of the same general offence are implied; hence on an indictment for an aggravated assault, a conviction of a simple assault is proper. Smith v. State, 35 Tex. 500. The Stat. of Wisc., 1871, ch. 137, § 12, providing for a simple form of indictment in murder and manslaughter, does not violate the constitutional provision that ‘the accused may demand the nature and cause of the accusation against him.” Rowan v. State, 30 Wisc. 129. [An indictment which sufficiently alleges two or more distinct offences is bad for duplicity and consequent uncertainty as to the charge on which a conviction will be sought. But an indictment charging that defendant ‘unlawfully, etc., destroyed, injured, and carried away timber from the premises of W., which said property belonged to the said W., and was taken without his consent,” is not thus double ; “destroyed” and “injured,” even if they do not accurately describe the one offence of ‘‘ taking and carrying away,” are too general to describe distinct and separate offences. Com. v. Powell, 8 Bush (Ky.), 7.] (‘In the name of and by the authority of the state of,” etc., need not be re- peated in each count of an indi¢tment, even though a nolle prosequi is entered as to the first. Davis v. State, 19 Ohio St. 270.) {Some special instances.—The rule that when the tenor of a writing is to be set out—as in an indictment for forgery or for libel—an exact copy should be given, is not violated by the use therein of a few abbréviations not contained in the original, provided the words meant are clearly indicated. But the relaxation of the rule does not authorize numerous abbreviations, especially when the meaning of many of them is conjectural. State v. Jay, 34 N. J. L. 368. An indictment for murder which states unnecessary details of evidence, the acts done, the manner of doing them, the weapon used, and the like, is not thereby vitiated. State v. Killough, 82 Tex. 74. Charging the procuring an abortion ‘‘ with an instrument to the grand jurors unknown,” is good. State v. Wood, 53: N. H. 484. ‘Feloniously” is in- dispensable in every indictment for a felony, and cannot be supplied by any cir- cumlocution. State v. Rucker, 68 N. C. 211. ‘ With intent to commit a felony ” is substantially the same as “feloniously.” Dillard v. State, 3 Heisk. 260. An indictment for an assault with intent to ravish, need not state that it was feloni- ously made (overruling 7 Coldw. 78). Jones v. State, 3 Heisk. 445. An indict- ment for profane swearing should allege that it was uttered in the hearing of divers persons. State v. Pepper, 68 N. C. 259. Allegation that defendant “ did carry away a Colt or pocket pistol or revolver,” is bad for uncertainty. State v. Green, 3 Heisk. 131. Under the Mississippi Rev. Code, art. 56, for unlawfully exhibiting a pistol, it need not be alleged that the pistol: was loaded. Gamblin v. State, 45 Miss. 658. An indictment for the forgery of an order purporting to be drawn by an agent on his principal, must aver that the real agent, whose name was forged, had authority to sign and bind the person alleged to have been de- frauded. State v. Phorn, 66 N. C. 644.] {In an indictment for a misdemeanor, a substantial statement of the offence is all that is requisite. Gallagher v. State, 26 Wisc. 423. See also Olive v. Com., 5 Bush, 376; Com. v. Smith, 6 Bush, 263; Com. v. English, 6 Bush, 431; Thomp- son v. State, 30 Tex. 356 ; People v. Davis, 56 N. Y. 95. In case of forgery, see Rosekrans v. People, 5 T. & C. (N. Y.) 467. In case of arson in the first degree, see Woodford v. People, 5 T. & C. (N. Y.) 539. Of perjury, Ortner v. People, 11 N. Y. 8. C. (4 Hun) 823. Of selling liquor without licence, Schwab v, People, 11 N. ¥. 8. C. (4 Hun) 520. ‘Of mayhem, Godfrey v. People, 12 N. Y. 8. C. (6 Hun) 369. Alleging former conviction under New York statutes, Gibson v, People, 12 N. Y. 8. C. (5 Hun) 542. Case of forgery, Phelps v. People, 13 N. Y. 8. C. (6 Hun) 428. Of grand larceny, Phelps v. People, 13 N. ¥. 8. C. (6 Hun) 401. See also State v. Earp, 41 Tex. 487; Koontz v. State, 41 Tex. 570; State ». Deve- reux, 41 Tex. 383; McNamee v. People, 31 Mich. 473; Parris v. People, 76 Il. 274; People v. Alibez, 49 Cal. 452; People ». Swenson, 49 Cal. 388; People v. Roderigas, 49 Cal. 9; State v. Clemens, 38 Iowa, 257.] [In New York, 2 R. 8. 699, § 8, an indictment for a second offence must allege a discharge of defendant either by the expiration of his former offence, or by his being pardoned; an allegation that defendant was duly discharged is fatally in- sufficient. Wood v. People, 53 N. Y. 511.) 272 INDICTMENT. Statement of the offence. - But in an indictment on a statute, it is not necessary to aver that the defendant is not within the benefit of a proviso in it, even in cases where the statute in its purview expressly notices the proviso, as by saying that none shall do the thing prohibited, otherwise than in such special cases as are mentioned in this act(a), or the like. Nor shall any indictment be deemed insufficient for want of the averment of any matter unnecessary to be proved(d), or for want of the statement of the value or price of any matter of thing, or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence.(c) And the statement should be such as can be proved by the evidence in the case. But, by stat. 14 & 15 Vict., c. 100, § 1, whenever, on the trial of any indictment for any felony or misdemeanor, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof—in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in any such indictment—or in the name or description of any person or persons, or body politic or corporate, ‘therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein—or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged by the commission of such offence—or in the christian name or sur- name, or both christian name and surname, or other description what- soever, of any person or persons whomsoever therein named or de- scribed—or in the name or description of any matter or thing whatso- ever therein named or described—or in the ownership of any prop- erty named or described therein—it shall and may be lawful [87] for the court *before which the trial shall be had, if it shall ‘consider such variance not material on the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended, according to the proof, by some officer of the court or other person, both in that part of the indictment where such variance occurs, and in every other part of the indictment which it may become necessary to amend, on such terms as to postpone the trial, to be had before the same or another jury, as such court shall think reasonable; and after any such amend- (a) 2 Hawk., c. 25, § 113. (c) 14 & 15 Vict., c. 100, § 24. (b) 14 & 15 Vict., c. 100, § 24. INDICTMENT. 273 Intent. ment, the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same conse- quences, both with respect to the liability of witnesses to be indicted for perjury, and otherwise, as if no such variance had occurred. (e) Intent. The intent with which an act is done is often made a material ingre- dient in the offence, as defined either by the common law or by stat- ute; and, when it is so, care must be taken to state in the indictment that the offence was committed with that intent, otherwise the indict- ment will be bad.(1) (1) The intention of the party at the time he committed the offence is often a necessary ingredient in it; and in such cases it is as necessary to state the inten- tion in the indictment, as any other of the facts and circumstances which consti- tute the offence. See R. v. Phillips, 6 East, 454; Mormanu v. The State, 24 Miss. 54. In some cases, the law has adopted certain technical expressions to indicate the intention with which an offence is committed ; and in such cases the intention must be expressed by thie technical word prescribed, and no other. Thus treason must be laid to have been done “‘traitorously ;”’ all felonies to have been done “ feloniously ;” burglary is laid to have been done “ feloniously and burglari- ously,” and with intent to commit a particular felony; murder, “‘feloniously and. of his malice aforethought (2 Hale, 184, 187); forgery, ‘ feloniously ;” if made felony by statute, and with intent to defraud, ete. In all cases of felonies at com mon law, and some also by statute, the felonious intent is deemed an essential in gredient in constituting the offence, and hence the indictment will be defective, even after verdict, unless the intent is averred. State v. Eldridge, 7 Engl. Ark. 608. : Where conduct is indifferent in itself, and becomes criminal only from the in- tent, the intention then becomes material, and it is as necessary to allege and prove it as any of the facts and circumstances of ghe case. People v. Lohman, 2 Barb. 216; State v. Freeman, 6 Blackf. 248; State v. Briley, 8 Port. 472; Gale v. The State, 1 Engl. 519; The People v. Petit, 3 J. R.511. See also Fergus »v State, 6 Yerger, 345; Coffee v. State, 3 Yerger, 283; 2 Stark. Ev. (5th Amer. ed.) 416-419. Thus where a libel has not been published, but merely sent to the prosecutorgit is necessary to state in the indictment that it was sent to him with an intention to provoke him to a breach of the peace; so where a letter containing a libel is sent to the wife, the indictment ought to allége it was sent with intent to disturb the domestic harmony of the parties. 2Stark. Rep. 245. See 7 Conn. R. 266. So, an allegation in an indictment that. liquor was sold by the defendant, and drank in his house, is not equivalent to an averment that he sold it to be drunk there. State v. Freeman, 6 Blackf. 248, And in an indictment on the 43 Geo. III, c. 58, where the intent laid in several counts was, to murder, to disable, or do some grievous bodily harm, and the intent found by the jury was, to prevent being apprehended, it was held bad, and that the intention should be stated ac- cording to the fact (Russ. & Ry. C. C. 365; Roscoe’s Dig. Cr. Ev. 653, 657); so in burglary, if the entry be alleged to have been made with intent tocommit a spe- cific felony, the indictment will not be supported by evidence of an entry with intent to commit another kind of felony. 1 Hale, 561; 2 East P. C. 51; 2 Leach, 774, 702; Roscoe’s Dig, Cr. Ey. 281, 282. It is usual, therefore, in these cases, to lay the same fact with different intents, as one count for a burglarious entry, with intent to steal the goods of P. D., and another count for the same enery with intent to killand murder him. 2 East P. C. 515. If an indictment omit to state that defendant committed the burglary 18 274 INDICTMENT. Intent. But in forgery (which is defined to be the forging or uttering of cer- tain instruments, “‘ with intent to defraud any person whatsoever”), and in false pretences (which is defined to be the obtaining from an- other, by a false pretence, any chattel, money, or valuable security, ‘‘ with intent to cheat or defraud any person of the same ”), it is suffi- with intent to steal, etc., the defendant may be convicted of the burglary, if the larceny be proved, but not so if the larceny be not. Russ. & Ry. C. C. 445. It is not necessary, in an indictment for burglary, to charge the prisoner with having broken and entered the prosecutor’s house with an intent to commit a felony. Commonwealth v. Brown, 3 Rawle, 207. Ifthe intention is necessary to consti- tute the offence, it must be alleged in every material part where it so constitutes it (see Curtiss v. People, Breese, 199: 8. C. 1 Seammon, 285), and where an indict- ment for presenting a forged order to W. L., treasurer, etc., pretending it was genuine, and obtaining from W. L. under it 40. 10s. 6d., after charging that the prisoner, with intent to cheat, etc., the treasurer, presented the order, that he knowingly, etc., pretended it was a genuine order, proceeded ‘and so the jurors, etc., say, that the prisoner, on the day and year, etc., at, etc., did obtain the said sum of 41. 10s. 6d.,” but the intent to cheat and defraud W. L. was not stated in that part of the indictment, nor was the obtaining charged to have been effected knowingly and designedly, the indictment was held bad. 1 Stark. Rep. 396; Russ. & Ry. C. C. 317, 8. C. Where the act is in itself unlawful, an evil intent will be presumed, and need not be averred, and, if averred, is a mere formal allegation, which need not be proved by extrinsic evidence. 6 East, 474; 1 B. & P. 186, 187; and Russ. & Ry. C. C. 207; Com. v. Stout, 7 Monr. 247. Thus, in an indictment for seditious words, it need not be shown that they were uttered with intent to alienate the people, for it is manifest they have the tendency. 2 Ld. Raym. 879. And it is not necessary to prove the whole intention as stated in the indictment, if it be divisible ; it will suffice to prove that necessary to constitute the offence ; and on an indictment charging an assault, with intent to abuse, and carnally know, the defendant may be convicted of an assault with an intent to abuse simply. 3 Stark. 62. So, where a libel is stated to have been published with intent to de- fame certain magistrates, and also to bring the administration of justice into con- tempt, it is sufficient to prove a publjcation with either of those intentions. 3 Stark. 35. : (Indictment, under Mass. Gen. Stat., c. 161, § 54, for procuring a signature by false pretences with intent to defraud, must contain an averment of the particular intent: an allegation that defendant ‘‘in manner aforesaid designedly by a false pretence and with intent to defraud,” procured the signature, was held insuffici- ent. Com. v. Dean, 110 Mass. 64.] [As to use of ‘‘feloniously,” and equivalent expressions, see State v. Rucker, 68 N. C. 211; Dillard v. State, 3 Heisk. 260; Jones v. State, 3 Heisk. 445; Nevills v. State, 7 Coldw. 78. Charging an attempt “unlawfully, wilfully and malici- ously ” to do a criminal act, charges an unlawful intent. Com. v. McLaughlin, 105 Mass. 460.] [If an act is made criminal by statute only when done with a particular intent, this intent must be averred and proved according to the terms of the statute. State v. Malloy, 34 N. J. (Law) 410.] (The Ohio Code of Crim. Proced., § 96, making it sufficient to allege in an indict- ment ‘that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person,” does not conflict with the constita- tional Bill of Rights, § 10, which guarantees to defendant ‘‘to demand the nature and cause of the accusation against him.” Turpin v. State, 19 Ohio St. 540. See State v. Jackson, 39 Conn, 229, as to the averment of intent in certain statutory crimes. See, also, State v. Gardner, 5 Nev. 877; State v. Deal, 64 N. C. 270; U. 8. v. Railroad Cars, 1 Abb. U. 8. 196; Olive v. Com., 5 Bush. 376; Roberts v. People, 19 Mich. 401.] INDICTMENT. 275 Statement must be positive and certain. cient to allege the act to have been done “ with intent to defraud,” without alleging the intent to defraud any particular persons.(a) And in all cases within stat. 7 & 8 G. IV, c. 30,(6) as to the malicious in- juries, it is immaterial whether the offence shall be committed from malice conceived against the owners of the property, in respect of which it shall be committed, or otherwise.(c) (f) Statement must be positive. The charge must be laid positively, and not inferentially, or by way of recital merely.(d@) Therefore, a material fact laid in an indictment, after a “ whereas,” would render the indictment bad.(e) So, the want of a direct allegation of anything material in the description of the substance, nature, or manner of the offence, cannot be supplied by any intendment or implication whatsoever; and, therefore, in an inditt- ment for murder, the omission of the words ex malitia precogitata” is not supplied by the words ‘‘felonice murdravit,” although the latter words imply them.(/)(1) And the like in other cases. But “eaistens” is a good introduction of an averment, when it has reference to the time of committing the offence.(g) (g) Statement must be certain. It has already been mentioned,(”) that the indictment must state all the facts and *circumstances comprised in the defini- [**88] tion of the offence, by the rule of the common law or statute on (a) 14 & 15 Viet., ¢. 100, § 8. (e) Ibid. (b) Peel’s Act. (f) Ibid. (c) 7&8 G. IV, c. 30, § 5. (g) Ibid., § 61. (d) 2 Hawk., c. 25, § 00. (hk) Ante, p. 86, (1) In New York, where an attorney of the Court of Common Pleas was charged with extortion, and the indictment averred that on —— he obtained a judgment in favor of one J. R. v. A. C., and that he did extort and receive from the said A. C. $11 over and above the fees usually paid for such services, and due in the suit aforesaid, etc., it was held that the indictment was not sufficiently precise, it not specifying how much he received on his own account, and how much on that of the officers and members of the court. People v. Rust, 1 Caines’ R. 133. The description of the offence must be technically exact; thus, an indictment, charging the defendant with forging a receipt against a book account, is too indef- inite. The term is not known to the law; and in common parlance may mean money, goods, labor, or whatever may be brought into account. Had the charge been forging an aequittance for goods, the evidence of forging the paper, de- scribed in the indictment, would, it was said by the court, have been proper for the jury. The paper described was, “Sept. 3, 1816. Received of James Dalton, his book account, in full, John Logan.” State v. Dalton, 2 Murphey, 879. So, in an indictment for fornication and bastardy, it is held, that the sex of the child must be stated. Com. v. Pintard, 1 Browne, 59; Simmons v. Com., 1 Rawle, 142. 276 _ INDICTMENT. Statement must be certain. which the indictmeut is founded. And these must be stated with clearness and certainty, otherwise the indictment will be bad. The principal rule, as to the certainty required in an indictment, may, I think, be correctly laid down thus: that where the definition of an offence, whether by a rule of the common law or by statute, in- cludes generic terms (as if necessarily must), it is not sufficient that the indictment should charge the offence in the same generic terms as in the definition, but it must state the species—it must descend to particulars. Wherefore an indictment for stealing “dona et catalla” of J. S., without further describing them, by stating that goods or chattels were intended, would be bad.(a) So, where a person was in- dicted for stealing ‘‘ three eggs of the value of two pence,” Tindal, C.J., held the indictment to be bad, for not stating what sort of eggs es were; for all that appeared in the indictment, they might be adder’s eggs or other eggs, which could not be the subject to larceny.(6) But where a man was indicted for stealing “‘ one ham of the value of 10s., of the goods and chattels of Thomas Keighway,” and it was objected that the description was not sufficient, as it might be the ham of some wild animal, which would not be the subject of larceny: the judges, however, held it to be sufficient, for even if it were the ham of a wild animal, it might be of value, and the subject of larceny, the rule as to animals fere nature applying only to the live animal.(c) So, where a man was indicted for stealing “one sheep,” and it ap- peared that the animal was between nine and twelve months old, and some of the witnesses called it a sheep, some a lamb, but the jury said that in common parlance it was called a lamb—the prisoner being con- victed, the judges held the conviction to be right, as the word “sheep,” being general, was applicable to one of that age, whatever it might in common parlance be called.(d) So, where the prisoner was indicted for receiving “twenty-eight pounds of tin,” and it appeared that what he had received were two lumps of tin, called in the trade ingots ; and it was then objected that they ought to have been so called in the in- dictment; but Coleridge,-J., held that they were properly described as so many pounds weight of tin; if the ingots were some article which in ordinary parlance was called by a particular name of its own, it would be improper to call it by the name of the material of which it (a) 2Hawk., v. 25,54; R. v. Powell, 1 Str. 8. (ec) R. v. Gallears, 2 Car. & K. 981; 19 Law (b) R. v. Cox, 1 Car. & K. 494, J, 13, m. (d) R. v. Spicer, 1 Car. & K. C00. INDICTMENT. 277 Statement must be certain. was composed ; in speaking of a piece of cloth, you could not call it so many pounds of wool, in speaking of sovereigns, you could not call them so many ounces of gold; but here this is the material itself, and is properly described as so many pounds weight of tin; so in larceny of *a bar of iron, it would be properly described as so [*89] mauy pounds weight of iron.(a) But where a man was in- dicted for stealing “ ten pounds in money numbered,” the judges held the conviction to be wrong, because the indictment did not specify the species of coin stolen.(6) (1) So, it has been holden bad, to charge a (a) R. &. Mansfield, Car. & M. 140. (b) R. v. Fry, R. & Ry. 482; but see now stat, 14 & 15 Vict., c. 100, § 18, post, p. 91. (1) Where the number or quantity of any property should be stated, it should be done with certainty ; thus an indictment for regrating, etc., stating that de- fendant regrated ‘‘a great quantity ” of goods, etc., will be bad. 1 East, 583; 1 Ld. Raym. 475. So, an indictment for stealing twenty sheep:and ewes is bad, because the number of each sort is not stated. 2 Hale P. C. 182. So it is bad to say felonice furatus est oves or columbas, without expressing their number, ibid. 183; see Steward v. Commonwealth, 4 Serg. & Rawle, 194; Commonwealth v. Maxwell, 2 Pick. 143; an indictment that the defendant took and carried away such a person’s goods and chattels, without showing what in certain, as one horse, one cow, etc., is not good. 2 Hale, 182. An indictment against a bankrupt for concealing his effects, stating part of the effects concealed to be ‘100 other arti- cles of household furniture,” and a certain debt due from one A. B. to the said prisoner to the value of 202. and upwards,” was held bad. Ibid. 274. In an in- dictment for larceny of bank notes, it seems sufficient to describe them as ‘“ bank notes,” without adding for the payment of money. 3 M. & 8. 547, 548; see Com- monwealth v. Boyer, 1 Bin. 201; Commonwealth v. M’Dowell,;~1 Browne, 360 ; Salisbury v. State, 6 Conn. 101; State v. Cassell, 2 Har. & Gill, 406; Common- wealth v. Richards, 1 Mass. 337; M’Millan v. State, 5 Ohio, 269; State v. Wilson, 2 Comst. Ct. Rep. 495; Damewood ». State, 1 How. (Miss.) 262; Hill ». State, 9 Yerger, 357; M’Millan v. State, 5 Ohio, 269; People v. Wiley, 3 Hill, 194; People v. Holbrook, 18 John. 90; Commonwealth v. Messenger, 1 Bin, 274; Spangler v. Commonwealth, 3 Bin. 533; Stewart v. Same, 4 Serg. & Rawle, 194; McLaughlin v. Same, 4 Rawle, 464; State v. Root, 8 Hawks. 618; State v. Allen, R. M. Charlt. 518; Wilson v. State, 1 Porter, 118. A charge that the defendant set up and kept a faro bank, at which money was bet, lost and won, is not sus- tained by proof, that bank notes were bet, lostand won. Pryor v. Commonwealth, 2 Dana, 298. See Stone’s case, 3 Rogers’ Rec. 3. An allegation in an indictment, that the nose of the prosecutor was bitten off, is within the meaning of the New Jersey statute, so as to imply a cutting off of the nose. State v. Mairs, Boxe, 453. Where a brook is known by the names of ‘‘the Middle Fork of the Beaver,” and ‘the Middle Fork of the Little Beaver,” a description of it by the first name is sufficient. Bossert v. State, Wright, 113. Words in an indictment which are not technical terms are to be understood in their ordinary and usual acceptation. State v. Freeman, 1 Spears, 57. In an indictment on the 9 Geo. I, c. 22, it was held necessary that it should state the species of the cattle wounded or injured, and stating that the prisoner wounded certain cattle was insufficient. Russ. & Ry. C. C. 258. So an indictment for horse stealing should give the animal stolen one of the descriptions mentioned in the statute, and stating it was a colt, without saying it was a horse or a mare, would not suffice. Russ. & Ry. C.C. 416. In larceny for stealing a gray horse, the property was proved to be a gray gelding, and the variance was held fatal. Hooker v. State, 4 Ohio, 350. See Ware v. Juda, 2 Carr. & Payne, 351, where it 278 INDICTMENT. Statement must be certain. was decided, that the allegation of the loan of a horse is supported by the proof that it was a mare. In Baldwin v. People, 1 Scammon, 304, it was held that proof of stealing a mare or gelding will sustain an indictment for stealing a horse. See Halkem vy. Commonwealth, 2 Virginia Cas. 4; Turley v. State, 3 Humph. 323; Regina v. Connell, 1 Car. & Kirwan, 190; State v. Dunnavant,.3 Brevard, 9. An indictment for stealing a pig cannot be supported under an act against stealing hogs. State ». M’Lean, 2 Brevard, 443. . An indictment for murder with stones need not state the number of them. 13 Price, 172. An indictment stating that defendant stole “‘six handkerchiefs” is supported in evidence though the handkerchiefs were in one piece, the pattern designating each handkerchief, and thus being described in the trade, as so many handkerchiefs. 1 Ry. & Moo. C. C. 25. An indictment, that “the defendant stole, took, and carried away, sundry prom- issory notes for the payment of money, to the value of $80, the chattels of A.,” is too vague. Stewart v. Commonwealth, 4 Serg. & R. 194. See State v. Dowell, 3 Gill & John, 310; Commonwealth v. Roger, 1 Bin. 201. It is sufficiently certain in an indictment to describe the property stolen as one hide of the value, etc. State v. Dowelk,.3 Gill & Johns. 310. So acharge of stealing a ‘‘ parcel of oats” is sufficiently certain. State v. Brown, 1 Devereux, 137. See State v. Logan, Missouri, 377; State v. Toole, 2 Harr. Del. 541; State v. Sansorm, 3 Brevard, 5. ‘ Au indictment for stealing a dead animal should state that it was dead (Russ. & Ry. C. C. 797; 1 Carr. N. P. Rep. 128). See Gibson v. Jenny, 15 Mass. (Rand’s ed.) 206, n. (a), and cases there collected ; 2 Russell, 171, 172. The description of the property, at least as to part of it, must be borne out in evidence, and a variance would be fatal. Stating that the prisoner embezzled ‘one pound eleven shillings,” without showing in evidence it was a one pound note and eleven shil- lings, or any part of it in silver, would be bad. Russ. & Ry. C. C. 335; and see ibid. 403. In an indictment on the Black Act, 9 Geo. I, c. 22 (repealed by 4 Geo. IV, c. 54), stating that the defendant maimed certain cattle, to wit, a mare, it was held necessary to prove that the cattle maimed was a mare (Russ. & Ry. C. C. 258); and in larceny for stealing a live animal, evidence cannot be given of steal- ing a dead one. Russ. & Ry. C. C. 497; 1 Carr. N. P. Rep. 128. But, in the case of murder, if the act of the prisoner and the means of the death proved agree in substance with those alleged, a mere variance in the description of the instrument used will be immaterial. Upon an indictment for having in possession a die made of iron and steel, proof of a die made of either material is sufficient. Russ & Ry. C. C. 282. Where the property is of a nature to warrant that descrip- tion, it should be termed ‘the goods or chattels” of the owner, and without these, or equivalent words, the indictment will be defective. Cro. Eliz. 490. See Com- monwealth v. Morse, 14 Mass. 217; Commonwealth v. Manley, 13 Pick. 173, 174. On the same principle, it should be averred to be, ‘‘of-the money’s,” “of the cattle,” etc., when those terms apply ; at all events, if these words be unnecessary, they might be rejected as surplusage. and it is best toinsert them. 1 Leach, 468, (18 Pick. 361.) We have already considered how the prosecutor’s and other third person’s names are to be stated, and it will be unnecessary here to repeat it. ‘Where the value is essential to constitute the offence, it must be stated; thus, in the case of theft, the value must be shown, that it may appear whether the offence is grand or petit larceny. 2 Hale, 185; 1 Hale P. C. 531; Russ. & Ry. C.C. 407; Roscoe’s Dig. Cr. Ev. 512; Payne v. People, 6 Johns. 103; State v. Bryant, 2 Car. Law Repos. 269; State v. Tillery, 1 Nott & M’Cord, 9; State v. Thomas, 2 M’Cord, 527; 2 Stark. Ev. (5th Am. ed.) 444, n; State v. Wilson, 1 Porter, 110; State v. Allen, R. M. Charlt. 518; People v. Wiley, 8 Hill, 194. It is not necessary to prove the whole of the property stated, if by the rejection of the part not proved the offence would be complete; and on an indictment for embezzling one pound notes, and other moneys, etc., describing them, though the evidence be that other property than that described was embezzled, yet, if it be proved that one pound notes were embezzled, it will sutlice. Russ. & Ry. C. C. 303, and see 3 M. & S. 548. So, in an indictment for usury, it is not necessary to prove the exact sum laid in the indictment (6 T. R. 265); nor is it necessary in an indictment for extortion to prove the precise sum alleged to have been extorted (1 Ld. Raym. 149; 6 T. R. 267); but if the whole property stated be necessary to INDICTMENT. 279 Statement must be certain. man with “speaking divers false and scandalous words” of the mayor of a town, without setting out the words.(a) So, where an indictment, at the instance of a justice of the peace, charged a defendant that “ner diversa scandalosa, minacia et contemptuosu verba abusus fuit, et ipsum in executione officti sui praedicti vi et armis illicite retardavit,” and it was demurred to as being too general; on the part of the prosecutor, it was admitted that the indictment was bad as to the words, but it was argued that it was sufficiently certain as to the obstruction: the court, however, held that it was bad as to that also; for it was not sufficient to say generally retardavit, but the act should have been specially set out.(b) So, where a defendant was convicted on an in- dictment, charging him with having obtained a certain promissory note by false tokens, the court upon motion arrested the judgment, because the false tokens were not specified in the indictment.(c) So, an indictment against a constable, charging that male et negligenter se gessit in the execution of his office, was quashed by the court of King’s Bench upon motion, as being too general.(d) So, an indictment charg- ing a man with being a common defamer, vexer, and oppressor, or a common disturber of the peace, or a common deceiver of the Queen’s people, or the like, would be bad.(e) The following exceptions as to this rule, as to the certainty required in indictments, have recently been made by stat. 14 & 15 Vict., c. 100. (a) 2 Hawk., c. 25, § 59. (d) R. v. Winteringham, 1 Str. 2; see also (b) R. v. How, 2 Str. 699. R. v. Robe, 2 Str. 999. (c) R. vy, Munoz., 5 Str. 1127. (e) 2 Hawk., c. 25, § 59; 2 Hale, 182; see R. v. Brian et al., 1 Ad, & E). 436, m, constitute the offence, the whole must be proved as stated. Semb. Russ. & Ry. C. C. 274. [See the following cases which either lay down the general rule or give examples of it. Horne v. State, 39 Md. 552; Com. v. Dean, 109 Mass. 349 ; State v. Elliott, 34 Tex. 148 ; State v. McMickle, ib. 676; State v. Land, 42 Ind. 311 (“on or about” a day) ; State v. Wood, 53 N. H. 484 (‘with an instrument to the grand jurors unknown,” good); State v. Rocheforde, 52 Mo. 119; State v. Caverly, 51 N. H. 446 ; King v. State, 3 Heisk. 148, and State v. Norton, 45 Vt. 258; State o. Wise, 66 N.C. 120; Com. v. Frates, 16 Gray, 236 (certainty in allegations of time) ; State ». McElroy, 3 Heisk. (uncertainty in describing defendant's official character) ; State v. Green, 3 Heisk. 131 (do. in describing chattel stolen) ; State v. Bayonne, 23 La. An. 80 (describing a person killed as ‘‘one Ambrosio”); State v. Wilson, 67 N. C. 456 (describing a place as ‘‘a highway”); Dawson v. State, 33 Tex. 491; Com. v. Powell, § Bush, 7 (duplicity); Boyd v. State, 7 Coldw. 69 (describing person killed as “‘ one William, a man of color”); U.S. v. Prescott, 2 Abb. U. 8. 169 (use of figures in dates); State v. Coulter, 46 Mo. 564; State v. Jay, 34 N. J. (Law) 368 (abbreviations in alleging written instruments) ; People v. Phipps, 39 Cal. 326; Bryan v. State, 45 Ala. 86; State v. Crist, (description of horse stolen). ] [A substantial statement of the offence is all that is required in an indictment for a misdemeanor. Gallagher v. State, 26 Wisc. 423.] 280 INDICTMENT. Statement must be certain. 1. In an indictment for murder or manslaughter, it shall not be necessary to set forth the manner in which. or the means by which, the death of the deceased was caused; but it shall,be sufficient, in every indictment for murder, to charge that the defendant did wil- fully, feloniously, and of his malice aforethought, kill and murder the deceased; and it shall be sufficient, in every indictment for man- slaughter, to charge that the defendant did feloniously kill and slay the deceased.(a)(1) 2. In an indictment for forging, uttering, stealing, embezzling, destroying, or concealing, or for obtaining by false pretences any instrument, it shall be sufficient to describe such instrnment [*90] by any name or designation by. which the same may *be usually known, or by the purport thereof, without setting out any copy or fac-simile thereof, or otherwise describing the same or the value thereof.(d) 3. In an indictment for engraving or making the whole or any part of any instrument, matter, or thing whatsoever—or for using or having the unlawful possession of any plate or other material upon which the whole or any part of any instrument, matter, or thing whatsoever shall have been engraved or made—or for having the unlawful possession of any paper upon which the whole or any part of any instrument, matter, or thing whatsoever shall have been made or printed—it shall be sufficient to describe such instrument, matter or thing, by any name or designation by which the same may be usually known, without setting out any copy or fac-simile of the whole or any part of such instrument, matter, or thing.(c) 4. In all other cases, wherever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholy or in part of writing, print or figures, it shall be sufficient to describe such instrament by any name or designation by (a) 14 & 15 Vict., c. 100, § 4. (6) Thid. § 5. (c) 14 & 15 Vict., c. 100, § 6. (1) If the act of the prisoner and the means of death be proved in substance as alleged, the violence and death being of the same kind as alleged, a mere variance in the name or kind of instrument used will not be material (Bulst. 87), if the instrument was capable of producing the same kind of death. 9 Co. 67, a; Gilb. Ey. 231. So, under an indictment for murder, containing a count charging the crime to have been committed by striking and cutting the deceased with a hatchet, and another count charging it tohave been committed by striking and cutting him with an instrument to the jurors, etc., unknown, it is competent for the public prosecutor to prove that the killing was by the discharge of a pistol. The People v. Colt, 3 Hill, 432, He : INDICTMENT. 281 Statement must be certain. which the same may be usually known or by the purport thereof, without setting out any copy or fac-simile of the whole or any part thereof.(a)(1) (a) Ibid. § 7. (1) When a written instrument forms a part of the gist of the offence charged, it must be set out verbatim, unless where a statute declares that it shall not be necessary. When necessary, it is usually introduced by the words “accord- ing to the tenor following,” or ‘‘of the tenor following,” or “in the words and figures following,” or “ the false, etc., words and matter following,” or other words: which imply that a correct recital is intended. On the other hand, when the substance only is intended to be set out, it should be introduced by such words as ‘‘in substance as follows,” ‘to the effect following,” or the like. Matt. Dig. 275. The words ‘to the tenor and effect following” have been holden suffi- cient; as the word effect, in such a case, may be rejected as surplusage. The word “effect,” however, by itself, implies that the substance only is set out (2 Salk. 417) ; and the same, of course, of the words ‘in substance as follows.” 3 Barn. & Ald. 503. It seems also to have been holden that the words ‘in manner and form following ” require the substance only to be set out. Leach, 227; 1 Doug. 193. As to the necessity for setting out words, where words are the gist of the offence, see Updegraff v. Commonwealth, 11 Serg. & R. 394; Commonwealth v. Kneeland, 20 Pick. 206; State v. Bradley, 1 Hayw. 403; State v. Coffee, 1 N. Carolina, 272. And where an instrument is described by name in an indictment, the instrument set out in the indictment must correspond therewith. State v. Farrand, 3 Halstead, 333. An instrument in a foreign language must be set out first in the original; otherwise the defendant may demur, move in arrest of judgment; or bring a writ of error (6 IT. R. 162); and secondly, in a translation, which must be proved at the trial to be correct. 7 Moore, 1; Russ. & Ry. C. C. 473. In stating records as part of the offence, and not merely as inducement, the record must be referred to, or the omission is bad, on demurrer. Ry. & Moo. C. C. 47. In an indictment for perjury it is not necessary to set forth more than the sub- stance of the oath (People v. Warner, 5 Wendell, 271), and that part in which the perjury is alleged to have been committed. Campbell v. People, 8 Wendell, 636 ; State v. Hayward, 1 Nott & M’C. 546; Weathers v. State, 2 Blackf. 278 ; People y. Phelps, 5 Wendell, 9; State v. M’Kennan, Harper, 302; Commonwealth ». Sweeny, 10 Serg. & Rawle, 173; State v. Walsh, 2 M’Cord, 248. In an indictment for publishing an obscene book or picture, it is not necessary that the libel should be set out at large, Commonwealth v. Holmes, 17 Mass. 336; see Commonwealth y. Sharpless, 2 Serg. & Rawle, 91 People v. Kingsley, 2 Cowen, 322; People v. Wright, 9 Wendell, 193; United States v. Britton, 2 Mason, 464; State v. Gustin, 2 South. 749. It is a géneral rule that, in an indictment for forgery, the instrument forged should be particularly described; unless there be a sufficient reason to the con- trary, which must be alleged. People v. Kingsley, 2 Cowen, 522; see Common- wealth v. Houghton, 8 Mass. 107; State v. Potts, 4 Halstead, 26; Pendleton v. Commonwealth, 4 Leigh, 694; State v. Parker, 1 Chipman, 298; United States v. Britton, 2 Mason, 468 ; People v. Kingsley, 2 Cowen, 522; State v. Justin, 2 South- ard, 744; Rex v. Hunter, 3 Carr. & Payne, 591; 2 Russell, 359, note 1, 317, n. But the indictment need not set forth the date of a forged note, nor when it is payable, Commonwealth ». Ross, 2 Mass. 373; nor the indorsement, Common- wealth v. Ward, 2 Mass. 397; Hess v. State, 5 Ohio, 8. \Where an indictment alleged that a forged certificate purported to be signed by Bowling Starke, and the signature was by B. Starke, and the true name was Bolling Starke, the variance was held to be fatal. Commonwealth v. Kearns, 1 Virginia Cases. 109; see also 2 Stark. Ev. (5 Amer. ed.) 336, n.1; State v. Waters, 2 Const. Ct. R. 169; but see Brown v. Commonwealth, 8 Mass. 63, 64. There is no judicial decision that, in an indictment for forgery, the purport and the tenor should both be stated. Purport means the substance of an instrument 282 INDICTMENT. Statement must be certain. 5. In every indictment, in which it shall be necessary to make any averment, as to any money, or any note of the Bank of England, or any other bank, it shall be sufficient to describe such money or bank note simply as money, without specifying any particular coin or bank note; and such allegation, so far as regards the description of the | property, shall be sustained by proof of any amount of coin, or of any bank note, although the particular species of coin of which such amount was composed, or the particular nature of the bank note, shall not be proved—and, in cases of embezzlement, and obtaining money or bank as it appears on the face of it to every eye that reads it; tenor means an exact copy of it. 2 Leach, 661. The words “in manner and form following, that is to say,” do not profess to give more than the substance, and are proper in an indict- ment for perjury (f Leach, 192; Dougl. 193, 194); but the word “aforesaid” binds the party to an exact recital. Ibid.; Dougl. 97. In forgery the indictment may run, that the prisoner forged a paper writing, stating what it was (Russ. & Ry. C. C. 50), to the tenor and effect following, etc. 2 Leach, 660, 661. An exact copy (2 Leach, 624; 2 East P. C. 928, 977) of the instrument, in words and figures (1 Leach, 78, 145; 2 East P. C. 976), must then be set forth, to enable the court to see that it is one of those instruments, the false making of which the law con- siders as forgery (2 Leach, 624, 657, 661; 2 East P. C. 975), and if the instrument be in a foreign language it must be translated (7 J. B. Moore, 1; 3 Brod. & Bing. 201; Russ & Ry. C. C. 473, 8. C.), and the same rule applies to indictments for threatening letters. 2 East P. C. 976; 1 Marsh. 522; 6 East, 418. Where a figure is omitted from the indictment, it cannot be supplied. State v. Street, 1 Taylor, 158. But in setting forth even the tenor of an instrument, a mere vari- ance of a letter will not vitiate, provided the meaning be not altered by changing the word misspelt into another of a different meaning; as, for instance, the omis- sion of the letter e in the word ‘‘Keene.” Com. v. Riley, Thach. Cr. Cas. 67. So, in an indictment for forging a bill of exchange the tenor was ‘ value received,” the bill, as produced in evidence, was “for value received,” and the judges upon the reserved question were of opinion that the variance was not material, because it did not change one word into another so as to alter the meaning. 1 Leach, 145; 5 Pick. 297. And in an indictment for perjury, it was assigned for perjury that the defendant swore he “ understood and believed,” instead of “understood,” and the mistake was held to be immaterial (1 Leach, 133; Doug. 193, 195), and where in setting forth a libel the word ‘‘not” was inserted for “nor,” the variance was held immaterial; alsu ‘“‘receved” for “received,” ‘‘Messes” for ‘‘ Messrs.,” and the like (Matt. Dig. 276; 2 Salk. 660; 3 Salk. 224; 2 Marsh. 98), but ‘ William” for “Wm.” is a fatal variance. 3 Stark. on Evid. App. to p. 859. When the pur- port may be adopted instead of tenor, it is not necessary to state the matter with such verbal accuracy. 2 East P.C. 983. But if the paper forged does not on the face of it appear to be that which the indictment states it purports to be, the pro- ceedings will be invalid. Dougl. 300. If descriptive words be used, though unnecessarily, they must be proved. U.S. uv. Keene, 1 M’Lean, 441. As, for instance, if'a person be charged with stealing a black horse; the allegation of color is unnecessary; yet as it is descriptive of that which is the subject-matter of the charge, it cannot be rejected as surplus- age, and the man convicted of stealing a white horse. So, under the charge of taking a pine log, the defendant could not be convicted of taking an oak or a birch log; the offence would be the same; but the charge to which the party was called to answer, and which it was incumbent on him to meet, is for faking a log of an entirely different description. State v. Noble, 15 Maine Rep. 476. A draft signed ‘Jos. Johnson,” was not admitted in evidence under a count stating it to » ~ have been signed by “ Joseph Johnson, President.” U.S. v. Keene, 1 M’Lean, 441. INDICTMENT. 283 Statement must be certain. notes by false pretences, by proof that the offender embezzled or ob- tained any piece of coin or any bank-note, or any portion of the value thereof, although such piece of coin or bank note may have been deliv- ered to him in order that some part of the value thereof should be re- turned to the party delivering the same, or to any person, and such part shall have been returned accordingly.(a) In the time laid to each material fact, also, uncertainty was for- merly as fatal as in the statement of the facts themselves; and, there- fore, an indictment, charging the owner of a ferry with extorting sev- eral sums of money from several persons, between such a day and such a day, was holden void.(b) But this defect, as far as respects the time laid, would now, it should seem,.be cured by stat. 14 & 15 Vict., c. 100, § 24.(c) : *Besides uncertainty, arising from too great generality of [*91] statement, an indictment may be ungertain in other respects, and, therefore, bad. As, for instance, where an indictment charged a miller, in the same count, with having received two several parcels of barley, of four bushels each, to be ground at his mill, and that he delivered three bushels of oat and barley meal other and different from the produce of the said four bushels, the indictment was holden bad for uncertainty, as-not showing as to which of the parcels of bar- ley the offence was committed.(d) A charge, also, in the alternative, charging a defendant with having done so, or so, as that he murdered, or caused to be murdered, is bad for uncertainty.(e)(1) (a) 14 & 15 Vict., c. 100, § 18. (d@) R. v. Haynes, 4M. & S, 214, (b) 4 Hawk.,, c. 25, § $2. E (e) 2 Hawk., c. 25, § 58, (c) Ante, p. 85. : (1) So, to say that the defendant forged or caused to be forged an instrument; that he erected ur caused to be erected a nuisance; that he carried and conveyed or caused to be carried and conveyed two persons having the small-pox, so as to burthen the town, are not sufliciently positive. State v. O’Bonnon, 1 Bailey, 144. But in Vermont it was held not to be a fatal objection, that the indictment charged the defendant with the larceny of a horse, described as being either of a “ brown or bay color.” State v. Gilbert, 13 Vermont Rep. 647. And in Pennsylvania, an indictment laying a nuisance to be in the ‘highway or road,” etc., was held good. Respb. v. Caldwell, 1 Dallas, 150. The offence may be charged in the alterna- tive, following the words of the statute, when the descriptive words in the statute are synonymous. V. 4 Mis., 474. Though the language of the statute creating the offence be in the disjunctive, viz.: ‘burn or cause to be burned,” and the in- dictment charges the offence in the conjunctive, viz.: that the defendant ‘burned and caused to be burned,” the allegation is sufficient. State v. Price, 6 Halst. 203. 284 INDICTMENT. Statement must not be repugnant.—Technical words. (h) Statement must not be repugnant. One material part of an indictment must not be repugnant to another, otherwise the indictment will be bad.(a) Therefore, if an indictment charge a man with forging an instrument, by which A. was bound to B., it is bad, for A. could not be bound by the instru- ment if it were forged.(b) So, if an indictment for forcible entry charge that A. disseized B., and it appear on the face of the indict- ment that B. was not seized in fee, it is bad.(c) (1) So, an indictment for selling iron by false weights and measures has been holden bad, for repugnancy, for it was absurd to say that it, could be sold both by weight and measure at the same time.(d) But where an indictment charged Francis Morris as a receiver, “he, the said Thomas Morris well knowing,” etc., it was holden that the words “the said Thomas Morris” might be rejected as surplusage, and so the indictment be good.(e) So, where an indictment charged the defendant, that he on one Henry Bennett, did make an assault, ‘and him the said Wil- liam Bennett, did beat,” etc., this was holden good in arrest of judg- ment, for the same reason.( 7’) (2) (i) Technical words. In some cases certain technical words are tequired, such as “ trea- sonably and against his allegiance,” in indictments for treason,(g)-— (a) 2 Hawk., c. 25, § 62. (e) R. v. Morris, 1 Leach, 103. (b) Thid, (f) R. v. Crispin, 12 Shaw’s J. P. 323. (c) Ibid. (g) 2 Hawk., c. 25,.§ 56. (d) Ibid; 2 Ro. Abr. 18, (1) The same error has been held to exist where an indictment charged an offence to have been committed in November, 1801, and in the 25th year of Amer- ican Independence; and where the crime was laid to have been committed A.D. 1030. Serpentine v. State, 1 How. Miss. Rep. 256. (2) Where the indictment contains three counts, in the first and second of which a felony is charged upon the principal, and in the last a person is charged acces- sory to ‘‘said” felony, the word ‘said ” will be referred to the second count, and will not, therfore, be bad for uncertainty. Sampson ». Commonwealth, 5 Watts & Sergeant, 385. : As each count in an indictment is a distinct substantive charge, internal repug- nancy in any one is a geod exception. U.S. 4. Bowers, 5 Wheaton, 184. Averments in an indictment, altogether superfluous and immaterial, will seldom prejudice. For, if the indictment can be supported without the words which are bad, they may, on arrest of judgment, be rejected as surpulsage. State ». Hand, 1 Engl. 165 ; State v. Noyes, 10 Foster, 279; Lodano v, The State, 25 Ala. 64. (See U.S. v. Dow, Taney, 34 (case of repugnancy in describing the place where the crime was committed, by means of the words ‘then and there” being twice used); where a material allegation will not be rejected, because a subse- quent averment is repugnant to it. See U. 8S. v. Dow, Taney, 34.] INDICTMENT. 285 Technical words. “murder,” and “of his malice aforethought,” in an indictment for murder,(#)—‘ ravish,” in an indictment for rape,(b)—“ burglariously,” in an indictment for burglary—“feloniously,” in an indictment for felony,(c) and the like: in these cases, no other words, nor any peri- phrasis whatever, would be deemed equivalent to them, and an indict- ment omitting them would be bad. So, an indictment upon statutes, where the definition of the offence contained in them includes such adverbs as “unlawfully,” “wilfully,” ‘ maliciously,” etc.,. the offence must be charged *to have been committed unlawfully,” [92] “ wilfully,” or “maliciously,” accordingly, otherwise the indict- ment will be bad. The word “unlawfully” is not essentially neces- sary in indictments at common law,(d) although very generally used. The words “with force and arms” were formerly always used in all indictments for offences with force, and indeed for all felonies, for a felony was deemed to include a trespass; and the words “as appears by the record” were always used, where a matter of record was pleaded: but now, by stat. 14 & 15 Vict., c. 100, § 24, no indictment for any offence shall be held insufficient for the omission of the words “as appears by the record,” or of the words “ with force and arms.”(1) (a) Ibid. § 60; 4 Bl. Com. 307. (c) Ibid. § 55; 2 Hale, 184, (b) 2 Hawk., c. 25, § 55; 4 Bl, Com. 307. (d) Ibid. § 96. (1) Every indictment for treason must contain the word “traitorously.” Cro. 37. The crime of murder, which is next in point of degree, has, as well as treason, terms peculiarly appropriate to its own description. As a conclusion from the facts averred, it must be stated, that so the defendant, feloniously,.of his malice aforethought, did kill and murder the deceased ; for without the terms “‘ malice afore- thought,” and the artificial phrase murder, the indictment will be taken to charge manslaughter only. Fost. 424; Yelv. 205; 2 Hale, 184; Cro. Jac. 283; 1 Bulst. 144; Dyer, 69, a. 261; Cro. Eliz. 920; Kel. 124; 1 Hale, 450, 466; 2 Hale, 187; Hawk., b. 2, c. 25, §55; Com. Dig., Indictment, G. 6; Bac. Abr., Indictment, G. 1; 4 Bla. Com. 307; 1 East P. C. 345; Cro. C. C. 37; Burn J., Indictment, IX; Williams J., Indictment, IV. Where the death arises from any wounding, beat- ing, or bruising, it is said that the word “struck” is essential. 1 Bulst. 184; 5 Co. 122; 3 Mod. 202; Cro. Jac. 655; Palm. 282; 2 Hale, 184, 186, 187; Hawk., b. 2, c. 23, § 82. In Pennsylvania, in an indictment charging that the defendant with a certain stone, which he held in his right hand, in and upon the right side" of the head of the deceased, feloniously, etc., did cast and throw, and that the de- fendant, with the stone aforesaid, the deceased in and upon the right side of the head, feloniously, etc., did strike, sufficiently charges that the defendant threw the stone and struck the deceased. White v. Commonwealth, 6 Bin.179. And the wound or bruise must be alleged to have been mortal ; nor is the latter word supplied by the allegation, which is at all times necessary, that the deceased died in consequence of the violence inflicted upon him. 1 Leach, 96; Kel. 125; 2 Hale, 186; Hawk., b. 2, c. 23, § 82; Cro. C. C. 88; 3 M’Cord, 190. In Pennsyl- vania, the omission of technical epithets in an indictment for murder is fatal. 2 Dall. 228. But in that state, in an indictment for murder, it is not necessary so to describe the offence as to show whether it be murder of the first or second 286 INDICTMENT, Technical words. degree ; nor is it necessary that the indictment should conclude against the form of the act of Assembly. 6 Binney, 179; 1 Russell, 466-471. The allegation that the person murdered was, at the time, in the King’s peace, is sufficient to show that he was a British subject. Russ. & Ry. C. C, 294. In an indictment for assault and battery, with intent to kill, it is indispensably necessary that the offence should be alleged to be unlawful and felonious (Curtis ». People, 1 Breese, [Ill.] 199; Curtis v. People, 1 Scam. 120), and we have seen that “feloniously” must be introduced in every indictment for felony. 2 Hale, 171, 184; Cro. Eliz. 198; 5 Co. 121; Hawk., b. 2, c. 26, § 55; Com. Dig., G. 6; Bac. Abr., Indictment, G.1; Cro. C. C. 37; Burn J., Indictment, IX; Williams J., Indictment, IV; Russ. & Ry. C. C. 62. See Stuart v. Com., 12 Serg. & R. 177; Curtis v. People, Breese, 199. And these words are so essential that, if the word feloniously be omitted in an indictment for stealing a horse, it will be only a trespass (2 Hale, 184; Bac. Abr., Indictment, G.1; Cro. C. C. 37), or a mis- demeanor of which the defendant may be convicted under such indictment. Cald. 400, 401. If an indictment under the statute of Ohio, against having counterfeit bank notes in possession, and making sale of them, allege such acts to be felonious (the statute using the term misdemeanor), it is not error, and the term “felonious” may be rejected as surplusage. Hess v. State, 5 Ohio, 12; see Commonwealth v. Squire, 1 Metcalf, 258. The essential words in an indictment for burglary are, “ feloniously and burg- lariously broke and entered the dwelling-house in the nighttime,” about a named hour. 4 Co. 39, b; 1 Hale, 549, 550; 2 Hale, 184; Hawk., b. 2, c. 25, § 55; Com. Dig., Indictment, G. 6; Bac. Abr., Indictment, G.1; Cro.C.C. 37. And besides these requisites, the felony committed or intended must be set forth in technical language (1 Hale, 550; 3 Rawle, 207); so, in an indictment for simple larceny, the words “ feloniously took and carried away the goods,” or “‘tuok and led away the cattle,” are necessary (1 Hale, 504; 2 ibid. 184; Bac. Abr., Indictment, G.1; Cro. C. C. 37); and in case of robbery froin the person, the words “feloniously and against the will” must be introduced; and it is usual to aver a putting in fear, though this does not seem to be requisite. 3 Inst. 68; Fost. 128; 1 Hale, 535; 2 East P. C. 283. And the word “ violently” was formerly regarded as essential, but has been holden not to be necessary. 2 Hast P. C. 784; 3 Russ. 89-91. And feloniously and piratically are both necessary in an indictment for piracy. Hawk., b. 1, c. 37, § 15; 3 Inst. 112. ‘ So also, in indictment for rapes, the words “ feloniously ravished” and ‘‘ car- ‘nally knew” are necessary: nor is the want of the former supplied by the inser- tion of the latter. 1 Hale, 628; 2ibid. 184; Co. Lit. 124, n. p.; 2 Inst. 180; 1 East P. C. 447; Com. Dig., Indictment, G. 1; Bac. Abr., Indictment, G. 1; Hawk., b. 2,-c. 25, § 56; Cro. C. ©. 37. But in an indictment for an assault and battery with an intent to commit a rape, the omission of the word feloniously does not vitiate. Stout v. Commonwealth, 11 Serg. & Rawle, 177. And though some have inclined to think that the words “carnally knew” are not absolutely necessary, it would certainly be very unsafe to omit them. 1 East P.C. 448. But it is not necessary to allege that the offence was committed forcibly and against the will of the woman. It is sufficient, if it charge that the defendant feloniously did ravish and carnally did know her. Harman v. Com- monwealth, 13 Serg. & Rawle, 69; but see State v. Jim, 1: Devereux, 142. In Maryland, it is held necessary in such case to prove the carnaliter cognovit in the indictment. Davis v. State, 3 Harr. & Johns. 154. And, in an indictment for an unnatural crime, the word of the statutes, taking away clergy, must be followed. Fost. 424; Co. Ent. 351, b.; 3 Inst. 59; Hawk., b. 1, ¢. 4, §2; 5 Eliz.,c.17; 3& 4W. & M.,c. 9,§ 2. In Massachusetts, an indictment for administering a potion, with intent to procure an abortion, must contain an allegation that an abortion ensued, and that the woman was quick with child. 9 Mass. 387. An indictment, which described the offence as having been done feloniously and unlawfully and maliciously, will not be good where the statute uses the words wilfully and maliciously. State v. Delue, 1 Chand. (Wis.) 166. Where an offence, which is a misdemeanor at common law, is created a felony by statute, and the statute makes an indictment good in such case when framed ‘according to the common law, it is not necessary to allege in the indictment that the offence was committed feloniously, in order to sustain a conviction under the INDICTMENT. 287 Techuical words. statute. Peck v. State, 2 Humph. 78; Beasley v. State, 18 Ala 535. The statute of Alabama (Clay’s Dig. 442, § 26) dispenses with the necessity of using the word “feloniously ” in all indictments for crimes which were misdemeanors at common ne ae are made felonies by the penal Code of that state. Butler v. State, 22 a. 43, In all indictments of mayhem, the words “feloniously did maim” must, of necessity, be inserted. 3 Inst. 118; Hawk., b. 2, c. 23, §§ 17, 18, 77; Ibid., b. 2, c. 25, § 55; 7 Mass. Rep. 247. Common barretors and scolds must be indicted as such. 6 Mod. 11, 178, 213, 239, ; Com. Dig., Indictment, G. 6. The word “riot” must be inserted in all in- dictments for rioting, and maintained in all indictments for maintenance (1 Wils. 325), and “with strong hand” in an indictment for a forcible entry 8 T. R. 357; 2 Russ. 289. The term “unlawfully” which is frequently used in the description of the offence, is unnecessary, wherever the crime existed at common law, and is mani- festly illegal. Hawk., b. 2, c. 25, § 96; Bac. Abr., Indictment, G. 1; Cro. C. C. 38. See Jerry v. State, 1 Blackf. 396; State v. Bray, 1 Missouri, 180; Curtis v. People, Breese, 197. So, it has been adjudged, that it need not be used in an in- dictment for a riot, because the illegality is sufficiently apparent, without being expressly averred. 2 Rol. Abr. 82; Hawk., b. 2. c. 25, (96; Bac. Abr., Indict- ment, G. 1; Cro. C. C. 43. So it has been held that the words ‘‘ wrongfully and injuriously,” in an indictment for a nuisance are sufficient without employing the word “unlawfully.” State ». Vermont Cent. R. R. Co., 27 Vt. Rep. 103. But if a statute, in describing an offence which it creates, uses the word, the indictment founded on the act will be bad, if it be omitted (Hawk., b. 2, c. 25, 496; Bac. Abr., Indictment, G.1; Cro. C. C. 483; sed quere, see 2 Marsh. 362); ‘and it is, in general, best to insert it, especially as it precludes all legal cause of excuse for the crime. See 4M. & S. 274. The word “knowingly,” or ‘well knowing,” will supply the place of a positive averment, that the defendant knew the facts subsequently stated. 2 Stra. 904 ; Com. Dig., Indictment, G. 6; see Russ. & Ry. C. C. 317; 1 Stark. C. N. P. 390. It is absolutely necessary to constitute guilt, in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offences of a similar description. An indictment at common law, for aiding a prisoner’s escape, should state that the party knew of his offence. Rex v. Young, 1 Russels 891; see United States v. Kean, 5 Mason, 453. An indictment for stealing bank “bills in Ohio must aver that the defendant knew the bills to be bank bills, or the indictment is defective. Gatewood v. State, 4 Ohio, 386; see State v. Wilson, 2 Const. Ct. 185; Anderson v. State, 7 Ohio, 250; Birney v. State, 8 Ohio, 230; Rich v. State, 8 Ohio, 111; State v. Gardner, 2 Missouri, 23. But if notice or knowl- edge be unnecessarily stated, the allegation may be rejected as surplusage. 2 East, 452. The words ‘‘ wickedly, maliciously, of his own wicked and corrupt mind, being a person of evil disposition,” etc., are in general mere matter of aggravation, and not material, 6 East, 472. And we have seen that, where an act must be done with a particular intent, in order to render it criminal, an evil intention must be averred upon the record (6 East, 473; 2 East P. C. 1031; Andr. 162). In an in- dictment against A. S., as one of the wardens of the city of Portland, for receiv- ing at the general election the vote of a person whose name was not borne on the list of voters, it was held to be necessary to allege that the act so done and com- mitted was “wnreasonable, corrupt, or wilfully oppressive.” State v. Small, 1 Fairfield, 109. Where consent is a substantial part of the offence, the indictment must allege that the act was done without consent; but it is not always the duty of the prose- cutor to introduce direct testimony to prove it. State v. Whittier, 21 Maine, 341. When the words or terms of art are used in the description that have technical meaning at common law, these should be pursued; being the only terms to ex- press, in apt and legal language, the nature and character of the crime, State v. Eldridge, 7 Engl. Ark. Rep. 608. Where precise technical expressions are required to be used, there is no rule that other words shall be employed than such as are in ordinary use, or that in indictments or in pleadings a different sense is to be put upon them than what 288 INDICTMENT. Conclusion of indictment. (a) Against the Peace. All indictments, whether for offences at common law or by statute, conclude “‘against the peace of our Lady the Queen, her crown and dig- nity.”(a) The words “against the peace of our Lady the Queen,” are in all cases deemed necessary; the words ‘“ her crown and dignity ” not.(d) If the offence be committed in the reign of one King, and the offender be indicted in the reign of his successor, the indictment should conclude, against the peace of the late King ;(c) or if commenced in the reign of one King, and continued into the reign of another, it seems that a conclusion, against the peace of both Kings, would be good.(d) By stat. 14 & 15 Vict., c. 100, § 24, however, no indictment shall be held insufficient, for the omissions of the words “against the peace.” And the like omission was before cured by verdict, or judg- ment by confessions, etc., by stat. 7 G. IV, c. 64, § 20; which act was holden to apply to the case of an indictment, in the reign of William the Fourth, for an offence committed in the reign of George the Fourth, concluding against the peace of our Lord the King, etc., instead of our late lord the King.(e)(1) (a) 2 Hawk., v. 25, § 92. (d) 2 Hawk., c. 25, § 93. (b) Ibid. § 94. : (e) R. v. Chalmers, R. & M. 352; and see (c) R. v. Lookup, 3 Burr, 1901 R. v. Scott, R. & Ry. 415. they bear in ordinary acceptation ; and if, when-the sense is ambiguous, it is suffi- ciently marked by the context, or other means, in what sense they are intended to be used, no objection can be made on the ground of repugnancy; but no latitude of intention can be allowed to make the indictment include anything more than is expressed. Graham v. The State, 1 Ark. 171. An indictment will be good which contains sufficient averments, although it does not conform to technical rules in some parts of it. Fitch v. Respublica, 3 Yeates, 49. The ancient strictness is no longer observed in indictments for misdemeanors and minor offences; and the omission of terms merely technical is not material. Com. v. McChord, 2 Dana, 243. Clerical or grammatical errors will not vitiate an indictment, unless the mean- ing is obscured. State v. Wimberly, 3 McCord, 190. [See the following cases: State v. Shaw, 35 Iowa, 575; and People v. Phipps, 39 Cal. 326 (wrong name of the crime) ; State v. Rucker, 68 N. C. 211; Dillard ». State, 3 Heisk. 260; Jones v. State, 3 Heisk. 445; Nevills v. State, 7 Coldw. 78 (“feloniously ” and its equivalents); as to meaning and effect of ‘then and there” see Chrichton v. People, 1 Abb. App. Dec. 467; U.S. v0. Dow, Taney, 345 Com. v. McLaughlin, 105 Mass. 460 (“unlawfully, wilfully, and maliciously.”] (1) The Constitution of Vermont provides that all indictments shall conclude with these words: “against the peace and dignity of the state.” Const., part 2, § 32. The Constitution of Pennsylvania provides that all prosecutions shall be carried on in the name and by the authority of the commonwealth of Pennsylva- nia, and conclude against the peace and dignity of the same. Const., art. 5, § 115 see Com. v. Rogers, 5 Serg. & Rawle, 463. In Missouri an indictment is bad unless it concludes “against the peace and dignity of the state.” State v. Lopez, 19 Mis. 254. So it was held, that if an indictment for an offence against the INDICTMENT. 289 Conclusion of indictment. In misdemeanors to the person or property of an individual, it is very usual to conclude “ To the great damage of the said J. &., to the evil example of all others in ‘the like case offending, and against the peace,” etc.; but the above words in italics are unnecessary. statutes of Massachusetts, committed before the separation of Maine, did not charge the offence to have been committed against the peace of Massachusetts, and the laws of the commonwealth, the omission would be fatal. Damon’s Case, 6 Greenl. 148. It was held in New Hampshire, that an indictment concluding “against the peace and dignity of our said state,” instead of “the peace and dignity of the state,” as required by the Constitution, was good. . The State ». Kean, 10 New Hamp. 347. And in South Carolina, an indictment was held good, though it concluded against ‘‘the peace and dignity of this state,” instead of con- cluding “‘against the peace and dignity of the same state.” State v. Yancey, 1 Tr. Con. Rep. 237. An indictment commencing with “South Carolina,” and omit- ting the words “state of” before “South Carolina,” and concludicg with the words “against the peace and dignity of the said state,” was held to be good. State v. Anthony, 1 McCord, 285. In South Carolina, an indictment stating an offence against the state, and concluding with the words ‘against the peace and dignity of the same,” ig not faulty, but good within the terms of the Constitution of 1790. State v. Washington, 1 Bay, 120. An indictment which concluded “against the peace and dignity of the people of the state of Arkansas,” while the form prescribed by the Constitution requires all indictments to conclude simply against the peace and dignity of the state of Arkansas, was held good. Anderson v. State, 5 Ark. 444. An indictment which commences with “ the state of Mississippi,” and concludes, “against the peace and dignity of the same,” is good. The State v. Johnson, Walker, 392. An indictment running in the name of “state of Iowa,” instead of ‘“‘the state of Iowa,” will be good. Hariman ». State, 2 Iowa, 270. It has been held in Kentucky that an indictment in the usual form, in the name of the commonwealth, and concluding, against the peace and dignity, need not state that it is found by the authority of the commonwealth. Allen v. Com. 2 Bibb. 210. So in Wisconsin, the indictment need not allege that it is found as presented under the authority of the ‘state, provided there is a statement in it that the crime charged to have been committed, is against the peace and dignity of the state, and that the grand jury making the presentment were impaneled and sworn to inquire for the body of the county wherein the indictment is found, that county being within the state. But in Illinois, if the indictment omits to state the words, ‘‘in the name and by the authority of the people of the state of Illinois,” it is a fatal defect. Whitesides v. People, Breese, 4. The General Court of Virginia held that a count in an indictment ought to be quashed, because the constitutional conclusion, ‘against the peace and dignity of the commonwealth,” was not added to the count. Commonwealth v. Carney, 4 Gratt. 546. (The constitution of West Virginia provides that indictments shall conclude, “against the peace and dignity of the state of West Virginia.” An indictment which concluded, ‘‘ against the peace and dignity of the state of W. Virginia,” was held fatally defective, and was quashed. Lemons ». State, 4 W. Va. 755.] (The constitution of Wisconsin, art. 12, § 17, says that ‘all indictments shall conclude, against the peace and dignity of the state.” This provision is impera- tive; and an indictment without such conclusion is bad. Williams ». State, 27 Wis. 402. But the omission does not invalidate an information. Nichols v. State, 35 Wis. 308.] [It is enough if the whole indictment concludes, ‘against the peace,” etc. ; each count need not. Rice ». State, 3 Heisk. 215. ‘In the name of and by the authority of the state of,” etc., need not be repeated in each count, even though a nolle prosequi is entered as to the first. Davis v. State, 19 Ohio St. 270. Con- clusion, against the form of the statutes ‘or of the statute, where, see U.S. v. Trout, 4 Bin. 105.] 19 290 INDICTMENT. Conclusion of indictment. (0) Against the form of the statute. Indictments for offences against a statute or statutes conclude, “against the form of the statute [or statutes] in such case made and provided,” and against the peace of our Lady the Queen, her crown and dignity. This is material to be observed; for where the [*93] contra *formam statuti is omitted, if the offence be one punish- able by statute only, no judgment can be given, although otherwise if the offence be also punishable at common law.(a) As the conclusion, contra formam statuti, to an indictment for an offence at common law, therefore, does not affect the validity of the indictment, I understand that the judges, about fifteen years since, intimated to the clerks of indictments on the different circuits; that it would be advisable to conclude their“indictments, generally, as for offences against a statute. Formerly nice distinctions were taken, as to cases where the conclusion should be contra formam statuti, and where statu- torum ; but this is now immaterial; for, by stat. 14 & 15 Vict., c. 100, § 24, no indictment shall be deemed insufficient for the insertion of the words ‘against the form of the statute,” instead of “against the form of the statutes,” or vice versa.(1) (a) 2 Hawk., c. 25, § 116. x (1) Where a statute either creates the offence altogether, or makes an offence at common law an offence of a higher nature (as where it makes a misdemeanor a felony), an indictment for the offence must conclude ‘‘against the form of the statute.” 13 Wend. 159; 2 Hale, 192; 2 Hawk., c. 25, §116; 1 Salk. 370; 7 Mass. Rep. 9; 11 ibid. 279; 2 ibid. 116; 10 Pick. 837; Hardin, 95., Or, at least, it must refer clearly and explicitly to the statute as the foundation of the prosecution. 7 Mass. Rep. 9; 2 ibid. 116; 11 ibid. 279; State ». Jim, 3 Murphey, 3; Browne’s case, 3 Greenleaf, 177; Com. v. Springfield, 7 Mass. 9; State v. Soule, 20 Maine R. 19; Chapman v. Com., 5 Wharton, 427; 1 Hale, 172, 189, 192; Dougl. 441; 1 Salk. 370; 13 East, 258; 5 Mod. 307; 2 Ld. Raym. 1104; 1 Saund. 135, a, n. 8,4; Hawk., b. 2, c. 25, § 116, c. 28, §99; Bac. Ab., Indictment, H. 4; Burn J., Indictment, ix; Cro. C. C. 39; 1 Chitty on Pleading, 358; 2 Hale, 189; Hawk., b. 2, c. 25, § 116; 1 Salk. 370; Com. v. Stockbridge, 11 Mass. 279; Com. v. North- ampton, 2 Mass. 116; Com. v. Cooley, 10 Pick. 37; Com. v. Searle, 3 Binney, 332. But where a statute does not create an offence, but alters the punishment for an offence at common law, it is not necessary that the indictment should conclude contra formam statuti. Williams v. The Queen (in error), 10 Jur. 155; 8. C. 14 Law J. N. 8. 164. If the statute be merely declaratory of an offence at common law, without adding to or altering the punishment, ete., an indictment for the offence may conclude either ‘‘ against the form of the statute,” or as at common law. 2 Hale, 189; 13 Wend. 159; 1 Black. 163. But where a statute merely takes away a certain privilege or benefit from a person committing a common law offence under the particular circumstances to which benefit or privilege the defendant, but for the statute, would have been entitled at cammon Jaw, an indictment for the offence, though it must charge it to have been committed under the circumstances mentioned in the statute, should not conclude “against the form of the statute.” Ibid. 190. An indictment against A. for shooting at B., INDICTMENT. 291 Form of indictment. and against others as aiding, etc., was held sufficient in a late case, without con- cluding “against the form of the statute,” as to each offence, but only at the conclusion of the count. 6 Car. & Payne, 347. : : Where one statute is relative to another, as where one creates the offence and the other the penalty, an indictment for the offence must conclude “against the form of the statute.” 2 Hale, 173; Cro. Jac. 142. It has, however, been held, in --Maryland and North Carolina, that when an offence is created by one act of Assembly, and the punishment prescribed or affixed by another, the conclusion should be against the acts of Assembly in the plural. State v. Cassel, 2 Har. & Gill, 407; State v. Pool, 2 Dev. 202; and a similar decision has recently been made in Indiana. King v. The State, 2 Carter, 651. Where one statute contin- ues a former one in part, or explains what was doubtful, or regulates its operation, the conclusion of the indictment should be in the singular. King v. The State, 2 Carter, 651; Kane v. The People, § Wend. 203. And so, where a statute defines an offence, makes it indictable} and prescribes the punishment, an indictment for it is wholly founded on this statute, although it contains a reference to a former statute, giving a penalty to a common informer for the same act, and, therefore, such an indictment must conclude “against the statute,” and not “against the statutes.” State v. Abernathy, Busbee’s Rep. 428. It has been held in New Jersey, that though there is but one statute prohibiting an offence, it is not fatal for the indictment to conclude contrary to the “statutes.” Tereonley v. State, 3 Harrison, 311. But it has been determined otherwise in Maryland and North Carolina. State v. Cassel, 2 Har. & Gill, 407; State v.° Sandy, 3 Iredell, 570; State v. Abernathy, Busbee’s Rep. 428. Formerly, where an offence was prohibited by several independent statutes, it was necessary to conclude in the plural. But now a conclusion, “against the statute,” instead of ‘‘statutes,” is immaterial, although the offence may he the creation of a number of statutes. State v. Wilbor, 1 Rhode Island, 199; State ». Dayton, 3 Zabriskie, 49; Bufman’s case, 8 Greenlf. 113; State v. Jones, 4 Halst. 357. It is not necessary that the indictment should conclude in the technical words, “against the form of the statute in such case made and provided.” Equivalent expressions may be used. Therefore, where it concludes, ‘contrary to the true intent and meaning of the act of Congress of the United States, in such case made and provided,” it is sufficient. U. 8S. v. Smith, 2 Mason, 143. But in Massa- chusetts it was held not to be sufficient, in an indictment for an offence created by statute, to allege the same to have been committed against the law in such case made and provided. 11 Mass. 279; see Commonwealth v. Springfield, 7 Mass. 9. In Indiana, however, where an indictment for murder concluded, ‘contrary to law,” instead of ‘contrary to the statute,” it was held sufficient. Hudson v. State, 1 Blackford, 318; Fuller v. State, ibid. 65. In North Carolina, where the indictment charges the offence as committed against ‘‘the act of Assembly,” in- stead of saying against the “statute,” it is such an informality as is cured by statute. State v. Tribatt, 10 Iredell, 151. In South Carolina, where an indictment concluded, ‘contrary to the act of Assembly of the state of South Carolina,” whereas the act under which the indict- ment was prosecuted was an act of the province of South Carolina, it was held, that the indictment was, nevertheless, good. State v. Turnage, 2 Nott & M’Cord, 158. But where an indictment (since the revolution) concluded, against ‘a Brit- ish act of Parliament made of force in this state,” the indictment-was held to be bad, although there was an act of Assembly against the offence committed, which was an exact transcript of the English statute. State v. Holley, 2 Bay, 262. If an indictment, for a breach of a by-law, conclude, against the by-law, with- out also concluding, against the statute, it will be bad. Commonwealth v. Gay, 5 Pick. 44. A complaint purporting to be made pursuant to stat. of Mass. 1785, c. 66,.§ 2, for the maintenance of a bastard child, but not concluding contra _for- mam statuti, was held sufficient. Commonwealth v. Moore, 3 Pick. 197. So in an action on the case upon a statute, brought by a party aggrieved to recover . damages merely, it is not necessary to allege in the declaration that the injurious act or neglect of the defendant was contra formam statuti. Reed v. Northfield, 13 Pick. 94. And it has been held in New Jersey that an indictment for assault and battery will not be quashed because it does not conclude, “contrary to the 292 INDICTMENT. Want of proper conclusion.—Several counts for the same offence. (0) Want of a proper conclusion. By stat. 14 & 15 Vict., c. 100, § 24, no indictment, shall be held in- sufficient ‘for want of a proper or formal conclusion.” 5. Joinder of Offences. (a) Several counts for the same offence. There is no objection to stating the same offence, in different ways, in as many different counts of the indictment as you may think neces- sary, even although the judgment on the several counts be different,(a) provided all the counts be for felonies, or all for misdemeanors.(1) (a) R. v. Galloway, Ry. & M. 234; see R. v. Powell, 2 B. & Ad. 75. form of the statute in such case made and provided.” State v. Berry, 4 Halst. 374. A count in an indictment, defective by reason of its not alleging the offence to have been committed against the form of the statute, cannot be aided by another count for a different offence, laid upon-the same state of facts which contains such allegations. State v. Soule, 2 App. 19. : Formerly, omitting to conclude “‘against the form of the statute,” when it was essential, was error, and might be taken advantage of by demurrer, motion in arrest of judgment, or writ of error. Matt. Dig. Cr. L. 279. Commonwealth ». Springfield, 7 Mass. 9; Same v. Stockbridge, 11 Mass. 279; Same v. Northamp- ton, 2 Mass. 116; Same v. Cooley, 10 Pick. 37. But, in the state of New York, defects of this kind are now cured by the statute, notwithstanding the offence may’ have been created, or the punishment declared, by a statute. 2 R. 8. 728, ( 52, sub. 8. And in Massachusetts, the revised statutes provide that no indictment shall be quashed or be deemed invalid, nor shall the judgment thereon be arrested or affected by the omission of the words ‘contrary to the form of the statute.” Rev. Stat., c. 137, § 14. There is a similar statute im Arkansas. Brown v. State, 8 Engl. 96. In Kentucky, under art. 2 of the Code of Practice in criminal cases, though an indietment describes an offence punished by statute, it is not now neces- sary that it should conclude, ‘against the form of the statute.” Com. v. Kennedy, 15 B. Mon. 531. ; If an indictment conclude, ‘against the form of the statute,” when it should con- clude as at common law, the mistake is not material, and the words contra form. stat. may be rejected as surplusage. 5 T.R. 162; Sayer, 225; 1 Vent. 103; 2 Dana, 417; 3 Har. & John. 154; State v. Buckman, 8 New Hamp. Rep. 203; Knowles v. State, 3 Day, 103; Com. v. Gregory, 2 Dana, 417; State v. Cruizer, 3 Harrison, 108 ; Southworth »v. State, 9 Conn. 560; Com. vw. Hoxey, 16 Mass. 385 ; Pennsyl. v. Bell, Add. 171; Resp. v. Newell, 3 Yeates, 407; Haslip v. State, 4 Haywood, 273. Where an offence both by statute and common law is badly laid under the statute, the judgment may be given at common law. State v. Phelps, 11 Verm. Rep. 117; Com. v. Lanigan, 2 Bost. Law. Rep. 49. (1) The introduction of several counts, which merely describe the same transac- tion in different ways, cannot, in general, be made the subject of objection. Nor will the defect of some of the counts affect the validity of the remainder, for judg- ment may ‘be given against the defendant upon those which are valid. United | States v. La Coste, 2 Mason, 139; Curtis v. People, 1 Breese, 200; U.S. v. Pirates, 5 Wheat. 184; Brown v. Com., 8 Mass. 63; Hudson v, State, 1 Blackf. 318; State ». Boyes, 1 M’Mullan, 190; Harman v. Com., 12 Serg. & Rawle, 69; State v. INDICTMENT. 293 Several counts for the same offence. And the judges have, upon more than one occasion, censured the practice of sending two bills before the grand jury, at the same time,: against the same person, as for two different offences, founded on the same evidence of facts, even in cases where the two offences could not be joined in the same indictment, such as an indictment for stealing, and another for receiving the same goods. In this particular case, however, the indictor is now relieved of all difficulty; for, by stat. 11 & 12 Vict., c. 46, § 3, after reciting that, according to the practice of courts of criminal jurisdiction, it was not then permitted, in an indict- ment for stealing property, to add a count for receiving the same prop- erty knowing it to have been stolen, or in an indictment. for receiving stolen property, to add a count for stealing the same property, and that justice was thereby often defeated—it was enacted that, in every Crank, 2 Builey, 66; State v. Pool, 2 Const. Ct. 691; Jennings v. Com., 17 Pick. 80; Townsend v. People, 3 Scammon, 328; Turk v. State, 7 Ohio, 340; Engleman v. State, 2 Carter, 91; Kane v. People, 8 Wendell, 303. The employment of several counts gives the public prosecutor greater latitude in proof, so as to avoid a variance, for if not sufficient to sustain one count it might another, and no objection could be taken either on demurrer or by motion on arrest. But every separate count should charge the defendant as if he had com- mitted a distinct offence, because it is upon the principal of the joinder of offences that the joinder of counts is admitted. Baker v. The State, 4 Ark. Rep. 56. Where an indictment contained two counts, the one charging a rape on C., on a certain day, and the other charging the defendant with having had carnal knowl- ‘edge of the said C. on the same day, being under ten years of age; it was held to charge but one offence. Wright v. State, 1 Humph. 194. Where the indictment contains several counts charging the same offénce in different forms, the prosecution will not be compelled to elect on which count they ask a conviction. The People v. Austin, 1 Parker, 154; State v. Canterbury, 8 -Fost. N. H. Rep. 195; State v. Boscawen, ibid. [Where there are two or more counts for a felony, and a general verdict of “ guilty,” it is sufficient if either count is good. Murphy v. Com., 23 Gratt. 960. Though there are bad counts, if the proof refers to both the good and the bad, a judgment on the general verdict of guilty will be sustained. Rice v. State, 3 Heisk. 215. Where an indictment contains several counts, all charging the same offence in different manners, the jury may render a verdict upon all or any of them ; if they cannot agree upon one of them, they may be discharged as to that one, and it will stand for a second trial. U.S. 0. Davenport, 1 Deady, 264. If all the counts charge the same felony against the same persons, the fact that some of them included also another person as a defendant, does not vitiate the whole in- dictment. Casily v. State, 32 Ind. 62; Clarke v. State, 32 Ind. 67. A defendant may be acquitted on the first count and convicted on the second, although the latter describes him and the place, only be a reference to the first. Com. v. Clapp, 16 Gray, 237. A general verdict of guilty on an indictment containing several counts, will be referred to the counts which will sustain the conviction. Taylor v. State, 3 Heisk. 460; and one bad count is not ground for an arrest of judgment, since the verdict will be presumed tv have been found on the good counts. Train ». State, 40 Geo. 529. Where a defendant has been tried on two counts of an in- dictment and the jury disagreed, he may be put to trial on another count at the same term before the same jury. Com. v. Burke, 16 Gray, 32.] [See, also, People v, Davis, 56 N. Y. 95; Harris v. People, 6 T. & C. (N. Y.) 206 ; Phelps v. People, 13 N. Y. 8. C. (6 Hun) 401.] 294 INDICTMENT. Several counts for the same offence. indictment for feloniously steal ng property, it shall be lawiul to add a count for feloniously, receiving the same property, knowing it to have been stolen; and in an indictment for feloniously receiving property knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing the same property; and where any such [*94] indictment shall *be preferred and found against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property, or of receiving it knowing it to have been stolen; and if such indictment shall be found against two or more persons, it shall be lawful for the jury who shall try the same to find all or any of the said persons guilty, either of stealing the prop- erty or of receiving it knowing it to have been stolen, or to find one or more of thé said persons guilty of stealing the property, and the other or others of them guilty of receiving it knowing it to have been stolen. So, where it was doubtful whether the accused party was an acces- sory before the fact, or the principal felon, you could not send two bills before the grand jury, one for each offence, it being contrary to the in- junction of the judges as above mentioned; but as the accessory may now be indicted in the same manner as a principal,(a) he may now be convicted as a principal or accessory on the same count. So, there are several cases where a greater offence includes a less, and ypon an indictment for the greater offence, the prisoner may be found guilty of the less—as, for instance, upon an indictment for mur- der, the prisoner may be found guilty of manslaughter—upon an in- dictment for burglary and larceny, the prisoner may be acquitted of the burglary and found guilty of the larceny—upon an indictment for breaking and entering a church, house, shop, or warehouse, and steal- ing therein, the prisoner may be acquitted of the breaking and enter- ing, and convicted of the larceny—in an indictment for stealing from a dwelling-house to the value of five pounds, or some person in the house being put in fear, the prisoner may be convicted of the simple larceny—and the like ; in these cases, it is not necessary to have a separate bill, or even a separaté count, for the less offence.(1) Where a prisoner is indicted for a felony, it is not necessary to prefer a separate bill against him for an attempt to commit it; or where he (a) See ante, pp. 15, 17. (1) See post, tit. VERDIoT. INDICTMENT. 295 Second count for a different offence. is indicted for a misdemeanor, it is not necessary to add another count for an attempt to commit it; because, upon an indictment for the felony or misdemeanor, if, upon the trial, it appear that the defendant merely attempted to commit the offence, but did not complete it, the jury may acquit him of the offence charged, and find him guilty of the attempt.(a) So, upon an indictment for robbery, the prisoner may now be found guilty of an assault with intent to rob.(6) So, upon an indictment for embezzlement, if the offence upon the evidence appear to be a larceny, the jury may acquit the prisoner of the embezzlement, and find him guilty of simple larceny, or of larceny as clerk or servant.(c) Or, upon an indictment for larceny, if, upon the evidence, it appear to be embezzlement, the jury may acquit of the larceny, and find the party guilty of the embezzlement.(d) So, if, upon an indict- ment for obtaining money or *goods by false pretences, the [*95] offence upon the evidence turn out to be larceny, the defendant, notwithstanding, may be convicted of the false pretences.(e) So, upon an indictment for any misdemeanor, if the facts given in evidence amount to a felony, the defendant shall not, on that account, be ac- quitted of the misdemeanor, unless the court think fit to discharge the jury, and order the defendant to be indicted for the felony.(/) In these several cases it is unnecessary and useless to prefer a second bill, or to add a second count (where that can be done), for the offence of which the defendant may be thus convicted; indeed, if a second bill be preferred, and the defendant be acquitted on the first, he may plead autrefois acquit to the second. (0) Second count for a different offence. If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that ac- count in point of law. In cases of felony,-indeed, the judge, in his discretion, may require the counsel for the prosecution to select one of the felonies, and confine himself to that. This is what is technically termed putting the prosecutor to his election.(1) But this practice has (a) 14 & 15 Vict., c* 100, § 9. (d) Ibid. (6) Ibid. § 11. (e) 7&8 G. IV, c. 29, § 63. (c) 14 & 15 Vict., c. 100, § 13. (f) 14 & 15 Vict., c. 100, $12, (1) Offences of the same character, though differing in degree, may be united in the same indictment, and the prisoner tried on both at the same time, and on » the trial he may be convicted on the one and not upon the other; as murder and 296 INDICTMENT. Second count for a different offence. manslaughter; forging a check, and for publishing it, knowing it to be false. S burglary and larceny may be joined in the same indictment, under differen counts. So, also, a count for a burglarious entry, with intent to steal the goods of A., and stealing them, and a count for a burglarious entry with intent to stedl the goods of another person, and a third count might be added, charging the breaking and entry with intent to kill or murder. Baker v. The State, 4 Ark. Rep. 56; Commonwealth v. Tuck, 20 Pick. 356; State v. Brady, 14 Vermont, 353; State v. Crocker, 3 Hart. Del. 554; State ». Grisham, 1 Hayw. 12; Josslyn ». Commonwealth, 6 Metcalf, 236; State ». Flye, 26 Maine, 312; People v. Austin, 1 Parker’s Cr. Rep. 154; State v. Paterson, 1 W. & M. 305 ; Commonwealth v. Man- son, 2 Ashmead, 131; McGregg v. State, 4 Blackf. 101 ; State v. Coleman, 5 Porter, 32; Wash. v. State, 14 Smedes & Marsh, 120; People v. Baker, 3 Hill, 159 ; State v. Hogan, Charlton, 474; Kane v. People, 8 Wend. 203; Carlton v. Com., 5 Metc. ' Rep. 5382; U. 8. v. O’Callahan, 6 McLean, 596. The first count of an indictment charged the defendant with stealing a mare, of the value of thirty dollars ; second count, with stealing a bell-collar, of the value of twenty-five cents; third count, with stealing a mare and bell-collar, of the value of twenty-five dollars ; held, that though the third count was double, in joining two distinct offences of a different degree, and punishable in a different manner, yet that the defect was cured by verdict. Hilderbrand v. State, 5 Mis. 548. The first count of an indictment charged that the defendant did steal W., a slave, the property of J. W.; the sec- ond count charged the stealing W., a slave, the property of H. W.; the third count charged the stealing a gray mare, the property of A. B., and the fourth, count charged the stealing a bay horse, the’ property of J. G.; held that there: was no ground either of demurrer or arrest of judgment. Cash v. The State, 10 Humph. 111. An indictment may contain a count for rape, and another for an assault with intent to commit a rape. Stephen v. The State, 11 Geo. 224; Buck v. The State, 2 Harr. & Johns. 426. In cases of felony, however, no more than one distinct offence or criminal trans- action at one time should regularly be charged upon the prisoner in one indict- ment, lest it should confound the prisoner in his defence. But this, it seems, is: only matter of prudence and discretion which it rests with the judges to exercise. 2 Hale, 173; 2 Leach, 1103; People v. Rynders, 12 Wendell, 425; Kane v. Peo- ple, 8 Wendell, 203; Burk v. State, 2, Harr. & Johns. 426; Com. v. Symonds, 2 Mass. 163; Stowers v. State, 3 Miss. 9; Baker v. State, 4 Pike, 56; Bullock v. State, 10 Ga. Rep. 46; U.8. v. Dickinson, 2 McLean, 325. But see State ». - Priester, Cheeves Rep. 103; Wright v. The State, 4 Humph. 194, contra. And care must be taken that the offences be not charged in such a manner as to confound the evidence, and that no counts be joined upon which the judgments must necessarily be different (as in New York, where the forging of a mortgage and of a receipt endorsed thereon are both charged in the same count, and the defendant is convicted, the judgment will be arrested). People v. Wright, 9 Wendell, 193; see State ve Montague, 2 M’Cord, 287. An indictment, which ‘charges in the same count an offence made capital by one section of a statute and another offence declared by the same law to be a misdemeanor, is bad (United States v. Sharp, 1 Peters’ C. C. 118; see State v. Coleman, 5 Porter, 32), for it -may operate like a misjoinder in civil actions, and, if so, the indictment will be bad on demurrer, or on motion in arrest of judgment. 3 T. R. 103, 485; but see 1 East P. C. 408, 409, 410. But in Maryland, an indictment containing two counts, one charging felony and the other a misdemeanor, was held to be good. Buck v. State, 2 Harr. & Johns. 426. Where several distinct felonies of the same degree, though committed at different times, are joined in the same indictment against the same offender, if the court perceivés that by this means the prisoner will be confounded in: his defence, or prejudiced in his challenges, or that the attention of the jury will be distracted, it will compel the prosecutor to elect. But this rule only applies where the charges are actually distinct. State v. Hoeats R. M. Charlton, 474. And the Jaw has been similarly stated in New York. Kane v The People, 8 Wend. 203. And see the State v. Smith, 8 Blackf. 489; Wash. v. The State, 14 Sm. & Marsh. 120. In the case of snisdemeanors, the joinder of several offences will not, in general, , INDICTMENT. 297 ? Second count for a different offence. vitiate in any stage of the prosecution. 3 T. R. 105, 106; 2 Campb. 132; 5 Burr, 984; 8 East, 41; Burn, J., Indictment, IV; Cro. C. C. 41 (8 Wendell, 211). For, in offences inferior to felony, the practice of quashing the indictment, or calling upon the prosecutor to elect on which charge he will proceed, does not exist. 2 Camp. 132. But, on the contrary, it is the constant practice to receive evidence of several libels and assaults inthe same indictment. Ibid. It was, indeed, formerly held that assaults on more than one individual could not be joined in the same proceeding (2 Stra. 870; 2 Ld. Raym. 1575; 2 Sess. Cas. 24), but this is now exploded (2 Burr. 984; Com. Dig., Indictment, E; Burn, J., Indictment, IV.) ; for though two'persons cannot join in a civil action, the reason is, that the dam- ages are several, which cannot apply to criminal proceedings where no compensa- tion is given to the prosecutor, and public security is the object to be obtained. For the same reason, an indictment for a libel on a body of trustees will be good, though it profess to be for a libel on three of them only. 1 Sess. Cas. And it has been held, that it is no objection on demurrer that several defendants are charged in different counts of the same indictment with several offences of the same nature. See Redman ». State, 1 Blackford, 431; Commonwealth v. Gillis- pie, 7 Serg. & R. 469. . It is no objection to an indictment that the punishment for one of the offences is positive, and for the other discretionary (4 East, 174; 1 East P. C. 408, 409, 410; 2 M. & S. 533); and after a general verdict the objection of misjoinder may be avoided by entering up judgment upon a particular count. 4 East, 179; 1 East P. C. 408, 409, 410. And, therefore, where a defendant was indicted on 9 Anne, ce. 14, for an assault on account of money won at gaming, the punishment of which is prescribed by the statute, and for an assault at common law, after a general verdict, a motion in arrest of judgment was abandoned by the counsel for aprisoner. 4 East, 179. -And if two distinct offences are charged, and one of them is not indictable or is laid without sufficient precision, judgment will be given for the prosecution if the other be sufficient, upen general demurrer ; for we have already seen, that part of an indictment may be good, though the other part be defective. 2 Sess. Cas. 32. See Commonwealth v. Gable, 7 Serg. & R. 423; U. 8. vo. Sharp, 1 Peters’ C. C. 133 ; State v. Nelson, 8 N. Hamp. 163; Miller ». State, 5 How. (Miss.) 250; People v. Wright, 9 Wendell, 193; State v. Cowell, 4 Ived. 231. : [An indictment where there is a joinder of offences or offenders, is to be con- sidered, so far as the jury is concerned, as a several one in respect to each of such offences or offenders. U.S. v. Davenport, 1 Deady, 264.] [An indictment which sufficiently alleges two or more distinct offences is bad for duplicity and consequent uncertainty. But where the terms applying to the second offence are too vagife and general to describe a distinct and separate crime, they will be treated simply as surplusage ; e. g., an indictment charging that defend- ant “unlawfully, etc., déstroyed, injured, and carried away timber from the premises of W. which said property belonged to said W.,” etc., is not thus double, since the words *“‘ destroyed” and “injured” are too general to describe a distinct offence from the “carrying away.” Com. v. Powell, 8 Bush, 7. When two or more felonies are charged in the same indictment, it may be quashed, or the prosecution may be compelled to elect on which one the trial shall be had. Fisher ». State, 33 Tex. 792. In Kansas when burglary and larceny constitute parts of the same transaction, both may be charged in one count, and the defendant may be convicted of the larceny alone. State v. Brandon, 7 Kans. 106. In New Hamp- shire, if only one transaction is intended to be stated and to be made the subject of prosecution, a count for a misdemeanor may be joined with a count charging a crime which is ordinarily denominated a felony. State v. Lincoln, 49 N. H. 464. For mode of trial and form of verdict when the indictment contains two or more counts upon different offences or offenders, see U. 8. v., Davenport, i Deady. 264. ] (Two totally distinct felonies cannot be charged in one count; if defendant is charged in the same count with killing two persons as distinct transactions, the indictment should be quashed. Womack v. State, 7 Coldw. 508. In Alabama, two separate offences of the same’ grade may be charged in the same tount, but they must be charged in the alternative ; if stated conjunctively there can be no conviction. Burgess v. State, 44 Ala. 190.] ty ‘ (Where an indictment stated an assault and battery merely as an incident in a 298 INDICIMENT. Second count for a different offence. never been extended to misdemeanors.(a) We have seen, however,(3) that where a count for larceny and a count for receiving the same goods are joined in the same indictment, the prosecutor shall not be put to his election. So a prosecutor may insert three counts in the same indictment for separate acts of larceny, committed by the same (a) Per Lord Ellenborough, C.J., in Young (b) Ante, p, 94. v. Rex, in error, T. R. 98, forcible and unlawful arrest and abduction for which the indictment was found, it was held not to be double. People v. Ah Own, 39 Cal. 604. And where in the description of the crime charged, acts are alleged in connection therewith which, if committed alone, would have constituted a minor offence, the indictment is not objectionable for duplicity ; these accessory allegations may be treated as sur- plusage. McKinney v. State, 25 Wisc. 378. A misjoinder of counts in arson held cured by a nolle pros. as to two of them before the jury was impaneled. Com. v. Cain, 102 Mass. 487.] : [When a statute in one clause forbids several things or creates in the alterna- tive several offences not repugnant to each other, the clause is treated in pleading as though it created but one offence; all the offences may be united conjunctively in one count, and such count will be sustained by proof of any one of the offences charged. State v. Murphy, 47 Mo. 274.] ; [Where the legislature has changed the common law rule, so as to make only a single count necessary to charge and admit proof of any number of offences—as in the Vermont liquor law—the accused is entitled to a specification of the offences for which a conviction is claimed. State v. Rowe, 43 Vt. 265. A complaint charg- ing prostitution and lewdness is not double. State v. Hanchett, 88 Conn. 35. An indictment contained two counts, one for assault with intent to murder by using a knife, etc., the other for stabbing, etc. ; held that there was no misjoinder of counts, and the verdict of “ guilty” would be presumed to be guilty of the highest crime charged in the indictment. Dean v. State, 43 Geo. 218.] [If counts of an indictment charge distinct offences committed at different times, the court may compel the prosecution to elect on which one it will go to trial. But if the offences aré of the same nature, grade, and punishment, the objection to their joinder cannot be first made after verdict by a motion in arrest of judg- ment. Boyd v. State, 7 Coldw. (Tenn.) 69. Although the state may be compelled to elect where. distinct felonies are charged in different counts, still when a single felony is charged in one count the defendant has a right to be tried for the one felony alone, and to have a withdrawal of every other one from the jury. Womack v. State, 7 Coldw. 509; and see Griffith v. State, 36 Ind. 406. Where an indict- ment containing several counts, charges separate and distinct misdemeanors of the same character, and a general verdict of guilty on the whole or on two or more counts is rendered, the court cannot impose a sentence or cumulative sentences exceeding in the aggregate what is prescribed by statute as the maximum pun- ishment for a single offence of the character charged; all over such maximum is void. See this case for an exhaustive discussion of the joinder of such offences in one indictment, and for a full citation of authorities. People ex rel Tweed v. Lis- comb, 60 N. Y. 559.] [The first and third degrees of arson cannot be joined in one count in New York. Woodford v. People, 6 T. & C. (N. Y.) 539.] [Where counts for rape and for assault with intent to commit a rape are joined, an election will not be ordered. People v. Satterlee, 12 N. Y. 8. C. (5 Hun) 167. See also Quinn v. State, 49 Ala. 353; State v. Randle, 41 Tex. 292; U.S. v. Scott, 4 Biss. 29; U.S. v. Jacoby, 12 Blatch. 491.] [As to stating a series of facts which make up a whole complicated offence, where the separate facts are also single offences, see State v. Gorham, 55 N. H. 152. When allegations partly describing another offence will be treated as sur- plusage, State v. Rollins, 56 N, H. 101.) ° INDICTMENT. 299 Second count for a different offence. person against the prosecutor within six months from the first to the last of such acts ;(a) and he shall not, in that case, be put to his elec- tion. Or, if there be but one count, for a stealing at one time, the prosecutor may give in evidence three larcenies, committed by the prisoner at different times within six months from the first to the last of them, and he shall not be put to his election.(6) So, in an indict- ment for embezzlement by a clerk or servant, the prosecutor may in- sert three counts for separate acts of embezzlement, committed within six months from the first to the last of such acts ;(c) and he shall not in that case be put to his election.(1) But two offences cannot be charged in the same count; the count in such a case would be bad for duplicity. Where, however, in one count of an indictment on stat. 37 G. III. c. 70, the defendant was charged with endeavoring to incite a soldier “to commit an aet of mutiny, and to commit traitorous and mutinous practices,” it was objected in arrest of judgment that the count was bad, as charging two offences ; but the judges seemed to think it good, for there might be only one endeavor to incite the two offences ;* the point how- [*96] ever, was not decided, as there were other counts which were unobjectionable.(d) So, where the lessee of a coal-pit was charged in in one count with stealing coal, the property of thirty different persons, who had mines in the vicinity of his, into which he caused his men to work and take the coal—the prisoner’s counsel moved that the counsel for the prosecutiou should select some particular act, done on a particular day, and confine his statement and evidence to that; but the judge (Erle, J.) refused to interfere: the case was then gone into ‘ (a) 14 & 15 Vict. c, 100, § 16. (c) 7&8 G. IV, c, 29, § 48. (b) Ibid. § 17. (d) R. v. Fuller, 1 Bos. & P. 180. (1) In Missouri, under the act concerning crimes and punishments, felonies and misdemeanors cannot be joined in the same indictment. MHilderbrand »v. The State, 5 Mis. 548. But in Maryland, Alabama and South Carolina, it has been held that felonies and misdemeanors, when relating to the same subject matter, may be joined. Buck v. State, 2 Harr, & John. 426; State ». Coleman, 5 Porter, 52; State v. Montague, 2 M’Cord, 287; State v. Gaffney, Rice, 431. [See Har- man v. Com., 12 Serg. & R. 64, and] State v. Boise & Stuke (1 McMullan Rep. 189. oe charging the defendant with being accessory before the fact, may be joined with a count charging him with being accessory after the fact, to the same felony. U.S. v. Dickinson, 2 McLean, 325; Rex v. Blackson, 8C. & P. 43. And the defendant may be indicted as a principal in the first degree in one count, and as principal in the second degree in an vther count. On the-same principle, where there are counts in an indictment for forging a bill, acceptance, and endorsement, the prosecutor is not driven to elect on which he will proceed. Add. Cass. 227, 300 INDICTMENT, Charging distinct offences in one count. and proved, and the prisoner’s counsel again objected to the count, as charging a stealing of the coal of several persons, in different places and at different times; but the judge held that the different workings might be relied on to show the felonious intent, although they extended into twenty different counties, and the coal belonged to twenty different persons, and extended over twenty years, if the mining operations were continuous for that time.(a) So, there is no objection to charging a defendant in one count with assaulting two persons, when the whole forms one transaction.(6) So, an indictment for robbery—which charged four prisoners with assaulting A. B. and C. D., and stealing two shillings from A. B. and one shilling from C. D., the whole being one trangaction—was holden good by Tindal, C.J.(c)(1) (a) R. v. Bleasdale, 2 Car. & K. 765. (c) R. v. Giddins et al., Car. & M. 634, (b) See R.v Benfield and Saunders, 2 Burr, 984, per Lord Mansfield, C.J. (1) Two distinct offences, requiring different punishments, cannot be charged in the same count; such an indictment is defective for duplicity, and a conviction upon it will be reversed on error. Read v. The People, 1 Parker’s Crim. Rep. 481. As where the indictment charges, in the same count, a capital offence and a misde- meanor. United States v. Sharp, 1 Peters’ C. C. Rep. 181; State v. Nelson, 8 New Hamp. Rep. 163. Such an objection would not be aided by verdict, nor the defect be cured by the statute of jeofails. The People v. Wright, 9 Wend. Rep. 196, and authorities there cited. But an indictment which charges a prisoner with the offences of falsely making, forging, and counterfeiting, of causing and procuring to be falsely made, forged and counterfeited, and of willingly acting and assisting in the said false making, forging and counterfeiting. is a good indictment, though all of these charges are contained in a single count. Rasnic v. Com., 2 Va. Cas. 356; State v. Houseall, 2 Rice’s Dig. 346. So, a count in an indictment is not demurrable for duplicity, which charges that the defendant destroyed, etc., and maliciously caused certain property to be destroyed. State v. Kuns, 5 Blackf. 314. Nor a count which charges that the defendant ‘did administer to and caused to be administered to and taken by three certain free white persons a large quantity of arsenic,” etc. Ben v. State, 22 Ala. 9. Laying several overt acts in a count for high treason is not duplicity (Kelyng, 8), because the charge consists of the compassing, etc., and the overt acts are mere- ly evidences of it; and the same as to conspiracy. A count in an indictment, charging one endeavor or conspiracy to procure the commission of two offences,’ is not bad for duplicity, because the endeavor.is the offence charged. R.v. Fuller, 1B. & P. 181. A count, charging that the defendant broke and entered into a shop with intent to commit a larceny, and did then and there commit a larceny, is not bad for du- plicity. Com. v. Tuck, 20 Pick. Rep. 356. So where an indictment -alleged that the defendant broke and entered into the dwelling-house of one person with intent to steal his goods, and having so entered stole the goods of another person, etc. State v. Brady, 14 Vermont Rep. 353. It has been held that the same count may join the larceny of several distinct articles, belonging to different owners, where the time and the place of the taking of each are the same. Com. v. Williams, Thacher C. C. 722. An indictment may, in a single count, charge the prisoner with stealing three negroes, and the offence is complete if he stole either of the negroes, and the conviction will be sustained. State v. Johnson, 3 Hill’s 8. C. R.1. The same count may include the battery of two or more persons (R. v. Bene- field, 2 Burr. 984; see 2 Str. 890; 2 Ld. Raym. 1572, contra); or for a libel upon INDICTMENT. 301° Joinder of defendants. 6. Joinder of defendants. If several be engaged in the commission of the same offence, they may be joined in the same indictment, or each may be separately in- dicted.(a) (1) (a) 2 Hawk., c. 25, § 89. a two or more persons, where the publication is one single act. R. v. Jenner, 7 Mod. 400; 2 Bur. 983. In Mississippi, under the statute against retailing spirituous liquors, making-it unlawful to sell in less quantities than one gallon, and also declaring it unlawful for the person ‘selling to suffer the same to be drunk in or about his house; a count, in an indictment charging that the defendant sold in less quantities than one gallon, and suffered the same to be drunk in his house, was held bad _ for duplicity. Miller v. State, 5 How. Rep. 250. And in Massachusetts an indict- ment containing one count charging the defendant with rude behavior in a meet- ing-house, and with disturbing public worship, was held bad, as charging two distinct offences. Com. v. Symond, 2 Mass. 163. It has been held that the objection, that charges which might have been the subject of distinct’ counts, or of distinct indictments, are included in one count, is eured by vepdict. State v. Johnson, 3 Hill’s South Car. Rep.1; Com. v. ‘Tuck, 20 Pick. 356.6 (1) Where an offence is capable of heing committed by several, a joint indict- ment for such offence may be laid against several individuals. State v. Gay, 10 Mis. 440. Several cannot be joined in an indictment for perjury, because the assignment must be of the very words spoken, and the words uttered by one cannot possibly- be applied to those which proceed from another; besides, one of the defendants may be desirous of obtaining a certiorari, while the others are anxious for an immediate trial. 3 T. R. 103, 104; 2 Stra. 921; 1 Sess. Cas. 424; 2 Burr. 983, 984; 2 Barnard, 24; Hawk., b. 2, c. 25, § 89, in notes; Bac. Abr., Indictment, G. 5; Com. Dig., Indictment, F. But several may be indicted for the same libel, if they all join in publishing it. 2 Burr. 985; Burn J., Indictment, IV. And the same persons, being concerned as principals in the same offence, may all be joined in the same indictment, though the degrees of guilt may differ. Bell’s case, 8 Gratt. 600. Thus, in case of felony, where several are present aiding and abetting, they may be joined with the principal in the first degree, and charged in the indictment either as actual perpetrators, or as aiders and abettors. 3 T. R. 305; 1 Leach, 64, 350, 505; Hawk., b. 2, c. 25, § 64; Chit. Cr. L. 260. The principal and accessories after the fact may be legally included in the general count in the indictment, and the charge against the principal and the charge against the accessories will not be construed as separate and distinct counts, but the accusation against all will be considered as included in one count. Bell’s case, 8 Gratt. 600. If money or goods be obtained upon false pretences, all who are present aiding may be included in one indictment (1 Leach, 505), and so in the case of personat- ing seamen (against the 57 Geo. III, c. 127, § 4; Russ. & Ry. C. C. 353). So, several present at the death of a man may be charged with different degrees of homicide in the same indictment; thus if A., with malice, abet B., who gives the blow without malice, it is murder in the former, and but manslaughter in the latter ; and thus it may be stated in the proceedings. And in an indictment for burglary and larceny against two, one may be found guilty of the burglary and larceny, and the other of Jarceny only. Russ. & Ry. C. C. 520. . And on an indictment against two, charging them with a joint offence; either may be found guilty, but they cannot be found guilty of the separate parts of the charge subjecting the prisoners to distinct punishments. Russ. & Ry. C. C. 344. In Pennsylvania the statute provides that, where two or more persons have committed an indictable offence, the names of all con¢erned shall be contained in 302 INDICTMENT. Joinder of defendants. All principals in the first and second degree may be thus joined in the same indictment.(2) And where goods were obtained by false pretences, the pretence being by words spoken by one of the parties in the presence of the others, but all of them were acting in concert, it was holden that they might he jointly indicted.(6) So in all misde- meanors, where those who in felonies would be accessories before the fact are principals, and are so indicted,-the party who commits the offence and he who incited him to commit it may be indicted together as principals, in the same manner as if they were both present and acting in the commission of it. Therefore, where A. advised and encouraged B. to set fire to a malt-house, and B. attempted to do so, but did not succeed, it was holden by Williams, J., that both might be indicted jointly for the attempt.(c) So, in felony, we have [*97] seen(d) that the accessory before *the fact may be indicted with the principal; so may the accessory after the fact ;(e) or they may be tried separately.(1) @ (a) See ante, p. 14. a (d) Ante, p. 15 (6) R. v. Young et al., 3 T. R. 98. (e) Ante, p. 18. (c) R. v. Clayton & Mooney, 1 Car. & K. 128. one bill of indictment. Dunlop’s Laws of Pennsylvania, p. 232. There is a similar statute in Arkansas. Rev. Sts. of Ark., c. 52, § 96. As to indictments for riot and conspiracy, which require more than one person to commit the offence, see State v. Allison, 3 Yerger, 428; People v. Howell, 4 John. 296; Turpin v. State, 4 Blackf, 72; Commonwealth v. Mansen, 2 Ashmead, 31; Pennsylvania v. Huston, Addis. 334, [An indictment where offenders or offences are joined, is to be regarded by the jury as a single one in respect to each defendant and offence. U.S. v. Davenport, 1 Deady, 264; and where the indictment contains two or more counts against different offenders or upon different offences, the jury may render a verdict upon all or any; if they cannot agree upon one of them, they may be discharged as to it, and such count will stand for another trial. Ibid.] (Where all the counts charged the same felony against the same persons, the fact that some of them also included another person as a defendant, does not render the entire indictment bad. Casiley v. State, 32 Ind. 62; Clark »v. State, 32 Ind. 67. See, also, Brown v. State, 18 Ohio St. 496 ;. Com. v. James, 99 Mass. 438; People v. White, 55 Barb. 606.] : (1) In an indictment against the accessory alone, after the conviction of the principal, it is not necessary to aver that the latter committed the felony, or on the trial to enter into a detail of the evidence adduced against him; but it is suf- ficient to recite with certainty the record of the conviction (it is held not necessary, in South Carolina, to set out, in an indictment against an accessory before the fact in a felony, the conviction or execution of the principal—State v. Sims, 2 Bailey, 29; see State v. Crank, 2 Bailey, 66; 1 Russell, 39), because the court will presume everything on the former occasion to"have been rightly and properly transacted. 77. R. 465; Fost. 365; Com. Dig. Justices, T. 83; see 2 Chit. Cr. Law, 5; Roscoe’s Dig. Cr. Ev. 173; 2 Stark. Ev. (5th Amer. ed.) 7; 1 Russell, 39; Commonwealth v. Knapp, 10 Pick. 477. But this presumption must give way to positive evidence of the innocence of the principal, which it is fully competent to INDICTMENT. 303 Joinder of defendants. And by stat. 14 & 15 Vict., c. 100, § 15, after reciting that it often happens that the principal in a felony is not in custody or amenable to justice, although several accessories to such felony, or receivers at different times of stolen property the subject of such felony, may be in custody and amenable to justice—for the prevention of several trials, it is enacted’ that any number of such accessories or receivers may be charged with substantive felonies in the same indictment, not- withstanding the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to justice.(a) But, this is the only case in which several persons can be joined in the same indictment for several offences committed by them, inde- pendently of each other; in all other cases it has been holden that, to convict all, a joint offence by all, either as principals in the first, or in the first and second degree, or as principals and accessories, must be proved.(6) But although a joint offence is laid, and can be proved, the indict- ment is considered in law as a several indictment against each. And if only one of two defendants, so indicted as principals, be in custody at the time of the assizes or sessions when the indictment ought to be tried, he may be tried alone upon it; and whether he be convicted or acquitted, the other, when apprehended, may afterwards be tried upon it, and convicted. And so much is such an indictment consid- ered a separate indictment against each, that where three were indicted for burglary and stealing in a dwelling-house, and one pleaded guilty and the two others were convicted of a larceny in the dwelling-house only, the judges held that judgments should be entered against the three accordingly.(c) (1) (a) See anfe, p. 17. (c) Ru vu. Butterworth et al., R. & By. 520. (b) See R. v. M’Phane et al., Car. & M. 212, the supposed accessory to produce. Fost. 121, 365; 3 Campb. 265; Com. Dig., Justices, T. 3; 4 Bla. Com. 324. And, therefore, if it appear on the trial that the principal was erroneously convicted, the defendant indicted as accessory is entitled to an acquittal. Ibid. (1) An indictment, which upon its face charges several defendants for several offences committed by them independently of each other (some of which were committed by some of the defendants at one time, and some by others of the defendants at a different time), is fatally defective. Elliott ». The State, 26 Ala. 78. . In cases of conspiracy and riot, where one cannot be indicted for an offence. committed by himself alone, the acquittal of so many as shall render it impossi- ble for the rest to have committed the offence must, of course, extend to him. 1 304 INDICTMENT. How preferred and found. Where two persons were indicted for murder, A. in the first count being indicted as principal in the first degree, and B. present aiding and abetting, and in the second count B. was indicted as principal in the first degree, and A. with being present aiding and abetting ; and the jury found them guilty, but said they were not satisfied as to which of them actually committed the murder: the judges (Maule, J., dis.) held that the jury were not bound to find the defendants guilty on one of the counts only, but might find them guilty on both.(a) 7. Indictmennt, how preferred and found. Bills of indictment in ordinary cases are prepared in the [*98] indictment office at the assizes or sessions, by the proper *offi- cer there; they must be on parchment, and at quarter ses- sions are usually filled up on blank printed forms. But where the indictment is required to be special, or in any manner different from the common forms, or where any doubt or difficulty occurs as to the manner in which the indictment should be framed, it will be prudent to have it drawn, or at least settled, by a barrister ; and at the assizes, and at most quarter sessions, the fee paid in this respect is allowed to the prosecutor in costs. When drawn by a barrister, it must after- (a) R. v. Downing et al.,1 Den. C. C. 52. Stra. 193; 12 Mod. 262; 2 Salk. 593; Com. Dig., Information, D. 7; 13 East, 412. See Penna. v. Huston, Addis, 334; State ». O’Donald, 1 McCord, 532 ; State ». Allison, 3 Yerger, 428 ; 1 Russell, 267; People v. Howell, 4 John. 296 ; Turpin’ ». State, 4 Blackf. 72; Commonwealth v. Mansen, 2 Ash. 31. : The statute of Tennessee of 1844, c. 215, § 11, which provides that all persons engaged in the same offence shall be embraced in the same indictment, is merely directory, and if not pursued it furnishes no defence to one of several co-defend ants who is indicted alone. State ». Davis, 2 Sneed, 273. Where an indictment containing several counts, charges two or more persons who are put on trial together for different offences, and the testimony does not implicate all of them in each offence, the court may require the prosecuting officer to elect for which offence he will proceed. State v. McAllister, 13 Maine, 374. If two be improperly found guilty separately on a joint indictment, the ob- jection may be cured by producing or entering a nolle prosequi as to the one of them who stands second on the verdict. Russ. & Ry. C. C. 344. Where two or more persons are jointly indicted for a capital offence, as for murder, they are not, as a matter of right, entitled to separate trials, but itis a matter of discretion to be decided by the court, under all circumstances of the case. United States v. Merchant, 4 Mason, 158; Commonwealth v. Gillespie, 7 Serg. & Rawle, 469; Redman »v. State, 1 Blackford, 431; The State v. Wise, 7 Richardson, 412; Maton v. The People, 15 Ill. 536. In the State of New York, the statute secures to persons jointly indicted for a felony, the right of separate trials. People v. McIntyre, 1 Parker, 371. But the statute expressly reserves the right to the court to decide, as a matter of dis- cretion, whether the trial of an indictment for a misdemeanor shall be joint or separate. The People v. Stockham, 1 Parker, 424. INDICTMENT, 305 How preferred and found. wards be engrossed on parchment, which is sometimes done by the prosecutor’s attorney, but usually in the indictment office.(1) The names of the witnesses intended to be examined before the _ grand jury are then indorsed upon the bill, and the words “ sworn in court” added after them.(2) (1) Itis said to be essential to the validity of an indictment, that it should be sub- mitted to the grand jury by the prosecuting officer of the state. Hite v. State, 9 Yerger, 198; Fort v. State, 3 Haywood, 98. And it has also been held that he must sign the indictment before it is submitted ; but this is denied by many re- spectable authorities. An objection to an indictment, because it is not signed by the prosecuting attorney, is untenable in Alabama, Arkansas and Missouri. Ward vy. The State, 22 Ala. 17. Harrall v. The State, 26 Ala. 52; Anderson v. The State. 5 Ark. 444; Thomas v. The State, 6 Mis. 457. In North Carolina, Mississippi and Virginia, it has been said that ‘‘neither the common law, nor any statute that we know of, requires them [indictments] to be signed by the attorney-general. An indictment legally framed in other respects would not be bad, by not being signed by the prosecuting officer.” Per Taylor, C.J., 6 Wheeler’s Am. Com. L. 17; Keithler v. The State, 10 Sm. & Marsh. 192; State v. Cox, 6 Iredell, 44. And in Eppes v. The State (10 Texas Rep. 474), the court say: “The signature of the district attorney to the indictment is proper, but we do not think it indispensa- ble. Andif a signature other than that of the proper officer be attached, it may be rejected as surplusage.” Approved in Reynolds v. The State, 11 Texas Rep. 120. In Tennessee, the indictment must be signed by the prosecuting officer. Teas ». The State, 7 Hwmph. 174; but he need not add the number of the district for which he is attorney-general. State v. Elkins, Meigs’ Rep. 109; State v. Evans, 8 Humph. 110. [In Indiana an indictment not signed by the District Attorney will be quashed on motion. Heacock v. State, 42 Ind. 393. The signature of the District Attor- ney need not specify the county. People v. Ashnauer, 47 Cal. 98. An indictment for murder will not be quashed because the signature of the foreman of the grand jury is signed by his initial only. Com. v. Gleason, 110 Mass. 66. An indictment notsigned by the foreman of the grand jury at the term when it was filed, may ‘be signed by him at a subsequent term of the court. Bassham v. State, 38 Tex. 622. In Tennessee the absence of the Attorney-General’s official signature to the indictment, will not be cured by his signature to an endorsement thereon. State ». Lockett, 3 Heisk. 274. In Massachusetts the signature of the District Attorney is not necessary to an indictment. Com. v. Stone, 105 Mass. 469 ; nor is it neces- sary in Missouri. State ». Murphy, 47 Mo. 274. The failure of the foreman of the grand jury to certify an indictment can only be taken advantage of by motion to quash. State v. Murphy, 47 Mo. 274. Because the foreman cannot write his name, the indictment is not void. State v. Tinney, 26 La. An. 460. Want of signature by the District Attorney, if any objection at all, is waived by. pleading not guilty. Riflemaker v. State, 25 Ohio St. 395.] (2) It is the practice for the prosecuting attorney to mark on the back of each bill the names of the witnesses belonging to it; though it has been held that the omission is not fatal. 4M. & 8. 208. In Illinois the statute makes it the duty of the foreman of the grand jury to indorse on an indictment the names of the wit- nesses upon whose testimony the same shall have been found. R.S.,c 58,§ 3; Gardner v. The People, 3 Scam. 83; Gates v. The People, 14 Ill. 483. The same practice seems to prevail in Virginia, but it has been held in that state that an omission in this respect would be no ground for quashing the indictment. Com. vy. Williams, 5 Gratt. 702. In Mississippi the courts do not make a record of the names, or of the swearing of the witnesses called to testify in_trials at bar, or before the grand juries. King v. The State, 5 How. Miss. Rep. 730. ’ It is not customary for the court, without special reasons suggested on applica- 20 rv 306 INDICTMENT. How preferred and found. The witnesses whose names are thus indorsed upon the bill come into court, and the bill being given to the crier, or other officer ap- pointed for the purpose, he swears the witnesses, and the bill is then sent before the grand jury. The witnesses must be sworn in open court, and during the time the court is sitting.(1) The witnesses are then called in before the grand jury and exam- ined by them.(2) Sometimes a difficulty occurs before the grand jury, where the wit- ness is not able to identify the prisoner by name, as the person who committed the offence. In a case of this kind, where five men were indicted for a rape and robbery, and the prosecutrix, although she could identify the prisoners upon seeing them, did not know their tion, to give directions regarding witnesses to be called before the grand jury. Therefore, where P., an accomplice in the crime charged, went before the grand jury, and testified, as a witness, without the direction or permission of the court, it was held that the indictment was not thereby rendered invalid. State v. Wol- cott, 21 Conn. 272. [The statute of Illinois requiring the names of the witnesses before the grand jury to be noted on the indictment, is sufficiently complied with if they are in- dorsed me under the signature of the prosecuting attorney. Scott v, People, 63 Ill. 508. , [A mistake in the christian name of a witness indorsed on the indictment will not prevent the state from using him, if his identity sufficiently appears from all the facts. State v. Stanley, 33 Iowa, 526. In Vermont, an objection that the names of the witnesses are not subjoined to the grand jurors’ complaint, is waived if not made at the earliest opportunity. State v. Norton, 45 Vt. 258. In Michi- gan, the court has power to order that the names of additional witnesses known before the trial should be indorsed on the information. People v. O’Hare, 2 Mich. N. P. 170. For New York practice as to furnishing defendant with a list of the witnesses and the minutes of the proceedings in his case before the grand jury, see People v. Naughton, 7 Abb. Pr. N. 8. 421; 838 How. Pr. 480. Practice in Georgia. Bird v. State, 50 Geo. 585.] (1) In the state of New York, subpcenas for witnesses in support of any prose- cution may be issued and signed by the district attorney, without the seal of the court. And the attendance of such witnesses may be compelled in the same man- ner as in civil causes. 2.N. Y. Rev. Stat. 729, (§ 68, 64. Unless the witnesses are regularly sworn, the bill founded on their unsupported evidence will be quashed. In U. 8. v. Coolidge (2 Gallison, 364), a bill was quashed by the court, which remarked that if such irregularities were allowed to creep into the practice of grand juries, the great object of their institution would be destroyed. And in North Carolina, in State ». Camm (1 Hawkes Rep. 352), it was held, that where a bill was found on the information of one of their own body, it was necessary that the prosecuting juror should be regularly sworn. Witnesses called to give testimony before a grand jury should be so sworn that, if their seeneony is false, they may be indicted for perjury. State v. Fassett, 16 Conn. 457. (2) It is the policy of the law, in the furtherance of justice, that the preliminary inquiry before a grand jury should be carried on in secret. No evidence‘will, therefore, be allowed for the purpose of vitiating an indictment, either from the grand. jurors, or from the witnesses before them, or from any other person re- quired by law to be present, as to the evidence given on such inquiry. State v. Fassett, 16 Conn. 457. INDICTMENT. 307 How preferred and found. names, the grand jury, feeling a difficulty from want of evidence of identity, came into court and stated the matter to the judge; the judge (Tindal, C.J.,) told them that they might call some other witness on . the back of the bill, who was present when the prisoners were before the magistrates, and upon the prosecutrix describing the prisoners, that witnesses would probably be able to state their names; but if the prisoners could not be identified in that mode, they should be brought before the grand jury.(a) And here it may be necessary to remark, that it is not the duty, or within the province of a grand jury, to go so minutely into the case as to satisfy themselves of the guilt or innocence of the prisoner, or, in other words, to try the case ; their duty is confined simply to ascertain- ing whether there is sufficient evidence against him to warrant his being put upon his trial; *it is for the petty jury after- [*99] wards to declare upon his guilt or innocence. If a majority of the grand jury (amounting to twelve at the least) be of opinion that the evidence adduced before them makes out a sufficient case against the prisoner to warrant his being put upon his trial before the petty jury, the foreman indorses on the bill “a true bill,” and signs his name to it, “J. N., foreman.” But if a majority of the grand jury be of a different opinion, then the words “ not a true bill” are indorsed.(1) (a) R. v. Jenkins et al., 1 Car. & K. 536, (1) Where an indictment was signed by the foreman of the grand jury, but the words, ‘a true bill,” did not appear over his signature, the indictment was held bad for that reason. Webster’s case, 5 Greenleaf, 432. And see Nomaque ». People, 1 Breese, 109 ; Com. v. Walters, 6 Dana, 290. Where, however, the in- definite article ‘‘a” was omitted before the words “true Dill,” the indorsement being “true bill,” instead of “a true bill,” it was held not a fatal omission. State ». Elkins, 1 Meigs, 109; State v. Davidson, 12 Vt. Rep. 300. In New Hampshire, the certificate of the foreman of the grand jury, that an indictment is ‘a true bill,” is not necessary. State v. Freeman, 13 N. Hamp. 488. It has been held in Massachusetts, that if the indictment be not signed by the foreman of the grand jury, no further proceedings can be had on it. Common- wealth v. Sargent, etc., Thacher’s Crim. Cas. 116. In Kentucky, the statute of 1814 requires indictments as well as presentments to be signed by the foreman; it does not direct where the signature is to be placed, though it may be implied that it was intended to be placed at the foot of the presentment or indictment. Overshiner v. Com., 2 Monroe, 344. But there is no law (in Kentucky) requiring that indictments shall be signed by the foreman of the grand jury either with or without a designation of his character as foreman, The omission, therefore, of the foreman tu add “foreman” to his name in signing the indorsement upon a true bill (which he had signed at the foot with that addition), is no ground for a, quashal. Commonwealth v. Walters, 6 Dana, 290. In Illinois it is provided by statute that the foreman of a grand jury shall indorse each indictment,.a true 308 INDICTMENT. How preferred and found. bill, and sign his name as foreman, etc., but the statute does require the name to be copied into the record. Gardiner v. The People, 3 Scam. 83. It has been held in Maine, that an indictment is properly certified if signed by the foreman of the grand jury simply with the initials of his christian name. State v. Taggart, 38 Maine, 298. In a bill of indictment indorsed “a true bill,” and to the subscription of A. B., the foreman. the letters F. G. J. added will be sufficient to indicate that he acted as foreman, where it appears from the record that A. B. was in fact the foreman of the grand jury when the bill was found. And if no letters had been added after his name, his subscription to the indorsement could only be referred to his official act as foreman, and would therefore be sufficient. State v. Chandler, 2 Hawk. 429. Where the bill of indictment was indorsed by Alexander R. Hutchinson, instead of Hutcheson, a foreman of the grand jury, it was held no valid objection. The State v. Stedman, 7 Porter’s R. 4951. Where an indictment contained on a sheet of paper was wrapped in a blank half-sheet of paper of like size, upon which blank sheet the prosecuting attorney had indorsed “Commonwealth v. Joseph Burgess; indictment;” and underneath the foreman of the grand jury had written ‘a true bill; Robert Hamilton, foreman; ” it was held by the General Court of Virginia, that after verdict no objection could be made on the ground of such irregularity. Burgess v. Com., 2 Virg. Cas. 483. In North and South Carolina, the indictment need not be signed by. the fore- man. It has even been held, in the former state, that it need not be signed by any one. It is the returning of the bill or indictment publicly in open court and its being there recorded that make it effectual. State v. Creighton, 1 Nott & Mc- Cord, 257; State v. Cox, 6 Iredell, 44. In Missouri, the statute requiring the cer- tificate of the foreman of the grand jury on each indictment found, that it is a true bill, is regarded merely as directory. State v. Martens, 14 Mis. 94; S. P. Waw- row-chaw-week-rowe, 1 Morris. 232. In Mississippi, where the indictment was indorsed a true bill by one of the body, and it was shown, independently of this indorsement, that it was returned by the authority of the whole fifteen jurors who composed the panel, it was held good, thouglf not signed by a foreman. Friar v. The State, 3 Howard’s R. 422. It has been held in Georgia, that the foreman of the grand jury need not sign the indorsement and return of “true bill” upon an indictment, it not having been required at common law, and the statute being silent on the subject; but the Supreme Court of that state recommends that the practice be observed. McGuffie v. The State, 17 Geo. Rep. 497. In Mississippi, it is not necessary that the grand jury should make return of the witnesses examined, or the evidence taken before them. King v. The State, 5 How. Miss. Rep. 30. In Texas, the statute makes it the duty of the foreman of the grand jury “to indorse on the back of each presentment or indictment the name or names of the witnesses for the prosecution upon whose evidence the pre- sentment or indictment was found, certifying thereto as foreman.” Hartley’s Dig., art. 1655. In Massachusetts, where the prisoner’s counsel requested that a list of the witnesses before the grand jury should be given, the court granted the application without doubt, remarking that such a request had never been refused. Com. v. Knapp, 9 Pick. Rep. 498. Indictments found by twelve are good, though there be a thirteenth man acting with them who is not, of record, a member of the body; but it is not so with pre- sentments, and this, because bills of indictment are founded upon proof, present- ments upon information of some one of the grand jury. Twelve men may legally find a true bill upon proof; but in the case of presentments, if there be one of the jury not legally a member of the body, the presentment is void, because it may have been found upon his information, which would not be under oath. The State v. Baker, 4 Humph. 12. : [In Illinois it must appear from the record that the indictment was returned by the grand jury in open court, or else a motion in arrest of judgment will be granted. The minutes of the judge, showing the facts are not sufficient. Sattler ». People, 59 Ill. 68; and in Indiana, Heacock v. State, 42 Ind. 393. In West Virginia the record of finding an indictment under the statute for malicious shoot- ing, stabbing, etc., as follows: ‘(An indictment against C. L. C., malicious stab- bing—a true bill,”--was held sufficient without describing it as an indictment for a felony, all malicious stabbings being felonies. Crookham v. State, 5 W. Va. 510. Unless.the record of conviction shows the indictment presented to the court INDICTMENT. 309 How preferred and found. by the grand jury, and received by the court and filed, the conviction: will be re- versed. Pond v. State, 47 Miss. 39. An indictment recited all the usual particu- lars except a return into court, but the accompanying record upon a change of venue, recited that it had been returned in open court, and this was held suffi- cient. Bailey v. State, 39 Ind. 438. A conviction will not be reversed on error, because the indictment purports to be found by 24 grand jurors, if the objection was not taken below. Conkey v. People, 1 Abb. App. Dec. 418. Requisites of a criminal record in Florida stated; informalities in filing indictments, which are not fatal described. Collins v. State, 18 Flor. 651.] : [A record which recited that on a day named, the grand jury found an indict- ment in the words and figures following (giving a copy), on which the defendant was tried, and which did not show any objection taken by him on the ground that the indictment was not duly filed, was held sufficient to show that it was properly presented and filed as required by law. Lee v. State, 45 Miss. 114.] [In New York it is not necessary to state the names of the grand jury either in the indictment or in the caption; it is enough if the indictment shows on its face that the grand jury were of the legal number and possessed the legal qualitica- tions. McGarvey v. People, 2 Lans. 227 ] [An indictment for murder was quashed in South Carolina, because the attor- neys representing the public solicitor, he being absent, entered the room of the grand jury while they were deliberating on the bill, and advised them as to their duty, State v. Addison, 2 8. C, 356; but in Iowa, an indictment is not invalidated because a bailiff was present with the grand jury during their investigation, if he was not present when the question was taken upon the finding. State v. Kimball, 29 Iowa, 267.} y [An indictment in Ohio found upon the testimony of a witness duly sworn is not invalidated by the omission of the court to certify to the administration of the oath as prescribed by the Crim. Code, § 75. Duke v. State, 20 Ohio St. 225. A grand jury having been discharged until a day named, did not appear on that day, but reassembled on the day after, and without being re-impaneled, found an indictment; these facts did not vitiate the indictment so found, since a grand jury cannot dissolve itself by disregarding an order of the court. Clem v. State, 33 Ind. 418.] [An indictment found at a term of court held at a time unauthorized by law, is a nullity together with all the subsequent proceedings, and a judgment thereon will be arrested. Davis v. State, 46 Ala. 80. If a grand juror duly summoned and returned is sworn and admitted as a member of the jury after they have been .empaneled, sworn and charged, the indictments, in the finding of which he takes a part, are not thereby invalidated. State v. Froiseth, 16 Minn. 313.] [An indictment found after the adoption of a new state constitution changing the mode of drawing grand jurors, by a grand jury drawn under the former law, was sustained in Anderson v. State, 42 Geo. 9 ] [How objection to the organization of the grand jury should be presented. See Chase v. State, 46 Miss. 683. For objections to the grand jurors, which can only he raised by challenge to the panel, and not by demurrer to the indictment. See State v. Hart, 29 Iowa, 268. A failure of the foreman to certify an indictment, can only be taken advantage of by a motion to quash. State v. Murphy, 47 Mo. 274. Pennsylvania statutory provisions concerning the drawing of grand juries, cousidered—when violated, the indictment will be quashed. Brown v. Com., 73 Pa, St. 321. California Prac. Act § 182, prescribing challenges to the panel of the grand jury, construed—do. § 278 relates to irregularities in finding the indict- ment after the organization. People v. Southwell, 46 Cal. 141; California Code of Civ. Proc. §§ 266, 226, 241, empowers court to summon a grand jury under special circumstances, and it is a valid grand jury for all purposes. People v. Kelly, 46 Cal. 355; People v. McDonell, 47 Cal. 134. In Florida, how additional grand jurors are summoned, see Dukes v. State, 14 Flor. 499. In Indiana, a grand jury is provided for each term, and not for each month ; it serves through the term no matter how long. Harper v. State, 42 Ind. 405; a certain statute of Indiana altering the mode of summoning grand juries, held not to affect those already summoned. Bell v. State, 42 Ind. 335. See Willey v. State, 46 Ind. 363. In Iowa, when and how additional grand jurors are summoned, see State v. Gar- hart, 35 Iowa, 315. In Michigan for proceedings when a sufficient number have \ 310 INDICTMENT. How preferred and found, The grand jury, having found one or more bills, come into court, and hand them to the clerk of arraigns, at the assizes, or the clerk of the peace, at sessions, who, thereupon, addresses them thus: “ Gentlemen of the grand jury, you are content that the court shall amend all matters of form, altering no matter of substance:—Against A. B., for [felony or a misdemeanor] you find a true bill;—against C. D., for,” ete. The in- dictments are then filed by the officer, in the order in which he has thus received and called them over; but, in what order they are to be afterwards tried, will depend upon the directions of the judge, or the’ practice of the court.(1) Where the bill is against two or more defendants, the grand jury may find a “true bill” as to one or more, and “not a true bill” as to the others. So, where the bill contains two counts, the grand jury may find “a true bill” as to one count, and .‘‘not a true bill” as to the other.(a) They cannot, however, find a true bill as to part of a count, (a) R. v, Fieldhouse, Cowp. 325. not been drawn, or have failed to appear, see People v. Jones, 24 Mich. 215. In Minnesota the Gen. Stat. ch. 107, § 10, authorizing a special summoning when there is a “deficiency of grand jurors,” construed, see State v. McCarty, 17 Minn. 76. In Texas, the statute (Pasch. Dig. § 2815) for summoning a grand jury when there has been a failure to summon it regularly, construed. Wilson v. State, 32 Tex. 112.] . : ; [In Mississippi, after the grand jury has been organized and charged, no objec- tion can be raised to the competency and qualifications of the whole jury, or of any member thereof. Head v. State, 44 Miss. 731; Durrah v. State, 44 Miss 789.] [General powers and duties of grand jury under Laws of Pennsylvania stated in Matter of Lloyd, 3 Pa. L, J. R. 188; Stowe’s Charge, 3 Pittsb. 174. Grand jurors are never liable for any of their acts as such, and are protected during the entire term of their sitting. Hunter v. Mathis, 40 Ind. 856. Any member of a grand jury may be called to contradict a witness by testifying what such witness swore to before the grand jury. State v. Wood, 53 N. H. 484. The grand jury cannot be required to have the witnesses for the state examined publicly. State v. Branch, 68 N. C. 186, and see Grand Jury v. Public Press, 4 Brews. (Pa.) 313.] {See further on the general subject of finding, Williams v. State, 30 Tex. 404; State v. Oxford, 30 Tex. 428; Stone v. State, 30 Ind. 115. As to drawing grand jury in N. Y. City, see Dolan v. People, 13 N. Y. S. C. (6 Hun) 232.] (1) In Michigan, New York and Arkansas, the statute provides that indict- ments found by a grand jury ‘‘shall be presented by their foreman in their pres- ence to the court, and shall there be filed and remain as public records.” Rev. Sts. of Mich., c. 164, § 19; 2 N. Y. Rev. Sts., 4th ed., pt. 4, c. 2, art. 2, § 38; Rev. Sts. of Ark., c. 52, § 85. There is a similar statute in Iowa, Code of Iowa, § 2914; Wrocklege v. The State, 1 Clarke’s Iowa Rep. 167. In Massachusetts, no indict- ment is allowed to be filed in court and to become matter of record, unless it is brought into court by the grand jurors in a body, and delivered to the court by their foreman, by whose signature it is verified. Com. v. Johnson, Thach. Crim. Cas. 284. Where the record shows that the indictment was found, and returned into court, by the whole panel of the jury, this is sufficient. Peter v. The State, 3 Howard’s R. 433. The objection, that the indictment was not marked filed, cannot avail the de- fendant, especially after verdict. Reynolds v. The State, 11 Texas, 120. INDICTMENT. 311 How preferred and found.—In what cases defendant to have copy. and ignore the rest of it.(a) It is laid down, indeed, in the old text books, that where a bill for murder is preferred to a grand jury, at the assizes, they may find it a true bill for manslaughter. But this isnot done in modern practice; if a grand jury now intimate to the court their wish to find a true bill for manslaughter only, the judge will order the bill to be altered, so as to make it a bill for manslaughter, and will direct it to be again laid before the grand jury. If the jury ignore a bill, no other bill against the same party, for the same offence, can be preferred during the same assizes or sessions.(d)(1) (a) In what cases defendant to have a copy. In all cases of prosecutions for misdemeanors, instituted by the attorney or solicitor-general, the court shall, if required, order a copy of the information or indictment, free of expense, to be given to the party, after appearance.(c) And in prosecutions for high treason, a copy of his indictment shall be delivered to him ten days before his trial.(d@) But in no other case is the defendant entitled to it. The court, indeed, at the time of his arraignment, will order the indictment to be read over slowly to him; but no more. If, however, a prisoner be defended, this will be of little importance, as his counsel will have free access to the indictment. As to the defendant's right to have a copy of the depositions taken before the committing magistrate.(e)(2) (a) 2 Hawk., c. 25, § 2. (@) 7 Anne, c. 21, § 11. (6) R. v. Humphreys, Car. & M. 601. (e) See ante p. 51. (c) 1G. IV, c. 4, § & (1) When the grand jury are in session, they are completely under the control of the court, and the court may, at any time, re-commit an imperfect finding to them, or may poll them, or take any other method, on the suggestion of a de- fendant, of determining whether twelve assented to the bill. State v. Squire, 2 New Hampshire Reports, 558; Lewis’ case, 4 Greenleat’s Reports, 448. In Michigan the statute provides that such indictments ‘‘as are found against any person, for a felony, not being in actual confinement, shall not be open to the inspection of any person except the attorney-general, or prosecuting attorney, until the defendant therein shall have been arrested.” Rev. Sts. of Mich., c. 164, 19. , , There is asimilar statute in New York. 2 New York Revised Statutes, 4th ed., pt. 4, c. 2, § 38. (2) At common law the defendant was not, in cases of treason or felony, entitled tg a copy of the indictment. 1 Lev. 68; 2 Hale, 236; 4 T. R. 692; 2 Hawk., c, 2, § 18. Although a defendant acquitted of felony could not bring an action against the prosecutor of the indictment without obtaining a copy of the record of the indictment and acquittal, yet he could not have a copy without the leave of the judge; and the judge would not grant it if there was a probable cause for the indictment. Matt. Dig. 282. Thus trying the whole question of the guilt or innocence of the party indicted, upon a motion for a copy of the indictment! Several of the states have done away with this harsh rule. In New York, 312 INDICTMENT. In what cases defendant to have copy. “every person indicted for any offence, who shall have been arrested upon process issued upon.such indictment, or who shall have duly entered into recognizance to appear and answer to such indictment, shall, on demand, and on paying the fees allowed by law therefor, be entitled to a copy of the indictment and of all indorsements thereon.” 2/N. Y. Rev. Sts., 4th ed., pt. 4, c. 2, art 2, § 55. There is a similar statute in Michigan. Revised Statutes of Michigan, c. 164, §19. In New Hampshire, the statute provides that every person indicted for any offence, the punishment of which may be death or continement.to hard labor for life, shall be entitled to a copy of the indictment before he is arrainged there- on; alist of the witnesses to be used on the trial, and of the jurors returned to serve on the same, with the name and place of abode of each, to be delivered to him forty-eight hours before the trial. Revised Statutes of New Hampshire, ec. 240, § 3. In Ohio, it is provided by statute (ed. of 1854, c. 88, p. 724), “that in- all cases where the punishment is capital, or imprisonment in the penitentiary, the accused shall be furnished with a copy of the indictment, at least twelve hours before the trial.” The criminal code of Illinois (Div. 16, § 180, Sts. of ILL, ed. of 1858, p. 407) provides that ‘‘every person charged with treason, murder, or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment and a list of the jurors and witnesses. In all other cases, he or she shall, at his or her request, or the request of his or her counsel, be fur- nished with a copy of the indictment and a list of the jurors and witnesses.” It is provided by statute in Virginia, that when an indictment is found against a person for felony, ‘‘a copy of the indictment shall be furnished him, without fee, upon his request at any time before conviction.” Code of Va. of 1849, tit. 55, c. 208, § 2. In Wisconsin the statute provides that, as soon as may be after the finding of an indictment for a capital crime, ‘the party charged shall be served with a copy thereof, by the sheriff or his deputy, at least twenty-four hours before trial ;” and that “every person, indicted for an offence for which he may be imprisoned in the state prison, shall, if he be under recognizance, or in custody to answer for such offence, be entitled to a copy of the indictment, and of all incorsements thereon, without paying any fees therefor.” Rev. Sts. of Wis., c. 146, §§ 4, 6. In Texas the language of the statute is, that “every person indicted for a capital crime shall have a copy of the indictment delivered to him at least two entire days before his trial shall commence.” Hartley’s Dig. of Laws of Texas, art. 397. Where the statute requires a copy of the indictment to be delivered to the prisoner two days before the trial, the true meaning is, that the copy should be delivered two days before the cause is tried by the jury, and not before the party is arraigned on the indictment. United States v. Curtis, 4 Mason’s R. 232. In Georgia, the statute provides that every person, charged with a crime or offence which may subject him, on conviction, to death or impris- onment in the penitentiary for the term of three years or more, shall be furnished, previous to his arraignment, with a copy of the indictment and a list of the wit- nesses who testified before the grand jury; and the same privilege is guaranteed to ‘‘every person charged with an offence, who shall ask for the same.” Hotch- kiss’ St. Law of Geo., pp. 789, 790. In Vermont, no person can be compelled to plead to any indictment or information until he shall have been furnished with a copy of the same, at least twenty-four hours; and it is the duty of the state’s attorney to furnish such a copy. Rev. Sts. of Vt., c. 28, § 64. Where a copy of an indictment is furnished the prisoner, which omits to add the words, foreman of the grand jury, to the name of the foreman, the objection will be waived by the prisoner’s going to trial, Com. v. Betton, 5 Cush. 427. [The constitutional right of every person accused of crime to be furnished with a copy of the accusation is not affected by a special statute, which provides that a person indicted for murder shall be furnished with a copy of the indictment, and a list of the jurors summoned. Drisler v. State, 45 Ala. 21. But this consti- tutional right may be waived; when prisoner, on arraignment, does not demand a copy of the indictment he waives his right, and a conviction will not be reversed because he was not furnished with it. Miller v. State, 45 Ala. 24.] {See, also, Robertson v. State, 43 Ala. 325; Morton v. People, 47 Ill. 468; Boyd v. State, 6 Coldw. 1; State v. Gibbs, 39 Iowa, 318. (Organization, and mode of objecting to the presence of aliens.) ] * INDICTMENT. 313 In what cases amendable. 8. Indictment, in what cases amendable. An indictment could not be amended at common law; nor was it within any of the old statutes of amendments.(a) *But [100] now, by some modern and recent statutes, an indictment may be amended for the defects I am now about to enumerate.(1) (a) For variance as to written instruments. By stat. 9 G. IV, c. 15, any court of oyer and terminer and general jail delivery, if such court shall see fit so to do, may cause the record on which any trial may be pending before any such court, in any in- dictment or information for any misdemeanor [or for any offence whatever](0), when any variance shall appear between any matter in (a) 2 Hawk., w. 25, §§ 97, 98. (b) 11 & 12 Vict., c. 46, § 4. (1) At common law, as the indictment is the finding of a jury upon oath, it cannot be amended without the concurrence of the grand inquest by whom it is presented. _ Upon principle, as well as the current of authorities, it seems that no indict- ment can be amended without the consent of the jury, who act as accusers. Finch »v. The State, 6 Blackf. 533; Com v. Adcock, 8 Gratt. 661. It has been held in Massachusetts, that an indictment for a capital offence cannot be amended even with the prisoner’s consent. Com. v. Mahar, 16 Pick. 120. If one count be stricken out or quashed, it will vitiate the whole indictment. Rose »v. State, Minor, 28. A letter added to a word in. the indictment in pencil-mark, before the indictment is found by the grand jury, does not vitiate the indictment. May v. State, 14 Ohio, 461. And it has been held that, if, after the indictment is found, itis altered by the prosecuting attorney, and submitted thus changed to the grand jury, who again return “true bill” thereon, such informality will not destroy the indictment. State v. Allen, Charlton’s Geo. Rep. 518. It is better, however, in such case, for a new and more regular bill to be framed and sent to the grand jury for their finding. (Charging the commission of the offence at a date later than that of the finding of the indictment, although a clerical mistake, cannot be amended. State v. Da- _ vidson, 36 Tex. 325; Com. v. Doyle, 110 Mass. 103.] ~ (In Alabama to permit an indictment to be amended on motion, even in an imma- terial matter, without consent of the defendant, is an error for which a judgment will be reversed!! Gregory v. State, 46 Ala. 151; Johnson v. State, 46 Ala. 212. The Mississippi statute, authorizing amendments, applies only to formal defects, and not to those which are material, e. g. the omission of the words ‘not being a drug- -- gist or apothecary,” in an indictment under a statute prohibiting the sale of goods on Sunday. Klem ». State, 44 Miss. 317; and the omission of the word ‘man- ner” after the words “undue, angry, and threatening,” in an indictment for ex- hibiting a deadly weapon, is a formal defect, and may be amended. Gamblin v. State, 45 Miss. 658. An indictment for burglary, defective in charging the time, may be amended, or is cured by verdict. State v. Blaisdell, 49 N. H. 81.] [A complaint charging a breaking and entering a dwelling house and an assault and. battery on the owner, cannot be amended by striking out the charge of break-. ing. and entering, and leaving only that of the assault and battery. State v. Run- nals, 49 N. H. 498. Charging larceny of the goods of “‘ James Marshall,” may be amended on the trial so as to read “ James Cicero Marshall.” Haywood ». State, 47 Miss. 1. Allegation that crime was committed in 1800, cannot be altered to 1868. Com. v. Seymour, 2 Brews. 567. Where the word “did” was omitted in charging the commission of the crime, and the charge was thereby nugatory, the word cannot be supplied. State v. Dougherty, 30 Tex. 360.] 314 ; INDICTMENT, In what cases amendable. writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending, to be forth- with amended in such particular, by some officer of the court, on payment of such costs (if any) to the other party as such court shall think reasonable; and thereupon the trial shall proceed, as if no such variance had appeared. These two statutes expressly confined this power of amendment to courts of oyer and terminer and general jail delivery. - They did not, therefore, extend to courts of quarter sessions ; for although justices of the peace, by their commission, have a power to hear and determine, the court of quarter sessions is not- in lawa court of oyerand terminer. But this was remedied, and the above statutes extended to the court of aan sessions, by stat. 12 & 13 Vict., c. 45, § 10. (0) For variance in other respects. . By stat. 14 & 15 Vict., c. 100, § 1, whenever, on the trial of any in- dictment for any felony or misdemeanor, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof—in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in any such indictment—or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein—or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged or intended to be injured or damaged by the commission of such offence—or in the christian name or surname, or both christian name and surname, or other description whatsoever, of any person or persons whom- soever therein named or described—or in the name or description of any matter or thing whatsoever therein named or described—or in the ownership of any property named or described therein—it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced [*101] thereby in his defence on *such merits, to order such indict- ment to be amended, according to the proof, by some officer of the court or other person, both in that part of the indictment where such variance occurs, and in every other part of the indictment which ‘ INDICTMENT. 315 In what cases amendable. it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable; and after any such amendment, the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same consequences, both with respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had occurred; and in case such trial be had at nisi prius, the order for the amendment shall be in- dorsed on the postea, and returned together with the record, and thereupon such papers, rolls, or other records of the court for which such record issued as it may be necessary to amend, shall be amended accordingly by the proper officer; and in all other cases, the order for the amendment shall either be indorsed on the indictment, or shall be engrossed on parchment, and filed, together with the indictment, among the records of the court: provided that in all such cases, where the trial shall be so postponed as aforesaid, it shall be lawful for -such court to respite the recognizances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence respectively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecute or give evidence at the time and place to which such trial shall have been so postponed : provided, also, that where any such trial shall be to be had before another jury, the crown and the defendant shall respectively be en- titled to the same challenges as they were respectively entitled to before the first jury was sworn.(1) (1) In New York, it is provided by statute, that no indictment shall be deemed invalid, nor shall the trial, judgment, or proceedings therein be affected: Ist. By reason of having omitted the addition of the defendant’s title, occupation, estate, or degree; or by reason of the misstatement of such matter, or of" the town or county of his residence, when the defendant shall not be misled or pre- judiced by such misstatement; or, 2d. By the omission of the words “ with force and arms,” or words of similar import; or, 83d. By reason of omitting to charge any offence to have been committed contrary to a statute or several statutes, not- withstanding such offence may have been created or the punishment thereof may have been declared by any statute; or, 4th. By reason of any other defect or imperfection in matter of form, which shall not tend to the prejudice of the de- fendant. 2. Y. Rev. Sts., p. 728, § 52. There are statutes similar to the foregoing in Massachusetts, Michigan, and 316 INDICTMENT. Definition of nolle prosequi.—Nolle prosequi, in what cases. Wisconsin. Rey. Sts. of Mass., c. 137, § 14; Rev. Sts. of Mich., c. 164, § 34; Rev. Sts. of Wis., c. 148, § 15. In Virginia, the statute (Rev. Code of Virginia of 1849, p. 770) provides: ‘‘ No indictment or other accusation shall be quashed or deemed invalid for omitting to det forth that it is upon the oaths of the jurors, or upon their oaths and affirmation; or for the insertion of the words ‘upon their oath,” instead of “ wpon their oaths ;” or for not in terms alleging that the offence was committed “within the jurisdiction of the court,” when the averments show that the case is one of which the court has jurisdiction; or for the omission or mis- statement of the title, occupation, estate, or degree of the accused, or of the name or place of his residence; or for omitting the words “ with force and arms,” or the statement of any particular kind of force and arms; or for omitting to state, or stating imperfectly, the time at which the offence was committed, when time is not the essence of the offence; or for failing to allege the value of an in- strument which caused death, or to allege that it was of no value; or for omitting to charge the offence to be “against the form of the statute,” or statutes ; or for the omission or insertion of any other words of mere form or surplusage. Nor shall it be abated for any misnomer of the accused; but the court may, in case of a misnomer appearing before or in the course of the trial, forthwith cause the indictment or accusation to be amended according to the fact. “Judgment in any criminal case, after a verdict, shall not be arrested or re- versed upon any exception to the indictment or other accusation, if the offence be charged therein with sufficient certainty for judgment to be given thereon accord- ing to the very right of the case.” In Mississippi, the statute (Hutchinson’s Miss. Code, 1005) provides that: ‘* No person accused of any criminal offence shall be set at liberty before his trial, on account of any irregularity or informality in the warrant of commitment, nor after conviction, on account of any legal error or imperfection in the indictment or in- formation ; but the same proceedings shall be had again, as though such person had never been arraigned; nor shall the words ‘force and arms,’ or the words ‘contrary to the form of the statute,’ be deemed necessary in any indictment or information for treason, felony, or any other criminal offence ; nor shall the party indicted have any advantage by writ of error, or plea, or otherwise, for the want of these or the like words, but such indictment or information shall be judged as effectual, to all intents and purposes, as if the same words were therein contained.” In Arkansas, the statute of amendments’ provides that ‘‘no indictment shall be deemed invalid or quashed, nor shall the trial or judgment, or other proceedings therein, be stayed, annulled, or in any manner affected by reason of any defect or imperfections in matters of form which shall not be to the prejudice of the de- fendant.” Denis v. State, 5 Ark. 230. DEFINITION "OF NOLLE PROSEQUI. A nolle prosequi may be defined ‘a proceeding on an indictment by which the prosecuting officer agrees to prosecute no further, either as to the whole of the indictment, or as to some particular part of it.” Burrill’s Law Dict., tit. Nolle Prosequi. NOLLE PROSEQUI, IN WHAT CASES. It has been held, in New York, that the court have no power to order the entry of a nolle prosequi upon an indictment. This power, at common law, could only be exercised by the attorney-general; and there is no statute in the state of New York depriving him of it. But a district attorney cannot enter a nolle prosequi without leave from the proper court. People v. McLeod, 1 Hill, 377. And the same in Virginia. Anon., 1 Va. Cas. 139. In Vermont, the prosecuting attorney has noright, at the trial, to enter a nolle prosequi against the wish of the defendant. State v. J. L. 8., 1 Tyler, 178. The right of such attorney to enter nolle prosequi is suspended when trial commences to the jury; after that the power is to be exercised only by permission of the court. State v. Roe, 12 Vt. 93. In Massachusetts, there are three stages of the prosecution in which a nolle proseywi may be entered—before a jury is impaneled, while the case is before the jury, and after verdict. Com. v. Tuck, 20 Pick. 356. But where, upon the trial of an indictment for setting fire to a barn, the allegation of ownership was INDICTMENT. 317 Nolle prosequi, in what cases. not proved as laid in the indictment, it was lield that the defendant was entitled to a verdict of acquittal, and that the attorney-general could not enter a nolle prosequi. Com. v. Wade, 17 Pick. 395. The defendant may be found guilty on one of several counts, and a nolle prosegui be entered as to the rest. Com. v. Stedman, 12 Metc. 444. In Massachusetts, where the defendant is charged with receiving, knowingly, stolen goods, and in the same indictment it is alleged that he had before been con- victed of the like offence, if the jury bring in a general verdict on such indictment, a nolle prosequi as to the aggravation laid by the allegation, that there had been a former conviction for the like offence, may be entered. Com. v. Briggs, 7 Pick. 177. In North Carolina, the attorney-general has a discretionary power to enter a nolle prosequi, for the proper exercise of which he is responsible, and the court will not interfere unless it be oppressively used. State v. Thompson, 3 Hawks. 613. In Tennessee, before conviction, the attorney-general and the court are the only power that can discharge without acquittal, and this by nolle prosequi. State v. Fleming, 7 Humph. 152. In South Carolina, the prosecuting attorney may enter a nolle prosequi before the jury are sworn and charged with thecase. And where, in such 4 case, the attorney for the prosecution does enter a nolle prosequi after the case has been given in charge of the jury, and the jury are discharged without any lawful cause, the entering of the nolle prosequi is equivalent to an acquittal. State v. McKee, 1 Bailey, 651. In Georgia, the state may enter a nolle prosequi upon the first or any subse- quent indictment that may be found against the defendant for the same offence, either for defects in the pleadings, want of proof, or any other cause, if the case has not been submitted.to the jury. Durham v. State, 9 (ia. 306. By the 326th section of the 14th division of the Penal Code of Georgia, no nolle prosequi can be entered on any bill of indictment after the case has been submitted to the jury, except by the consent of the defendant. Under this statute, a case is held to be submitted to the jury when the prisoner is arraigned, and has put in his plea of not guilty, and the jury are sworn and impaneled. Newsom v. State, 2 Kelly, 60. And, if it be entered without the defendant’s consent, the effect of it is the acquittal of the prisoner and a bar to a subsequent prosecution for the same offence. Reynolds v. State, 3 Kelly, 53. In Alabama, the 11th section of the 8th chapter of the Penal Code, which authorizes the entry of a nolle prosequi where the accused will not assent to the amendment of the indictment, and the variance between the allegations and the proof adduced is such as will authorize his acquittal, cannot be extended by con- struction so as to permit a nolle prosequi to be entered, and a new indictment, with allegations materially dissimilar, to be preferred; such second indictment will not come within the saving of the section in respect to the statute of limitations. State v. Dunham, 9 Ala. 76. ‘ A nolle prosequi in criminal proceedings does not amount to an acquittal of the defendant, but he may again be prosecuted for the same offence, or fresh pro- cess may be issued to try him on the same indictment, at the discretion of the prosecuting officer. State v. Thornton, 13 Tredell, 256; Com. v. Wheeler, 2 Mass. 172. The defendant, however, when a nolle prosequi is entered, need not enter into recognizance for his appearance at any other time. Ibid.; 13 Iredell, 256. It has been held in Tennessee, that where there is but one count in an indictment for a felonious assault, a nolle prosequi entered as to the felony discharges the defendant altogether from the accusation. Brittain v. State, 7 Humph. 159. ’ As the effect of a nolle prosequi is to put the defendant without day, upon that indictment, he becomes, while he is so, amenable on another indictment in any court having jurisdiction of the offence. State v. McNeill, 3 Hawks., 183; State ®. Haskett, Riley, 97. , _ [A misjoinder of counts in an indictment for arson was cured by a nolle prosequi as to two of them before the jury was impaneled. Com. v. Cain, 102 Mass. 487.] [In the U. 8. courts, a motion by the district attorney for leave to enter a nolle prosequi should, in general, be granted as a matter of right. U.S. 0, Watson, 7 Blatch. 60. In Georgia, the solicitor-general has not the power to enter a nolle prosequi without consultation with and approval by the court. Statham v. State, 41 Geo 507. See, also, Ex parte Donaldson, 44 Mo. 149; Com. v. Seymour. 2 Brews. 567; State v. McLane, 31 Tex. 260.] ’ 318 INDICTMENT. ‘When and how quashed. And, by sect. 2, every verdict and judgment, which shall be given after the making of any amendment under the provisions of this act, shall be of the same force and effect in all respects as if the indictment had originally been in the same form in which it was after such amendment was made. By sect. 3, if it shall become necessary at any time, for any purpose whatsoever, to draw up a formal record in any case where any amend- ment shall have been made under the provisions of this act, such rec- ord shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made. ‘ [*102] *9, Indictments, when and how quashed. ! In all cases where an indictment is so defective that any judg- ment to be given upon it against the defendant would be erroneous, the court in its discretion may quash it.(a) This may be done on the application either of the defendant or of the prosecutor. But the court will seldom interfere, upon the application of a defendant, where the indictment is for forgery, perjury, sedition, or for a nuisance to a highway ;() nor upon the application of a prosecutor, until after a good bill for the same offence, against the same party, shall have been preferred and found.(c) An indictment may be thus quashed as well by a court of quarter sessions (d) as by courts of oyer and terminer and jail delivery, or by the court of Queen’s Bench.(1) (a) 2 Hawk., c. 25, § 147. (c) See R. v. Dunn, 1 Car. & K. 730; R.v. (b) Ibid. Wynn, 2 East, 226. (d) R. v. Wilson et al., 14 Law J. 3, m. (1) A motion to quash is addressed to the sound discretion of the court, and, if refused, is not a proper subject of exception. Com. v. Eastman, 1 Cush. 189; State v. Fortune, 10 Mis. 466; State v. Putnam, 38 Maine, 296; U.S. v. Stowell, 2 Curtis, 153; Staté v. Wishou, 15 Mis. 503; State v. Dayton, 3 Zabris. 49; Bell ». Com., 8 Gratt. 600; State v. Stuart, 23 Maine, 111; Click v. State, 3 Texas, 282. Such a motion should not be allowed to prevail in a doubtful case; but only when the insufficiency of an indictment is so palpable as clearly to satisfy the presiding judge that a verdict thereon would not authorize a judgment against the defend- ant. Com. v. Eastman, 1 Cush. 189; State v. Hickman, 3 Halst. 299; Respublica v. Cleaver, 4 Yeates, 69. It is due to the state and to the rights of the citizen, to have the facts inquired into by a jury; and if the facts charged be affirmed by their verdict, the defendant can have the same advantage of legal points upon a motion in arrest as upon a motion to quash. The State v. Smith, 1 Murphey, 213. Courts will not entertain a motion to quash the indictment or erase it from the docket, except for defects appearing upon the face of the proceedings (Wickwire INDICTMENT. 319 When and how quashed. v. The State, 19 Conn. 477); for such matters can only be by way of defence on the trial before the jury. Commonwealth v. Church, 1 Penn. State R. 105. In Mississippi, until after arraignment and the impaneling of the jury, the power of quash:ng an indictment rests in the discretion of the district attorney. Clarke~ v. The State, 23 Miss. 261. In New York and Arkansas, it is provided by statute, that if there be at any time pending against the same defendant two indictments for the same matter, although charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed. 2.N. Y. Rev. Sts., 4th ed., p. 4, ¢. 2, art. 2, § 42; Rev. Sts. of Ark. c. 52, § 95; State v. Bark- man, 2 Engl. 387; State ». Whitmore, 5 Ark. 247, But after a conviction an in- dictment will not be quashed on the ground that, during the pendency of the trial, a second indictment for the same offence was found by the grand jury. People v, Monroe Oyer and Terminer, 20 Wend. 108. The mere finding of a second indict- ment is not per se a supersedeas to the first indictment. A motion to quash must be made, and made, too, before the trial on the first indictment has cammenced ; at all events, before the cause is submitted to the jury. Ibid. A husband having been indicted for maltreating and separating from his wife, while there was at the same time a suit pending for alimony, it was held that a presentment could not be made by the same grand jury for the same offence, and if made, would be quashed. Ex parte Chauvin, T U. P. Charlton, 14. Where the indictment alleged that if was presented, without adding: “by the oath of twelve men,” it was quashed. Andr. 230; State y. McAllister, 13 Maine, ‘374. The word: oaths” instead of the word “oath” is not a fatal defect. Jerry - y. State, 1 Blackf. 305; Johnson v. State, 2 Dutcher, 218. Where the indictment purports to be on the affirmation of some of the grand jurors, it must appear that they alleged themselves conscientiously scrupulous of taking an oath. The State v. Fox, 4 Halst. 244. The indictment need not show what was the number of the grand jury who found the bill. Young v. State, 6 Ham. 435. It is no ground to quash an indictment, that the name of one of the grand jurors in the caption is substantially different from his name in the panel, if in reality it was the same person. It is a mere misprision of the clerk, which is, of course, amendable. The State v. Norton, 3 Zabris. 33. The illegal selection of the grand jurors is no cause for quashing an indictment on motion. The State v. Henley, 7 Blackf. 324; 8. P., State v. Bolt, 7 Blackf. 19. Informality in the writ of venire, by which the grand jury are brought into court, is not a ground for quashing the indictment. Pierce %. The State, 12 Texas Rep. 210. But an indictment found by a grand jury sum- moned by a sheriff, without process, will be quashed on motion, and defendant may withdraw the plea of not guilty, in order to make the motion to quash. Nicholls at suit of the State, 2 South. 539. Unless the want of qualification of a grand juror is appatent on the face of the indictment, or upon the record, it cannot be taken advantage of on motion to quash, but must be pleaded in abatement. The State v. Foster, 9 Texas, 65. The court will in no case inquire into the character of the testimony which has influenced the grand jury in finding an indictment, with a view to quash the in- dictment. State v. Boyd, 2 Hill (S. C.) 288; Tuck v. State, 7 Ham. 240; State v. Dayton, 3 Zabris. 49. Where, however, an indictment was found by the grand jury upon the mere statement of a witness, without oath, it was quashed for that reason. U.S. v. Coolidge, 2 Gallis. 864. The court may where the administra- tion of justice requires it, in their discretion quash an indictment for misconduct in the grand jury. The State v. Dayton, 3 Zabris. 49. Where, in a caption, it was said “that the several indictments to this schedule annexed are true bills,” whereas they are only bills till they are found (1 Salk. 376); and where the charge is expressed merely by way of recital (1 Sess. Cas. 3), the proceedings may be uashed. a Where the court in which the indictment was found has no jurisdiction, the in- dictment will be quashed. In the case of the Commonwealth v. Kosloff, consul- general of Russia, for rape, the indictment, which had been found in the Court of Oyer and Terminer, was quashed on the ground that under the Constitution and laws of the United States, the state courts have no jurisdiction “in cases affecting ~ ministers and consuls,” but that the same is in the tribunals erected. under -the national Constitution and laws. Where it was error in the court to sit at any 320 INDICTMENT. When and how quashed. other place than the one designated by law, it was held that the judgment upon a plea in abatement should be that the indictment be quashed. Sam, a slave, »v. The State, 13 Smed. & Marsh. 189. It has been held in New Jersey that if the - caption of an indictment do not show distinctly the names and style of office of the judges composing the court to which it is presented, the indictment will be quashed. The State v. Zule, 5 Halst. 348. Where an indictment charges an offence on the 25th day of August, 1824, in the county of W., and the law creating the county of W., did not pass until the Novem- ber following, the court will quash the indictment. State v. Jones, 3 Halst. 307. The old authorities lay it down as a rule, that where a defect is shown which induces the court thus to interfere, they must quash the whole indictment, for they cannot strike out some counts, and leave others to be determined on the trial. 2 Stra. 1026; Rep. Temp. Hardw. 203; Com. Dig., Indictment, H.; Bac. Abr., In- dictment, K. In the United States, the prevailing practice is, that where one of several counts in an indictment is good, a motion to quash will be overruled. The defendant ought to move to quash the defective count, and not the whole in- dictment. The State v. Wishon, 15 Mo. 503; Kane v. People, 3 Wend. 363; State v. Rector, 11 Miss. 28; State v. Coleman, 5 Porter, 32; State ». Buchanan, 1 Ire- dell, 59; State v. Staker, 3 Ind. 570; State v. Woodward, 21 Mis. 265. A judge is not bound to quash a defective count in a bill of indictment; yet he may do so, provided it does not leave the other counts defective. Jones v, State, 6 Humph. 435 ; King v. The State, 10 Texas, 281. At common law, an objection that counts are misjoined could not have been made available either upon demurrer or in arrest of judgment, but only upon a motion to quash, or to compel the prosecutor to elect on which count he would proceed. Brantley v. the State, 13 Smed. & Marsh. 468. Where distinct and separate felonies are joined in the same indictment, such joinder is good cause to quash an indictment on motion made, before the defendant has pleaded to the issue. Weinzorpflin, 7 Blackf. 186; State v. Smith, 8 Blackf. 489; Wash. v. State, 14 Sm. & Marsh. 120. But the court will not quash an indictment on a statute, merely because it does not conclude, “against the form,” etc., but leave the defendant todemur. 2 Stra. 702; Bac. Abr., Indictment, K. See State v. Berry, 4 Halsted, 374. And the defect, in general, must be very gross and apparent to induce the court to dismiss the indictment in this summary way, instead of leaving the party to the more usual remedies of demurring or moving in arrest of judgment. 1 Bla. Rep. 275; Dougl. 240, 241; Hawk., b. 2, c. 25, § 146, in notes; Cro. Car. 147; Fost. 104. The cases in which the court, on the motion of the party accused, ought to quash, are, where the court has no jurisdiction; where no indictable offence is charged ; or where there is some other substantial and material defect. Bell v. Com., 8 Gratt. 600; Com. ». Clark, 6 Gratt, 675; State v. Mitchell, 1 Bay, 269; Penn. v. Oliphant, Addis, 345. If the defendant did not duly appear, or has forfeited his recognizance, his ap- plication to quash the indictment will be ineffectual. 1 Barnard, K. B. 44; 1 Salk. 380. After a prisoner has plead to the general issue “not guilty,” no motion will lie to quash the indictment. State v. Burlingham, 3 Shepley, 104; People ». Mon- roe, 20 Wend. 108; State v. Henley, 7 Blackf. 324; Weinzorpflin v. The State, 7 Blackf. 186; Brantley v. The State, 13 Sm. & Marsh. 468. The court will over- rule a motion to ‘quash after a nolle prosequi has been entered. U.S. v. Hill, I Brock. 156. , : Quashing an indictment, as to one of several defendants, has the effect of quash- ing it-as to all, State v. Smith, 1 Murphey, 212. When an information is filed by the attorney-general, ex-officio, the court will quash it upon motion, if they see cause; but if it be exhibited by a private indi- vidual, they will not thus dispose of it, because the defendant is entitled to costs. 1 Sid. 152; Com. Dig., Information, D; 4 Vin. Abr., Information, E; Dougl. 240, 241; Hawk., b. 2, c. 25, § 149. In Massachusetts, it is provided by statute that no indictment shall be quashed, or otherwise affected, by reason of the omission or misstatement of the title, occu- pation, estate, or degree of the defendant, or of the name of the city, town, county, or place of residence; nor by reason of the omission of the words “force INDICTMENT, 321 When and how quashed. of arms,” or the words ‘‘against the statute,” etc. Rev. Sts. of Mass., c. 138, § 14. There is a similar statute in New York. In Maine, the statute prohibits the quashing of any indictment or arresting judgment, for any omission or mis- statement which does not tend to the prejudice of the defendant. State v. Nelson, 29 Maine, 329. There is a similar statute in Kentucky. Com. v. Kennedy, 15 B. Mon. Rep. 531. After the indictment against the defendant has been quashed, a new and more regular one may be preferred against him. He can gain, therefore, very little advantage, except delay, by such:an application; and, therefore, usually reserves his objection until after the verdict, when, if the indictment be found to he in- eaten the court are bound, ex debito justitic, to arrest the judgment. 2 Burr. 1127. . [An indictment sufficiently stating the offence will not be quashed on demurrer. ae v. State, 39 Md. 552; but may be for uncertainty. State ». Land, 42 Ind. 11. (When the persons acting as a grand jury were summoned as ‘trial jurors,” a the queue found by them will be quashed. People v. Earnest, 45 Cal. 29. 4 {In Massachusetts the statute of 1864, ch. 250, § 2, provides that “any objec- tion to a complaint, indictment, or other criminal proceeding for any formal de- fect appearing on the face thereof,” shall be taken before judgment; and yet a complaint charging an offence as committed after the date of the complaint will be quashed on an objection taken for the first time on appeal. Com. v. Doyle, 110 Mass. 163.] ; (A defendant pleaded not guilty before a J. P., and submitted to be bound over without examination; an indictment subsequently found at the court to which he was thus bound, will not be quashed because the J. P. failed to make an examina- tion. State v. Ritty, 23 Ohio St. 562.] (An affidavit of the defendant that he believed the grand jury acted upon in- competent and insufficient evidence in finding the indictment against him, cannot be allowed on a motion to quash. U. S. v. Brown, 1 Sawyer, 531. Nor is the affidavit of a grand juror admissible to prove such facts, nor to prove that the witnesses endorsed on the indictment were not examined before the grand jury, on a motion to quash. State v. Beebe, 17 Minn. 241. If two or more felonies are charged in one indictment, it may be quashed. Fisher v. State, 33 Tex. 792.] (When defendant is required by the grand jury to testify before them touching a criminal charge then pending against him, and he does thereupon testify, an indictment against him found by the grand jury for such offence, will be quashed. State v. Froiseth, 16 Minn. 296. Where the attorneys representing the public solicitor, who was absent, were present with and advised the grand jury while they were deliberating on a bill, the indictment which they found was quashed. State v. Addison, 28. C. 356. The pendency of a habeas corpus issued by the recorder of Philadelphia, is not ground for quashing an indictment found in the Quarter Sessions. Com. v. Hoey, 3 Brews. (Pa.) 514. An indictment quashed for want of an allegation of time and place of committing the offence charged. State v. Johnson, 32 Tex. 96. A motion to quash is the only remedy for a failure of foreman of the grand jury to certify the indictment: a motion to quash must distinctly specify the grounds of objection. State v. Murphy, 47 Mo. 274; State v. Marshall, 47 Mo. 378. Indictment quashed’ in Pennsylvania for irregularity in drawing the grand jury. Brown v. Com. 73 Pa. St. 321. Where . the indictment is quashed on demurrer, the accused may be held at once until a grand jury then in session can find a new indictment,—no proof of guilt or exami- nation is necessary. Crumpton v. State, 43 Ala. 31.] . [See also, U. S. v. Shepard, 1 Abb. U.S. 431; People v. Davis, 56 N. Y. 95; Com. v. Smith, 10 Bush. 476 (practice under Kentucky Cr. Code, §{ 158, 159) ; State v. Gibbs, 39 Iowa, 318; People v. Johnston, 48 Cal. 549.] 21 ‘ 322 INDICTMENT. Definition and nature. PRESENTMENT. DEFINITION AND NATURE, “A presentment,” says Blackstone, ‘is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indict- ment laid before them ; as the presentment of a nuisance, a libel and the like, upon which the ofticer of the court must afterwards frame an indictment.” 4 Blk. Com. 300. When the indictment has been prepared by him, and found by the grand jury a true bill, the presentment, being merged in the indictment, ceases and becomes extinct. In the practice of Virginia, the presentment has been allowed an efficacy not known at common Jaw in England. It has been allowed for many purposes to stand in the place of the indictment; or to stand as the foundation for further proceedings against the party presented. The presentment, moreover, seems, in Virginia, from a very distant period, to have been made the foundation for a summons to show cause why an itiformation for the offence presented should not be tiled against the accused. No authority has been found in the English books that justifies such a use of the presentment; such a practice as an existing one in Virginia seems to have been clearly recognized in 1786, in the act directing the method of criminal proceedings against free persons (12 Hen. Stat. 344; 1 Rev. Code, 614); where, in regard to the presentment for small penalties, it is directed that “no information shall thereupon be filed,” but a summons to answer the pre- sentment. Christian’s case, 7 Gratt. 631. . In North Carolina, presentment made within two years after the commission of a misdemeanor, on which an indictment is founded, is the commencement of a prosecution, within the meaning of the act of Assembly, and prevents the statute of limitations from attaching. State v. Cox, 6 Iredell, 440. A presentment need not be signed by all the jury. It should be handed to the court by the foreman, who is the organ of the grand jury, to and from whom communications are made with the court. It should be made in the presence of the jury, but when entered of record, no further evidence is required of its authenticity. State ». Cox, 6 Iredell, 440. Where the presentment was not found upon the knowledge of the grand jury, or any one of their body, but upon the information of a certain person who was not sworn before the court, and sent to the grand jury, previous to his being ex- amined by said grand jury, it was held bad on a plea in abatement. State v. Love, 4 Humph. 255. ‘ A presentment in the words of the statute, although generally sufficient, is not always so. It ought to apprise the defendant of the nature of the accusation with such reasonable certainty as to enable him to prepare to meet it, and as will render the proceeding a bar to any subsequent prosecution for the same offence. Com. v. Couk, 18 B. Mon. Rep. 149. APPEARANCE AND PLEA. 323 Process. SECTION II. APPEARANCE AND PLEA. When the indictment has been found, if the defendant be not then in custody, or if out on bail and he have not surrendered, in pursu- ance of his recognizance, to take his trial, the first proceeding is to sue out process, etc., upon the indictment, in order to have him apprehended ; when in custody, he is brought to the bar of the court and arraigned, and he pleads or demurs; the prosecutor then replies, if the plea be special, or joins in demurrer, after which the case is ‘ripe for trial or argument. I shall treat of these different proceedings under the following heads: 1. Process upon Indictment to outlawry, p. 102. 2. Arraignment and plea, p. 107. 3. Special pleas, p. 110. 4, Demurrer, p. 114. 1. Process upon Indictment to outlawry. (a) Process. The regular process upon an indictment, in cases of treason, felony, or mayhem, is by capias, alias, and pluwries.(a) ; In cases of misdemeanor, the first process is the writ of venire facias ; and if to that the sheriff return that the party has been summoned, then the prosecutor may have a distringas, alias and pluries, and so proceed by distress infinite; or if the sheriff return nihil to the venire, *the prosecutor may have a capias, alias and pluries.(b) [**103] But in practice these writs are never sued out, except for the purpose of proceeding to outlawry ;. but upon the indictment being found, the prosecutor, at the assizes or sessions, where the defendant is not in custody, procures a bench warrant, or the warrant of a justice of the peace, as shall presently be mentioned; or where the indictment has been found in the court of Queen’s Bench, or removed into that court by certiorari, the prosecutor may procure a judge’s warrant.(c) (a) 2 Hawk., v. 27, § 15. (c) See Arch. Pr. Cr. Of, 46, 47. (b) Ibid. §§ 9, 10; see the forms of these writs (Arch, Pr. Cr. Off. 43, 44). \ 324 APPEARANCE AND PLEA, Outlawry. (0) Ouilawry. Outlawry upon an indictment before judgment lies in all cases of treason and felony, and in all cases of indictable misdemeanors in which a capias lies.(2) For this purpose, in misdemeanors there must be three writs of capias—capias, alias and pluries—before the exigent ;(3) one is suffieient on an indictment for treason, murder, or manslaugh- ter ;(c) but it is doubtful whether two writs of capias be not necessary in other felonies ;(d) and they are so, where the party is indicted at quarter sessions.(e) Besides this, in treason and felony, if the de- fendant reside in a different county from that in which he is indicted, a writ of capias cum proclamatione must issue to the sheriff of the county in which he resides.(/') If non est inventus be returned to these writs of capias, then the writ of exigent and the writ of proclamations may issue; and afterwards a writ of allocatur exigent, if necessary.(g) And if he do not surrender before the last of the proclamations, judgment of outlawry is signed,() and a writ of capias utlagatum may issue to apprehend the outlaw, or a special capias utlagatwm to appre- hend him and to seize all his property.(é)(1) (a) See 2 Hawk., c. 27, § 100. (f/f) 6H. VI, c. 1; and see Arch. Pr. Cr. Off. (b) Ibid. § 111. 48, 49. (ec) Ibid. § 112, (g) Arch. Pr. Cr. Off. 48, 50; and see the (@) Ibid. forms of these several writs, Ibid. 50, 51. (e) 25 Ed. III, st.5,¢. 14; R. v. Yendal, 4 (h) Ibid. 51, 52. T. R. 358. (7) Arch. Pr. Cr. Off. 52; and see the forms, Ibid. (1) Outlawry may be defined the process adopted against a defendant who has absconded and cannot be found, for putting him beyond the protection of the law in regard to his property, and to some extent as to his person. Its effect is to disable the party outlawed from enforcing any of his legal rights in a court of justice. Burrill’s Law Dict., tit. Outlawry, citing 4 Stephen’s Com. 387, 388 ; Cole on Crim. Inform. 78, 98. .In the state of New York, the process of outlawry in civil actions is abolished; and also in criminal cases, except for treason. 2 N. Y. Rev. Sts. 553, 745; see 2. N. Y. Rev. Sts. 743, 744. In Pennsylvania there is no outlawry in civil cases. Dillman v. Shultz, 5 Serg. & Rawle, 35; see 1 Smith’s Laws of Penn. 116, 117; and 3 Smith’s L. of Penn. 37, 38, 39, 40. In that state proceedings of outlawry may be taken in cases of treason, felony of death, rob- bery, burglary, sodomy, or buggery, or as to accessories before the fact to any of those offences. Dunlop’s Laws of Penn., p. 182, c. 107. In Virginia, the statute (Code of 1849, tit. 55, c. 207, §§ 27, 28) provides that ‘‘judgment of outlawry shall be rendered by the Circuit Court of the county or corporation in which the prose- cution is, and may be reviewed, corrected, or reversed, on motion, or by writ of error coram nobis ;” and further, that “when a person is outlawed the same judg- ment, execution and disabilities shall ensue and be awarded, as if he were con- victed of the offence with which he was charged.” In the last-named state, in an indictment against a person who has been proceeded against to outlawry, a ques- tion cannot be adjourned to the general court, unless his consent appears on the record. Com. v. Pearce, 6 Gratt. 669. This process has never been employed in North Carolina. Sherrod v. Davis, 1 4 APPEARANCE AND PLEA. 325 | Bench warrant. (ce) Bench warrant. Upon an indictment being found at the assizes or quarter sessions, if the defendant be not in custody, or if out on bail, and it be doubt- ful whether he will surrender to take his trial, the court, upon appli- cation, will grant a bench warrant,(a) upon which he may be appre- hended as upon any other warrant, as mentioned ;(6) and it may be backed, when necessary, as stated.(c)(1) In the central criminal court, the prosecutor, applying for a bench warrant, must, before it issues, enter into a recognizance, such as the court shall direct, to prosecute the law with effect against the defend- ant.(d) *The following may be the form of a [*104] Bench Warrant. County of To all constables, headboroughs, and other officers and : ministers of the peace of our Lady the Queen, within the , and to every of them, whom it may con- county of cern. These are to will and require, and in Her Majesty’s name strictly to charge and command, that you, or some one of you, upon sight hereof, take and bring A. B. before [us, and others, Her Majesty's jus- tices, assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanors committed in the same county], at this present sessions [of the peace] holden at , in and for the said county (if the court shall be here sitting), to (a) 1 Hale, 599. (c) Ante, pp. 33, 34. (b) Ante, p. 33. (d) Reg. Gen. Jan. 1842; Car. & M. 254. Hayw. 282. And it is unknown to the laws of Kentucky. Sneed v. Wiester, 2 A. K. Marsh. Rep. 277. The Constitution of Texas provides that no citizen of the state shall be outlawed, “except by due course of the law of the land.” Const. of Texas, art. 1, § 16. (1) The New York Revised Statutes provide that after an indictment has been found by the grand jury, and presented to the court, a warrant for the arrest of the defendant may be issued by the court, or by the district: attorney, or by any justice of the Supreme Court or county judge of the county in which the indict- ment was found, either during the sitting of the court or in vacation. 2N. Y. Rev. Sts. 728, § 55. This warrant is to be delivered to the sheriff and constables of any county in the state. If served in any county other than that in which the - indictment was found, the same proceedings are to be had as on an indorsed war- rant issued before the indictment. 326 APPEARANCE AND PLEA, Warrant of justice out of sessions. answer to an indictment found against him for [state shorily the offence] ; and if the court shall not be sitting at the time of such taking, then, that you, or some of you, forthwith, afterward bring the same party before some one or more of Her Majesty's justices of the peace for the same county, to find sufficient sureties, personally to appear at this present sessions, to answer the same indictment, and all such other matters as on Her Majesty’s behalf shall be here objected against him; and if he cannot be taken during this present session, then, that you bring him before some one or more of Her Majesty’s justices of the peace for the same county, as speedily after as may be, to find such sureties, personally to appear at the next session [of the peace} to be holden for the said county, to answer as aforesaid, and further to be dealt with according to law. Hereof you are not to fail at your peril. [Given under our hands in open session] this year of our Lord ; day of , in the (d) Warrant of justice out of sessions. By stat. 11 & 12 Vict., c. 42, §.3, where any indictment shall be found by the grand jury in any court of oyer and terminer or general jail delivery, or in any court of general or quarter sessions of the peace, against any person who shall then be at large, and whether such person shall have been bound by any recognizance to appear to answer to the same or not, the person who shall act as clerk of the indictments at such court of oyer and terminer or jail delivery, or as clerk of the peace at such sessions at which the said indictment shall he found, shall at any time afterwards, after the end of the sessions of oyer and terminer or jail delivery or sessions of the peace at which such indictment shall have been found, upon application of the prosecutor, or of [105] *any person on his behalf, and on payment of a fee of one shil- ling, if such person shall not have already appeared and pleaded to such indictment, grant unto such prosecutor or person a certificate of such indictment having been found; and upon production of such cer- tificate to any justice or justices of the peace for any county, riding, di- vision, liberty, city, borough, or place in which the offence shall in such indictment be alleged to have been committed, or in which the person indicted in and by such indictment shall reside or be, or be supposed or suspected to reside or be, it shall be lawful for such justice or jus- tices, and he and they are hereby required to issue his or their warrant APPEARANCE AND PLEA, 327 Warrant of justice out of sessions. to apprehend such person so indicted, and to cause him to be brought before such justice or justices, or any other justice or justices for the same county, riding, division, liberty, city, borough, or place, to be dealt. with according to law; and afterwards, if such person be there- upon apprehended and brought before any such justice or justices, such justice or justices, upon its being proved upon oath or affirmation before him or them that the person so apprehended is the same person who is charged and named in such indictment, shall, without further inquiry or examination, commit him for trial, or admit him to bail, in manner before mentioned. The following is the form of the Certificate of Indictment being found. T hereby certify, that at [a court of oyer and terminer, and general jail delivery, or a court of general quarter sessions of the peace], holden in and for the [county] of , at , in the said [county], on ——, a bill of indictment was found by the grand jury against A. B., therein des- cribed as A. B. [late of laborer], for that he [etc., stating shortly the offence], and that the said A. B. hath not appeared or pleaded to the said indictment. Dated this ’ , 185-. J. D., Clerk of the indictments on the —— circuit, . or Clerk of the peace of and for the said [county]. day of The reader will perceive that this certificate can only be obtained after the assizes or sessions; for during the assizes or sessions the pro- secutor may obtain a bench warrant. But it is not only in cases, where the’ prosecutor has omitted to apply for a bench warrant during the assizes or sessions, but also where he has applied and got it, that this mode of obtaining a justice's warrant, to apprehend a party indicted, may be useful; *for it may often happen that whilst [*106] the bench warrant is in possession of a constable in another county, or in a distant part of the same county, there may be an op- portunity of apprehending the defendant in another part of the county, or in another county. AN 328 APPEARANCE AND PLEA. Warrant of justice out of sessions. The following is the form of the i . Warrant to apprehend the Person indicted. To the constable of ——, and to all other peace officers in the said [county] of ——. Whereas, it hath been duly certified by J. D., clerk of the indict- ments on the circuit [or clerk of the peace of and for the [county] of ], that [etc., stating the certificate]: These are, therefore, to command you, in Her Majesty’s name, forthwith to apprehend the said A. B., and to bring him before [me], or some other justice or jus- tices of the peace in and for the said [county], to be dealt with accord- ing to law. Given under my hand and seal, this —— day of —,, in the year of our Lord ——, at , in the county aforesaid. JS. [ies] The following is the form of the Warrant of commitment of the Person indicted. To the constable of ——, and to the keeper of the [common jail, or house of correction], at , in the said [county] of ——. Whereas, by [my] warrant, under my hand and seal, dated the —— day of , after reciting that it had been certified by J. D. [etc., as in the certificate], [I] commanded the constable of , and all other peace officers of the said county, in Her Majesty’s name, forthwith to appre- hend the said A. B., arid bring before [me], the. undersigned, [one] of Her Majesty’s justices of the peace in and for the said [cownty], or before some other justice or justices of the peace in and for the said [county], to be dealt with according to law: And whereas the said A. B. hath been apprehended under and by virtue of the said warrant, and being'now brought before [2el], it is hereupon duly proved to [me], upon oath, that the said A. B. is the same person who is named and charged in and by the said indictment: These are, therefore, to com- mand you, the said constable, in Her Majesty’s name, forthwith to take and safely convey the said A. B. to the said [house of correction], at ,in the said [cownty], and there to deliver him to the [*107] keeper thereof, together *with this precept; and I hereby com- mand you, the said keeper, to receive the said A. B. into your APPEARANCE AND PLEA. 329 Warrant of justice out of sessions.—Arraignment. custody in the said house of correction, and him there safely to keep until he shall be thence delivered by course of Jaw. Given under my hand and seal, this —— day of » in the year” of our Lord , at ——, in the [county] aforesaid. J.8. [u. 8.] Or, if the party indicted be confined in prison for any other offence than that charged in the indictment, at the time of such application, the justice, upon the like proof of identity, shall issue his warrant, directed to the keeper of the prison, to detain him until he shall be re- moved by habeas, for the purpose of being tried.(a) The following is the form of a Warrant to detain a Person indicted who is already in Custody for another Offence. To the keeper of the [common jail or house of correction] at ——, in the said [county] of ——: Whereas, it hath been duly certified by J. D., clerk of the indict- ments on the circuit [or clerk of the peace of and for the county of ——], that [etc., stating the certificate]: And whereas [I am] informed that the said A. B. is in your custody, in the said [common jail] at aforesaid, charged with some offence or other matter; and it being now duly proved upon oath before [me], that the said A. B. so indicted as aforesaid, and the said A. B. in your custody as aforesaid, are one and the same person: These are therefore to command you, in Her Majesty’s name, to detain the said A. B. in your custody in the [com- mon jail] aforesaid, until, by Her Majesty’s writ of habeas corpus, he shall be removed therefrom for the purpose of being tried upon such indictment, or until he shall otherwise be removed or discharged out of your custody by due course of law. ; Given under my hand and seal, this —— day of ——, in the year of our Lord , at ——, in the [county] aforesaid. * J.8. [u. 8.] 2. Arraignment and Plea. (a) Arraignment. When a person, against whom the grand jury have found a true bill, is in custody, the clerk of arraigns at the assizes, or clerk of the peace (a) 11 & 12 Vict., c. 42, § 8, 330 APPEARANCE AND PLEA. Arraignment. at sessions, orders the jailer to bring him to the bar. When he appears, the clerk addresses him thus: “A. B., hold up your hand. [*108] You *stand indicted by the name of A. B., [late of, etc.] for that, you, on the [etc., as in the indictment, to the end, eu cept that it is addressed to the prisoner in the second person, and that the second and subsequent counts are stated shortly]: How say you, A. B., are you guilty of this [felony] whereof you stand indicted, or not guilty ? (1) Upon an indictment for a subsequent offence after a previous con- viction, the prisoner is to be arraigned upon the whole indictment, including the former conviction ; and if he plead not guilty, then the jury, in the first instance, are charged with the subsequent offence, and only that part of the indictment read to them which relates to it; and if they find him guilty, then (without their being again sworn) that part of the indictment relating to the previous conviction is read to them, and they are charged with it; and if they find that he was previously convicted, then a verdict of guilty on the whole indictment is entered. This has been determined to be the proper course, by the. whole body of the judges, upon full consideration.(a) In cases of (a) Per Lord Campbell, C.J.,in R. v, Shuttleworth, 21 Law J. 36, m. ; see post, p. 624. (1) One accused of felony must be arraigned and plead in person; and in all subsequent proceedings he must appear in person; and the record must show such appearance. Sperry’s case, 9 Leigh, 623; Sailer v. The State, 1 Harr. 357; Dunn v. Com., 6 Barr. 384. In Illinois, the statute provides that upon the arraign- ment of a prisoner, it shall be sufficient for him, by himself or his counsel, to declare orally that he is not guilty.” Cr. Code of IIL, part 2, § 181. The omitting an arraignment will be sufficient ground for reversing the judg- ment. Powell v. U. 8., 1 Morris, 17. In Virginia, upon an indictment for a felony, the accused, if in custody, or if he appear according to his penn ae must, unless good cause be shown for a continuance, be arraigned and tried at the same term. Code of Va., of 1849, c. 208, § 2. See Rev. Sts. of Mass., c. 136, (f 128, 129; Rev. Sts. of Mich., c. 164, § 134; Rev. Sts. of Maine, c. 172, § 18; Hotchkiss’ Stat. Law of Georgia, p. 790; Code of Iowa, of 1851, c. 170, § 2981. : [A failure to arraign the defendant, and to enter a formal plea of not guilty, is not a grotind for reversal or arrest of judgment, where-it appears that defendant was present, announced himself ready for trial, and regularly went to trial before the jury without objection. State v. Cassaday, 12 Kans. 550; and see State v. Koerner, 51 Mo. 74; Link v. State, 3 Heisk. 252; Crippen v. State, 3 Heisk. 25.] [Where in Illinois the court will order “not guilty.” to be withdrawn, and a special plea to be put in, see Phillips v. People, 55 Ill, 429. A person indicted for a felony cannot waive an arraignment, nor plead by attorney. Wilson v. State, 42 Miss. 639 ] (When an arraignment is waived, see Molihan v. State, 30 Ind. 266. In Michi- gan, an arraignment and plea are indispensable on an information, and must be recited in the record. Griggs v. People, 31 Mich. 471. And in Wisconsin, a plea of not guilty cannot be entered nune pro tunc after conviction. Davis v. State, 38 Wis. 487. ] : : APPEARANCE AND PLEA. 331 Arraignment. murder or manslaughter, where, besides the indictment, there is also a coroner’s inquisition, it is usual to arraign the prisoner on the inqui- sition immediately after arraigning him on the indictment, and to try him on both at the same time.(a) The holding up of the hand is a mere ceremony, and not of any importance. It is principally done where there are two or more arraigned upon the same indictment, for the purpose of ascertaining which of them is A. B., which C. D., etc.(0) : But the court will not dispense with the prisoner’s standing at the bar, whatever his station in life may be, particularly in case of felony.(c) In this latter case, however (which was the case of Captain Douglas, who surrendered to take his trial for being second to Lord Cardigan, in a duel with Captain Tuckett), Williams, J., allowed several of the prisoner’s friends to stand beside him in the dock. In a subsequent case, where a foreigner, who was a merchant in London, was indicted for fitting out a ship to be employed in the slave trade, his counsel applied that the prisoner might sit by him instead of going into the dock—not on account of his station in life, but because he was a foreigner, and many of the documents in ‘the case were in a foreign language, which would render it necessary for his counsel, from time to time, to communicate with: him personally for the pur- pose of his defence—the court (Maule & Wightman, JJ.), however, held that the application was one which could not be granted.(d) Formerly, when there was more danger of rescue and escapes *than there is at present, it was no uncommon thing [109] for prisoners to be brought to the bar of the court in irons. And they were obliged to stand at the bar in irons during the arraign- ment, and until they had pleaded, the judges saying that they had _ no authority to order them to be struck off until the trial.(e) At the -trial, however, the irons were always struck off.(/) (1) (a) 1 East P. C. 371. (e) R. v, Layer, 16 How. St. Trials, 94, 99, (b) 2 Hawk., c. 28,52; R. v. Ratcliffe,1W. 129; R. v, Waite, 2 East P. C, 570; 1 Leach. BI. 3. ! 28, 36. (c) R. v. Douglas, Car. &. M. 193. (f) Ibid. (d) R. v. Pedro de Zulueta, 1 Car, & K. 215, (1) In Pennsylvania, by act of Assembly, passed 28th of March, 1808, it is pro- vided “that no person who may hereafter be arraigned on an indictment, and who ‘shall be bound ‘by recognizance to abide the judgment of the court, shall be put within the prisoner’s bar to plead to the same, or be contined therein during his or her trial, but shall have an opportunity of a full and free communication with his or her counsel.” Dunlop’s Laws of Penn., p. 257. And in Georgia, the statute 332 APPEARANCE AND PLEA, Standing mute. (0) Standing mute, etc. If any person, being arraigned upon, or charged with any indict- ment or information for treason, felony, piracy, or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information: in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of “not guilty” on behalf of such person; and the plea so entered shall have the same force and effect as if such person actually pleaded the same.(a) And to ascertain whether a person who stands mute is mute of malice or by the visitation of God, the judge will immediately charge the jury to try this collateral issue; and the jailer, or such other person as can give evidence upon the subject, shall be sworn and examined.(d) (1) : ; Where a prisoner, upon his arraignment, stated that he was deaf, and upon the indictment being read over to him he appeared not to understand it, Gifford, C.J., immediately directed a jury to be im- paneled to try whether he stood mute of malice or by the visitation of God.(c) , ' Where a prisoner, who had already been tried and convicted, but whose trial was deemed a nullity on the ground of some informality in the swearing of the witnesses who gave evidence before thé grand (a) 7& 8G, IV., &. 28, § 2 (c) R. ». Hulton, 1 Ry. & M. 78. (b) See R. v, Mercer, 1 Leach, 183; R. vw. Steele, 1 Leach, 451. ' provides that no person indicted, unless it be for an offence which may, on con- viction, subject him or her to death, or imprisonment in the penitentiary for the term of three years or more, shall be put to his or her arraignment in the bar dock, or other place set apart in the court-room for the arraignment of prisoners. Hotchkiss’ St. Law of Geo., p. 789. (1) In Illinois, the statute provides. that in ‘all cases where the party indicted shall, on being arraigned, obstinately stand mute, or refuse to plead, standing mute or refusing to plead shall be adjudged to be a denial of the facts charged in the indictment, and the court shall order the.plea of “not guilty” to be entered on the minutes. Cr. Code of IIL, pt. 2, § 182. The statute is similar in New York (2 N. Y. Rev. Sts., 4th ed., p. 914, § 74); also in Mississippi (Hutchinson’s Miss. Code, p. 1004, c. 65, § 51); and in Texas (Hartley’s Dig., art. 398) ; also in Georgia (Hotchkiss Stat. Law of Georgia, p. 790); and in Virginia (Code of Va. of 1849, c. 208, § 3). In the case of the U.S. v. Hare, et al (Circuit Court, Mary- land District, May Sessions, 1818), the court decided that if a prisoner, charged with a felony against the laws of the United States, stands mute, the trial will pro- ceed by jury as if the prisoner had pleaded not guilty ; and where one indicted for larceny stood mute upon his arraignment, a jury was impaneled, who re- turned a verdict that he stood mute fraudulently, wilfully and obstinately; where- . upon he was sentenced, as upon conviction. Com. v. Moore, 8 Mass. 402; Ros- coe’s Dig. Cr. Ey. 174; Turner’s case, 5 Ohio, 542. APPEARANCE AND PLEA. 333 Plea. jury, was again arraigned upon an indictment for the same offence, and refused to plead, alleging that he had already been tried, Little- dale, J., and Vaughn, B., ordered a plea of not guilty to be entered for him, under the above statute.(a) But if the jury, upon being so impaneled, find that the prisoner is insane, the court shall record such verdict, and order the party to be kept in strict custody, in such place and in such manner as to them shall seem fit, until Her Majesty’s pleasure shall be known.(0)(1) (c) Plea. Upon being asked whether he was guilty. or not guilty, the de- fendant may plead ore tenus, ‘not guilty,” of which the clerk of arraigns or clerk of the peace makes a minute on the indictment, and puts it into form, if it afterwards becomes necessary to make up the record. Formerly. the clerk of the peace asked the defendant also, How will you be tried ? and *he answered, ‘‘By Godand [*110] my country.” But now, by stat. 7 & 8 G. IV, c. 28, § 1, if any person, not having the privilege of peerage, being arraigned for treason, felony, or piracy, shall plead thereto a plea of ‘not guilty,” he shall, by such plea, without any further form, be deemed to have put himself upon the country for trial; and the court shall, in the usual manner, order a jury for the trial of such person accordingly.(2) (a) R. v. Bitton, 6 Car. & P. 92, (b) 39 & 40 Geo. IIT, c. 94, § 2; see ante, pp. 4, 5. (1) The proceedings, where the accused becomes insane subsequent to the com- mission of the crime, have already been treated, ante, p. 26 et seq. (2) In New York, Massachusetts, and Michigan, it is provided by statute, that it shall not be necessary to ask the prisoner how he will be tried (Rev. Sts. of N. Y., 4th ed., vol. 2, p. 914, § 74; Rev. Sts. of Mass., c. 136, § 28; Rev. Sts. of Mich., c. 164, § 29); and in New York, instead of being required to say whether he pleads guilty or not guilty, he must be required to say whether he demands a trial upon such indictment. He may answer that he does require such trial, and for the purpose of all further proceedings such answer will be deemed equivalent to a plea of “not guilty.” : [A defence of former acquittal or convietion may be proved under “not guilty,” or may be pleaded specially. Glem. v. State, 42 Ind. 420. ‘*Not guilty” does not put in issue an allegation of a former conviction in an indictment, and a verdict of “guilty” does not respond to such allegation. Thomas’s case, 22 Gratt. 912. All defences, even that of want of jurisdiction, must be allowed if established by the proofs, although not specially pleaded. Field v. State, 34 Tex. 39. : [By ‘ie Tennessee act of 1860, ch. 102, allowing’ double pleading, the pleas must be put in so as to be tried at the same time. Crippin v. State, 3 Heisk. 25.] [When the defendant puts in no plea, and the plea of “not guilty” is not entered on his behalf, it is error, for which juigment will be arrested; but he should not be discharged, a new trial should be granted. State v. Koerner, 51 334 APPEARANCE AND PLEA, Traverse. If, instead of pleading “not guilty,” the defendant say that he is “guilty,” this is a confession of the offence, which subjects him precisely to the same punishment as if he were tried and found guilty by verdict. But as defendants often imagine that, by pleading guilty, they are likely to receive some favor. from the court in the sentence that will be passed upon them, the judge very frequently undeceives them in that respect, and apprizes them that their plead- ing guilty will make no alteration whatever in their punishment. If, however, they still persist in their plea of guilty, it is then recorded by the clerk of arraigns or clerk of the peace; and in the record, when made up, the judgment immediately follows the plea. (d) Traverse. Formerly, in all cases of misdemeanors, the defendant was not bound to submit to be tried at the same assizes or sessions at’which the bill was found, but had a right to traverse it, that is to say, to put off his trial, until the next following assizes or sessions for the same county. This was afterwards somewhat modified by stat. 1 G. IV, ¢. 4. But now, by stat. 14 & 15 Vict., c. 100, § 26, that statute is re- pealed; and by sect. 27, no person, prosecuted, shall be eutitled to traverse or postpone the trial of any indictment found against him at any session of the peace, session of oyer and terminer, or session of jail delivery: provided always, that if the court, upon the application of the person so indicted or otherwise, shall be of opinion that he ought to be allowed a further time, either to prepare for his defence or otherwise, such court may adjourn the trial of such person to the next subsequent session, upon such terms as to bail or otherwise as to such court shall seem meet, and may respite the recognizances of the prosecutor and witnesses accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence Mo. 74. The record of a trial without a plea Qf not guilty” will not support a plea of autrefois convict. If on the prisoner’s motion a new trial is ordered, and he refuses to plead, on the entry of “not guilty” he is entitled to the usual panel and challenges, under Tennessee Code, §§ 5212-14. Link v. State, 3 Heisk. 252. When in Illinois the court will allow “not guilty” to be withdrawn, and a special plea to be put in, see Phillips v. People, 55 Ill. 429. When ‘‘not guilty” and “qutrefois acquit” are both pleaded, the latter must be first tried. Lee v. State, 26 Ark. 260. Whether, after “not guilty,” the court will allow a special plea setting up defects in the organization of the grand jury which found the indict- ment, is purely a matter of discretion, and a refusal is not error. People v. Allen, 43 N. Y. 28.] APPEARANCE AND PLEA. 335 . Traverse, at such subsequent session, without entering into any fresh recogni- zance for that purpose.(1) (1) It is said that the technical term traverse, from transverto, to turn over, is applied to an issue taken from an indictment for a misdemeanor, and means nothing more than turning over, or putting off the trial to a following session ; and that thus it is that the court asks the party whether he is ready to try them, or will traverse to the next session, though some have referred its meaning originally to the denying, or taking issue upon an indictment, without reference to the delay of trial, and which seems more correct. 4 Blk. Com. 351. In New York, it is provided by statute, if any prisoner, indicted for any offence triable in the Court of Sessions and committed to prison, whose trial shall not have been postponed at his instance, shall not be brought to trial before the end of the next term of the Court of Sessions which shall be held in the county in which he is imprisoned, after such indictment found, he shall be entitled to be discharged, so far as relates to the offence for which he was committed. If any prisoner, indicted for any offence not triable in a court of sessions, but which may be tried in a court of oyer and terminer, and committed to prison, whose trial shall not have been postponed at his instance, shall not be brought to trial before the end of the next court of oyer and terminer which shall be held in the county in which he is imprisoned, after such indictment found, he shall be en- titled to be discharged, so far as relates to the offence for which he was committed. If satisfactory cause shall be shown by the district attormey, to any court to which application shall be made under either of the two last sections, for detain- ing such prisoner in custody or upon bail until the sitting of the next court in which he may be tried, the court shall remand such prisoner, or shall hold him to bail, as the case may require. Whenever the trial of-an indictment shall be postponed by the court in which the same shall be pending, it shall be the duty of the district attorney to cause all the witnesses on the part of the people in attendance, deemed by him material, to be recognized to appear at the time and place to which such trial shall have been postponed, 2N. Y. Rev. Sts., pp. 919, 920, §§ 30, 31, 32, 33. . In Massachusetts the statute provides that every person, held in prison upon an indictment, shall, if he require it, be tried at the next term of the court, after the expiration of six months from the time when he was imprisoned, or shall be bailed upon his own recognizance, unless it shall appear to the satisfaction of the court that the witnesses on behalf of the government have been enticed or kept away, or are detained or prevented from attending the court by sickness or some inevit- able accident. Rev. Sts. of Mass., c. 136, § 30. .In Pennsylvania, if any person shall be committed for treason or felony, and shall not be indicted and tried some time in the next term of oyer and terniner, general jail delivery, or other court, where the offence is properly cognizable after such commitment, it shall and may be lawful for the judges or justices thereof, and they are hereby required, upon the last day of the term, sessions, or court, to set. at liberty the said prisoner upon bail, unless it shall appear to them, upon oath or aftirmation, that the witnesses for the commonwealth, mentioning their names, could not then be produced ; aud if such prisoner shall not be indicted and tried the second term, sessions, or court, after his or her commitment, unless the delay happen on application, or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from imprisonment. Provided always, that nothing in this act shall extend to dicharge out of prison any person guilty of, or charged with treason, felony, or other high misdemeanor in any state and who, by the confederation, ought to be delivered up to the executive power of such state, nor any person guilty of, or charged with a breach or violation of the laws of nations. ‘Act of Feb. 18th, 1785, §3; 2 Smith’s Laws, 275; Purdons Dig. (6th ed.) 533. ‘ ; In Virginia it is required, whenever any prisoner committed for treason or felony shall apply to the court on the first day of the term by petition or motion,’ and. shall desire to be brought to his trial before the end of the term, and shall not be 336 APPEARANCE AND PLEA. Traverse.—Pleas in abatement. 3. Special Pleas. (a) Pleas in abatement. A defendant is not allowed in criminal cases, as in civil actions, to plead in abatement that another indictment is pending against [111] him for the same offence ;(a) *and if he go on to show that he was acquitted or convicted on the former indictment, the plea is then a plea in bar, not in abatement.(1) But the only pleas in abatement in criminal cases are, that the indictment gives the de- fendant no christian or first name or a wrong one, no surname or a wrong one, no addition of degree or mystery or a wrong one.. But this is now of no use; for, by stat. 7G. IV, c. 64, § 19, no indictment or in- (a) 2 Hawk., c. 34, § 1. indicted in that term, unless it appear by affidavit that the witnesses against him cannot be produced in time, the court shall set him at liberty, upon his giving pail, in such penalty as they shall think reasonable, to appear before them at a day to be appointed, of the succeeding term. Every person charged with sucha crime, who shall not be indicted before or at the second term after he shall have been committed, unless the attendance of the withesses against him appear to have been prevented by himself, shall be discharged from his imprisonment, if he be detained for that cause only; and if not tried at or before the third term after his examination before the justices, he shall be forever discharged of the crime, unless such failure proceed from any continuance granted on motion of the prisoner, or from the inability of the jury to agree on their verdict. R. C. of Va., ¢., 169, § 28. i The revised statutes of Michigan (tit. 31, c. 164, § 30) provide: Every person, held in prison upon an indictment, shall, if he require it, be tried at the next term of the court after the expiration of six months from the time when he was imprisoned, or shall be bailed upon his own recognizance, unless it shall appear to the satisfaction of the court that the witnesses on behalf of the people have been enticed or kept away, or are detained and prevented from attending court by sickness, or some inevitable accident. In Georgia the statute provides that “every person, against whom a. bill of indictment is found, shall be tried at the term of the court the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice -should require a.postponement of the trial, and then the court shall allow a post- ponement of trial until the next term of the court; and the court shall have power to allow the continuance of criminal causes from term to term, as often as the principles of justice may require, upon sufficient cause shown on oath.” ‘‘Any person, against whom a true bill of indictment is found for an offence not affecting his or her life, may demand a trial at the term when the indictment is found, or at the next succeeding term thereafter, which demand shall be placed upon the minutes of the court; and, if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter, provided that at both terms there were juries impaneled and qualified to try such prisoner, then he or she shall be absolutely discharged and acquitted of the offence charged in the indictment.” Hotchkiss St. Law of Geo., p. 791. The subject of continuance and adjournment in criminal cases will be found fully treated post. (1) Com. v. Drew, 3 Cush. 279; Dutton v. State, 5 Ind. Rep. 538; but see Austin v. State, 12 Mis. 393. ' APPEARANCE AND PLEA. 337 Pleas in abatement. formation shall be abated by reason of any dilatory plea of misnomer, or of want of addition or wrong addition of the party offering the plea, but in such a case the court shall forthwith cause the indictment or in- formation to be amended according to the truth, and shall call upon the party to plead thereto, and shall proceed as if no dilatory plea had been pleaded. And by stat. 14 & 15 Vict., c. 100, § 24, no indictment shall be holden insufficient for want of, or imperfection in, the addi- tion of any defendant.(a)(1) (a) See ante, p. 78. (1) As there is no corresponding statute in the state of New York, the plea in abatement in criminal cases is still in use here; and, as far as we have been able to ascertain, the same may be said of the other states. Any misnomer, in general, is matter for abatement (State v. Lorey, 2 Brevard, 395); thus where the indictment charged the defendant as George Lyons, it was held, he could well abate it by showing his true name was George Lymes, Lymes v. State, 5 Porter, 236. Where the indictment’described one as A., the wife of B., it was held that the allegation that the prisoner was the wife of B., was a mere descrip- tion or addition, and if erroneous, as such the only remedy was by a plea in abate- ment. Commonwealth v. Lewis, 1 Metcalf, 151. Where a person was indicted as William Gabe alias Santa Anna, it was held that the objection that the indictment set forth a second christian name, under an alias dictus, was matter to be pleaded. in abatement, and could not be reached bya mere motion. Gabe v. State, 1 Eng. 519. Want of addition is generally ground for abatement. State v. Hughes, 2 Har. & M’Hen. 479; 1 Ch. C. L. 204; Haught v. Com., 2 Va. Cas. 3. But in North Carolina a plea in abatement to an indictment is bad, if made because of want of the defendant’s addition. State v. Newman, 2 Ca. Law Repos. 74. And a wrong addition can be taken advantage of in the same manner. Thus, in an indictment on the statute of Maine, prohibiting the sale of lottery tickets, giving the accused the name of lottery vendor, when his proper addition was broker, furnishes good cause for abating the indictment. State v. Bishop, 15 Maine Rep. 122; Com. ». Clark, 2 Va. Cas. 401. It is no answer to a plea of misonmer that it is the same identical person, since it is the right of the party to be prosecuted by his true name. Commonwealth v. Dockham, Thacher’s Criminal Cases, 238. The incompetency of the grand jurors, who find a bill, is a matter which may be pleaded in abatement. Nugent v. State, 19 Ala. 540; State v. Foster, 9 Texas, 65; Jackson v. State, 11 Texas, 261; Rawls v. State, 8 Sm. & Marsh. 599; Mc- Quillan v. State, ibid. 587;. State v. Rickey, 5 Halst 83; State ». Greenwood, 5 Porter, 474 ; State ». Middleton, ibid. 483 ; Shropshire v. State, 7 Eng. 190; Baker ». The State, 23 Miss. 243; Smith v. State, 19 Conn. 493; State v. Brooks, 9 Ala. 10; State v. Wils. 11 Humph. 222. Under a statute requiring that grand jurors should be freeholders, a plea in abatement to an indictment, setting forth that some of the jurors who served on the grand jury were not freeholders was held good. State v. Rockafellow, 1 Halst. 332; State v. Duncan, 7 Yerger, 271; People v. Jewett, 6 Wend. 386; 3 Wend. 314, contra. And under a statute exempting an owner of a mill from serving as a grand juror, it was held that a plea in abate- ment could be pleaded in case the presentment was made by a grand jury, one of whom was a mill owner. Com. v. Long, 2 Va. Cas. 318. In Vermont, a non-compliance with the statute, providing in terms that if the proper minute of the day, month and year, be not made on the indictment, the proceedings shall, on motion, be dismissed, is a matter in abatement. State v. Butler, 17 Vt. 145. And in an early case in Connecticut, it was held that where one had been bound over for a secret assault, and the justice had failed to insert in his certificate that the complainant had sworn to the fact of his being wounded, 22 338 APPEARANCE AND PLEA. Pleas in abatement.—Former acquittal. (b) Autrefois acquit. That the defendant was formerly indicted and acquitted, is a good plea in bar to a subsequent indictment for the same offence ;(a) for the law will not suffer a man to be twice put in jeopardy for the same offence.(0)(1) : (a) 2 Hale, 241, 242; 2 Hawk., c. 35, § 1. (6) Thid. ‘ ey his wounds, this should be pleaded in abatement. Northrup v. Brush, irby, ; A plea in abatement to an indictment should set forth the grounds of objection specitically. Brennan v. The People, 15 Ill. Rep. 511. In all pleas of abatement in criminal proceedings, it is essential that facts should be stated out of which the defence arises, or a negative of that state of facts which is to be presumed from the existence of w record. State v. Brooks, 9 Alabama, 10; State v. Newer, 7 Blackf. 307. When a plea in abatement to an indictment alleged several distinct matters which had no connection with each other—it was held, that the plea was bad, because of duplicity. Findley v. The People, 1 Manning, 234. A plea in abatement. alleging that certain persons (naming them) have been sworn and charged as members of the grand jury, without alleging that they served on the grand jury, is sufficient. State ». Rickey, 5 Halst. 83. Pleas in abatement in criminal ag well as in civil cases, must be pleaded at the proper time. By pleading not guilty, the accused waives matter in abatement. McQuillan v. State, 8 Smedes & Marsh. R. 587. When a plea in abatement is found in favor of the defendant, the judgment, in case of misdemeanor, is, that he be not compelled to answer the indictment, but depart the court without day. 2 Hale, 238; 10 East, 88, where see form. But if the plea is found against the defendant, the jury, or the court, if the case is sub- mitted to the court without a jury, should fix the penalty, and the judgment of the court should be in accordance with the verdict. Guess v. State, 1 Engl. Ark. Rep. 147. On an accusation for a capital crime, however, after the indictment has been abated for misnomer, the court will not dismiss the prisoner, but cause him to be indicted de novo, by the name disclosed in his plea, to which we have seen, he can make no second objection. .Cro. Car, 371; 2 Hale, 176, 238; Hawk., b. 2, c. 34,9 2. Williams, J., Misnomer and Addition, II. And if the grand jury be not discharged, another bill may be immediately preferred, whatever may be the description of the offence. 2 Hale, 176, 238; Cro. C. C. 21; Hawk., b. 2, c. 34,§2; Dick. Sess. 167. If it be pleaded by one of several defendants, and allowed, it will only quash the indictment as to him, without affecting it as to those who are correctly indicted. Rep. temp. Hardw. 303; 2 Hale, 177; Bac. Abr., Indictment, G. 2; Williams J., Misnomer and Addition, II. [A misnomer can only be taken advantage of by a plea in abatement. State v. Brunell, 29 Wisc. 435.] : [When defective allegations in the indictment—e. g. of time—cannot be sup- phed by the facts admitted in a plea in abatement. See State v. Wise, 67 N. C., 280.] (After “not guilty” has been pleaded, it is within the discretion of the court to permit the defendant to put in a special plea setting up defects in the organiza- tion of the grand jury which found the indictment, and a refusal to admit such plea is not error. People v. Allen, 43 N. Y. 28. As to pleas in abatement in general, see Ward v. State, 48 Ind. 289.] (1) This principle is sanctioned and enforced in different forms of words in most of the constitutions of the several states, and the Constitution of the United States. See Const. of the United States (5th article of the amendments) ; Commonwealth v. Roby, 12 Pick. 502; People v. Goodwin, 18 Johns. 201; State v. McKee, 1 Bailey, 651; State v, Norvell, 2 Yerger, 24; Rev. Sts, of Mass., p. 715; State v. APPEARANCE AND PLEA. "839 Former acquittal. Benham, 7 ‘Conn., 418, 419; Com. ». Cunningham, 13 Mass. Rep. 245; Com. v. Goddard, 13 Mass. 457; Wortham v. Com. 5 Rand. 669: Bailey’s case, 1 Virg. Cas. 258 ; 1 Virg. Cas. 188, 248; Gerard v. People, 3 Scam. 362; State v. Davis, 4 Blackf. 345 ; State v. Johnson, 8 Blackf. 583; State v. Spear, 6 Mis. 644; State v. Anderson, 3 Sm. & Marsh. 751 ; State ». Brown, 16 Conn. 54: Stevens v. Fassett, 27 Maine, 266; People v. Allen, 1 Parker, 445. The maxim that a man ought not to be brought twice into danger for one and the same offence, Mr. Justice Story remarks, ‘is embodied in the very elements of the common law, and has been uniformly construed to present an insurmount- able barrier to a second prosecution, where there has once been a verdict of ac- quittal or conviction regularly had upon a’sufficient indictment.” United States ». Gibert, 2 Sumner, 42. In Wisconsin, the statute provides that ‘no person shall be held to answer on a second indictment for an offence of which he has been acquitted by the jury upon the facts and merits on a former trial; but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same offence, notwithstand- ing any defect in the form or in the substance of the indictment on which he was acquitted.” Rev. Sts. of Wisconsin, c. 132,§ 4. There is a similar statute in Virginia (Code of Va. of 1849, c. 199,§ 15); also in Michigan (Rev. Sts. of Mich., ce. 151, § 3); and in Vermont (Rev. Sts. of Vt., c. 102, § 4); and in New York and Massachusetts. Rev. Sts. of N. Y., 4th ed., vol. 2, p. 886, § 29; Rev. Sts. of Mass. c. 123, §§ 4,5. In Michigan, where a mortal wound is inflicted in a duel, the principals and seconds may plead a former conviction or acquittal of the same offence in the state or county where such mortal wound was inflicted. Rev. Sts. of Mich. c. 153 § 6. There is a similar statute in Vermont. Rev. Sts. of Vt. c. 103, § 6. And see N. Y. Rev. Sts. vol. 2, 4th ed., pp. 869, 870. “Tf in civil cases the law abhors a multiplicity of suits, it is yet more watchful in criminal cases that the crown shall not oppress the subject, or-the government the citizen, by unreasonable prosecutions.” Per Drake, J., in State v. Cooper, 1 Green’s Rep. 375. Even an erroneous acquittal is conclusive until the judgment is reversed, so that if a judge direct the jury to acquit the prisoner on any ground, however fallacious, he is entitled to the benefit of the verdict. State v. Norvell, 2 Yerger, (The defendant may plead a former acquittal or prove it under ‘not guilty.” Clem v. State, 42 Ind. 420 ] [When defendant is arraigned on asufficient indictment, pleads thereto, and a jury is impaneled and sworn, a dismissal of the indictment by the court without defendant’s consent, is an acquittal, the jeopardy had begun. Lee v. State, 26 Ark. 260. ‘Not guilty ” and a “former acquittal” both being pleaded, the latter must be tried first. Lee v. State, 26 Ark. 260.] (Jeopardy, nature of, and when accused has once been in.— The court may dis- charge the jury and hold the accused for another trial, when the jury cannot agree, or when the trial cannot go on by reason of the sickness of a juror or of the defendant, but for no other reason, and a subsequent trial would not be twice putting the prisoner in jeopardy. Lee v. State, 26 Ark. 260. After certain jurors had been accepted and sworn, the court quashed the venire and ordered a new one because of the misconduct of the accepted jurors; the defendant was subse- quently convicted by another jury; this was held regular, and the accused not twice in jeopardy ; jeopardy does not begin until the jury isimpaneled and the machinery of the court fully organized for trial. Kensie v. State, 26 Ark. 334, As to when a postponement after the jury are sworn and the trial is commenced, will be equivalent to an acquittal, see U. 8. v. Watson, 3 Ben. 1. When a jury has been impaneled and sworn and the indictment is sufficient and defendant has pleaded, a discharge of the jury for any cause legally insufficient, isan acquittal. Bell v. State, 44 Ala. 393. The’jury may be discharged if the court is satisfied that they are unable to agree ona verdict. State v. Matrassey, 47 Mo. 295. A U. 8. court may discharge a jury from a verdict whenever in its opinion a manifest necessity exists, or the ends of public justice would otherwise be defeated ; and it has the power to do so, even when the necessity is not manifest, if the defendant consents. U.S. v. Watson, 3 Ben. 1. A case had been submitted to the court for trial, and the judge had heard the evidence and taken the matter under advise- 340 APPEARANCE AND PLEA, Former acquittal, ment, but died before making his decision, held that the defendant was.not thereby discharged. Bescher v. State, 32 Ired. 480. * [As to the proof necessary to show that a second indictment is for the same offence as that charged in the first indictment on which defendant was acquitted, see Com. v. Sutherland, 109 Mass. 342.] [When the jury has been improperly discharged, the defendant must be dis- charged. State v. Lennig, 42:Ind. 541. After an acquittal upon an indictment sufficient in form, an appeal or new trial is impossible. State v. West, 71 N. C. 263; Day v. Com., 23 Gratt. 915. Jury may be discharged for failure to agree. Ex parte McLaughlin, 41 Cal. 211; Crookham v. State, 5 W. Va. 510. Whena conviction has been reversed on appeal for errors at the trial, there has been no jeopardy. State v. Knouse, 33 Iowa 365. Conviction for assault and battery is no bar to a subsequent indictment for an assault with intent to commit great bodily injury, based on the same acts. State v. Foster, 33 Iowa 525.] {No person can claim the protection of the. constitutional provision unless he has been tried by a lawful jury on a good indictment and convicted or acquitted. Taylor v. State, 33 Tex. 97. When there has been no former acquittal or convic- tion, the plea must state that defendant was put upon trial on a good indictment, and that the jury was duly impaneled, sworn and charged with his trial, and were discharged without his consent and without any pressing necessity. Lyman v. State, 47 Ala. 686; Canter v. People, 1 Abb. App. Dec. 305. A trial and con- viction in one state for an act as a violation of the laws of that state, is no bar toa subsequent trial in another state for the same act as a violation of its laws. Phil- lips v. People, 55 Ill. 429.) {An indictment charged that on a certain day named defendant obtained goods by false pretences, but there having been no law at the time as laid rendering the act criminal, he was acquitted ; this was held no War to a second indictment charg- ing the act to have been done at another time when it was indictable (the latter allegation of time was of course the correct one, and the averment in the former indictment was erroneous). Com. v. Zepp, 3 Pa. L. J. R.311. A defendant acquit- ted for the larceny of money alleged to belong to A., may be indicted and convicted for stealing the same money as the property of B., who was in fact the true owner. Morgan v. State, 34 Tex. 677. An acquittal upon an indictment under Mass. Gen. Stat., c. 63, § 107, charging an obstruction of a locomotive engine without alleging a criminal intent, is no bar to a second prosecution, under § 108, for putting a rail across the track ‘‘ with intent to obstruct.” After quashing an indictment for a misnomer, a second indictment for the same offence is not a twice putting in jeopardy. Com. v. Farrell, 105 Mass. 189.] {In North Carolina, on the trial for a capital felony, the judge may, for a suffi- cient reason, discharge the jury and hold the defendant for a second trial ; but it is then his duty to find the facts and put them in the record, so that his conclusions thereon may be reviewed. State v. Jefferson, 66 N.C. 309.] [In Alabama, the entry of a nolle pros., after the evidence is closed, and against the objection of defendant, is equivalent to an acquittal, and bars a second trial for the same offence. Grogan v. State, 44 Ala. 9. But in Texas the entry of a nolle pros., after the jury are sworn and the testimony is in, and before verdict, cannot bar a second prosecution for the same offence. Swindel v. State, 32 Tex. 102. In Virginia, on a trial for felony, the jury rendered a verdict of guilty, and fixed the imprisonment for a shorter term than the least period allowed by statute, whereupon judgment was accordingly entered ; on defendant’s motion the judg- ment was reversed and a new trial ordered; held, that he should not be dis- charged, since the new trial would not be a second jeopardy. Jones v. Com., 20 Gratt, 848.] _ In Tennessee, an entry by the clerk, not signed by the judge, because of his sickness or death, showing a discharge of the jury in a capital case by consent of the defendant, is sufficient evidence of a discharge by consent. Moore v. State, 3 Heisk, 493. See, also, People v. Webb, 38 Cal. 467; O’Brian v. Com., 6 Bush. 563; S.C. 9 Bush. 333; State ». Alman, 64 N. C. 364; Lester v. State, 33 Geo. 329; Canter v. People, 38 How. Pr. 91; State ». Cheek, 25 Ark. 206; King 2. People, 12 N. Y. 8. C. (5 Hun.) 297; People v. Cage, 48 Cal. 324; People o. Hunckler, 48 Cal. 331 (see these two cases as to the effect of discharging the jury); State v. Lee, 10 R, I, 494.] ~ ae APPEARANCE AND PLEA. 341 Former acquittal. So, if a man be acquitted on an indictment for murder, he cannot afterwards be indicted for manslaughter of the same person, for he might have been convicted of manslaughter on .the former indict- ment.(a2) So, if a man be indicted for burglary and larceny, and ac- quitted, he cannot afterwards be indicted for the larceny. After being indicted and acquitted on an indictment for felony, he cannot after- wards be indicted for an attempt to commit it, for he might haye been convicted for the attempt on the previous indictment for the felony.(d) For the same reason, a man, indicted and acquitted on an indictment for robbery, cannot afterwards be indicted for an assault with. intent to commit it;(c) a man indicted and acquitted for a misdemeanor, which, upon the trial, appears to be a felony, cannot afterwards be indicted for the felony ;(@) so, a person, indicted and acquitted for embezzlement, cannot afterwards be indicted as for a larceny; or if tried and acquitted for a larceny, cannot afterwards be indicted as for embezzlement, upon evidence of the same facts;(e) or, if a man be indicted and acquitted of having, with. others, received stolen goods, he cannot afterwards be indicted for separately receiving them.(/) If a man be indicted and acquitted of obtaining goods by false pre- tences, he cannot afterwards be indicted upon the same facts as for a larceny ;(g) but if he be indicted and acquitted of a larceny, he may afterwards be indicted upon the same facts for obtaining the goods or money under false pretences.(z) *If, on a former [*112] indictment against an accessory before the fact, which specially charged him with inciting, etc., he was acquitted, he may afterwards be indicted as principal ;(/) but if he were indicted as principal on the former occasion, it would be otherwise. The former indictment, however, must appear to have been a good and valid indictment for the offence, and which might be supported by the same evidence as would support the present one.(j)(1). (a) 2 Hale, 246, ‘ (g) See 7 &8 G. IV, c. 29, § 53. (b) 14 & 15 Vict., c. 100, § 9. (h) R. v. Henderson et al., Car. & M. 328. (c) Ibid, § 11. (t) 2 Hawk., c. 35, § 12, (d) Ibid, § 12. (j) 2 Hawk., c. 35,§8; R.v. Vandercombe, (e) Ibid. § 18. 2 Leach, 708 ; and see Vaux’s case, 3 Co. 45, (f) Ibid. § 14. a; Wigg’s case, 4 Co. 46, b, : (1) An acquittal upon an invalid and insufficient indictment is no bar to another indictment for the same offence (State v. Ray, 1 Rice, 1); as, if the offence is alleged to have been committed in another district than the one in which the bill was found. So, if an impossible date is assigned to the commission of the offence, 842 APPEARANCE AND PLEA, Former acquittal. And the acquittal must appear to have been before a court Which had jurisdiction of the offence. Therefore, where a man was tried at the sessions in Southwark, and it appearing that the-offence was com- mitted a few yards within the city of London, the defendant was ac- quitted ; being afterwards indicted in London for the same offence, he pleaded autrefois acquit ; but the judges held the plea to be bad, as the sessions had no jurisdiction to try the offence.(a)(1) (a) R. v. Welsh, Ry & M. 175, as a day posterior to the finding of the indictment. Ibid. ; Commonwealth ». Cunningham, 13 Mass. 245 ; Hite v. State, 9 Yerger, 357; Commonwealth v. Curtis, Thach. C. C. 202; Gerard v. People, 3 Scammon, 363; State v. Risler, 1 Rich. 219; Commonwealth v. Cook, 6 Serg. & R. 577; Same v. Clue, 3 Rawle, 498 ; Same'v. Purchase, 2 Pick. 521 ; State v. Woodruff, 2 Day, 504; Com. v. Goode- nough, Thach. Cr. Cas. 132; People v. Barrett, 1 John. Rep. 66; Com. v. Roby, 12 Pick. 496; State v. Ray, Rice’s Rep. 1. In New York, the statute provides that ‘‘ when a defendant shall have been ac- quitted of a criminal charge, upon trial, on the ground of a variance between the indictment and proof, or upon any exception to the form or substance of the in- dictment, he,may be tried and convicted upon a subsequent indictment for the same offence.” Rev. Sts. of N. Y., 4th ed., vol. 2,p.886. There are similar stat- utes in Virginia and Wisconsin. Code of Va. of 1849, c. 199, § 16; Rev. Sts. of Wisconsin, ¢. 132, § 5; also in Vermont, Rev. Sts. of Vt.; c. 102, { 5. (1) Bailey’s case, 1 Va. Cas. 258; Com. v, Goddard, 13 Mass. 455; Com. v, Peters, 12 Metc. 387; State ». Odell, 4 Blackf. 156 ; Com. v. Myers, 1 Va. Cas. 188. A defendant, who has been acquitted upon one of several counts in an indict- ment, is entirely discharged therefrom, nor can he a second time be put upon his trial upon that count. Campbell v. State, 9 Yerger, 333. And where each count of an indictment is regarded as containing the charge of a distinct and substan- tive offence, and on the trial the defendant is acquitted of the charge on either count, he cannot be again put in jeopardy upon that charge, no matter whether in point of fact the offences charged be separate and distinct in their nature, or the same offence charged in different forms. Esmon v. State, 1 Swan, 14. It is not, in all cases, necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other. Thus, a general ac- quittal of murder is a discharge upon an indictment of manslaughter upon the same person, because the latter charge was included in the former, and. if it had so appeared on the trial, the defendant might have been convicted of the inferior offence. But in Pennsylvania it is said that an acquittdl for murder is no bar to an indictment for an involuntary manslaughter, which is there a misdemeanor, Com. v. Gable, 7 Serg. & Rawle, 423. And on the other hand an acquittal of manslaughter will preclude a future prosecution for murder, for if he were inno- cent of the modified crime, he could not be guilty of the same fact, with the addi- tion of malice und design. 4 Co. Rep. 45, 46; 2 Hale, 246; Fost. 329; 12 Pick. 504. But in North Carolina, an acquittal upon an indictment for a rape, against a person of color, cannot be pleaded in bar to an indictment against the prisoner for an assault with intent to commit a rape upon a white female, under the act of 1823. 1 Rev. Stat. c. 111, § 78; State v. Jesse, 3 Dev. & Batt. 98. In New York there are some statute provisions allowing conviction of an in- ferior degree of the offence indicted ; but forbidding the conviction of an assault with intent to commit the crime, or of an attempt, when it shall appear that the crime was actually perpetrated. 2 R. 8. 702, §§ 26,27. The 28th section (p. 702) declares the conviction or acquittal, on a charge of one degree of crime, a bar to prosecutions for any other degree, and for any attempt to commit the same or any other degree. APPEARANCE AND PLEA. 343 Former acquittal. A man was convicted of arson, in burning S.’s dwelling-house. In doing so, he caused the death of H., who was burnt in the house; for which murder he was indicted ; but being arraigned, he pleaded autrefois acquit, or rather the whole matter specially, which was allowed as a good plea in bar of the indictment for the higher crime. Drake, J., said, the proper course would have been to have indicted him for the murder, laying the means to have been by the arson, in which case he ‘might have been acquitted of the former, and convicted of the latter, and so the whole offence have been expressly covered. But he should not be deprived of his plea, because the state chose to indict and convict him for the inferior offence, the evidence as to both being identical. He likens the case to burglary and stealing, and a conviction of the latter, which he says shall bar an indictment for the former. State v. Cooper, 1 Green’s Rep. 361, 372, 374. As to the identity of the offence, if the crimes charged in the former and present prosecution are so distinct, that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to the rules of law to say, that the offences are so far the same, that an acquittal of the one will be a bar to the pro- secution for the other. 2 Leach, 717; 12 Pick. 505. But, on the other hand, it is clear that if the charge be in truth the same, though the indictments differ in im- maferial circumstances, the defendant may plead his previous acquittal, with proper averments ; for it would be absurd to suppose that by varying the day, or any other allegation, the precise accuracy of which is not material, the, prosecutor could change the rights of the defendant and subject him to,a second trial Keilw. 58; 1 Leach, 448; 9 East, 437; 2 Hale, 224, 225, 226, 247; 2 Inst. 318; Hawk., b. 2, c. 35, §3; Burn, J., Indictment XI; (12 Pick. 504; 13 Mass. R. 245). Thus, as to the point of time, if he be indicted for a murder, as committed on a certain day, and acquitted, and afterwards be charged with killing the same person on a different day, he may plead the former acquittal in bar, notwithstanding this difference, for the day is not material; and this is a fact which could not be twice committed. 2 Hale, 179, 244; Hawk., b. 2, ¢. 35,§ 3. And the same rule applies to accusations of other felonies; for, though it is possible for several acts of the same kind to be committed at different times by the same person, it lies in aver- ment, and the party indicted may show that the same charge is intended. 2 Hale, 179, 244; Burn, J., Indictment, XI. Ona plea of autrefois acquit, where the only issue is the identity of the offences, a variance between the record of acquittal and the indictment under which the trial is obtained, in the number of articles charged to have been taken, and in the names of the owners of the property, will be disre- garded if no proof is given on the part of the prosecution to show that the offences are in fact different. The People v. McGowan, 17 Wend. 386. The rule undoubtedly is, that if the prisoner could have been legally convicted on the first indictment, upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment ; and it is immaterial whether the proper evidence were adduced at the trial of the first indictment or not. R. v. Sheen, 2 C. & P. 634; R. v. Clarke, 1 Brod. & B 473; R.v. Eembden, 9 East, 487; Burns v. People, 1 Parker’s Crim. R. 182; Price ». State, 19 Ohio, 423; Durham v. People, 4 Scam. 172; State v. Glasgow, Dudley S. C. 40; Com. v. Wade, 17 Pick. 895; Com. v. Roby, 12 Pick. 496 ; State v. Birm- ingham, Busbee N. C. 120; People v. Barrett, 1 Johnson, 66; Com. v. Cunning- ham, 13 Mass. 245; Hite v. State, 9 Yerger, 357; Commonwealth v. Halstat, 2 Boston Law R. 177; Commonwealth v. Curtis, Thacher’s C. C. 202; Common- wealth v. Goodenough, Thacher’s C. C. 182; Gerard v. People, 3 Scammon, 363 ; State v. Ray, Rice, 1; State v. Risler, 1 Richardson, 219; Heikes v. Com., 26 Penn. 513. . If a party be indicted for the murder or assault of a certain person unknown, and afterwards charged in an indictment for the same offence, he may rely upon the previous acquittal. Dyer, 285, a; Keilw. 25; Hawk., b. 2, v. 35,43. So, if the person killed be differently, though sufficiently, described in the two distinct indictments, the defendant may show that the same individual is intended. 2 Hale, 244. But then it is necessary to aver, that the party slain was known by both names, so as to maintain the sufficiency of the first proceedings, for if they were merely nugatory, they will form no ground of defence to any subsequent prosecution. 2 Hale, 244, 245; Hawk., b. 2, c. 85,43. And if a plea of former acquittal omits to state that the offences charged in the two indictments are one 344 APPEARANCE AND PLEA. Former acquittal. aud the same offence, it is clearly defective, and will be held bad on demurrer, McQuoid v. The People, 3 Gilman, 76 But if the variances are in those things which are material, autrefois acquit must not be pleaded ; for either the first indictment was ineffectual, and, there- fore, the acquittal is of no avail, or the second will prove, not applicable to the evidence, and, therefore, the objection is needless. Where an indictment charged forgery to have been committed by the alteration of an order drawn by one G., on the firm of J. Irwin & Co., and the defendant was tried and acquitted on the indictment, such acquittal was held to be a good plea in bar to a second indictment for the same forgery, which contained a description of the firm as “Jobn Irwin & Co.” Durham v. The People, 4 Scam. 172. But a trial and acquittal on an indictment charging the accused with having mixed arsenic with flour, and with having caused it to be administered to one L. L., with intent to kill and slay her, are no bar to a subsequent indictment char, ging the same accused with the same act of mixing the arsenic, and causing it to be administered to one W. P. L., with intent to kill and slay him. The People »v. Warran, 1 Parker’s Crim. Rep. 338. So, if a prisoner is acquitted of burning the barn of Josiah Thompson, on the ground of a misdirection of the owner, he can- not plead this acquittal in bar of an indictment for burning the barn of Josias Thompson, the real owner. CGommonwealth v. Mortimer, 2 Virg. Cas. 325. ‘See also Commonwealth v. Wade, 17 Pick. 400. A verdict having been rendered of “ guilty of ‘forging a receipt for the use of H. P.,” while the indictment charged it to have been for the use of H. B., the verdict ot sustaining the indictment, it was abandoned ; it was held on a new indictment, charging as the jury found on the first, that the former discharge could not be pleaded in bar to the second in- dictment. State v. Huffman, Addis. 140. Under an indictment for stealing a sheep, charged to be the property of P. P., and acquittal on the ground that the owner of the property was unknown, the accused was afterwards indicted for the same offence, the sheep being charged to be the property of some one to the jurors unknown ; held that the plea of former acquittal was no bar to a conviction upon the latter indictment. State v. Revels, Bushee N. Car. Rep. 200. And see State v. Birmingham, Busbee, 120. Where the defendant had been indicted for stealing the cow of J. G., and acquitted, and was again indicted for stealing the same cow, at the same time and place, and of the same owner, but by the name of J. G. A., which was the proper name, it was held that the acquittal was no bar to the sec- ond indictment. State v. Risher, 1 Richardson, 219. In Hite v. State (9 Yerger, 357), the first indictment charged the prisoner with having stolen, taken and carried away one bank note, of the Planters’ Bank of Tennessee, payable on demand at the Merchants’ and Traders’ Bank of New Or- leans. Upon this he was acquitted. The second indictment charged him with having stolen, taken and carried away one bank note of the Planters’s Bank of Tennessee, payable on demand at the Mechanics’ and Traders’ Bank: of New Or- leans. The former acquittal was pleaded in bar, but it was held to be no bar to the prosecution of the second indictment. In Virginia, in the case of Vaughan v. Com. (2 Virg. Cas. 273), it was held that if a person be indicted for shooting S. W., and acquitted thereof, and then be indicted for shooting J. W., the plea of autrefois acquit will not be supported, although the same act of shooting is charged in each indictment; for the jury who tried the first indictment might have acquitted the prisoner on several grounds which would not atfect the second trial, as that the shot did not wound and strike S. W., or that he did not shoot 8. W. with intent to maim, disfigure, disable or kill the said S. W., etc. So it was held in Alabama, in the case State v. Standifer et al. (5 Porter Rep. 523), that to an indictment for assault on J. L., with intent to murder, it cannot be pleaded in bar that the defendant had previously been acquitted on an indictment for the murder of L. L., the transactions being averred to have been identical. An acquittal, ‘for the forgery of a certificate of deposit of money in.a bank, con- stitutes no bar to a subsequent indictment for an attempt to obtain money from another bank, by color of a forged letter inclosing a certificate of deposit, and re- questing the amount to be transmitted to the writer of the letter. People v. Ward, 15 Wen. 231. Where a person was indicted for forging and uttering a false order, and was tried and acquitted on such indictment, upon a subsequent indictment for traudulently obtaining store goods by means of such forged order APPEARANCE AND PLEA. 345 Former acquittal. or false token, a plea-of a former acquittal under the first indictment was held to be no bar to the prosecution founded upon the second indictment. Com. v. Quann, 2 Virg. Cas. 89. And if two offences are supposed to have been committed at the same time, as if a horse and a saddle are stolen together, an acquittal of one will be no bar to an indictment for the other, for the crimes are essentially different. 2 Hale, 246. So, if a road be out of repair, the parties bound to amend if may be indicted, though they have, at a former period, been acquitted on a similar pro- ceeding. 6 East, 316. And an acquittal of nuisance, nine years back, is not a conclusive bar to an indictment for a nuisance at the present time, though the offences on the record are identically the same, each day’s continuation of the nuisance being a repetition of the offence. People v. Townsend, 3 Hill’s Rep. 479. A judgment, acquitting several defendants charged with committing an offence jointly, will not bar prosecutions against each one charged with part of the same offence separately committed by him. Com. v. McChord et als., 2 Dana R. 242; State v. McClintock, 1 Green’s Iowa Rep. 392. The severance of the subject matter in.any form, and prosecuting for part, fol- lowed by a trial on the merits, equally bars the whole. A criminal has in his possession forged bank bills on different banks, with intent to pass them. He is indicted and tried for the in.ent in respect to one of the bills; the whole being an entire offence, this will bar other indictments in respect to any other of the bills, though on a bank different from the first. State of Connecticut v. Benham, 7 Conn. Rep. 414. This decision was ably maintained in argument, and illustrated by several authorities from the English books, by Williams, J., who delivered the opinion of the court (Ibid. 417, 418). ‘A plea of a former acquittal of the defend- ant, for an assault and battery, by a justice of the peace, was held a sufficient bar to an indictment alleging the same offence with the additional aggravating cir- cumstance of the complainant’s life having been thereby endangered. Common-.' wealth ». Cunningham, 13 Mass. Rep. 245. So, a former acquittal on an indict- ment for a rape, on the traverse of which it appeared that the act charged as a rape was committed, is a bar to a subsequent prosecution founded on the same transaction for an assault and battery. Case of Serjeant, N. Y., Gen. Session, March, 1817, 2 City Hall Rec. 44. In State v. Inglis (2 Hayw. Rep. 4), A. had been indicted and convicted of an assault and battery upon B., and afterwards he was prosecuted along with others for a riot, and for beating and imprisoning B. ; both offences grew out of the same transaction, and the former suit being relied on by A., it was held a bar. “The state,” say the‘court, “cannot divide an offence consisting of several trespasses into as many indictments as there are acts of trespass that would separately support an indictment, and afterwards indict for the offence compounded of them all; as for instance, first indict for the assault, then for a battery, then for imprisonment, then for a riot, then for mayhem, ete. ; but, upon an indictment for any of these offences, the court will inquire into the concomitant facts and receive information thereof, by way of aggravating the fine or punishment, and will proportion the same to the nature of the offence as enhanced by all these circumstances, and no indictment will afterwards lie for any of these separate facts done at the same time.” Ibid, p. 5. So, as to a former conviction under like circumstances. Commonwealth v. Kinney, 2 Virg. Cas. 139. The reporter (Ibid, p. 140) adds, by way of note, as follows: “In this case the court was of opinion, that as the inferior offence of an assault and battery was included in the higher offence of a riot, and constituted a part of it, and the com- monwealth had already elected to indict, and had actually convicted the defendant of that inferior offence, it was barred from prosecuting the defendant for the higher offence; for if this proceeding were allowed, then the defendant having been al- ‘yeady fined and imprisoned for the battery, might be again placed in peril of another fine and imprisonment for a riot of which the battery of which he had before been convicted was a part and perhaps the chief part.” ‘The prisoner had been indicted and tried for the murder of Mary Anne Condon, and convicted of manslaughter. He had-before been tried for the murder of Mary Cormack, and convicted of manslaughter, and received the benefit of clergy. The deaths of both proceeded from the same act; but Mary Anne Condon was not dead at the time of the first trial. Yet held, that the first allowance of clergy protected the prisoner against the second trial. Rex v. Jennings, Russ. & Ry. 388. In Rex v. Smith (8 Carr. & Payne, 412), two indictments for the same offence having been found, 346 APPEARANCE AND PLEA. Former acquittal. one charging it capitally and the other as a misdemeanor, the prosecution was put to elect which it would go upon; and an acquittal was diredted as to the other. ‘Where an assault and battery has been made upon two, and both are wounded by the same stroke, and the offender has been legally convicted before a court of competent jurisdiction for the breach of the peace in the assault and battery upon the one, an indictment cannot afterwards be maintained against him for the assault and battery upon the other. State v. Damon, 2 Tyler, 387; see State v. Benham, 7 Conn. 414; Commonwealth v. Andrews, 2 Mass. 409; see Burgess v. Suge, 2 Stew. & Port. 341; Commonwealth v. Chichester, 1 Virg. Cas. 312. An acquittal on a charge of seduction will be a good plea in bar to a second indictment for for- nication, growing out of the same act. Dinkey ». Commonwealth, 17 Penn. State R.126. Where a riot took place at a religious meeting, it was held that the rioters could not be indicted both for the riot and for disturbing the religious meeting, as the punishment for the former covered the latter offence. State v. Townsend, 2 Harrington, 543. In an action for the penalty for insuring tickets in a lottery, where ten tickets were insured at one and the same time, Lord Kenyon held that but one penalty could be recovered. Holland g. t. v. Duffin, Peake’s Cas. 58,” etc. “Under the numerous British statutes, imposing severe penalties, and even taking away the benefit of clergy from larcenies perpetrated under certain specified cir- cumstances, it is the practice to indict the crime, with all its aggravations, under the statute; and if the aggravating circumstances are not proved to convict, of the simple larceny only. I have met with no instance of an attempt on the part of the crown, after indicting for a simple larceny, and establishing that, to pro- ceed by another indictment to establish thé higher offence.” Per Drake, J., in State v. Cooper, 1 Greenl. Rep. 375. There are authorities which it is difficult to reconcile with the above doctrine. It has been held in South Carolina, that where a single act combines the requisite ingredients of two offences, the defendant may be separately indicted and punished for each; e. g., unlawfully trading witli a slave, and by the same act knowingly receiving stolen goods from him: for the necessity of proving the stealing and scienter, in the last case, shows the point to be different from that in the former, which is sustained by showing a-mere dealing with the slave. State v. Taylor, 2 Bail 49; see State v. Yancey, 1 N. Car. Law Reps. 519; State v. Glasgow, Dud- ley S.C. 40. If A. steal the goods of B., and on the next day steal the goods of C., and D. becomes the receiver of all, at the same time and by one act; a con- viction for receiving the goods stolen from A. is no bar to another indictment for receiving the goods stolen from C. For the guilt of the accessory has relation to the crime of the principal, and as the latter has committed two offences, so has the former. Commonwealth v. Andrews, 2 Mass. Rep. 409. : An acquittal on an indictment for forging and uttering an order, is no bar to a subsequent indictment for a misdemeanor in obtaining goods on the same order, by using it as a false token. Commonwealth v. Quann, 2 Virg. Cas. 89. Proof of receiving stolen goods, knowing them to be stolen, will not support an indictment for larceny of the same goods. The latter is the principal offence, the former the mere accessory ; and an acquittal or conviction of the one will not bar a prosecution for the other. Ross v. The State, 1 Blackf. 390, 1. That the counter- feit bill, for the passing of which the prisoner is now indicted, was given in evidence against him on a former trial for passing another bill, will not render such former suit a bar. United States v. Randenbush, 8 Pet. 288. In Kentucky, a trial of Bastardy, on a warrant charging the birth to have been one day, will not bar a second trial, on a warrant stating a different day ; for the day is mate- rial. Burnett v. Commonwealth, 4 Monroe, 106, 107, 108 ; See also Rex v. Smith, 3 Barn. & Cress. 502. A trial and acquittal, on an indictment for stealing a negro man, is no bar to a subsequent prosecution for stealing a negro man slave. State uv. McGraw, 1 Walker, 208. If a man be committed for a crime, and no bill be preferred against him, or if it be thrown out by the grand jury so that he is discharged by proclamation, he is still liable to be indicted. 2 Hale, 243. So the entry of a nolle prosequi, by the competent authority, does not put an end to the case, and is no bar to a subsequent indictment for the same offence. U.S. v. Shoemaker, 2 McLean Rep. 114; Com. v. Wheeler, 2 Mass. 172; Com. v, Lindsay, 2 Virg. Cas. 345; State ». Haskett, 3 Hill 8. C. R. 95; Wortham v. Com., 5 Rand. 669; State ». Blackwell, 9 Ala. 79. APPEARANCE AND PLEA. ; 3847 Former acquittal. As to the form of the plea: by stat. 14 & 15 Vict., c. 100, § 28, it is enacted that “‘in any plea of auwtrefois convict or autrefois acquit, it shall -be sufficient for any defendant to state that he has been lawfully con- victed or acquitted (as the case may be) of the offence charged in the indictment.” The following, therefore, may be the form of a Plea of Autrefois Acquit. And the said A. B., in his own proper person, cometh into court here, and having heard the said indictment read, saith that our. Lady the Queen ought not further to prosecute the said indictment against him; because he saith that heretofore, to wit, at a sessions of oyer and terminer and general jail delivery [or at the general quarter sessions of the peace] holden at , in and for thé county of , he, the said A. B., was lawfully acquitted of the said offence charged in the said indictment: And this he, the said A. B., is ready to verify; But if, after the trial has been commenced and the jury sworn, the prosecuting attorney enter a nolle prosequi, the defendant is entitled to a verdict of ‘acquittal. U. 8S. v. Shoemaker, 2 McLean, 114; Mount ». State, 14 Ohio, 295; Reynolds v. State, 3 Kelly, 53. If, after a prisoner has pleaded to an indictment, and after the jury have been sworn and evidence offered, the public prosecutor, without the consent of the prisoner, withdraw a juror merely because he is unprepared with his evidence, the prisoner cannot afterwards be tried on the same indictment, and if he be tried and convicted, judgment will be arrested. People v. Barret and Ward, 2 Caines Rep. 304. And where a prisoner had been discharged from a former commitment on a charge of murder, under the Habeas Corpus Act, on account of delay on the part of the prosecution, it was held that he could not be legally indicted and tried on the same charge. - State v. Fley and Rochelle, 2 Brevard, 338. A prisoner will not be deemed to have been put on his trial, where he challenged all the jurors except eight, who were sworn; and upon opening the box to draw out talesmen, it was found, from some neglect, to contain no names of talesmen, in consequence of which the prisoner was remanded. And it was held that such prisoner might be afterwards tried. State v. Burket, 2 Con. Ct. 155. So, a plea of former acquittal cannot be maintained where an indictment is quashed by reason of some of the grand jurors who found the bill being incompetent to act, and a subsequent indictment is found, to which such plea is made. Brown v. State, 5 Eng. 607. The subject of the discharge of the jury in criminal cases, and the practice in relation thereto, in the several states, will be found fully discussed, post ; see also, Graham and Waterman on New ‘Trials, vol. 2. It will be proper to observe that besides these pleas of a former trial of the individual himself, when his guilt depends upon the proof of that of another, he may plead and give in evidence that party’s acquittal. Thus, if a jailer suffers a prisoner to escape, and he is afterwards retaken, tried and acquitted, he may plead the acquittal of the party committed to his charge, because, if that party be in- nocent, he cannot be guilty. 3 Hale, 254. And the party escaping might give the first discharge in evidence to bar an indictment for the subsequent felony. 2 Hale, 254. 348 APPEARANCE AND PLEA, Former acquittal. wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the present in- -dictment specified. — Replication thereto. And hereupon E. F. [the clerk of arraigns or clerk of the peace], who prosecutes for our Lady the Queen in this behalf, saith that, by reason of anything in the said plea of the said A. B. above pleaded in bar alleged, our said Lady the Queen ought not to be precluded [*113] from further prosecuting the said *indictment against the : said A. B.; because he saith. that the said A. B. was not. law- ‘fully acquitted of the said offence charged in the said indictment, in manner and form as the said A. B. hath in his said plea above alleged; and this he the said E. F. prays may be inquired of by the country, etc. And the said A. B. doth the like. Therefore let a jury come, etc. The usual replication formerly, when the record of the former ac- quittal was set out in the plea, was nw tiel record. But as in this modern form of plea the record is not set out, and there is of course no prout patet per recordum, and as there is no such thing as a trial by the record in criminal cases, but the trial in all cases must be by the country—it seems to me that a mere general traverse of the plea is the proper replication in this case.(1) (1) The plea of autrefois acquit is of a mixed nature, and consists partly of matter of record, and partly of matter of fact. The matter of record is the former indictment and acquittal; the matter of fact is the averment of the identity of the offence and of the person as having been formerly indicted. To support the first maiter, it is necessary to show that the defendant was found not guilty on an in- dictment free from error in a court having jurisdiction. 4 Blk. Com. 335. Unless the plea of former acquittal or conviction states the court, the time of the trial, and the proceedings connected therewith, and proofs of the record, such a plea will be disregarded, and may be set aside on motion without demurrer. Wortham ». Com., 5 Rand. 669. The defendant must be ready to establish the allega- tions in his plea, with the record; and in case he fails to do this on the spot, his plea will be overruled, unless some sufficient excuse can be given for his not being ready ; and, in that case, time will be given to, produce the record. Com. ». Myers, I Va. Cas. 188. If a plea of former acquittal or conviction be tendered, the fact that the attorney for the prosecution demurs to such plea, admits the ex- istence of the record of such former acquittal or conviction. Ibid. On a plea of autrefois acquit, a jury are sworn instantly to try the cause, 2 Leach, 541. The proof of the issue lies upon the defendant. Arch. 90. To prove it, he has first merely to prove the record, and secondly to prove the averment of identity contained in his plea. 2 Russ. 721,n. Where the second indictment is preferred at the same term, the original indictment and minutes of the verdict are receivable in evidence in support of the plea of autrefois acquit without a record being drawn up. Rex v. Parry, 7C. & P. 836. But where the previous APPEARANCE AND PLEA. 349 Former acquittal. In proof of the plea, the record of the furmer acquittal must be made up; and if the former trial were at the quarter sessions, the court of Queen’s Bench will, if necessary, grant a mandamus requir- ing the justices to make up the record.(a) And formerly the record, or an examined copy of it, must have been given in evidence by the defendant. But now, by stat. 14 & 15 Vict., c. 99, § 13 (after reciting that it is expedient, as far as possible, to reduce the expense attended upon the proof of criminal proceedings), it is enacted, that whenever in any proceeding, whatever it may be, it shall be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof; but it shall be sufficient that it be certified or purport to be certified under the hand of the clerk of the court, or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof. If there be a variance between the former record and the present indictment, in the description of the offence, it may be made good by evidence, showing in substance that the proofs necessary to support the present indictment would have been sufficient to convict him upon the former one.(1) (a) R. v. JJ. of Middlesex, 5 B. & Ad. 1113.- acquittal was at a previous term in the same jurisdiction, or in a different juris- diction, it can only be proved by the record. RB. v. Bowman, 7 C. & P. 101, 337. .Where the prisoner pleads a former acquittal on the ground that the offences charged in the first and second indictment are identical, it is necessary im all cases, where an averment can be legally made of identity of offences, to aver the iden- tity; and it then becomes a question for the jury to determine whether the averments are sustained, and the offences identical; and in such case, where the plea consists of matter of record and matter of fact, the issue made thereon is to the country. But when it appears, from the plea of former acquittal, that the offences are distinct, the court will direct a verdict to be found against the plea, without submitting the matters of fact to the jury. Hite v. State, 9 Yerg. 357. (1) Where the only issue is the identity of the offences, a technical difference between the description of the property ‘in the first indictment and the second will be disregarded. The People v. McGowan, 17 Wendell, 386. In England, in the case of R. v. Perry (7 Car. & P. 836), where four persons were tried for rape, upon an indictment containing counts charging each as princi- pal, and the others as aiders and abettors—they were acquitted; and it being proposed, on the following day, to try three of them for another rape upon the same person, the second indictment being exactly the same as the first, with the 350 APPEARANCE AND PLEA. Former conviction. If the verdict be in favor of the defendant, the judgment is, that he be dismissed and discharged from the said premises in the present indictment specified, and that he go thereof without day. But if the verdict be against the defendant, then in felonies the judgment is of respondeas ouster ; but in misdemeanors the judgment is final.(a)(1) [#114] *(c) Autrefois convict or attaint. If the defendant were formerly attaint or convicted of the same offence, he may plead it in bar to the present indictment.(b) The observations already made, respecting the plea of awtrefois acquit, are equally applicable to this plea. The form of the plea is also the same, merely substituting the word “convicted” for “acquitted.” Formerly, autrefois attaint of another felony was a bar to any subsequent indict- meut for felony, whilst the former attainder continued in force. But now, by stat. 7 & 8 G. IV, c. 28, § 4, “no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attain- der be for the same offence as that charged in the indictment.” (2) (a) R. v. Taylor, 3B. & C. 502, v. Scott, 1 Leach, 401; R. v. Bowman, 6 Car, (b) 2 Hale, 253; 2 Hawk., cv. 36; and seeR. &P. 337. omission of the fourth prisoner, they pleaded autrefois acquit to the second indict- ment, averring the identity of the offences, and to this plea there was a replication that the offences were different. The prisoners’ counsel put in the commitment and the former indictment, and also the minutes of the former acquittal written on the indictment. On this evidence the jury found that the offences were the same; and it being referred for the opinion of the judges whether there was any evidence to justify and support the verdict, and if not, whether such verdict was final, and operated as a bar to any further proceedings by the crown upon the second indictment—the court held, that the verdict of the jury was final, and the prisoners were discharged. In a recent case in England, upon the trial of an indictment for stealing a pair of boots, the property of A., the prisoner was acquitted. To a second indictment for stealing the same boots, laid as the property of B., autrefois acquit was inter- posed. It appeared that A. was a minor, living with and assisting B., who was his father ; that the boots were the property of B., but that when they were stolen by the prisoner, A., in his father’s absence, had temporary charge of the shop from which they were stolen; held that the plea could not be sustained. R. v. Green, 87 Engl. L. & Eq. Rep. 597. (1) But see Commonwealth v. Goddard, 13 Mass. 455; Barge v. Com., 8 Penn. 262; Commonwealth v. Forster, 8 Watts & Serg. 77; Bennett ov. State, 2 Yerg. Tenn. Rep. 472. ‘ (2) The plea of autrefois convict depends, like that we have just considered, on the principle that no man shall be more than once in peril for the same offence. State v. Cooper, 1 Green, 361; State v. Shepard, 7 Conn. 54. The old English rule was, that the conviction and pardon of one felony merged all others previous- ly committed. This doctrine was founded on the ground of corruption of blood. The party, having forfeited all his goods and chattels by the first conviction, was liable to the same punishment but once. Crenshaw v. State, Martin & Yerg. 122. APPEARANCE AND PLEA, 351 Former conviction. But now, the conviction of one felony is no bar to a trial for another. Hawkins v. State, 1 Porter 475; State v. M’Carty, 1 Bay, 334. In order to plead this plea with effect, the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful on a sufficient indictment. 9 East, 441. Where a defendant is charged in one indict- ment with burglary and larceny, and in another with robbery, both being for the same stealing of goods, a conviction on the first indictment is a good plea in bar toa trial on the second. State v. Lewis, 2 Hawks. 98. A conviction on one of several informations, for having several forged bills in possession, is a bar to a subsequent information founded on the possession of any part of the same parcel of bills. State v. Benham, 7 Conn. 414. . And where an indictment contains several counts, all relating to the same offence, a conviction had on any one of the counts will bar any future prosecution for the same offence. U.S. v. Keen, 1 Mclean, 429. But where the prisoner, under an indictment for murder, was found guilty of manslaughter, but not guilty of murder, which verdict was set aside on appeal on behalf of defendant, it was held, upon a new trial on the same indictment, that the defendant could only plead a former acquittal as to the charge of murder, and that he could be legally tried on the charge of manslaughter. Slaughter v. State, 6 Hump. 410. Where commissioners are bound to keep the streets of an incorporated town in repair, and are liable to an indictment for every neglect of this duty, if two or more of the streets of the town are out of repair at the same time, and several indictments are found, a conviction on one of such indictments is a bar to all of the others. State v. Commissioners, etc., 2 Murphey, 371. . A conviction of assault and battery upon one, where two persons are wounded by the same act, will bar an indictment for the assault and battery committed on the other. State v. Damon, 2 Tyler, 387. But a conviction, upon an indictment of being a common seller of spirituous liquors, cannot be pleaded in bar of a complaint for a single act of sale, though such act be within the time embraced in the indictment. ' State v. Maher, 35 Maine Rep. 225. A conviction, for an assault and battery with intention to commit murder, cannot be pleaded in bar to an indictment for murder. Commonwealth v. Roby, 12 Pick. 496. Much less can such a conviction be pleaded in bar to an indictment for manslaughter, when the person assaulted dies afterwards of the wounds caused. by the blows for inflicting which the complaint for assault and battery was made. Burns v. The People, 1 Parker’s Crim. R. 182. But it has been held in Connecti- cut that a conviction for an assault and battery, with an intent to commit a rape, was a bar to asubsequent indictment for rape. The subject arose on the question whether proof of a rape would sustain an indictment for an assault with intent to commit a rape, and the court held that it would. State v. Shepard, 7 Conn. 56. In Massachusetts, where, to an indictment for receiving stolen goods which were the property of A., the defendant pleaded, in bar, a former indictment, conviction and judgment for receiving stolen goods, the property of B., and then alleged that the two parcels were received by him of the’same person, at the same time, and in the same package, and that the act of receiving them was one and the same, the plea was held insufficient. Com. v. Thomas Andrews, 2 Mass. Rep. 409. But in Virginia (Com. v. Kinney, 2 Virg. Cas. 159), where the defendant with two others was indicted for riotously and routously assembling to disturb the peace, and being so assembled, did riotously and routously beat, wound and ill-treat one K.M., and pleaded that he had been heretofore indicted tor an assault and battery on the said H. W., being the same offence with which he is now charged, it was held that a conviction under the first indictment was a bar to the second. A conviction of arson may be pleaded in bar of an indictment for murder which was a consequence of the burning for which the prisoner was convicted. State v. Cooper, 1 Green, 361. And a conviction of horse-racing may be pleaded in bar to an indictment for betting on the same horse-race. Fiddler v. State, 7 Humph. 508. So, a conviction for assault and battery upon A. may be pleaded in bar to a second indictment against the same defendant and others for riot, and beating the said A. Com. v. Kinney, 2 Va. Cas. 189. But see Scott v. U. S., 1 Morris, 142, contra. A conviction, for advising the slave of another to run away, cannot be pleaded in bar to another indictment for a similar offence committed at the same time, but 352 APPEARANCE AND PLEA. Former convicticn. with reference to another slave. Smith » Com., 7 Gratt. 593. A fine imposed by a court on one for contempt, in committing an assault and battery in its presence, is no ground for a plea of a former conviction to an indictment for the same assault and battery. Sate v. Yancy, 1 Car. Law Rep. 519. The plea of autrefois convict will not avail him, because the same act constitutes two offences; one violates the law which protects courts of justice and stamps an efficient character on their pro- ceedings; the other is levelled against the general law which maintains the public order and tranquillity. And where General Houston had been punished by the House of Representatives for a contempt and breach of privilege, it was held that the action of the House was no bar to an indictment for an assault and battery growing out of the same transaction. Opinions of Att’y-Genl..2, 958. But a fine for a breach of the peace assessed upon a warrant may be pleaded in bar to a subsequent indictment against the same party for an assault and battery, in which the breach of the peace, for which he was so fined, had been committed. Com- monwealth v. Miller, 5 Dana, 320. . To constitute the plea of a former conviction an available defence in bar of an- other prosecution, the former conviction must have been had before a tribunal having competent jurisdiction. State ». Spencer, 10 Humph. 431; Com. v. God- dard, 13 Mass. 455; Rector v. State, 1 Engl. 187; State v. Payne, 4 Mis. 376; Dunn v. State, 2 Ark. 229; State vo. Atkinson, 9 Humph. 677. But where the court has jurisdiction, conviction and performance of the sen- tence by the prisoner is a bar to an indictment for the same offence, although the proceedings were erroneous, and might have been set aside for error; for such proceedings must be considered good until the same are reversed. Common- wealth v. Loud, 3 Metcalf, 328. Where fraud is resorted to, to procure a conviction, it renders a plea of such conviction, on the trial under a subsequent indictment for the same offence, invalid. State v. Little, 1 N. Hamp. 257; Com. v. Jackson, 2 Va. Cas. 501; Com. v. Alder- man, 4 Mass. 477; State v. Colvin, 11 Humph. 599; State v. Lowry, 1 Swan, 34; State v. Casey, Busbee Rep. 209; State v. Browne, 16 Conn. 54. Where the offences could not be identified by the record of former conviction, it was held that oral testimony was admissible to show whether the acts had been identical, or whether they had been, as they appeared from the records of them prima facie to have been, distinct and committed at different times. Duncan v. Com. 6 Dana, 295. : If, after a prisoner has been convicted, the judgment is arrested, the proceed- ings set aside and the prisoner discharged, he cannot be considered to have been legally in jeopardy, and cannot plead the arrest in bar to a subsequent indict- ment. People v. Casborus, 13 Johns. 351. A former conviction, in order to be available, should be specially pleaded. It cannot come in by way of evidence under a plea of not guilty (State v. Barnes, 82 Maine [12 Red.] 580); and it cannot be taken advantage of as a plea in abate- ment, that there is another indictment for the same cause depending. 2 Ld. Raym. 920; Dougl. 240; Cro. Car. 147; 7 Conn, R. 418. But a judgment on the conviction, in order to render the prisoner's plea in bar an answer, in bar to a second indictment, is not necessary. The verdict itself, whether of conviction or acquittal, formal or virtual, constitutes a bar. Mount v. State, 14 Ohio, 295. In Tennessee, it has been held that a plea of a former conviction before a justice of the peace, as a bar to a prosecution in the Circuit Court for the same offence, must distinctly aver that the justice of the peace heard the'evidence. State v. Spencer, 10 Humph. 431. The form, requisites and consequences of this plea are very nearly the same as in a plea of former acquittal—like that plea, it must set forth the former record, and plead over to the felony. 2 Hale, 255; 2 Hale, 392; Burn, J., Indictment, XI. See form, Cro. C. C. 888. Asin that the identity must be: shown by aver- ments, both of the offence and the person, so the same forms are here requisite. 2 Hale, 255; Burn, J., Indictment, XI. The replication is also in the same way, taking issue upon the material averments. 2 Hale, 255, 391, 392; see form of replication and judgment, 2 Hale, 392. The judgment, if in favor of the pris- oner, is, “that he go thereof without day.” ‘ [A former conviction may be specially pleaded or proved under ‘not guilty.” Clem v. State, 42 Ind. 420. The plea of autrefois convict on an indictment for a APPEARANCE AND PLEA. 353 Pardon. (d) Pardon. If a pardon have been granted to the defendant for the offence of which he is indicted, he may plead it in bar of the indictment. Form- erly the pardon must have been under the great seal. But now, by stat. 7 & 8 G. IV, c. 28, § 13, where the King, by warrant under his sign manual, countersigned ‘by one of his principal secretaries of state, ‘shall grant to any felon a free or conditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the per- formance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal, as to the felony for which such pardon shall be granted; but no pardon shali affect or mitigate the punishment of the offender for any felony committed by him after the granting of such pardon. The pardon, however, is only a bar to an indictment for the offence specified in it, and not for any other committed before or after.(a)(1) (a) R. v. Harrod, 2 Car & K. 294. misdemeanor in a Superior Court, is sustained by proof of a conviction before an inferior court having jurisdiction, unless the indictment was found prior to the proceedings in the lower court, and the defendant had been arrested on it. Mize v. State, 49 Geo. 375.] [In sustaining a demurrer to a plea of autrefois convict, the proper order is that defendant answer over. Falkner v. State, 3 Heisk. 33. In Tennessee, under the small offence law, a plea of former conviction before a J. P. is not a bar to a subsequent indictment for a felonious assault. Mikels v. State, 3 Heisk. 321. Plea of former conviction is not sustained by the record of a trial without a plea of “not guilty ” entered. Link v. State, 3 Heisk. 252. When two or more are killed by one and the same act, and defendant is indicted for killing one of them, .he cannot after conviction or acquittal thereof, be indicted for killing the other. Precedent of a plea in case of former conviction. Clem v. State. 42 Ind. 420. The conviction of A. for an offence, is no bar to a subsequent prosecution of B. for the same offence. People v. Johnson, 47 Cal. 122.] (1) When the prisoner has either personally obtained a pardon for himself, or is included in a general act of grace, he must plead that privilege specially, as otherwise the court will not be bound to allow it, and indeed has no discretionary power to notice it. Cro. Car. 32, 449; U.S. v. Wilson, 7 Peters, 150: But there seems to be an exception to this rule where a general act pardons all persons, without any kind of priviso of the particular offence for which the defendant is indicted ; for then the court are required to attend to it ex officio, as they are to every other public statute. U. 8S. v. Wilson, 7 Peters, 150; 1 Baldwin, 91. A pardon may always be pleaded when the offender is evidently included within its intention ; as where all felonies and lower offences, committed before a certain day, are remitted. - In pleading a general act of pardon. if the act contain exceptions of particular persons, by name, or of a general description of individuals, it is in general neces- sary for the defendant to show specially that he is not one of the parties named in the statute, as without its benefit in the first case, or included in the prescribed description in the second. Cro. Eliz. 125. But where the pardon is, in its body, general as to all, and some are afterwards excepted in a distinct proviso, it seems 23 354 APPEARANCE AND PLEA. Pleas to indictments for not repairing highways. (e) Pleas to indictments for not repairing highways, etc. Pleas to indictments for not repairing highways or bridges, showing that the inhabitants of some other district, or that some persons ratione tenure are bound to repair it, are the only other special pleas which occur in practice in criminal cases. As we shall have to notice this subject particularly, however, in the second part of the work, when we come to consider indictments in particular cases and the evidence necessary to support them, we shall defer treating of these pleadings until we treat of the subject altogether. 4. Demurrer. A demurrer is a pleading by which the legality of the last preceding pleading is denied and put in issue, and the issue is then [*115] *determined by the court. A demurrer is pleaded either to the indictment or to a special plea. (a) Demurrer to indictment. Formerly a demurrer to an ipdictment was unusual, because the de- fendant might have the same advantage of objecting, by motion in arrest of judgment, or writ of error. Afterwards certain defects in indictments were cured by verdict by stat. 7 G. IV, c. 64, § 20, which, therefore, could only be taken advan- tage of by demurrer.(a) And now, by stat. 14 & 15 Vict., c. 100, § 25, every objection to any indictment, for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment, before the (a) R. v. Fenwick, 2 Car. & K. 915. that such averments are not absolutely requisite, and that if the defendant be thus excepted, it must be shown by the prosecution in reply. 1 Lev. 26; Bac. Abr., tit. Pardon. And where a particular offence only is excepted, he will be compelled to negative its commission; for the court will judicially take notice of the color of the charge against him, and compare it with that excepted in the par- don. Cro. Car. 449. So, where a single individual is excluded from the operation of the executive clemency, it has been held not necessary to aver that the defend- ant is not the person referred to; for that is a civcumstance of which the judges are bound to take cognizance. Cro. Eliz. 125. Where a pardon is granted by a governor of a state under its great seal, it is evidence per se without further proof. Roberts v. State, 2 Overt. 423; State v. Blaisdell, 33 New Hamp. Rep. 388. For form of Pardon, see Hoffman v. Coster, 2 Whart. 453, 468, 469. In relation to the granting of Reprieves, see post. APPEARANCE AND PLEA. 355 Demurrer to indictment. jury shall be sworn, and not afterwards; and every court, before which any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect, had ap- peared. This, however, has only reference to formal defects; defects in substance may still be taken advantage of, where not cured or amended, by motion in arrest of judgment, or writ of error, as before. A demurrer, in criminal cases, has the effect of opening the whole record to the court; and, therefore, upon arguing it, the defendant may take objections, as well to the jurisdiction of the court, where the indictment was found, as to the subject matter of the indictment itself.(a) In misdemeanors, the judgment upon demurrer is final, and not merely that the defendant shall answer over.(b)(1) But, in capital cases, the defendant is not concluded by the judgment on demurrer, but if the judgment be against him he may still plead not guilty ; and where a defendant in such a case demurs, it is usual for him at the same time to plead over to the felony.(c) But in felonies not capital, it seems to be doubtful whether the judgment is final, or merely a judg- ment of respondeas ouster.(2) In R. v. Bowen,(d) which was the case of a felony-not capital, upon the defendant’s counsel being about to de- mur, Tindal, C.J., cautioned him, saying that he might be bound by his demurrer, and not allowed to plead over; he did not actually deliver an opinion upon the point, but expressed great doubt upon it, (a) R. v. Fearnley, 1 T. R. 316.- (c) R. v. Phelps et al. Car. & M. 180; R. v. (6) Per Lawrence, J., in R. v. Gibson,8 Adams et al., ibid. 299, East, 112. (@) 1 Car. & K. 501. (1) In the United States, the general practice has been, in such cases, where there is on the face of the pleading no admission of criminality on the part of the defendant, to give judgment quod respondeat ouster, and the English distinction does not seem to be recognized. Com. v. Goddard, 13 Mass. Rep. 456; Foster vo. Com., 8 Watts & Serg. 77; Com. v. Barge, 3 Pa. Rep. 262. But in Tennessee it has been held, that when a demurrer to an indictment for a misdemeanor has been overruled, the defendant witl not be permitted to plead to the indictment, as a matter of right; he must lay a sufficient ground before the permission will be granted. Bennett v. State, 2 Yerg. 472. [When demurrer to an indictment should be overruled. Clem v. State, 42 Ind. 420. A demurrer must distinctly specify the grounds of objection. State ». Murphy, 47 Mo. 274; State v. Marshall, 47 Mo. 378.] (2) If the attorney-general demur to the defendant's plea, and it be adjudged against him, he shall not be concluded from a trial, but be ordered to plead over to the felony. 2 Hale, 257; Burn, J., Indictment, XI. 356 APPEARANCE AND PLEA. Demurrer to indictment. ‘and the prisoner’s counsel thereupon declined to demur, and the prisoner pleaded not guilty. And Hawkins merely says, generally, that in criminal cases not capital, if the defendant demur to the in- dictment, the court will not give judgment against him to answer over, but final judgment.(a) The following is the form of a [*116]} *Demurrer to an Indictment. And the said A. B., in his own proper person, cometh into court here, and having heard the said indictment read, saith, that the said indictment, and the matters therein contained, in manner and form, as the same are above stated and set forth, are not sufficient in law, and that he is not: bound by the law of the land to answer the same; and this he is ready to verify :: Wherefore for want of a sufficient in- dictment in this behalf, the said A. B. prays judgment, and that by this court here he may be dismissed and discharged from the said premises in the said indictment specified. Joinder thereto. And hereupon E. F., [the clerk of arraigns or clerk of the peace] who prosecutes for our Lady the Queen, in this behalf, saith, that the said indictment and the matters therein contained are sufficient in law to compel the said A. B. to answer the same; and he, the said E. F., is ready to verify and prove the same, as the court here shall direct’ and award: Wherefore, inasmuch as the said A. B. hath not answered to the said indictment, nor hitherto in any manner denied the same, the said E. F., for our said Lady the Queen, prays judgment, and that the said A. B. be convicted of the premises charged upon him in and by the said indictment. Demurrer to plea. If the defendant pleads specially, the clerk of arraigns or clerk of the peace may, in like manner, demur to the plea. And if judgment be given for the crown, it is final in cases of misdemeanor,(6) a judg- ment of respondeas ouster in capital felonies, and doubtful in felonies not capital, in the same manner as in the case of a demurrer to an in- dictment, which I have just now noticed. _(@) 2 Hawk., v. 31, § 7. (0) R. v. Taylor, 3B. & C. 502. ‘ APPEARANCE AND PLEA. 357 Demurrer to indictment. The following is the form of a Demurrer to a plea in bar. And E. F., [the clerk of arraigns or clerk of the peace] who prosecutes for our Lady the Queen in this behalf, as to the said plea of the said A. B., by him above pleaded and set forth, saith, that the said plea and the matters therein contained, in manner and form, as the same are above pleaded and set farth, are not sufficient in law to bar or pre- clude our said Lady the Queen from prosecuting the said indictment against him, the said A. B., and that he, the said E. F., for our said Lady the Queen, is not bound by the law of the land to answer the same; and this he, the said E. E., who *prosecutes as afore- [*117] said, is ready to verify : Wherefore, for want of a sufficient plea in this behalf, the said E. F., for our said Lady the Queen, prays judgment, and that the said A. B. may be convicted of the premises above charged upon him in and by the said indictment. Where, in the case of a misdemeanor, the prayer of judgment was, that the defendant should answer over, instead of that he might be convicted, the court, notwithstanding, gave a final judgment.(a) Joinder thereto. And the said A. B. saith, that his said plea by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude our said Lady the Queen from prosecuting the said indictment against him; and the said A. B. is ready to verify and prove the same, as the court here shall direct and award: Wherefore, inasmuch as the said E. F., for our said Lady the Queen, hath not answered the said plea, nor hitherto in any manner denied the same, he, the said A. B., prays judgment, and that by this court here he may be dismissed and dis- charged from the said premises in the said indictment specified. (a) R, v. Taylor, 3 B. & C, 502, 358 EVIDENCE. ‘ Contents of chapter. t CHAPTER IV. EVIDENCE. (a) (The figures in the following synopsis refer to the marginal paging.) Section I.—WuHat MUST BE PROVED AND THE MANNER OF PROVING It, p. 117. 1. What must be proved and by whom, p. 117. (a) By the prosecutor, p. 117. (0) By the defendant, p. 123. (c) Variance, p. 123. 2. The manner of proving the matter in issue, p. 125. (a) By confessions, p. 125. (0) Without inducement, p. 126. (c) Before a magistrate, p. 131. (@) By presumptions, p. 134. (ce) Best evidence, p. 136. (f) Secondary evidence, p. 137. (g) Notice to produce, p. 138. (h) By dying declarations, p. 140. Section I].—Waritren Evipencs, p. 141. (a) Acts of Parliament, p. 141. (0) Other records, p. 141. (c) Matters quasi of record, p. 143. (d) Other public documents, p. 145. (e) Depositions of witnesses deceased or unable to travel, p. 147. (f) Deeds and other private written instruments, p. 148. Section IIJ.—Parot Evipence. 1. Who may be witnesses, p. 149. (a) Quakers, etc., p. 149. (b) Jews, Turks, etc., p. 150. (c) Infants, p. 150. (a) Ihave adopted here the same arrange- Ctvil Actions,” first published in 1816—an ar- ment I used in treating of evidence in one of rangement I have followed ever since, when the earliest of my legal works, ‘4 Digest of I have had occasion to treat of evidence in the Law relative to Pleading and Evidencein cases civil or criminal. it EVIDENCE. 359 What must be proved. (d) Deaf and dumb perons, p. 150. (e) Lunatics, p. 150. (f) Fudge or Juror, p. 151. (9) Prosecutor, p. 151. (h) Persons interested in the event, p. 151. (i) Inhabitants, p. 152. (j) Husband and Wife, p. 152. (k) Attorney, p. 153. (1) One of two defendants, p. 153. (m) Accomplice, p. 154. (n) Persons convicted, p 155. (0) Examination on the voire dire, p. 155. 2. Number of witnesses required, p. 155. 3. Witnesses, how compelled to attend, p. 156. 4. Witnesses’ expenses, p. 156. SECTION I. WHAT MUST BE PROVED, AND THE MANNER OF PROVING IT. 1. What must be proved, and by whom. (a) By the prosecutor. Where the defendant pleads not guilty, the prosecutor in all cases begins to give evidence, and must *prove the defendant [*118] to be guilty of the offence charged against him, before the latter can be called upon for his defence. Even where an offence con- sists wholly or partly of an omission or negative, the prosecutor must prove the negative.(1) And therefore where, upon an indictment for (1) Every one is presumed to be innocent until the contrary is proved; and if there is reasonable doubt of bis guilt he is to have the benefit of such doubt. The rule in civil and criminal cases, in this respect, is somewhat different. In the former the jury, after weighing the testimony, strike a fair balance and decide accord- ingly. But in criminal cases, in ordet to convict, the testimony must be such as to satisfy the jury, beyond a rational doubt, that the prisoner is guilty. Such doubt, however, should be well grounded; not mere possibility or speculation. Everything relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt. But no one is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclu- sion against him, in the absence of explanation or contradiction. U.S. v. Gooding, 12 Wheat. 460-471; The People ». Bodine, 1 Denio, 281. The burden of proof in 360 \ EVIDENCE. What must be proved. criminal prosecutions is never upon the defendant, except when he attempts to justify. Com. v. Kimball, 24 Pick. 366 ; Com. v. Dana, 2 Metc. 329. Where a person on whom stolen property is found gives a reasonable account of how he came by it, the prosecutor ought to show on the trial that the account is untrue. Aliter, if that account be unreasonable or improbable on the face of it. Where a piece of wood, which had been stolen, had been found by a constable in the possession of the prisoner five days after it was lost, who said that he had bought it of N., who lived about two miles off, Mr. Baron Alderson held that it was incumbent on the prosecutor to negative this statement. N. was not called by either party. The prisoner was acquitted. Crowhurst’s Case, 1 Car. & K. 370. But where a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law will not render it incumbent upon the other side to prove the negative; but the party who must’know the fact is put to the proof of it. Thus, where, on « conviction for selling ale without a licence, the only evidence given was that the party sold ale, and no proof was offered of his selling it with- out a licence, the party being convicted, it was held that the conviction was right, for that the informer was not bound to sustain in evidence the negative averment. Gening v. The State, 1 M’Cord, 573; U.S. v. Heyward, 2 Gallis, 284; Wheat v. The State, 6 Mis. 455. So, where the defence is that the prisoner was under the age of presumed capacity, the burden of proof lies on him. If, however, the age can be ascertained by inspection, the court and jury must decide. State v. Arnold, 13 Iredell, 184. (The burden of proof is generally on the prosecution, even as to negative mat- ters, e. g., absence of self-defence, want of probable cause, etc., but in a defence wholly unconnected with the body of the offence charged, and distinctly aftirma- tive, the burden of proof is on the defence. State v. Morphy, 33 Iowa, 270; State ». Lipscomb, 52 Mo. 32. A person is not to be presumed guilty merely from the fact of his being in company with one who committed a crime, unless some par- ticipation is shown. State v. Farr, 33 Iowa, 553. The rule as to burden of proof discussed and applied in a case where there was exculpatory evidence, the burden, is not then shifted on to the defendant. State v. Patterson, 45 Vt. 308.] [Reasonable doubt.—In civil cases, the jury decide according to the preponder- ance of evidence, i. e., upon a comparison of probabilities ; in criminal cages, the law requires that guilt shall be established beyond any reasonable doubt. In cases affecting life or liberty, the evidence must be so conclusive as to exclude any rational doubt of defendant’s guilt. Connor v. State, 34 Tex. 659; Dorsey v. State, 34 Tex. 651. A person on trial for a felony is entitled to have the jury charged that innocence should be presumed until the case against the defendant, in all its material circumstances, is proved beyond a reasonable doubt, and that the evidence ought to be strong and cogent to find defendant guilty as charged. Moorer v. State, 44 Ala. 15. To entitle defendent to the benefit of an aliti, it is not necessary that the alibi should be proved beyond a reasonable doubt; de- fendant is entitled to the benefit of any reasonable doubt of his guilt produced by the proof touching the alibi, in connection with other proof in the case. Chappel v. State, 7 Coldw. 92; Adams v. State, 42 Ind. 373.] [Ky. Cr. Code, § 236, viz., “when there is reasonable doubt of the defendant being proven guilty, he is entitled to an acquittal,” construed. Lowder v. Com., 8 Bush. 482. For cases illustrating the general doctrine, see People v. Ashe, 44 Cal. 288 ; People v. Brannon, 47 Cal. 96; White v. State, 36 Tex. 347; Munden »v.. “State, 37 Tex. 353; Williams v. State, 837 Tex. 474; State v. Shuttleworth, 18 Minn. 209. When the only question on the trial was as to the identity of defend- ant with the criminal, the jury were held justified in a verdict of guilty, although no witness would swear positively as to the identity. Com. v. Cunningham, 104 Mass. 545. A charge that guilt in case of a misdemeanor must be shown to the jury’s “reasonable satisfaction,” approved. Purkey v. State, 3 Heisk. 26.] [‘ Reasonable doubt” does not mean a mere possible doubt. It may arise in a case which, after a consideration and comparison of all the evidence, leaves the mind in the condition that the jury cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. State v. Van Winkle, 6 Nev. 340. See Com. v. Foley, 99 Mass. 497; Com. v. Carey, 2 Brews. 404; Com. v. Costley, 118 Mass. 1.] EVIDENCE. “361 What must be proved. coursing deer in inclosed ground without the consent of the owner, the question was, whether the onus lay upon the prisoner to prove that he had the consent of the owner: Lawrence J., held that it did not, but that it was incumbent on the owner to prove the negative; and the owner not being in attendance, the prisoner was acquitted.(a) So, where, upon an indictment for lopping and topping trees in the night time without the consent of the owner, it was proved that the prisoners had committed the offence in the night time, and when detected, had run away; that the owner, after the offence was committed, had given orders for the apprehension of the prisoners, but died before the trial; and the land-steward proved that he himself never gave consent, and he believed his master never did; Bayley, J., told the jury that they must be satisfied that the prisoners did not obtain the consent of the owner, but left it to them to say whether the facts proved did not furnish reasonable evidence of want of consent: and the jury found the prisoners guilty.(é) But where an offence is created by statute, and an exception is made, either by another statute or by another and substantive clause of the same statute, it is not necessary for the prosecutor, either in the indict- ment or by evidence, to show that the defendant does not come within the exception; but it is for the defendant to prove the affirmative, and which he may do under the plea of not guilty.(c) As to the facts, etc., to be proved; it is a general rule, that all the facts and circumstances stated in the indictment, which cannot be re- jected as surplasage, must be proved; as to what facts must be stated, T have already treated of that subject.(d)(1) (a) R. v. Rogers, 2 Camp. 654. (c) See R. v. Pemberton, 1 W. Bl. 230; see (b) R. v. Hazy & Collins, 2 Car. & P. 458. ante, p. 86. (d) Ante, p. 86. (1) It is now settled that the prosecution must prove every statement which enters into the substance of the charge; but it will not be compelled to maintain any averments which, without being repugnant, are merely formal or superfluous. 2 Leach, 594. The distinction between material and immaterial averments is perfectly well settled in criminal as well as in civil cases; and if the averment be material, that ig, if it be connected with the charge, it must be proved; but if it. be wholly superfluous, it may be thrown out of the question. See People v. Townsend, 3 Hill, 479; Com. v. Hope, 22 Pick. 1; State v. Noble, 15 Maine, 476 ; Com. v. Tuck, 20 Pick. 356, 364; U. 8. v. Vickery, 1 Harr. & Johns. 427; Com. v. Pray, 18 Pick. 359; U.S. v. Howard, 3 Sumner, 12; State v. Cassedy, 1 Rich- ardson, 91; State v. Morrison, 2 Iredell, 9; Com. v. Arnold, 4 Pick. 251; Com. v. Bolkom, 3 Pick. 281; Com. v. Hunt, 4 Pick. 252; Com. v. Gable, 7 Serg. & Rawle, 423 ; Com. v. Bell, Addison, 171, 173; Com. v. Atwood, 11 Mass. Rep. 93. But it is a general rule which runs through the whole criminal law, that it is 362 EVIDENCE. What must be proved. But where a felony is made additionally penal by statute, if commit- ted at a particular time or place, or under particular circumstances, then, if the time or place, or circumstances be not proved, the offender may still be convicted of the simple felony: as, for instance, if, upon an indictment for stealing from a dwelling-house to the value of five pounds, the prosecutor prove the larceny, but fail in proving the value, or that the stealing was from the dwelling-house, the defendant may be found guilty of the simple larceny. If, upon an indictment for breaking and entering a house, etc., and stealing therein, you prove the larceny, but fail to prove the breaking and entering, the prisoner may still be convicted of stealing in the dwelling-house, or of the simple larceny. So, in all cases of offences, which, either at [119] common law or by *statute, include others of a less degree of enormity, if you failto prove the greater offence, but prove the less, the defendant may be convicted of the latter: as, for instance, upon an indictment for murder, if you fail to prove the malice pre- pense, express or implied, the defendant may be found guilty of man- slaughter ; if, upon an indictment for burglary and larceny, you prove the larceny, but fail in proving the breaking or entering, or that it was in the night time, etc., the defendant may be found guilty of stealing in the dwelling-house, or of the simple larceny; if, upon an indict- ment for a felony or misdemeanor, you fail in proving the offence com- pleted, but prove an attempt to commit it, the defendant may be found guilty of the attempt ;(a) if, upon an indictment for robbery, you fail in proving the offence, but prove an assault with intent to commit it, the defendant may be convicted of the assault with intent to rob.(0) And on the other hand, if the indictment contain a statement of any facts or circumstances not included in the definition of the offence, and which need not to have been stated, they may be rejected as surplus- (a) 14 and 15 Vict., c. 100, § 9. (b) Ibid. § 11. sufficient to prove so much of the indictment as proves the defendant to have been guilty of a substantive crime therein stated, though not to the full extent charged ‘against him. 2 Campb. 683. ; (The court will not take judicial notice that beer or wine are intoxicating, the fact must be proved; it will take notice that distilled spirits are intoxicating. Com. v. Peckham, 2 Gray 514; Klare ». State, 43 Ind. 483. The offence and the venue must be proved as laid in the indictment, or there can be no conviction. Hill v. State, 34 Tex. 623. How far the killing must be proved as laid in the indictment, both as to manner and instrument, and county. Com. v. Costley, 118 Mass. 1. EVIDENCE. 363 What must be proved. age, and need not be proved; and this, as well in an indictment on a statute, as in an indictment for an offence at common law.(a)(1) The time need not be proved as laid, unless where it is of the essence of the offence.(6)(2) (a) R. v. Jones, 2B. & Ad. 611. (b) Ante, p. 85. (1) On an indictment for murder there cannot be a conviction of an assault with intent to murder, nor vice versa. Com. v.,Roby, 10 Pick. 496. Nor of’ petit lar- ceny on an indictment for horse-stealing. State v. Spurgin, 1 M’Cord, 252. Nor upon an indictment for stealing can there be a conviction for receiving, etc. Russ ». The State, 1 Blackf. 791. See State v. Taylor, 2 Bailey, 49; State v. Shepard, 7 Conn. 54. But in Stewart v. State (5 Ohio Rep. 242), it was held that, on an indictment for an assault with intent to murder, there may be a conviction of an assault simply ; the court remarking that ‘there is no foundation in this country, for the distinction made in England, on this point, between felonies and misde- ‘meanors; for here, an indictment for the higher offence rather adds to, than subtracts from, his privileges.” In the Case of Com. v. Drum (19 Pick. Rep. 479), it was held that, on an indictment for rape, the prisoner may be convicted of incest or assault and battery. The court directed the jury, that if there was no sufficient evidence to convict the defendant, either of the rape charged, or of an assault with an intent to commit a rape, still, under the provisions of the re- vised statutes (c. 137, § 11), he might be convicted of an assault and battery. This provision is, that whenever any person, indicted for a felony, shall be ac- quitted by verdict of part of the offence charged, and convicted of the residue, such verdict may be recorded, and the prisoner shall be adjudged guilty of the offence, if any, which shall be substantially charged by the residue of such indict- ment, and shall be sentenced and punished accordingly. The court were of opinion that the indictment for rape necessarily charged substantially and for- mally an assault and battery upon the person of the female alleged to have been ravished, and that this case was within the statute. And the prisoner was con- victed and sentenced accordingly. And see Lohman v. People, 1 Comstock Rep. 379. (2) The day and year, on which facts are stated in the indictment or other pleading to have occurred, are not in general material; and the facts may be proved to have occurred upon any other day perros to the preferring of the in- dictment. R. v. Charnock, Holt, 301; 1 Salk. 288; 9 St. Tr. 687-605, 542-552 ; Fost. 7,8; 9 East, 157; 1 Phil. Ev. 203; R. v. Levy, 2 Stark. N. P. 458; U. 8. ». M’Cormick, 4 Cranch C. C. Rep. 104; Jacobs v. Com., 5 Serg. & Rawle, 316; State v. Woodman, 3 Hawks. 384; Johnson v. U.S8., 3 McLean, 89; Com. v. Bray- nard, Thach. Cr. Cas. 146; People v. Van Santvoord, 9 Cowen, 660; State v. Munger, 15 Vt. Rep. 291; Oliver v. State, 5 How. Miss. Rep. 14; Com. v. Alfred, 4 Dana, 496; Com. v. Dillane, 1 Gray, 483. In the computation of any given period of time, in legal proceedings, the gen- eral rule is, that one day is to be reckoned inclusive, and the other exclusive. When the computation is to be made trom an act done, the day on which the act was done must be included. Thus, in cases of murder, where the law says that no man shall be adjudged to kill another, unless the death happens within a year and a day after the mortal stroke or wound is given, the day on which the hurt was done is to be reckoned the first. 1 Hawk., c. 31, § 9; Chiles v. Smith, 13 B. Mon. 460. So, where any stated time is limited in a penal statute for the prose- cution of an offender, the day on which the act is done is to be included in the reckoning. As, where a statute provides that all prosecutions for offences ‘shall be commenced within one month after the offence was committed,” the month begins with the day on which the offence was committed. R. v. Adderley, Doug. 465 ; 3 Term Rep. 628; 3 East, 407; 2 Camp. 296; but see State v. Schnierle, 5 Rich. 299. ; 364 EVIDENCE. What must be proved. Place is immaterial, unless where it is matter of local description, such as the parish, etc., where the house or building is described to be in an indictment for burglary, or for breaking and entering a house, shop, warehouse, or a building within the curtilage, etc., in which cases the local description must be proved as laid.(a) Upon an indict- ment for treason or conspiracy, if you prove one good overt act in the county where the venue is laid, you may prove the others to have taken place in any other part of England.(b) And upon an indict- ment against an accessory before or after the fact, he may be indicted in any place and before any court where his principal may be tried, no matter where the offence of the accessory was committed.(c)(1) Where the intent with which an act is done forms a material ingre- dient in an offence, we have seen(d) that it must be laid in the indict- (a) Ante, p. 86. (c) Ante, pp. 15, 18. (0) 2 Hawk., c. 46, §§ 184-189. (d) Ante, p. 88. * (1) It is not, in general, necessary to prove that the facts stated in the indict- ment or subsequent pleading occurred in the parish or place therein alleged. 2 Hawk., c. 25, § 84. But they must be proved to have been committed within the county, or other extent of the court’s jurisdiction, otherwise the defendant must be acquitted. And where a forged bill of exchange was found upon J. 8., who re- sided in Wiltshire, and had resided there about a year under a false name, but which bill bore date more than two years previously to its being found’ upon him, and at a time when he lived in Somersetshire ; on an indictment against him for a forgery of the bill in Wiltshire, this was hclden not to be suflicient evidence of the offence having been committed in that county. R. v. Crocker, 2 New Rep. 87; see R. & R. 99,n, But although the offence must be proved to have been com- mitted in the county where the prisoner is tried, after such proof, the acts of the prisoner in any other county, tending to establish the charge against him, are properly admissible in evidence. 1 Ph. Ev. 206. If there be no such place as that stated in the indictment, it is immaterial. R. 1. Woodward, 1 Mood. C. C. 323. An indictment alleged a highway robbery to have been committed in the parish of 8t.. Thomas Pensford, but the witness called it the parish of Pensford, upon which it was objected that there was no proof that there was in the county any such parish as that laid in the indictment. Littledale, J., before whom tke indictment was tried, said that the objection was not valid, and that he had once reserved a case for the opinion of the judges upon the very point, and a great majority of the judges held that it was not incumbent upon the prosecutor to prove affirmatively the existence within the county of the parish laid in the indict- ment, and expressed a doubt how they should hold, even where it was proved negatively for the prisoner that no such parish existed. R. v. Dowling, Ry. & M. N. P. 433. [Evidence raising a violent presumption that the offence was committed in the county of the trial, is sufficient to establish the venue. State » Burns, 48 Mo. 488, 440; State v. Horner, 48 Mo. 520, The offence and the venue must be proved as laid in the indictment, or a verdict of guilty cannot be sustained. Hill 2. State, 34 Tex. 623. Where it is doubtful in which of two or more counties the offence was committed, the court may in Missouri instruct the jury that it was committed in the county where it has jurisdiction. State v. Grable, 46 Mo. 350.] [See Clem ». State, 31 Ind. 480. For a very important case as to mode of proving that a murder was committed in the county, and the presumptions in support of the conclusion. Com. v. Costley, 118 Mass. 1.]} EVIDENCE. 365 What must be proved. ment, and it must be proved as laid. There is some difficulty, natur- ally, in proving this; for no man can tell what passes in the mind of another; he can only judge of it from the other’s admission or overt acts. Where there is an admission of the intent, and the party prov- ing it is believed, it is of course conclusive evidence of it. But where there is no admission, the prosecutor is then allowed to give in evi- dence any acts of the defendant, indicating his intentions, or from which it can be presumed.(1) ' (1) Wright. v. State, 6 Yerg. 345; Perdue v. State, 2 Humph. 494; Needham ». State, 1 Texas, 139; Shover v. State, 5 Engl. 259; State ». Presnell, 12 Ired. 103; Walls v. The State, 7 Blackf. 572; Forsythe v. The State, 6 Ohio, 19; State v. Hunter, 8 Blackf. 212; State v. Nixon, 18 Vt. 70; State v. Hart, 4 Iredell, 246. On an indictment for murder, former attempts of the defendant to assassinate the deceased are admissible in evidence; so are former menaces of the defendant, or expressions of vindictive feeling towards the deceased, or, in fact, the exist- ence of any motive likely to instigate him to the commission of the offence in question. On the trial of an indictment for an assault and battery, in order to show some motive of resentment on the part of the defendant, it was held competent for the state to prove that the prosecutor had said in the defendant’s hearing, a short time before, ‘‘that no honest man would avail himself of the bankrupt law,” and then to prove further that defendant’s father had previously been talking about taking the benefit of that act. State v. Griffis, 3 Iredell, 504. On a charge of sending a threatening letter, prior and subsequent letters from the prisoner to the party threatened may be given in evidence, as explanatory of the meaning and intent of the particular letter upon which the indictment is framed (R. v. Robinson, 2 Leach, 749), if the intent ‘cannot be inferred from the letter itself. 2 Leach, 479; 4C. & B. 562. ; “Tn a prosecution tor uttering a bank note, bill, or promissory note, with knowledge of its being forged, proof that the prisoner had uttered other forged notes or bills, whether of the same kind or of a different kind, or that he had other forged notes or bills in his possession, is clearly admissible, as showing that he knew the note or bill in question to be forged. And on a prosecution for uttering counterfeit money, the fact of the prisoner having other counterfeit money upon him, or of his having uttered other pieces of money of the same kind, is, accord- ing to common practice, evidence of his having known that the money which he is charged with uttering was counterfeit ; and proof of the prisoner’s conduct in such other utterings (as, for example, that he passed by different names), is, - for the same reason, clearly admissible.” Phillips on Ev., vol. 1, pp. 472, 473; Martin v. Com., 11 Leigh, 745 ; Spencer v. Com., i Leigh, 751; Hendrick v. Com., § Leigh, 708; U.S. v. Craig, 4 Wash. C. C. R. 729; State v. Antonio, 2 Tr. Car. R. 776; U. 8. v. Doeble, 1 Baldwin, 519; Com. v. Percival, Thacher C. C. 293; State v. Turtly, 2 Hawkes, 248; U.S. v, Harman, 1 Baldwin’s C. C. R. 292; People ». Cushing, 1 Johns. 320; State v. McAlister, 24 Maine, 189; Com. v. Stearn, 10 Metce. 256; Reed v. State, 15 Ohio, 217; State v. Smith, 5 Day, 175; Brown v. People, 4 Gilman, 439. In England, in R. v. Hunt et al. (3 B. & Ald. 566), upon an indictment for con- spiring and unlawfully meeting for the purpose of exciting disaffection and dis- content among his Majesty’s subjects at Manchester, it was holden, that the pre- vious conduct of a portion of the assembly, in training, etc., and in assaulting per- sons whom they called spies, was competent evidence as to the general character and intention of the meeting, although the effect of it, as to each particular de- fendant, was a distinct matter for the consideration of the jury. It was held com- petent, to show, also, as against Hunt (who, though a stranger, except by political connection, had been invited to preside as chairman at the meeting), that at a similar 366 EVIDENCE. What must be proved. [*120] Another mode of judging of *the intent is, by presuming that the party intended that which he effected, or that which is the natural consequence of the act with which he is charged: if the natural consequence, of his act would be the death of another, a jury meeting in another place, holden for an object professedly similar, certain resolu- ‘tions had been proposed by that person ; it being in its nature a declaration of his sentiments and views on the particular subject of such meetings, and of the topics there discussed. So in an indictment for adultery, it is said, previous im- proper familiarities may be shown to show the quo animo. (On a murder trial where the fact of killing by the defendant was not denied, and the only matter in issue was the existence of a guilty intent and ‘malice aforethought,” the prosecution was permitted to introduce in evidence, as bear- ing upon this issue, the minutes of a grand jury showing an indictment found against defendant upon the complaint of deceased, but without any proof that de- fendant had any knowledge or notice of such indictment. This was held by the Court of Appeals to be error,—the fact had no tendency to show an intent or motive in defendant, since it did not appear that he was informed of the aetion taken by the grand jury, or of the step taken by the deceased. Stokes v. People, 53 N. Y. 164.] [Slight evidence of motive should not be excluded, but should be left to the jury. Kelsoe v. State, 47 Ala. 573. The rule that the law presumes an intent to pro- duce the consequences which have resulted, discussed and applied in a case of homicide. State v. Patterson, 45 Vt. 308. After the fact of a crime has been proved, and circumstances which point to the accused as the guilty person, proof of a motive is competent. Overstreet v. State, 46 Ala, 30. For proof of intent in an indictment for a conspiracy to defraud an insurance company by burning an insured building, see People v. Trim, 39 Cal. 75.] [Intent is discoverable from acts, and when material it must be proved beyond a reasonable doubt. Mullins v. State, 37 Tex. 337. When a person is knowingly engaged in a criminal act, and commits a greater offence than the one intended, proof of an intent to commit such greater offence is not necessary to a conviction therefor ; this rule applies to crimes which are mala prohibita as well as to those which are mala in se. State v. Stanton, 37 Conn. 421.) [Under the Michigan statute to prevent “the careless use of fire arms,” no con- viction is possible where the injury is intentional and not careless; the statutory provision that no person shall be acquitted of a misdemeanor because the facts show a ie to have been committed, held not to apply. People v. Chappell, 27 Mich. 486. [See, also, State v. Gardner, 5 Nev. 377; State v. Deal, 64 N. C. 270; U.S. ». R. R. Cars, 1 Abb. U. 8. 196; Olive v. Com., 5 Bush, 376 ; Roberts v. People, 19 Mich. 401; Rufer v. State, 25 Ohio St. 464. On trial for forgery, evidence of ad- mission of defendant that he had committed other forgeries, is incompetent to prove intent. People v. Corbin, 56 N. Y. 363. On trial for receiving stolen pro- perty, knowing, etc., evidence that accused has frequently received stolen pro- perty under like circumstances from the same thief, and stolen from same person or place, and also evidence of the conversations between the accused and the thief, are competent to show the guilty knowledge and intent. Copperman ». The People, 56 N. Y.591. For evidence proper to prove guilty knowledge and intent in a trial for procuring an.abortion, see Weed v. People, 56 N. Y. 628. What is proper proof of guilty knowledge and intent, in a trial for receiving stolen goods, see Coleman v. People, 58 N. Y. 555; and on a trial for obtaining, etc., by false pretences, Bielschofsky v. People, 5 T. & C. (N. Y.) 277; Weyman uv. People, 6 T. & C. (N. Y.) 696.] [Evidence admissible to prove motive in case of perjury, Harris v. People, 6 T. & C. (N. Y.) 206; intent in case of larceny, Abrams v. People, 13 N. Y. S.C. (6 Hun.) 491. Presumption of guilty intent cannot be obviated by proof of de- fendant’s subsequent declarations. U.S. v. Imsand, 1 Woods, 581.] : : EVIDENCE. 367 What must be proved. may fairly infer from the act that it was done with intent to kill such other person; if the natural consequence of the act would be to de- fraud another, a jury may fairly infer from it.an intent to defraud. In forgery, formerly, the act was laid to be done with intent to defraud the party who. was actually defrauded, or who would have been de- frauded by it if the forgery had succeeded. In obtaining or attempt- ing to obtain money or goods by false pretences, the act was laid to have been done with intent to defraud the party actually defrauded or attempted to be defrauded by it. But now we have seen(qa) that it is sufficient, in indictments for forgery, and for obtaining goods or money by false pretences, to allege the act to be done “ with-intent to defraud,” without stating it to be to defraud any particular per- sons ;(b) and no doubt the jury would be satisfied, from the nature of the act itself, that it was done for the purpose of defrauding some person. It may also often be material to prove that the act charged in the indictment was done wilfully, and did not occur merely by accident; and, in such a case, other acts of the defendant may be given in . evidence, from which the jury may fairly infer that it was done wil- fully. Where a man was indicted for setting fire to a stack of straw, , and it appeared that it had been set on fire by the prisoner’s having fired a gun very near to it; the prosecutor having proved this, then proposed to prove that the stack had also been set fire to the day before, and that the prisoner was seen at the same time very near it with his gun: this was objected to, as being evidence of another felony; but Maule, J., held it to be admissible; he said that, although it may be proof of another felony, that circumstance does not render it inadmis- sible, if the evidence be otherwise receivable : if a person were charged with having wilfully poisoned another, and it were a question whether he knew a certain white powder to be poison, evidence would be admissible to show that he knew what the powder was, because he had administered it to another person some short time before, who had died.(c) So where, upon an indictment for maliciously shooting at the .prosecutor, it became a question whether it happened by accident or was done wilfully; and the prosecutor, to show that it was done wil- fully, was allowed to give in evidence that the prisoner had intention- -(a) Ibid. (c) R. v. Dossett, 2 Car. & K. 306. (b) 14 & 15 Vict., v. 100, § 8, 368 EVIDENCE. What must be proved. ally shot at him some time before; and the judges held that the evi- dence was rightly received.(2) (1) Malice is often a material ingredient in an offence, and expressed par- ticularly in the definition of it. When this is the case, the in- [*121] dictment must state the act to have been maliciously #done, and the malice, as well as the act, must be proved. Malice is proved in the same manner as intent—from the admissions or the overt acts of the offender. It may generally be inferred from the nature of the act itself. If a man do an act which cannot be of any benefit to himself or to those with or for whom he is acting, and which must necessarily be of injury to another person—as if he wilfully set fire to the house of another, or to his manufactory, or to his ships, or to the. stacks or crops of corn—or if he destroy or damage his trees, plants, fences, etc., not meaning to steal them—or if he kill or wound his cattle, etc., not meaning to steal them—in these and the like cases the jury will be warranted in inferring that the act was done from malice to the owner or party injured. Such are the whole class of offences comprised in the stat. 7 & 8 G. IV, c. 30 (Peel’s Act), relating to malicious injuries; but as that act comprised the offences of killing or wounding cattle, etc., and from some previously decided cases it appeard that such offences were some- times committed out of malice to the animal, it was thought necessary to provide that, in all offences within that statute, it is immaterial (a) R. v. Voke, R. & Ry. 531. (1) On the trial of an indictment for larceny of a watch, evidence of another larceny of a clock, committed by a prisoner, the two acts being wholly distinct and unconnected, is not admissible for any purpose. Walker v. Com., 1 Leigh, 574. But, on a trial for murder, evidence that the prisoner, on the same day the de- ceased was killed, and shortly before the killing, shot a third person, was held admissible, although the evidence tended to prove a distinct felony committed by the prisoner; such shooting, and the killing of the deceased, appearing to be con- nected as parts of one entire transaction. Heath v. Com., 1 Robin. 735. And, when the scienter or quo animo is requisite to and constitutes a necessary and essential part of the crime with which the person is charged, and proof of such guilty knowledge, or malicious intention, is indispensable to establish his guilt in regard to the transaction in question—testimony of such acts, conduct or declara- tions of the accused as tend to establish such knowledge or intent, is competent ; notwithstanding they may constitute in law a distinct crime. Dunn 2. State, 2 Pike, 229. Thus, on an indictment against persons for a conspiracy to carry on the business of common cheats, evidence was admitted of the defendants having made false representations to other tradesmen besides those named in the indict- ment. R.v. Roberts, 1 Camp. 400.° See, also, Butler v. State, 2 Ala. 43; John- gon v. State, 17 Ala. 618; State v. Rash, 12 Ired. 382 ; State v. Griffis, 3 Ired. 504; State v. Cocker, 3 Harring. 554; State v. Moore, 12 New Hamp. 42; Com. v. Mc- Pike, 3 Cush. 181. EVIDENCE. 369 What must be proved. whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise.(a) i Malice may also be implied where no malice against any particular person in fact existed. Even in murder, which is the highest offence of this class, in which malice forms a most material ingredient, and where the malice must be preconceived, malice may in this way be implied, although none actually existed as against any particular per- son. As if a man, being on a horse which he knows to be used to kick, ride him amongst a crowd of persons, and the horse kick a man and kill him, the rider is guilty of murder, although he had no malice against any particular person, nor any other intention than that of diverting himself by frightening the persons around him.(5) So, where a person fires a loaded pistol among an assembly of persons, or in the public streets where many persons are passing, and thereby kills a man, or the like, he is guilty of murder.(c) So, in all other cases where a man wilfully does an act which he knows must, or probably will, cause the death of another whom he knows not, and a man is thereby killed, he is guilty of murder, in the same manner as if he had preconceived malice against the individual killed.(1) (a) 7&8 G. IV, c. 30, § 25. (c) See R, v. Bailey, R. & Ry. 1. ‘b) 1 Hawk., c. 31, § 68. (1) When a man commits an unlawful act, unaccompanied by any circumstances justifying its commission, it is a presumption of law that he has acted advisedly, and with an intent to produce the consequences which have ensued. In England, where a man was convicted of setting fire to a mill, with intent to injure the occu- piers thereof, a doubt occurred whether, under the words of the 43 Geo. III, c. 58, an intent to injure or defraud some person was not necessary to be proved; or at least some fact from which such intention could be inferred, beyond the mere act of setting the mill on fire; but the judges were of opinion that a person who does an act wilfully, necessarily intends that which must be the consequence of the act, viz., injury to the owner of the mill burned. Farrington’s case, Russ. & Ry. 207. See, also, Phillips’ case, 1 Moody C. C. 263. In the crime of murder, which is always stated in the indictment to be committed with malice aforethought, it is neither necessary, in support of such indictment, to show that the prisoner had any enmity to the deceased, nor would proof of absence of ill-will furnish the accused with any defence, when it is proved that the act of killing was inten- tional, and done without any justifiable cause. Per Best, J., Rex v. Harvey, 2 B. & C. 268; Woodsides v. State, 2 Howard, 656; Com. v. York, 9 Metc. 93; Hill’s case, 2 Gratt. 594. ‘In every charge of murder,” says Foster, ‘the fact of kill- ing being first proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evi- dence produced against him, for the law presumes the fact to be founded in malice, until the contrary appears” Foster, 255; 1 Hale P.C. 455; 1 East P. C. 340. The American authorities to the same effect are numerous—see Mitchell ». State, 5 Yerggr, 340; U.S. v. Mir go, 7 Bost. Law Rep. 435; Com. v. Webster, 5 Cush. 320; Conner v. State, 4 Yerg. 137; People v. McLeod, 1 Hill, 277 ; State v. 24 370 EVIDENCE. What must be proved. Also, if a guilty knowledge form a material ingredient in the offence charged, it can only be proved from the admissions or the overt acts of the offender; and, in the absence of admissions, the prosecutor may give in evidence any facts from which the jury may infer it. For in- stance, upon an indictment for knowingly uttering a forged [*122] bill of exchange, evidence *that the prisoner gave a false ac- count of the parties to it, and when he was apprehended had other forged bills of exchange, all drawn upon the same parties, upon his person, this was holden to be properly received in proof of his guilty knowledge that the bill he was charged with uttering was a forgery.(a) So, upon an indictment for forging and uttering a bank of England note, which appeared to have been done with a camel-hair pencil, the prosecutors, for the purpose of proving guilty knowledge, tendered in evidence another note, forged in the same manner, with the same materials, uttered by the prisoner abont three months before; and two 102. notes and thirteen 17. notes of the same fabrication, from the files of the bank (but when received by. them did not appear), all of which had the prisoner’s handwriting on the back. The judge re- ceived the evidence, subject to the opinion of the judges as to its ad- missibility ; and the judges afterwards held that it was admissible for the purpose, subject, however, to observations as to the weight of the evidence, which would be more or less considerable, according to the number of the other notes, the distance of time at which they were put off, the situation in life of the prisoner, so as to make it more or less probable that so many notes should pass through his hands in the regular way of business.(})(1) (a) R. v. Hough, R. & Ry. 120. (b) R. v. Ball, R. & Ry. 132. Irwin, 1 Hayward, 112. Com. v. Drew, 4 Mass. 391; U. S. v. Connell, 2 Mason, 91; Penns. v. Honeyman, Add. 148; Resp. v. Bobb, 4 Dall. 146; State v. Smith, 2 Strobh. 77; State v. Merrill, 2 Dev. 269; State v. Zellers, 2 Halst. 220. (1) Evidence of a prisoner’s endeavors to engage a person to procure for him counterfeit money, of his declared intention to become acquainted with a counter- feiter, and to remove to a place near his residence, is admissible, on a prosecu- tion for passing a counterfeit note to prove the scienter. Com. v. Finn, 5 Rand. 701; The State v. Houston, 1 Bailey, 300; Martin v. Com., 5 Leigh, 707. But the notes must be produced, or proved to be destroyed, or in the prisoner’s possession, and not produced on notice. People v. Lagrille, 1 Wheeler’s Cr. Cas. 412; Helm’s case, 1 Rogers’ Rec. 46; Case of Smith et al., 4 ibid. 166; Dougherty’s case, 3 ibid. 148. But proof of the scienter is not admissible before the principal charge is established. Jones’ case, 6 ibid. 86. On an indictment for passing a counter- feit silver dollar, knowingly, evidence that defendant had counterfeited other dollars was held not admissible. State v. Odel, 2 Const. Rep: 758. But on an indictment for counterfeiting money, evidence of possession of instruments of coin- ing is admissible. State v. Antonio, ibid. 776, EVIDENCE. 371 What must be proved. Also, where several offences of the same nature form parts of one entire transaction, it isin the discretion of the judge to confine the prosecutor to the proof of one, or to allow him to give evidence of the others also; as, for instance, where a shopman being suspected of stealing from his employer's till, marked money was put into the till, and being watched, he was observed going to the till, imme- diately after which some of the money was missed; at this part of the evidence, at the trial, it was objected for the prisoner that the prosecutor should be confined to this instance, but the judge overruled the objection ; it was then proved that, shortly after, he was observed to go again to the till—that he took his hand out of it, clenched, and put it into his waistcoat pocket, and that the till being immediately examined, it was found that more of the money was gone from it; the prisonér was then apprehended and searched, and six shillings of the marked money found upon him: upon motion to stay the judg- ment, on the ground that evidence of another offence had been re- ceived, the court held that it was in the discretion of the judge to allow it; the two felonies were so connected as to form parts of one entire transaction, and the one was evidence to show the character of the other.(a)(1) (a) R. v. Ellis, 6B. & C. 145. (1) Where the offence is a cumulative one, consisting in itself, in the commission of a number of acts, evidence of those various acts, so far from being inadmissi- ble, is essential to the proof of the charge. In an indictment for obtaining goods by false pretences, it is allowable to prove that the same pretences were used to another, Collin’s case, 4 Rogers’ Rec. 143. On an indictment against the defend- ants for a conspiracy to cause themselves to be believed persons of large property for the purpose of defrauding tradesmen ; after proof of a representation to one tradesman, evidence was offered of a representation to another tradesman at a different time, and admitted by Lord Ellenborough, who said that cumulative in- stances were necessary to prove the offence, and that the same sort of evidence was allowed on an indictment for barretry. Robert’s case, 1 Camp. 399. To prove trand against the defendant, a transaction between him and a third person, of a similar nature to the one in question, may be given in evidence. Snell et al. v. Moses et al., 1 Johns. 99. See also Rankin v. Blackwell, 2 John. Cas. 193. In an action for a conspiracy to defraud A., by falsely representing B. to be a man of credit, evidence that such representations were made to others, in con- sequence of which such other persons made the same representations to A., is ad- missible. Gardner v. Preston, 2 Day’s Cases, 205. In Connecticut, it was held, on the trial of a man charged with the murder of his wife; that the state could show, for the purpose, it was said, of rebutting the presumption of innocence arising from the marital relations between the defend- ant and the. deceased, that he had lived in adultery with another woman (State v. Watkins, 9 Conn. 47); and it was held in England that if a person were charged with having wilfully poisoned another, and’ it were a question whether he knew acertain white powder to be poison, evidence would be admissible to show that he knew what the powder was, because he had administered it to another person 372 EVIDENCE. What must be proved. So, in other cases, there can be no objection that the evidence of one offence proves the defendant to be guilty of another offence [*123] also(a) And now, by stat. 14 & 15 Vict., *c. 100, § 17, in the case of larceny, although the indictment state only one act of stealing, and at one time, yet if it appear that the property was in fact stolen at different times, the prosecutor shall not, by reason thereof, be required to elect on which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six calendar months elapsed between the first and the last of such takings; and, in either of such last-mentioned cases, the prose- cutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six calendar months from the first to the last-of such takings.(d) (1) (a) R. v. Moore, 2 Car. & P. 235. (0) 14 & 15 Vict., v. 100, § 17. who had died, although that might be proof of a distinct felony. Regina v. Das- sett, Maule, J., 2 Car. & Kir. 306. But in Massachusetts, upon the trial of an indictment for breaking and enter- ing the City Hall, at Charlestown, where burglarious tools and implements, found in the prisoner’s possession at the time of his arrest, were exhibited to the jury, some of which were adapted to the commission of the offence with which he was charged, it was held, that it was not competent for the prosecution to prove that the ward of a key, found among such tools and implements was made and fitted by the defendant, for the purpose of opening the door of the building of the Lan- caster Bank. Com. v. Wilson, 2 Cushing, 590. ‘In all cases involving a charge of illicit intercourse, within a limited period, evidence of acts anterior to such period may be given in explanation of acts of a similar character within that period. Lawson v. The State, 20 Ala. 65; but it seems that evidence of subsequent illicit intercourse at another place would not be admissible. State v. Crowley, 13 Ala. 172; Com. v. Horton, 2 Gray, 354. In Rex v. Vake (1 E. C. C. 531), evidence of the prisoner having shot at the prosecutor about a quarter of an hour before the time of the shooting charged, was admitted in evidence to show the malice of the: defendant. Upon an indict- ment for murder former grudges and antecedent measures may be proved to show the prisoner's motive against the deceased. The remoteness or néarness of time, as to threats and declarations pointing to the act subsequently committed, makes no difference as to the competency of the testimony. State v. Ford, 3 Strobh. 517; Keener v. The State, 18 Geo. Rep. 194. But evidence of a distinct murder com- mitted by the prisoner at a different time, or of some other felony or transaction committed upon or against a different person, and at a different time, in which the prisoner participated, cannot be admitted until proof has been given establish- ing, or tending to establish the offence with which he is charged, and showing some connection between the different transactions, or such defects or circum- stances, as will warrant a presumption that the latter grew out of, and was to some extent induced by, some circumstance connected with the former, in which case such circumstances connected with the former, as are calculated to show the quo animo or motive by which the prisoner was actuated or influenced in regard to the subsequent transaction, are competent and legitimate testimony. Dunn v. State, 2 Ark. 229; Thorp v. State, 15 Ala, 749. (1) An indictment for burglary includes an indictment for house-breaking, and generally, also, for larceny, and the prisoner on this may be found guilty of one or other of these felonies, But in an indictment for burglary, and for breaking EVIDENCE. 373 What must be proved. (0) By the defendant. If the defendant plead specially, as where he pleads awtrefois acquit, etc.—or, upon an indictment against a parish for non-repair of a high- way, where the defendants plead that others, and not the parish, are. bound to repair—the rule as to the right to begin is the same as in civil actions, namely, that the party who adds the similter begins. When the plea is put in issue, therefore, the defendant must prove it, in the same manner that a prosecutor must prove an indictment. Where the plea is autrefois acquit or convict, the defendant must get the former record made up, and produce a certified copy of it in evidence, as directed.(2) He must also, if necessary, prove his identity with the party before acquitted or convicted, and the identity, in substance, of the offence in both cases. Under the general issue, not guilty, the defendant may make what defence he can, showing that he is not guilty. And if indicted as accessory before or after the fact to a person named, he may contest the case of the prosecutor against that party, and show that he is not guilty; or, if indicted as accessory to a person unknown, he may show that no felony in fact was committed. (a) Ante, p. 118. y and entering a house and stealing, the prisoner cannot be found guilty of break- ing and entering a house with intent to steal. In Pennsylvania, on an indictment for adultery, the defendant may be convicted of fornication (Com. v. Roberts, 1 Yeates, 6); and of the same offence on an indictment for seduction. Denkey v. Com., Sup. Ct. Pa., Jan., 1852. If a man be charged with an offence as principal in the first degree, evidence of his being principal in the second degree will support the indictment, and e con- verso; as, tor instance, if A. and B. be indicted for murder, and the indictment charge that A. gave the mortal stroke, and that B. was present, aiding and abet- ting, evidence that B. gave the mortal stroke, and that A. was present, aiding and abetting, will support the indictment. Fost. 351; R. v. Mackally, 9 Co. 67, b; Plowd. 98;.Reg. v. Crisham, C. & Mar. 187. Also, in conspiracies, and even in high treason, when it consists of a conspiracy, and in all other offences which involve a conspiracy, not only the acts of the defendant himself, but also all the acts of his accomplices, done in furtherance of the common object, no matter where committed, may be given in evidence against him. R. v. Hardy, 1 East P. C. 98, 99; R. v. Tooke, ibid. 98. As a foundation for such evidence, however, the exist- ence of the conspiracy must be first proved; 2ndly, evidence must be given to connect the defendant with the conspirators; and 3rdly, it must be proved that the person whose acts are about to be given in evidence was connected with the defendant in the same ‘conspiracy. The prosecutor may, however, either prove the conspiracy, which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different parties, and so prove the conspiracy. R. v. Lovat, 9 St. Tr. 670, etc.; see, also, R. v. Stone, 6 T. R. 528; R. v, Standley, R. & R. 305; R. v. Gogerly, ibid. 343; R. v. Bingley, ibid. 446; Reg. v. Frost, 9C. & P. 149; Reg. v. Shellard, ibid, 277. 374 EVIDENCE. What must be proved. Under the general issue, also, he may set up an alibi as a defence, and call witnesses to prove it; he may call witnesses to prove any other defence he may set up; or he may call witnesses to character— in larceny, as to his honesty—in murder, etc., as to his humanity—in treason, as to his loyalty—in riot, as to his peaceable disposition—and the like. Witnesses to character are always useful: in doubtful cases they may affect or influence the verdict; or, if the defendant be found guilty, they may have the effect of mitigating the punishment.(1) (1) In all criminal prosecutions, the prisoner is always permitted to call witnes- ses to speak of his general character, who are usually examined in his behalf, as to how long they have known him, and what his general character for honesty, humanity, or peaceable conduct (according to the nature of the offence charged), has been during that time. Davis v. State, 10 G. 101; State v. Wells, Coxe, 424; Com. v. Hardy, 2 Mass. 307; Com. v. Webster, 5 Cush. 324; Rex v. Stannard, 7 C. & P. 673. : ' The inquiry ought manifestly to bear some analogy and reference to the nature of the charge against the prisoner. On a charge of stealing, it would be irrele- vant and absurd to inquire into his humanity; on a charge of high treason, it would be equally absurd to inquire into ‘his honesty and puntuality in private dealings. Daniel v. State, 8 Sm. & Marsh. 401; Douglas v. Towsey, 2 Wend. 352. The inquiry must also be made with reference to the general character of the prisoner; for it is general character alone which can afford any test of general conduct, or raise a presumption that the person, who had maintained a fair repu- tation down to a certain period, would not then begin to act an unworthy part; and, therefore, proof of particular transactions, in which the prisoner may have been concerned, is not admissible. But, it has been held that, where a man is tried for the murder of his wife, the prosecution can prove that he had lived in adultery with another woman. State ». Watkins, 9 Conn. 47; Johnson v. State, 17 Ala. 618; State v. Rush, 12 Ired. 382. In Massachusetts, it was held that, where the defendant put his character in issue, it was competent to the government to prove that it was not good subsequent to the commission of the alleged offence. The court remarked, that ‘evidence of a bad reputation, subsequently acquired, may, indeed, be of little weight, but still, it will have some bearing, as commonly the descent from virtue to crime is gradual.” Com. v. Sackett, 22 Pick. 394. It has been usual to treat the good character of the party accused as evidence to be taken into consideration only in doubtful cases. Juries have generally been told that, where the facts proved are such as to satisfy their minds of the guilt of the party, character, however excellent, is no subject for their consideration; but that when they entertain any doubt as to the guilt of the party, they may properly turn their attention to the good character which he has received. .Daniel v. The State, 8 Sm. & Marsh. 401; State v. Ford, 3 Strobh. 517; Bennett v. The State, 8 Humph. 118; Quesenberry v. State, 3 Stew. & Port. 308. The prosecutor cannot enter into an inquiry as to the defendant’s character, unless the defendant enable him to do so, by calling witnesses in support of it (State ». O’Neil, 7 Iredell, 251; Carter v. Com., 2 Va. Cas. 169; People.v. White, 14 Wend. 111; Com. v. Hopkins, 2 Dana. 418; Dewit v. Greenfield, 5 Ohio, 227; Fanning v. State, 14 Mis. 386; Com. v. Webster, 5 Cush. 325); and even then, the prosecutor cannot examine to particular facts, the general character of the defendant not being put in issue, but coming in collaterally. But see Com. v. Robinson, Thach. Cr. Cas. 230. But it is not a conclusion of law, that from his silence the jury are to believe he isa man of bad character. State v. O’Neil, 7 Iredell R. C. 251; State v. Upham, 38 Maine, 261; People v. Bodine, 1 Denio, 281; Ackley v. People, 9 Barb. 609. It has, however, been held in Maine, that the omission of the accused, to furnish evidence of his previous good character, EVIDENCE. 375 What must be proved.—Variance. (ec) Variance. T have already noticed this subject fully in treating of the cases in which the court, at the trial, will amend the indictment.(a) I shall therefore notice it in this place very shortly. If there be a variance between the indictment and the evidence brought forward to sustain it, the court, on application, will amend *the indictment in the following instances:—where [124] the variance is in the setting out of any matter in writing, or in print, or in the name of any county, city, town, parish, etc., or in the name of the owner of any property which is the subject of the in- dictment, or in the name of any person injured, or intended so to be, by the offence charged, or in the name of any person mentioned in the indictment, or in the ‘‘name or description of any matter or thing whatsoever therein named or described,” or in the ownership of prop- erty therein named or described.(d)(1) (a) See ante, p. 99. (b) See ante, pp. 118, 114. may be called to the consideration of the jury in support of the prosecution. State v. McAllister, 24 Maine Rep. 139. On a trial, for murder, the defence cannot in general introduce evidence as to the bad character of the deceased. State v. Hawley, 4 Harrington, 562; State v. Field, 14 Maine, 248; State v. Jackson, 17 Miss. 544; Com. v. York, 9 Mete. 110; Com. v. Hillyard, 2 Gray, 294. Where, however, the character of the deceased forms part of the res gestw, evidence that he was a quarrelsome and desperate man is admissible. Wright v. State, 9 Yerg. 342 ; State v. Tackett, 1 Hawks, 210; Pritchell v. State, 22 Ala. 39. [Effect of evidence of good character discussed ; it does not per se rebut any presumptions of guilt. See State v. Beebe, 17 Minn. 241. Presumption of inno- cence from defendant’s good character varies, not with the grade of the crime charged, but with the circumstances. Harrington v. State, 19 Ohio St. 264. If the jury are satisfied of the defendant’s guilt, from the evidence, good character is no ground for acquittal. State v. McMurphy, 52 Mo. 251. As to proving good. character, see People v. Fair, 43 Cal. 137; People v. Ashe, 44 Cal. 288; State v. MeMurphy, 52 Mo. 251. Upon the trial of an indictment for an offence against the person, the prosecution cannot give evidence in chief as to the character of the person against whom the offence was committed. There is no exception to this rule. Dock v. State, 21 Gratt. 909. A charge that it is only in cases where the jury have a well reasoned doubt.arising out of all the evidence, that evidence of good character steps in and aids the defendant; but that when the evidence is positive, leading to a conviction logically and fairly derived of guilty from all the testimony, the simple fact of defendant’s previous good character will not be of any avail—held erroneous. Remsen v. People, 43 N. Y. 6.] {See, also, Com. v. Cary, 2 Brews. 404; Storer v. People, 56 N. Y. 315; People ». Shepardson, 49 Cal. 629.] (1) We have seen ante, that at common law, an indictment can only be amended with the consent of the grand jury, before they are discharged ; and there seems to be an absence of statutory provision on the subject in this country. The ques- tion, therefore, of variance, is one of paramount importance. Many fatal variances have arisen, in cases where it is necessary to state a record, deed or other writing in the indictment, between such statement and the record, 376 EVIDENCE. What must be proved.—Variance. deed or writing, when produced in evidence. A mere literal variance, however, where the omission or addition of a letter does not alter or change a'word so as to make it another word, will not be material. U.S. v. Kinman, 1 Baldwin, 292. Where a person is described by name simply, without addition, proof that there are two persons of that name is no variance, for the allegation is still true. Upon an indictment for an assault upon Elizabeth Edwards, it appeared that there were two of that name, mother and daughter, and that in fact the assault had been maile on the daughter; but the conviction was held to be good. Rex v. Peace, 3 B. & A. 579. The court said: “The question here is, not whether the party has been rightly described, but who the party is who is described in the indictment as having been assaulted.” But, generally, if the father and son be both named A. B., by A. B., simply, the father shall be intended. Wilson v. Stubs, Hob. 330; Lepoit v. Browne, 1 Salk. 7; Sweeting v. Fowler, 1 Stark. N. P. C. 106; 1 Stark. liv. 472. So, where an indictment laid the property of a horse in Joshua Jennings, it was held to be supported by proof of property in Joshua Jennings the younger. Hodgson’s case, 1 Lewin, 236, Parke, J.; 8. P. Bland’s case, ibid., Bolland, B. So, where an indictment for perjury alleged a suit to have been between Peacock and R, Miles, and the proceedings stated the suit to have been between Peacock and R. Miles the elder, it was held no variance. Rex v. Bailey, 7 C. & P. 264, Williams, J., who cited a MS. case, where it was alleged that there was an indict- ment against A. B. and C. D., at a former time, and on the record being pro- duced, it appeared that it was an indictment against A. B. and C. D. the younger, and Lawrence, J., held it a fatal variance ; on which it was observed, that that must have been on the ground, that if a person was named simply, it meant the elder. Where the indictment alleged that the defendant committed adultery with one A. B., and it appeared that there were two individuals of that name in the town, father and son, and that the latter used the addition of junior to his name, it was presumed that the father was the particeps criminis, and evidence to show adultery with the son A. B., junior, was not admitted. State v. Vittum, 9 New Hamp. Rep. 519. Where a count, for offering a bribe to an officer of the customs, stated his name as Thomas Dabbs, and he proved that his true name was Thomas Tyrrell Dabbs, but that he generally went by the name of Thomas Dabbs, and signed his name Thomas Dabbs, without Tyrrell, it was held that this was no variance. Attorney- General v. Hawkes, 1 Tyrw. 3, and per Alexander, C.B.: ‘By the aid of an averment of the identity of Thomas Dabbs and Thomas Tyrrell Dabbhs, the defendant might plead an acquittal on this information, by way of autrefois acquit to information for offering a bribe to Thomas Tyrrell Dabbs on this occasion.” So, where an indictment for robbery laid the property in John Hancox, and it appeared that his name was John Walter Hancox, but that he was generally known by the name of John Hancox, Parke, J., held that this was sufficient. Rex v. Berriman, 5 C. & P. 661; see Rex v. Sheen, 2C. & P. 634; and see Rex v. ——, 6 C. & P. 408, where an indictment for stealing a whip, the property of Richard Pratt, was held to be sustained by evidence that the prosecutor was generally known by that name, although his proper name was Richard Jeremiah Pratt, And see Williams v. Bryant, 5M. & W. 477, where the defendant executed a bond in the name of William Bryant, being known at that time by that name, his real name being William Francis. Bryant, and the court held that the proof was sufficient upon the plea of non est factum. So, where in an indictment a boy was called Edward Dobson, and he stated that his right name was Dobson, but that most persons who knew him called him Peach, and that his mother had married two husbands, the first named Peach and the second Dobson, and that he was told by his mother that he was the son of the Jatter, and that she always used to call him Dobson; it was held that the evidence, that the boy’s mother had always called him Dobson, must be taken to be conclusive as to his name, and that, therefore, he was rightly described in the indictment. Rex v. Williams, 7 C. & P. 298; Williams, J., after consulting Alderson, B. But where, on the indictment of Frances Clark, for the murder of “George Lakeman Clark, a base-born infant male child,” it appeared in evidence that the deceased was a bastard son of the prisoner, and that she murdered it, as charged EVIDENCE. 377 What must be proved.—Variance. in the indictment, but that the child was christened George Lakeman, being the name of its reputed father, and that it was called George Lakeman, and not by any other name known to the witnesses, and that the prisoner called it George, Lakeman ; the judges held that as the child had not obtained his mother’s name by reputation, he was improperly called Clark in the indictment; and as there was nothing but the name to identify him in the indictment, the conviction could not be supported. Rex v. Clark, Russ. & Ry. C. C. R. 358. ; And so, where an illegitimate child, three weeks old, had been baptized by the name of “ Eliza,” but no surname was mentioned at the time of baptism, and neither thd register, nor any copy of it, was produced at the trial, and an indict- ment for murder described her as “ Eliza Waters,” Waters being the name of her mother, it was held, upon a case reserved, that the child had not acquired the name of Waters by reputation, and that the conviction was wrong. Rex v, Waters, R. & M. C. C. R. 457; S.C. 7C. & P. 250. Where, however, an ‘indictment charged the murder of Emma Evans, and it appeared that the deceased was an illegitimate child, born’ in a workhouse, and baptized on the 9th of September by the name of Emma, and drowned on the 11th of the same month, when about six weeks old; and that up to the time of the baptism she was not called by any name, but that from the 9th to the 11th of September she was called Emma Evans, Evans being the mother’s name; it was held that there was sufficient evidence of reputation for the consideration of the jury, and that this case was distinguishable from the last, because there was no evidence there that the child was ever called Waters at all. Reg. v. Evans, 8 C. & P. 765; Erskine, J., after consulting Patterson, J. And where, on an indictment for the murder of ‘‘a certain female child, whose name to the jurors was unknown,” it appeared that the child had not been bap- tized, but the prisoner had said she should like it to be called ‘‘Mary Ann,” and had called it “her Mary Ann,” at one time, and “Little Mary” at another; the father was a Baptist, and the child was a‘ bastard, and twelve days old; and upon a case reserved, it was held that the child had not gained a name by reputation, and therefore the indictment was right. Rex v. Smith, R. & M. C. C. R. 402; 8. C.6C. & P. 151. : Where an indictment charged the prisoner with the manslaughter of Mark Robinson, and a witness stated that the deceased stayed three days and nights at his inn, and that he asked the-deceased his name, and that letters came directed. in that name, which letters were delivered to the deceased, and received by him ; Patterson, J., held that the witness might be asked what name the deceased told. him, as it was evidence to show the name by which he usually went. Rex v. Timmins, 7 C. & P. 499. We have seen (ante, pp. 271, 272), that if the name proved be idem sonans with that in the indictment, and different in spelling only, the variance will be immaterial. In addition to the examples already given, may be enumerated the following :—Keen for Keene, Deadema for Diadema, Autron for Autrum or Autrium, form no variance. Com. v. Riley, Thach. C. C. 67; State v. Patterson, 2 Iredell, 346; State v. Scurry, 3 Richard, 68. Burrall and Burrill, Prison and Brisson, Donnel and Donald, Ratharine and Catharine, are not the same in sound. Com. v. Gillespie, 7 Serg. & Rawle, Rep. 469; Add. Rep. 141; Donnel v. U. S.,. 1 Morris, 141; Swails v. State, 7 Blackf. 324. On an indictment charging the stealing of the horse of Stephen Harris, the evi- dence proved that the man whose horse had been stolen was named Harrison. The witness stated that his name of baptism was Harrison, though his neighbors sometimes called him Harris; it was held that the owner’s name was sufficiently described. State v. France, 1 Tenn. Rep. 4384. Where the indictment charged the forgery of an order on “the cashier of the corporation of the president and directors of the Bank of the United States,” and the order was drawn on “the cashier of the Bank of the United States,” it was held that this was not a fatal variance. U.S. v. Kinman, 1 Bald. Rep. 292. ; . In an indictment for larceny, the evidence must correspond strictly with the indictment as to the species of goods stolen; as, for instance, an indictment for stealing a pair of shoes cannot be supported by evidence of a larceny of a pair of boots. Where an indictment, which made it felony without benefit of clergy to steal any cow, ox, heifer, etc., charged the defendant with stealing a cow, and in 378 EVIDENCE, What must be proved.—Variance. But there are some cases of variance where. an amendment is not necessary. Upon an indictment for embezzlement, if the evidence prove a larceny, the jury may acquit the prisoner of the embezzlement and find him guilty of simple larceny, or of larceny as clerk or ser- vant ;(a) or upon an indictment for larceny, if the evidence prove an embezzlement, the jury may acquit the defendant of the larceny and find him guilty of the embezzlement ;(b) upon an indictment for obtaining goods or money under false pretences, if the evidence prove a larceny, the defendant, notwithstanding, may be convicted of false pretences;(¢) upon an indictment for a misdemeanor, if the evidence prove a felony, the defendant, shall not, on that account, be acquitted, unless the court think proper to discharge him from that indictment, and order him to be prosecuted for the felony ;(d) upon an indictment against a principal in the first degree, if the evidence prove him to have’ been principal in the second degree—or upon an indictment against him as principal in the second degree, if the evidence prove him to have been principal in the first degree—he shall be convicted.(e) (a) See 14 & 15 Vict., v. 100, § 13. : (d) 14 and 15 Vict., c. 100, §12. (b) Ibid. § 11. (e) Ante, p. 13. (c) See 7 & 8G. IV, c. 29, § 58. . evidence it was proved to be a heifer, this was holden to be a fatal variance; for the statute having mentioned both cow and heifer, proved that the words were not considered by the legislature as synonymous. R. v. Cooke, 2 East P. C. 617; 1 Leach, 123; see, also, R. v. Douglas, 1 Camp. 212. In like manner it was decided that, as the statute specified lambs and sheep, an indictment for stealing lambs was not proved by evidence of stealing sheep (R. v. Loom, 1 Mood. C. C 160); and, for the same reason, it has been holden, that an indictment for stealing a sheep is not supported by proof of stealing a ewe. R. v. Puddifoot, 1 Mood. C C. 247; R..v. Birket, 4 C. & P. 216; but see Reg. v. McCulley, 2 Mood. C. C 34, contra. Where an indictment charged the defendant with cutting J. S., and the evidence proved a stabbing, the variance was holden fatal, for the statute used the alternative, stab or cut. R. v. McDermot, R. & R. 356. Upon an indictment for perjury, the oath was alleged to have been taken at the assizes before justices assigned to take the assizes, and it was holden a fatal variance that the oath was administered when the judge was sitting under the commission of oyer and terminer and jail delivery. R. v. Lincoln, R. & R. 421; SeeR. v. Alford, 14 East, 218, and R. v. Cooke, 7 C. & P. 559. So, an indictment for killing, by striking, will not be supported by proof that the defendant knocked the deceased down, and that by falling to the ground he received the injury which caused his death. R. v. Kelly, 1 Mood. C. C. 113; R. v. Thompson, ibid. 139. Proof of an assault with intent to kill with a. “basket iron” will support a charge of an as- sault with a “basket knife.” State v. Dame, 11 New Hamp. 271. Sums of money stated in an indictment need not be proved as laid (see R. v. Gilham, 6 T. R. 265), unless they form part of the description of a written instru- ment, or the exact sum be of the essence of the offence. (See the cases collected in the notes under the subject of InpictmENT, supra; especially the notes concerning the manner of charging the crime, and of stating the name of the accused, and of the person injured.] 4 EVIDENCE. 379 Confessions. There are also some cases where the evidence proves only. part of the charge laid, and the defendant shall be convicted of that part and acquitted of the residue. Where a man is indicted for murder, he may be found guilty of manslaughter: upon an indictment for burglary and larceny, he may be acquitted of the burglary and found guilty of the larceny; upon an indictment for breaking and entering a church, house, shop, or warehouse, and stealing therein, he may be acquitted of the breaking and entering, and convicted of the larceny; upon an indictment for stealing from a dwelling-house to the value of five pounds, or some persons therein being put in fear, the defendant may be convicted of the simple larceny; upon an indictment for robbery, the jury may acquit him of the robbery and convict him of an assault with intent to commit it.(a) So in all cases of indictments for felony or misdemeanor, if the evidence prove only an attempt to commit it the defendant may be found guilty of the attempt.(®)(1) *2. The Manner of proving the Matter in issue. . [7*125] (a) By Confessions. Confession to a prosecutor, constable, etc.] A confession by the déefend- ant, if obtained fairly, and without holding out any inducement to him to make it, is nearly the strongest evideuce that can be given of the facts stated in such confession, against the party making it; and is abundantly sufficient of itself, without any confirmation. to warrant a verdict against him.(c)(2) (a) 14 and 15 Vict., c. 100, § 11. (b) Ibid. § 9. (c) 2 Hawk., c. 46, §§ 33, 39. (1) The subject of conviction of an inferior offence to the one charged will be discussed post, under the head of VERpicrT. (2) A free and voluntary confession of guilt made by a prisoner, whether in the course of conversation with private individuals, or under examination before a magistrate, is admissible in evidence as the highest and most satisfactory proof, because it is fairly presumed that no man would make such a confession against himself, if the facts confessed were not true. State v. Jefferson, 6 Iredell, 305 ; State v. Huntley, 3 Iredell, 418 ; Campbell v. State, 23 Ala. 44; Com. v. Knapp, 10 Pick. 477; Morgan v. State, 11 Ala. 289; People v. Harriden, 1 Parker, 344; Smith v. Com., 10 Gratt. 734; Keithler v. State, 10 Sm. & Marsh. 192. High authorities have now established, that a confession, if duly made, and satisfactorily proved, is sufficient alone to warrant a conviction, without any cor- roborating evidence aliunde. State v. Cowan, 7 Iredell, 239; Stephen v. State, 11 G. 225. It was held in one case before the general sessions in the city of New York (Radcliff, mayor, presiding), that even a full confession of guilt before the magistrate was insufficient to warrant a conviction, there being no other proof of the corpus delecti, i. e., that a felony had been committed; which it was said must be shown before the examination could be read. Hope’s case, 1 C. H. Rec. 150. 380 EVIDENCE. Confessions. But in another and subsequent case in the same court, Dec. 1822, before Riker, recorder (1 Wheel. Cr. Cas. 107, 108), the doctrine in the text is recognized ; though it is said to be very desirable that some evidence other than the mere confession should be adduced. And in Hall’s case (Macnally, 40), it was held that a conviction may follow an oral evidence of such confession, the magistrate having omitted to commit it to writing; and that a conviction may follow though it be wholly uncorroborated. But in this country there is a growing unwillingness to rest conviction on confessions alone. It has been held in several of the states that the confessions of a party not made in open court, or on examination before a. magistrate, but to an individual, uncorroborated by circumstances and without proof aliunde that a crime has been committed, will not justify a conviction. People v. Hennessy, 15 Wendell, 147; People » Badgely, 1 Wendell, 53; State v. Fields, Peck. Rep. 140; State v. Gardiner, Wright’s Rep. 392. It was held in’ a recent case in Mississippi, that in capital felonies the extra-judicial confessions of the prisoner, where the corpus delicti was not proved by independent testimony, were not sufficient to warrant a conviction. Stringfellow v. State, 26 Miss. 157. Confessions by infants are competent as well as those of adults. Rex v. Thorn- ton, Ry. & Mood. Cr. Cas. 27. ‘‘He who is a rational and moral agent, and can merit the infliction of legal sanctions, must be able to detail his motives and acts. If, therefore, the prisoner be of an age to be punished, he is of an age to confess his guilt.” Per Southard, J., in Aaron’s case, 1 South. 246 ; 4 Blk. Com. 24; York's case, 70; Studstill v. State, 7 G.2. And in one case the confessions of a boy under 11 (State ». Aaron, 1 South. 231), and in another under 13 years of age (State v. Guild, 5 Halst. 163), were received and acted upon in charges of murder. The latter verdict was sustained by the confessions being connected with and fortified by circumstances (Ibid.); but in the former a new trial was granted for want of such ingredient. 1 South. 231, 238, 243. As an infant under 7 is not capable af crime (per Kirkpatrick, C.J., in State v. Aaron, 1 South. 238), it follows that his confessions are not receivable. And, in all these cases of extra-judicial confessions by infants under the age of discretion, it seems desirable, if not essential, that corroborating circumstances should appear. The declarations of a third person, made in the presence of a defendant, and assented to by him, are admissible evidence against him, and stand on an equal footing with admissions by himself. Com. v. Call, 21 Pick. Rep. 515; though see Norman v. State, 1 Sm. & Marsh. 562. Where a man, at full liberty to speak, and not in the course of a judicial inquiry, is charged with a crime, and remains silent— that is, makes no denial of the accusation by word or gesture—his silence is a circumstance which may be left to the jury. State v. Swink, 2 Dev. & Batt. 9; State v. Stone, Rice Rep. 187. Where, therefore, the declarations were made in the presence of a party who was partially intoxicated, and not contradicted by him, it is a question for the jury to ascertain, whether the party was too much intoxicated to understand the statement when made. State v. Perkins, 3 Hawkes, 377.. The assent of the party is presumed, if nothing be said by him inconsistent with that presumption. Ibid. But it is a question for the jury, whether the de- fendant’s apparent assent in such a case arose from inattention or ignorance. State v. Perkins, 3 Hawkes Rep. 377; State v. Welsh, 7 Port. 463. It was held, in Georgia, on an indictment against a free white citizen, that the state might give in evidence the confessions of a negro, even when extorted by the pain of punish- ment, provided they were proved by a white person, not as independent testimony, but as an inducement, and in illustration of what was said and done by the accused, he being present and giving his consent that the negro should tell all he knew. Berry v. State, 10 Ga. Rep. 511. The silenee of a prisoner when accused of larceny, or when the stolen property is identified, is not to be construed into an admission of the larceny, or the owner- ship of the property. Com. v. Kenny, 12 Met. 235. Where a slave makes a con- fession in the presence of his master and the plaintiff, that he has received from another slave stolen money belonging to the plaintiff, the master’s silence cannot be construed into an admission on his part of any of the facts to which the confession related. Jelks ». McRae, 25 Ala. 440. An unanswered letter, found in the pocket of the prisoner at the time of his arrest, is not of itself evidence of the contents, and it cannot be read in evidence against him on the trial. People ». Green, 1 Parker, 11. EVIDENCE. 381 Confessions. On the trial of an indictment for incest, alleged to have been committed by a father with his daughter, the declarations of the accused are competent upon the question of consanguinity. The People 3. Harriden, 1 Parker’s Rep, 344. [A conversation between a husband and wife may be proved by a bystander who overhears it. Com. v. Griffin, 110 Mass. 181.] (The defendant’s voluntary testimony at the preliminary examination may be given in against him at his trial. People v. Kelly, 47 Cal. 125; contra, State v. Garvey, 25 La. An. 191. On the trial of an action for assault with intent to com- mit a rape, the defendant’s admissions of illicit intercourse with other women are inadmissible against him. Satton v. Johnson, 62 Ill. 209. A confession must be voluntary, and the burden of proof is on the prosecution to show that it was so. Barnes v. State, 36 Tex. 356; Nicholson v. State, 28 Md.140. Where a confession was obtained by inducements of hope, or fear, a subsequent one made by him is also inadmissible unless it is shown that the former motive had ceased to operate on him. State v. Jones, 54 Mo. 478. As to what advice to confess will render a confession of larceny inadmissible, see State v. Hagan, 54 Mo. 192; State v. White- field, 70 N. C. 356.] : (On a trial for adultery, a witness may prove that he overheard one of the “ par- ties admit the fact of adultery to the other, although he did not overhear all the conversation between them.” Com. v. Pitsinger, 110 Mass. 101. But see People v. Gelabert, 39 Cal. 663. A confession may be implied from defendant’s’ silence ; when declarations touching his guilt were made in his presence, although he was then under arrest, and he kept silence, they were proved against him. Kelley v. People, 55 N. Y. 565. A written statement by a J. P. of a confession made by defendant, is inadmissible without proof of its genuineness. Powell v. State, 37 Tex. 348.] [A statement made in the presence of the prisoner will be presumed to have been in his hearing; and an act done by a third person in prisoner’s presence is admissible in evidence in the same manner as a declaration so made. Hoch- reiter v. People, 2 Abb. App. Dec. 363.] (That the witness did not hear all of defendant’s conversation is no objection to his stating what he did hear. Westmoreland v. State, 44 Geo. 225 , but per contra see People v. Gelabert, 39 Cal. 663. The statements of one defendant exculpating himself and inculpating his joint defendant, is never admissible except against himself, unless the fact of a combination or conspiracy has been shown. State v. Ah Tom, 8 Nev. 213. When confessions are shown to have been prima facie free and voluntary they are admissible ; for what statement will amount to such a con- fession and evidence against the accused, see State v. Jones, 33 Iowa, 9; Stall- ings v. State, 47 Geo. 572; State v. Patterson, 68 N. C. 292; Com. v. Cuffee, 108 Mass. 285; Com. v. Callahan, 108 Mass. 421; Com. v. Crocker, 108 Mass. 464.] {On a murder trial the witness may state the whole of a conversation between himself and the prisoner the day after the killing, although the witness had in answer to questions of defendant expressed the opinion that he was guilty of the homicide ‘and gave his reasons therefor. State v. Williams, 68 N.C. 60. A con- fession even extorted wrongfully may be used to show that prisoner knew of the facts which have been discovered by means of his admission. White v. State, 3 Heisk. 338. In the absence of threats or promises, mere threatening circum- stances do not exclude a confession. Rice v. State, 47 Ala. 38. Defendants under arrest were told by sheriff that it was useless for them to deny the charge (lar- ceny), and that it. would be lighter for them if they confessed ; two days after they confessed to the committing magistrate; their confession was held inadmissible. People v. Johnson, 41 Cal. 452. Defendant surrendered to prosecutor who had aimed a gun at him, walked two miles with the person thus making the arrest, and then, on assurance that he should not be harmed, confessed the charge of stealing—this confession was held admissible. Wilson v. State, 3 Heisk. 232. A prisoner is entitled to have the whole of what he said in his conversation proved, not the impressions on the mind of the witness which were really the witness’s own mere deductions from the conversation. Peterson v. State, 47 Geo. 524. A confession uncorroborated by any other evidence is not sufficient for a conviction. Montana v. McClen, 1 Mont. 394.] : [Confessions when proved by a number of disinterested witnesses, and when in their nature they appear. consistent and reasonable, leave but little room to doubt 882 EVIDENCE. Confessions. their truth. Baker v. Crow, 7 Bush, 198. Voluntary declarations of the accused made before the committing magistrate on the preliminary examination, and certi- fied by him in pursuance of Louisiana Rev. Stat. 1870, § 1010, cannot be proved on the trial by the defendant; they are only intended for the use of the state as confessions such as defendant may choose to make. State v. Vandergraff, 23 La. Ann. 96. A statement made by defendant when he is on trial, as provided for by statute in Michigan, may be considered by the jury in view of all the circum- stances which may affect its credit. De Foe v. People, 22 Mich. 224. In North Carolina the confessions of a prisoner before the committing magistrate cannot be used against him on the final trial. State v. Matthews, 66 N.C. 106. In Georgia, under Rey. Code, § 3739, confessions of defendant that he set fire to a building, with no corroborating circumstances except that the building was burned about the hour mentioned by him, and that he lived only a mile from it, are not suffi- cient to justify a conviction of arson. Nesbit v. State, 43 Geo. 239.] (Must be volunlary.—Confessions induced by the promises, threats, or advice of the prosecutor, or of any one having authority over the prisoner or over the prosecution, or of a private person in presence of one having such authority whose acquaintance may be presumed, are not voluntary, and will be rejected ; but the rule-is generally the reverse as to confessions obtained by inditterent per- sons acting officiously and without any authority, and they would be admitted. Young v. Com., 8 Bush, 366. ] {Defendant when arrested on a charge of murder was told that deceased had been shot, and he replied that deceased was not shot, but had been knocked on the head ; he was then forcibly taken to where the body lay, arourid which were a large number of negroes mostly armed and greatly excited and insisting that he should be hung; he then and there stated that after a quarrel he had struck deceased one blow not intending to kill him; this confession was held admissible. Cady v. State, 44 Miss. 332. When defendant had been induced two confess by a promise that he should not be prosecuted, and he afterwards made an additional confession, this latter cannot be used against him unless it is clearly shown that the former motive had ceased to operate when he made it. State v. Lowhorne, 66 N. C. 538. ] ; [The jury must take into consideration all that was said by the defendant, and give proper weight to every statement made by him. Conner »v. State, 34 Texas, [The prosecution must show that a confession is voluntary. Although inadmis- sible because not voluntary, it may be subsequently repeated by defendant when his mind has become entirely free from the former undue influence, and may then be admissible, but the burden of proof is on the prosecution of showing such a change of mind. Thompson v. Com., 20 Gratt. 724. For examples of confes- sions not voluntary, but induced by a hope of settling the charge, by advice to confess, etc. People v. Phillips, 42 N. Y. 200; Austin v. State, 51 Ill. 236; State »v. Brockman, 46 Mo. 566; Frain v. State, 40 Geo. 529. A defendant was pressed to disclose the guilty party behind him, and was told that he might possibly be called as a witness against such party, in which case he (defendant) would have to be pardoned, but no promises were made to him; his confession made in con- sequence of these statements was held voluntary and admitted in evidence. State v. Squires, 48 N. H. 364. Where the witness did not understand all that de- fendant said to him, in making the confession, no part of itis admissible. People v. Gelabert, 39 Cal. 663. And when part of a conversation has been proved, tending to make out a material admission by the defendant, he is entitled to have the exact words, constituting the admission stated, if possible, and also to give in evidence the whole conversation relating to the subject-matter; and the exclusion of such evidence offered by him is ground for a new trial. People v. Murphy, 39 Cal. 52.) [A confession by a prisoner while in custody to a fellow-prisoner, who was con- fined on a sentence for crime, was held admissible, even though it was attained by deceit, the prisoner to whom it was made having been placed in a cell with defendant, and for the very purpose of procuring a confession from him, Com. ». Hanlon, 3 Brews. (Pa.) 461.] [Evidence of facts discovered by means of admissions wrongfully extorted from the prisoner, may be given against him on the trial. State v. Garrett, 71 N.C. 85.] (See, also, Teachout v. People, 41 N. Y. 7; Price v. State, 18 Ohio St. 418; Sel- EVIDENCE. 383 Confessions. But it is only evidence against the party making it, and not against others,(a) except, perhaps, in treason and conspiracy, in cases where the confession or declaration of one of the conspirators may amount to an overt act ;(b) and except upon indictments against the inhabitants of a parish or township, etc., where the admission of one is deemed evidence, though perhaps slight, against the parish or township gene- rally.(c) Even where one of three prisoners, on examination before a magistrate, stated that he and another of the prisoners committed the felony, and the other who was present did not deny it: Holroyd, J., held that this confession could not be given in evidence against the other prisoner, and he said that it had so been decided.(d) And where, on the trial of two, a confession of one of them, affecting also the other, is to be given in evidence, the judge, if the confession be in writing, usually orders the officer, whose duty it is to read it, to read it in such a way as not to disclose the name of the other defendant; or if the confession be not in writing, many of the judges give a similar caution to the witness who proves it. This, however, is entirely dis- cretionary.(1) (a) 2 Hawk., c. 46, § 34. (d) R. v. Appleby et al., 3 Stark. 33; 8, P., (b) See R. v. Watson, 2 Stark. 140, 141. R. v. Swimerton et al., Car. & M. 593. (c) See R. v. Whitby, Lower, 1M. & S. 636; R. v. Hardwick, 11 East, 578. 2 vidge v. State, 30 Tex. 60; State v. Symonds, 57 Me. 148; Flanagin »v. State, 25 Ark. 92; State v. Staley, 14 Minn. 105; State v. Worthington, 64 N.C. 594; Gris- wold v. State, 24 Wis. 144; Ake v. State, 30 Tex. 466; Spencer v. State, 31 Tex. 64; Com. v. Thompson, 99 Mass. 444. As to effect of silence when statements are made in the presence of accused, see Broyles v. State, 47 Ind. 251; Slatterly v. People, 76 Ill. 217. On trial for forgery, admission of defendant that he had com- mitted other forgeries, are incompetent even on the question of intent. People v. Corbin, 56 N. Y. 363.] [For instances, where confessions were held admissible, see Com. v. Mitchell, 117 Mass. 431; Cunningham v. Com., 9 Bush. 149; People v. Cotta, 49 Cal. 167; State v. Carlisle, 57 Mo. 102; instances where they were held inadmissible, Peo- ple v. Sote, 49 Cal. 69; Com. v. Cullen, 111 Mass. 435; State ». Chambers, 39 Towa, 179; Newman v. State, 49 Ala. 9; People v. Barrie, 49 Cal. 342; People v. Parton, 49 Cal. 632; State v. Chambers, 39 Wis. 179. As to proof of all that pris- oner said, see Berry v. Com., 10 Bush. 15; McCulloch »v. State, 48 Ind. 109 ; Rufer ». State, 25 Ohio St. 464.] ou [A forcible examination, by order of a coroner, of a female prisoner, made by doctors, to obtain evidence whether she had been pregnant and had been shortly before delivered of a child, violates the constitutional provision, that “no person shall be compelled in any criminal case to be a witness against himself.” People v. McCoy, 45 How. Pr. 216.] (1) In cases of conspiracy, riot or other crime perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator, or accomplice, in the prosecution of the enterprise, is considered * the act of all, and is evidence against all. U. S. v. Harman, 1 Baldwin, 292 ; 384 EVIDENCE. Confessions. Martin v. Com., 11 Leigh, 745; U. S. v.. Goodwin, 12 Wheaton, 469; State v. Soper, 13 Maine, 293 ; Com. v. Eberle, 3 Serg. & Rawle, 9; Amer. Fur Co. v. U. S., 2 Peters, 358; Johnson v. State, 29 Ala. 62; Malone v. State, 8 G. Rep. 408. And it is sufficient that the conspiracy has been proved by a witness who is com- petent ; the court will not decide on his credibility. Com. v. Crowinshield, 10 Pick. Rep. 497. The rule, that the acts and declarations of a conspirator may be given in evi- dence to charge his fellow-conspirators, is subject to this limitation—that the acts and declarations admitted be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of the common object. Where the declarations are merely a narrative of a past occurrence, they cannot be evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta. Patton v. The State, 6 Ohio (N. S.), 467, per Bowen, J. His confession, therefore, subsequently made, even though by the plea of guilty, is not admissible in evidence, as such, against any but himself. Under no circumstances can the most solemn admission made by him on trial be evidence against his accomplices. Hunter's case, 7 Gratt. 641. Thus, on an indictment against A., for concealing a horse-thief, knowing him to be such, it is not competent for the prosecutor to give evidence of what the’ alleged horse-thief subsequently confessed in the presence of A., to establish the fact that a horse was stolen. Rex v. Turner, 1 Mood. Cr. Cas. 847; Rex v. Ap- pleby, 3 Stark. 83; and see Melen ». Andrews, 1 M. & W. 336, per Parke, J. ; State v. Poll, 1 Hawkes, 442; see State v. Hanney, 2 Dev. & Bat. 390; Kirby v. State, 7 Yerger, 259; Morrison v. State, 5 Ohio Rep. 439; Lowe v. Boteler, 4 Har. & McHen. 349. Where a presentment for adultery is joint, the admission of one party is not evidence against the other. Frost v. Com., 9 Monroe, 362. Where the husband and wife are jointly indicted for receiving stolen goods, the declarations of the wife, though criminating both, are admissible in evidence to prove her guilt, and the jury must take care that they do not operate to the pre- judice of the hushand. Com, v. Briggs, 5 Pickering’s Rep. 429. {Tbe declarations or admissions of an accomplice made by himself, not in the presence of the defendant, nor during the progress of the common criminal enter- prise, are not evidence. People v. Moore, 45 Cal. 19. When persons are shown to have acted with a common purpose and design—although no previous con- federacy to commit the particular crime has been proved—the acts and declarations of each from the commencement to the end of the offence, are evidence against all. Kelley v. People, 55 N. Y. 565; but evidence must be given to make out a prima facie case of combination or confederation or of a eommon purpose and design, or to make the question one of fact for the jury. Ormsby v. People, 53 N. Y.472. The declarations of one conspirator to be evidence against the others, must be made while the couspiracy exists. State v. Pike, 51 N. H. 105; and unless such a foundation has been laid, the statements of one defendant exculpating himself and inculpating his joint defendant, are never admissible except against himself. State v. Ah Tom, 8 Nev. 213.] [When two or more are jointly indicted for the same offence, declarations of one cannot be admitted against the others, until proof aliwnde of a conspiracy has been given; but a conspiracy, like any other fact, may be proved by the acts of the parties or by other circumstances. Street v. State, 43 Miss. 1. Acts of an accom- plice, when evidence, People v. Martin, 47 Cal. 114; testimony of an accomplice, State v. McKean, 36 Iowa 343; Davis v. State, 38 Md. 15, 46. Only such confes- sions of the principal as would be competent on his trial, can be admitted on the trial of anaccomplice. Smith v. State, 46 Geo. 298. Statements of one conspirator are evidence against the others when the fact of a conspiracy has been sufficiently established ; how far proof of other similar acts done at the same time and place are admissible as part of the res gestae, see People v. Saunders, 25 Mich. 119. ‘I'he acts and declarations of other conspirators, not made in the presence of de- fendant, nor afterwards reported to him, are admissible; it is immaterial whether they were made before or after defendant became a party to the conspiracy, if they were in furtherance of its object, but it must be shown that the person doing . the acts or making the declarations was at the time one of the conspirators. Sands ». State, 21 Gratt. 871. When evidence of a conspiracy to burn an insured build- ing with intent to defraud the insurer, has been given, the demand by one con- EVIDENCE. 385. Confessions. A confession to be given in evidence must be of the offence charged in the indictment, or of some matter relating to it; you cannot give in evidence any confession or declaration of the prisoner of his having committed similar crimes upon other occasions, or of his general dis- position to commit them.(a)(1) But where there were two indictments against, a prisoner, one for receiving tin, and the other for stealing iron —on the trial for receiving the tin, it was holden that, the whole of a statement made by him might be given in evidence, although only part of it related to the tin, the rest relating to the iron.(b) And on the other hand, the prisoner may insist on the whole of his confession being stated, for the part omitted may qualify or control the meaning of the part stated.(c)(2) (a) R. v. Cole, 1 Ph. Ev. 170; R. v. Butler, (b) R. v. Mansfield, Car. & M. 140. 1 Car. & K.. 221, : (c) 2 Hawk, c. 46, § 42. . spirator on the insurer for a settlement is competent evidence against the other on a trial of the latter alone, the intent to defraud the insurer is as essential as the intent to burn the building, and the attempt to procure payment from the insurer is pertinent on the question of such intent. People v. Trim, 39 Cal. 75. If the conspiracy is once established, although entered into out of the jurisdiction, an overt act by one of the conspirators done within the jurisdiction, in pursuance of the common object, is the act of each, and is provable against them. Com. v. Corlies, 3 Brews. (Pa.) 575.] [See Ake v. State, 30 Tex. 466; Spencer v. State, 31 Tex. 64; Com. v. Thompson, 99 Mass. 444; McGuire v. People, 10 N. Y. 8. C. (8 Hun) 213; Hamilton v. People, 29 Mich. 195; Williams v. State, 47 Ind. 568; Blount v. State, 49 Ala. 381; People v. Estrado, 49 Cal. 171; Rufer v. State, 25 Ohio St. 464.] [In respect to the testimony of accomplices in general, and how it may be cor- roborated, see Lindsay v. People, 12 N. Y. S. C. (5 Hun) 104.] (1) Com. v. Call, 21 Pick. 515; Kinchelow v. The State, 5 Humph. 9. (2) That the confessions of a criminal shall be taken together, in the ordinary sense of that phrase, is well settled. Per McKean, C.J., at the close of his charge, in Respublica v. McCarty, a case of treason, 2 Dall. 86. This has been expressly extended to the examination before the magistrate. Hick’s case, 1 C. H. Rec. 66; People v.Weeks, N.Y. Gen. Ses., Oct., 1815, Jud. Repos. 138 ; People ». Johnson, N. Y. Oyer & Term., Edwards, C. Judge, presiding, 2 Wheel. Cr. Cas. 377. Though it was said, in another case, that the district attorney might read such part of the written examination as he pleased, and the prisoner could not demand to have the whole read. People -v. Jordine, N. Y. Gen. Ses., Oct. 1818, Jud. Repos. 107, 108—quere. The contrary was declared to be well settled in People v. Johnson, supra. : : But per Ch. J. McKean, at the close of his charge in Respublica v. McCarty, supra: “Though the whole confession must be considered together, yet the jury may, unquestionably, on this, as on every other point of evidence, believe one part and disregard the other. Brain’s case, 9 Leigh, 683 3 Green v. The State, 13 Mis. 382; Bower v. State, 5 Mis. 364. To what extent this may be done will ap- pear by the following cases: ‘I'he prisoner was indicted for secreting counterfeit money. He had confessed that it was true he had counterfeit money, but he had received it from a good man on New River, but would not name the person, and that he had destroyed nine of the dollars. Afterwards, while drunk, he said he. was a counterfeiter, or was accused of passing counterfeit money—which the wit- nesses did not agree; but they agreed that he said he had counterfeit money, and 25 386 EVIDENCE. Confessions. Also, a confession to be given in evidence must not have [*126] been *upon any examination upon ‘oath: if, upon taking the examination of a prisoner before a magistrate, the prisoner be examined upon oath, his examination cannot afterwards be read would pass as much as he pleased. Afterwards, he said he had it from one Hart, of New River; afterwards, that he had it from a good man, had never attempte lL to pass it, and would never pass any. He showed thirteen dollars, and threw it into a mud-hole. The court charged that confessions made at the same timé were all to be taken together, and the jury was to draw such inferences from them as the truth of the case warranted ; that they were not bound to credit the whole. On error, upon a bill of exceptions, it was held, that the charge was too unquali- fied ; that no part of the confession could be rejected unless it was proved to be untrue; that the jury could not arbitrarily reject that part which went in dis- charge of the prisoner, and go upon that part only which criminated him. Tipton ». The State, Peck’s Rep. 308; and see infra, Rex v. Jones, and Rex v. Higgins. On trial of an indictment for larceny, the theft was proved, and, on examination, the prisoner stated that he had the property in his possession, but denied that he had stolen it. ‘The two sitting aldermen (the mayor dissenting), held this prima facie sufficient, and that the prisoner should be’ put to account for the possession. The mayor told the jury that, in his opinion, the whole case resting in the pri- soner’s confession, that must be taken together, and did not make out a case. Verdict, not guilty. People v. Weeks, N. Y. Gen. Ses., Oct. term, 1818, Jud. Repos’y, 138. If a prisoner, charged with murder, say, in his confession, which is read in evi- dence against him, that he was present at the murder, but took no part in the commission of it, this is evidence for him as well as against him; but the judge will not direct an acquittal, as the jury may believe one part of the confession, and disbelieve another. However, if it is meant to be charged that the prisoner did more than is stated in the confession, there ought to be some evidence to show that. Rex v. Clewes, 4 Car. & Payne, 221. ; On the trial of a larceny of a ram, proved to have been stolen, and traced to the prisoner’s house, the carcass being found concealed in his bed, where he was him- self, it came out also, in the evidence for the prosecution, that he there said his brother had bought the carcass. Parke, J., told the jury they were not bound to take the exculpatory part of the confession as. true, merely because it was given in evidence ; but should say, looking at the whole case, whether they thought the prisoner’s statement consistent with the other evidence. Rex v. Steptoe, 4 Car. & Payne, 397. On trial of an indictment for child-murder, the prosecution proved by some witnesses that the prisoner confessed she cut the child’s throat, and others said she declared it was still-born. Her counsel insisted on an acquittal being directed, and cited a case before Garrow, B., in which, on trial for larceny, in ad- dition to the prisoner’s possession of the goods stolen, his statement before the inagistrate was put in, that he had bought the goods; upon which, an acquittal was directed. Bosanquet, Serjt., said he should hold the same thing in such a case. If a prosecutor uses the prisoner’s declarations, he must take the whole together; and if there be no other evidence incompatible with it, the declaration so adduced must be taken as true. But if, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so; and then the statement of the prisoner, and the whole of the other evidence, must be left to the jury, precisely as in any other case where one part of the evidence is contradictory to another. And he took that course with this case. Rex v. Jones, 2 Car. & Payne, 629. A case precisely like the one decided by Garrow, B., came before Parke, J. The prisoner was proved to have possessed and sold the article stolen shortly after the felony com- mitted ; and the prosecutor proved his examination, wherein he said the article ‘had been honestly bought and paid for. Parke, J., said the declaration thus be- came evidence for the prisoner; but he put it to the jury whether they would believe it, and they found him guilty. Rex v. Higgins, 3 Car. & Payne, 603. EVIDENCE, 387 Confessions. against him at the trial.(a)(1) But where a prisoner was thus sworn by mistake, it being supposed that he was a witness, and, upon the mistake being discovered, the magistrate ordered the deposition to be destroyed, cautioned the party, and then took his examination: Gar- row, B., held this latter.examination to be receivable in evidence.(d) Where a statement, made by a prisoner upon oath, at a time when he was not under any suspicion, was tendered in evidence, Vaughan, B., held it to be admissible.(c) But in another case, upon a trial for ad- ministering poison, where it appeared that the prisoner and several other persous were examined upon oath before a magistrate upon the subject, no specific charge being at that time made against any per- son, but in the result the prisoner was committed for the offence: Gurney, B., refused to receive in evidence what the prisoner stated upon that occasion ; the above case of R. v. Tubby was cited, and he admitted he was disposed to agree with that decision, and mentioned a case of R. v. Walker, for forgery of a will, tried at the Old Bailey, where the prisoner's affidavit ‘in the Ecclesiastical Court was read in evidence against him; but he distinguished R. v. Tubby from the present case, the examination in this case being taken at the time the ‘prisoner was committed.(d@) Another distinction, perhaps, might with propriety be taken, namely, between a case where the oath is merely voluntary, as the affidavit in Walker's case, above mentioned, and where the party is in strictness bound upon his oath to speak the whole truth, as in an examination before a magistrate, or the like.(2) (a) 2 Hawk., e. 46, § 37; and see R. v. San- (c) R. v. Tubby, 5 Car. & P. 530. dys et al., Car. & M. 345. 2 @ Rv. Lewis, 6 Car. & P. 161. (6) B. v. Webb, 4 Car. & P. 564. (1) 2.N. Y. Rev. Sts., 708, § 14. (2) If the magistrate examine the prisqner rather as a witness than a charged offender, the evidence given by him, although no threat or inducement was held out to him, cannot be read against him. Holt, C. N. P. 597. If the examination, previous to committal, purports to have been taken on oath, evidence upon the trial of the prisoner for felony is not admissible to show that in fact the examina- tion was nof on oath. 1 Stark. 242. But this rule is confined to the official examination of the party accused. It is no objection to a confession, as such, that it has been made when the party was undervath. State v. Broughton, 7 Iredell, 96; State 4. Vaigneur, 5 Richardson, 391; The People ». Hendrickson, 1 Parker’s Cr. Rep. 406—affirmed on appeal, 6 Selden, 18. Accordingly, where a prisoner had been examined as a witness upon a charge against another for the same offence, his deposition was received in evi- dence upon his own trial, as a confession. Parks, J., said: ‘‘He might, on that, as well as on any other occasion when called as a witness, have objected to answer any questions which might have a tendency to expose him to a criminal charge, and not having done so, his deposition is evidence against him.” Haworth’s Case, 388 EVIDENCE. Confessions. “ (0) Without Inducement. If any inducement, by promise of favor or by threat, be held out to the prisoner—as by telling him that he had better tell all he knew,(a) or that he had better tell where he had got the property,(b) “I will forgive you if you tell the truth,”(c) “you had better split, and not suffer for all of them,”(d) “it is of no use for you to deny it, for there are the man and the boy who will swear they saw you do it,’(e) “it (a) R. v. Kingston, 4 Car. & P. 387 ; and sce (c) R. v. Hewett, Car. & M. 534. R. v. Garner, 18 Law J., 1 m., 2 Car. & K. 920. (d) R. v. Thomas, 6 Car. & P. 253. (b) R. v. Dunn, 4 Car. & P. 543. (e) R. v. Mills, 6 Car. & P. 146. 4 Carr. & P. 254. In Tubby’s Case (5 Carr. & P. 530), it was proposed to read in evidence a statement made upon oath by the prisoner. Vaughn, B., said: “The question is, is it the statement of the prisoner upon oath? Clearly it is not, for he was not a prisoner at the time he made it.” To the same effect are The People v. Hendrickson, and State v. Broughton, supra. In Rex v. Owen (9 Car. & P. 83), the question arose whether the testimony of the prisoner at the coroner’s inquest was admissible. He had been brought be- fore the jury not as a party charged with the crime, but as a witness merely. The question was considered one of so much doubt that Williams, J., while he ad- mitted the evidence, reserved the point for the opinion of the fifteen judges. But in Owen’s Second Case (9 Car. & P. 238), where the same question arose upon the same deposition Gurney, B., considered the point so clear that he would not even reserve the question, and the evidence was rejected. Mr. Joy (Joy on Conf. 62), in collating these two with other cases, lays down the rule as follows: ‘A state- ment not compulsory, made by a party not at the time a prisoner, under a crimi- nal charge, is admissible in evidence against him, although it is made upon oath.” This writer evidently considered that Baron Gurney went tvo far in rejecting the evidence when the prisoner was in custody as a witness only. On the other hand, in the case of Wheeley (8 Car. & P. 250), who was on trial . for murder, Baron Alderson rejected the statement of the prisoner, made under oath before the coroner, although it did not appear that any suspicion rested upon him at the time of the inquest. It seems, also, from a note to Haworth’s Case, supra, that upon a trial for murder before Parke, J., at the Worcester assizes, the court would not allow the deposition of the prisoner, taken at the coroner’s in- quest, to be read, although it expressly appeared that no suspicion had attached to the prisoner at the time the deposition was taken. The last two cases, how- ever, were directly overruled by the New York Court of Appeals in the late case of Hendrickson (6 Selden, 13). The New York Court of Appeals (1 Smith, 384), after an elaborate discussion of this subject, have very recently laid down the following law: Ist. The statement or confession will not be rejected on account of its having been made under oath, unless that oath was administered in the course of some judicial inquiry in regard to the crime itself, for which the prisoner is on trial. 2d. The statement, although made under oath, and upon’a judicial examination as to the crime, may still be admitted, if, at the time.it was made, the prisoner was not himself resting under any charge or suspicion of having committed the crime. It follows, of course, that in any case where the converse of the foregoing is made to appear, the evi- dence will be rejected. Where, therefore, it appeared, on the trial of the pris- oner for the murder of his wife, that he was arrested on suspicion of being the murderer, and taken before the coroner who was holding an inquest on the body of the murdered woman, and sworn and examined as a witness by the coroner, ib was held that his evidence thus given was not admissible against him. The People v. McMahon, 1 Smith’s N. Y. Ct. of Appeals Rep. 384; overruling the same case in 2 Parker, 663; and also overruling People v. Thayers, 1 Parker, 595. EVIDENCE. 339 Confessions. would have been better if you had told at first,”(a) “that unfortunate watch has been found, and if you do not tell me who your partner was, I will commit you to prison as soon as we get to Newcas- tle,”(6)—or the like; any confession the prisoner may have been *thereby induced to make cannot be given in evidence [127] against him.(c)(1) And where a female servant was indicted for attempting to set fire to her master’s house, and it appeared that the bed furniture and bedding of two rooms had been set an fire, and that a silver spoon and a few other things had afterwards been found in the sucker of the pump; and the master stated at the trial, that he said to the prisoner that if she did not tell the truth about the things that were found in the pump (but saying nothing about the fire), he would send for the constable: Coltman, J., refused to hear what the prisoner said in answer.(d) So, a reward offered by government for (a) R.v. Walkley & Clifford, 6 Car. & P. (c) 2 Hawk., c. 46, 636. , 175. (d) R. v. Hearn, Car. & M. 109. (b) R. v. Parratt, 4 Car. & P. 570. (1) “As the human mind under the pressure of calamity is easily seduced, and liable in the alarm of danger to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail, a confession, whether made upon an official examination or in discourse with private persons, which is obtained from the defendant either hy the flattery of hope or by the impressions of fear, how- ever slightly the emotions may be implanted, is not admissible evidence ; for the law will not suffer a prisoner to be made the deluded instrument of his own con- viction.” 2 Curw. Hawk. 595, cited from Leach’s Hawk., and approved in State ». Aaron, 1 South. 239; State ». Harman, 3 Harrington, 567; State v. Bostick, 4 Har. 563; State v. Grant, 22 Maine Rep. 171; Com. v. Chabbock, 1 Mass. 144 ; State v. Phelps, 11 Vermont, 116; Bryant v. State, 9 Humph. 635 ; Boyd ». State, 2 Humph. 39; Spears v. Ohio, 2 Ohio N. S., 583. Confessions should be received with great caution; for experience has shown that they often mislead, and sometimes convict an innocent person. U.S. v. Nott, 1 McLean’s Rep. 499. Where a prisoner was charged with homicide, and was taken before a commit- ting magistrate, and there sworn to tell the truth, and told, ‘if you do not tell the truth I will commit you;” held, that a confession thus drawn out was inadmissible on the trial, as evidence against the prisoner. Com. v. Harman, 4 Barr, 269. ‘Where an officer having accused in charge, told him he had better tell him all about the matter, and if he would he would not appear against him, and that the accused had better turn siate’s evidence, whereupon the accused made a full con- fession to the officer; held, that the confession so obtained could not be offered in evidence against the accused. Cowley v. The State, 12 Mis. 462. So, where the confession was made to the officer having him in custody the day after the accused had been told hy the officer to the effect, that “he could make him no promises, but if he made any disclosures that would be of benefit to the government, the officer would use his influence to have it go in his favor;” it was held that it was not admissible in evidence against such party, although the officer testified that he thought the statement was voluntary, and would have been made if the induce- ments of the day before had not been held out ; and although the judge instructed the jury, that if the statement was not matle freely and voluntarily, or if it was induced by previous promises, they should exclude it altogether. Com. v. Taylor, 5 Cush. R. 505. 390 EVIDENCE. Confessions. ' the discovery of the persons who committed a murder, with a promise of pardon to any but the person who struck the blow—if it can be proved that it came to the knowledge of the prisoner before he made any statement, will prevent that statement from afterwards been given in evidence against him.(a) But nothing short of a threat, or of a promise of favor with respect to the offence charged against the prisoner, will have this effect. Where a prisoner, on being charged with robbing her mistress, volun- tarily said, “I shall confess, for I think it will be best for me,” to which her mistress said, ‘I do not know that,” but neither sanctioned her hope nor checked it, it was holden that a confession made by the prisoner after that was admissible in evidence.() Where a magis- trate, before takiug a prisoner’s statement, said to him, “Be sure you say nothing but the truth, or it will be taken against you, and may be given in evidence against you at your trial,” it was holdén that a statement made by the prisoner after that, was admissible in evidence against him.(c) Where a confession was obtained from a boy of four- teen years of age, by questions put to him by the constable who apprehended him, and at a time when the boy had not had food for nearly a day, a majority of the judges held that the confession was receivable in evidence.(d) So, where a confession was obtained by . means of questions from the magistrate, it was holden that it might be read in evidence against the prisoner on. his trial;(e) yet such a mode of obtaining a confession is not very commendable, and ought to be avoided. Where a man, committed for murder, was visited by the chaplain of the jail, who, in a long and very earnest discourse with him upon the necessity of repentance, and of confessing his sins, wrought so much upon the man’s mind that, in a subsequent interview with the jailor, the prisoner said that he would tell him all about it; the jailor told him not to say anything which he wished the magistrates not to know, as it would be his duty immediately [*128] to tell them of it; the prisoner said that he wished *it, and then gave the details of the murder. The judges were unani- mously of opinion that this confession was receivable in evidence.(/) So, where a man, committed with others for murder, told the chap- lain of the prison that he wished to see a magistrate, and asked if (a) See R. v. Boswell et al., Car. & M. 584; - (a) R. v. Thornton, Ry. & M. 27. see R. v. Dingley et al., infra, (e) R. v. Ellis, Ry. & M. N. P. C, 423, (b)’ R. v. Warren, 12 Shaw’s J. P. 571. (f)R. v. Gilham. Ry. & M. 186. (c) R. v, Holmes, 1 Car. & K. 248, A EVIDENCE. 391 Confessions. any proclamation had been made, and any offer of pardon, and the chaplain answered that there had, but the prisoner must understand that he could not hold out to him any inducement to make any state- ment, as it must be his own free and voluntary act; and when the prisoner afterwards saw a magistrate, he told him that no inducement had been holden out to him to confess anything, but that what he was about to say was his own free and voluntary act, and he then made a statement: it was holden by Pollock, C.B., that this was receivable in evidence against the party, upon his subsequent trial with the others for the murder.(a) So, where a boy of ten years of age, after being enjoined by a clergyman to “ speak the truth in the face of God,” made a disclosure of his guilt to a policeman, it was holden to be admissible in evidence against him upon his trial.(d) Where aconstable told a prisoner, ‘if you will tell where the pro- perty is you shall see your wife,” Patteson, J., held that this was not such an inducement as to exclude evidence of what the prisoner said.(c) So, a statement made by a person as a witness before a committee of the House of Commons, and under compulsory process, was received in evidence by Abbott,.C.J., upon an indictment afterwards preferred against the witness for perjury.(d) So, where a prisoner in jail, on a charge of felony, asked the turnkey of the jail to put a letter in the post for him, directed to his father, and the turnkey, instead of putting it into the post, sent it to the prosecutor, Garrow, B., held that the letter was admissible in evidence against the prisoner, notwithstanding the man- _ ner in which it had been obtained.(e)(1) (a) R. v. Dingley et al., 1 Car. & K. 637. (d) R. v. Merceron, 2 Stark. 366. (b) R. v. Risborough, 11 Shaw’s J. P. 280. (e) R. v. Derrington, 2 Car. & P. 418, (c) R. v. Lloyd, 6 Car. & P. 393. (1) In Alabama, where it was proved that a slave was arrested, tied and left by ‘his master in charge of a third person, to whom he immediately after made a confession, proof that the master ‘had always been in the habit of tying his slaves when they were charged with any matter, and whipping them till ‘they confessed the truth, and that he had frequently treated the prisoner in the same way,” was held admissible in order to determine whether the confession was induced by the influence of hope or fear. Spencer v. State, 17 Ala. R.192. And see Franklin ». State, 28 Ala. 9. In the same state, a slave’s confessions to his master were excluded, because the latter said to him: ‘“ Boy, these denials only make the matter worse ;” and the repetition of them before the examining magis- trate in the presence of the master was also ruled inadmissible, the magistrate . having neglected to caution him as to their effect. Wyatt v. The State, 25 Ala. 9. In Mississippi, where a white person remarked, in the hearing of a slave who was charged with the murder of his master, that “it would be better for the guilty to confess, that the innocent might not be punished,” it was held that a confession thus obtained was admissible. Dick v. State, 30 Miss. 593. A person in custody on a charge of stealing was visited by the complainant, 392 EVIDENCE. Confessions. who told him he could converse if he wished; the accused made no immediate reply; the complainant then remarked that he thought it was better in all cases, for all concerned, for the guilty party to confess; the accused then said, he sup- posed he should have to stay there whether he confessed or not; to which the complainant replied that he supposed he would, and that, in his opinion, it would make no difference as to legal proceedings, and that it was honorable, in all cases, if a person was guilty, to confess—held, that the confession of the prisoner, made under these circumstances, was admissible. Com. v. Morey, 1 Gray Mass. R. 461. F The fact that the accused was intoxicated—that he was excited and scattering in his conversation, and that no one who heard him cord repeat all he said— does not render his confessions of guilt inadmissible. Eskridge v. State, 25 Ala. 30. Where the confession is offered in evidence in connection with some inducement held out to him to make it, if the confession is not so connected with the indict- ment as to be a consequence of it, it is to be regarded as voluntary, and of course admissible. Where, therefore, the uncle of the accused said to him, on the 10th of February, while he was in jail, “This is a sorrowful thing; the people don’t think you are guilty, but that you know something about it. The circumstances are yery much against you.” On the two succeeding days he said that other per- sons were associated with him in the commission of the crime. On the 17th of February, the accused said to a witness, who had come to his cell at his request, that he was in such distress of mind that he could no longer eat, drink or sleep, or get rest of any. kind; that he could no longer be guilty of accusing innocent blood—that he alone was guilty of the murder in question, and wished the witness to go and call the counsel for the prosecution. They came to the prisoner’s cell, accordingly, and one of them inquired of him if he had sent for him; to which the accused replied that he had, and that he desired to say to him that he alone was guilty of the murder. On being questioned why he had accused others of a participation in the crime, he replied that he had hoped, by accusing others, he might escape the extreme penalty of the law. On being inquired of, if any one had held out to him any inducement, he replied that no one had, but still he had ahope. He then proceeded to detail the particulars of the murder. It was held, that the inducement held out to the accused by his uncle on the 10th had no effi- ciency in drawing out the confessions made on the 17th, and consequently they were voluntary and admissible. State v. Potter, 18 Conn. Rep. 166. The pris- oner was committed for arson, and was visited in the jail by various persons, among whom were the inspectors of the prison; and various means were used to persuade and terrify him into a confession. A short time after his commitment he made a full and apparently voluntary confession to the mayor; nothing, how- ever, having been done to remove the influence of previous promises or threats. , His confessions were received; but the jury acquitted him. They were told that they might decide on the credit to be given to the confessions; and that merely eherishing the hope of mercy would not, though the confessions were made under sueh influence, render them inadmissible. Though the prisoner, in this case, was acquitted of the arson, he was afterwards indicted, and convicted on the same facts of a misdemeanor. ‘The Commonwealth v. Dillon, 4 Dall. 116. Where a magistrate, on the examination of a prisoner accused of robbing an individual of a watch on the previous night, and on whom the watch was found, told him, “that unless he could account for the manner in which he, became pos- sessed of the watch, he should be obliged to commit him to be tried for ‘stealing it;” it was held that this did not amount to such a threat or influence as would prevent the introduction of the subsequent confession of the accused, especially as the magistrate repeatedly warned him not to commit himself by any confession. State v. Cowan, 7 Iredell, 239. And a mere observation to the accused by the person who had her in custody, “that in the long run it would be better for her to tell the truth about the matter, and not any lies,” was held not to bring within the foregoing rule a confession made by the accused afterwards, in a conversa- tion with a third person. Hawkins v. State, 7 Mo. 190. ‘ Where a previous confession is obtained by improper means, any subsequent confession given on its basis is inadmissible. Com. v. Harman, 4 Barr, 269; Peter v. State, 4 Sm. & Marsh. 31. A constable having a search warrant, found in the prisoner’s house two hams charged in the indictment, and thereupon, in EVIDENCE. 393 Confessions. the presence of one of the prosecutors, said to the prisoner, ‘You had better tell all about it.” The prisoner then made a confession, which, it was admitted, could not be given in evidence. In the afternoon of the same day another of the prosecutors went to the prisoner’s house and entered into conversation with her about the hams, when she repeated the confession she had made to the constable in the morning, but no promise or menace was on this occasion held out to her. Taunton, J., said that the second confession was not receivable, it being impossible to say that it was not induced by the prémise which the constable made to the prisoner in the morning. Meynell’s case, 2 Lewin C. C. 122. The prisoner being arrested for a burglary. was told by a stranger, in presence of the prosecutor, that, being in custody, his confession could not be used as evidence against him ; and another stranger told him that being young, if he would confess, it would be more to his credit. He accordingly confessed ; and two or three days after, there being no immediate influence exercised, he made a fuller confession. Both were held inadmissible, though corroborated by circumstances; as the latter might have been made under the first influence. This will be presumed to continue till palpably done away. State v. Roberts, 1 Dev. 259. But, as intimated by the last case, the presumption of a continuing influence may be repelled; and then a subsequent confession becomes admissible. Rex v. Sexton, 6 Peters. 83. Such presumption may be removed by the length of time intervening between the threats and the examination, from proper warning of the consequences of such confession, or from any other circumstances that might reasonably be considered sufficient to dispel the fears induced by the threats. Peter v. State, 4 Sm. & Marsh. 31; Com. v. Knapp, 10 Pick. 477; State v. Roberts, 1 Dev. 259; State v. Gould, 5 Halsted, 163. A boy, twelve years and five months old, accused of murder, was encouraged to confess by a promise of impunity—“if you will confess, you will probably get clear”—by one among several who were interrogating him. His examination was taken the next day before the magistrate, who cautioned him solemnly and repeatedly to tell nothing but the truth, and who knew nothing of the previous practices with the boy. He confessed ; but the examination was rejected, on the presumption that the boy’s mind was not clear of the previous influence. But after lying in jail five months, and being told by a stranger, and by a magistrate whom he knew, that he must not expect to escape, but must expect death, he made a full and circumstantial confession, repeating it to various persons. Held admissible in evidence against him. And the court denied what is said in Stark. Ev. (pt. 4, p. 49): ‘Where a confession has once been induced by such means, all subsequent admissions of the same or the like facts must be rejected, for they may have resulted from the same influence,” to be law. The court adopted this rule: “ Although an original confession may have been obtained by improper means, subsequent confessions of the same, or of like facts may be admitted, if the court believe, from the length of time intervening, from proper warning of the consequences of confession, or from other circumstances, that the delusive liopes or fears, under the influence of ‘ which the original confession was obtained, were entirely dispelled.” State v. Guild, 5 Halst. 163, 179 to 181. A confession will not be rejected merely because it was made in answer to a question which assumed the prisoner’s guilt. Wherefore, when the officer, who committed the prisoner on a charge of murder, asked him whether if it was to do over again he would do it? and the reply was: “Yes, sirree, Bob ;” it was held that both question and answer were competent, as well as the fact that, in making the reply, the prisoner’s manner was short. Carrol v. The State, 23 Ala. 28. But where a slave, after a whipping, had confessed her guilt, and subsequently, when the overseer inquired why she had committed the act, confessed the crime, held that the answer to this question was not admissible evidence, as the question assumed the fact of her guilt as previously admitted by her. State v. Clarissa, 11 Ala. 58. Nor will the confession which follows be excluded even where undue influence is exerted, if it be left in doubt whether it had any effect on the mind of the prisoner. Francis Knapp having been indicted as principal, with Joseph J. Knapp and G. & C. as accessories, and being on trial for the murder of J. W., the prisoner’s confessions were offered in evidence. ‘I'he facts, upon which their admissibility arose, were stated by the Rev..H. Coleman, thus: “I went to the 394. . EVIDENCE. Confessions. prisoner’s cell with his brother, N. P. Knapp. N. P. said, ‘Well, Frank, Joseph has determined to make a confession, and we want your consent.’ The prisoner said, in effect, he thought it hard, or not fair that Joseph should have the advant- age of making the confession, since the thing was done for his benefit ; ‘I told Joseph, when he proposed it, that it was a silly business, and would only get us into difficulty.’ N. P., as I supposed, to reconcile Frank to Joseph’s confessing, told him that if Joseph was convicted, there would be no chance for ‘him; but if he (Frank) was convicted, he might have some chance for procuring a pardon. N. P. then appealed to me, and asked me if I did not think so. I told him I did not know. I was unwilling to hold out any improper encouragement.” It was now objected that any further confessions would be inadmissible, on the ground that a hope of pardon was held out; and Wilde and Morton, JJ. (dissentiente, Putnam, J.), were at first of this opinion; but all the judges at this stage sup- posi that the counsel for the prosecution intended to prove the prisoner's assent. The counsel then disavowed any such object, and stated that the ulterior testi- mony would be, that he refused his assent to Joseph’s confessing. The court then said, that such being the case, it was obvious that the suggestions made had in fact exerted no influence over the prisoner’s mind ; and being free from influence,. his confessions were, of course, equally admissible as if the attempt had never been made. The witness, Mr. Coleman, then answered that no assent was given or refused, which the court said left the matter in doubt whether the subsequent confessions were caused by the inducement held out. That it lay with the pris- oner to bring his confession within the exception. Commonwealth v. Knapp, 9 Pick. 496, 500 to 510. : Whether one or more of the jury of inquest before the coroner taking the ac- cused .boy aside, and telling him he had better confess the whole truth, shall be- considered undue influence ?—Quere. State v. Aaron, 1 South, 231, 240. A confession obtained by a promise from one concerned in the prosecution, that the prisoner shall be a state’s evidence, is inadmissible. Thorn’s case, 4 C. H. Rec. 81, 85, 86. So, a confession made under a notion derived from a magistrate of being admitted a witness for the crown. Per Lord Mansfield, in Rex v. Rudd, 1 Leach, 115. So, if any disclosures made to the authority examining, or to the state’s attorney, under such circumstances that the prisoner considered himself a witness (The State v. Thompson, Kirby, 345), or when he applied to the state’s attorney to be admitted as a witness; and this on the ground of policy. The State ». Phelps, ibid. 282. So, semb. of the testimony given by an accomplice received to testify on motion; on account of the implied promise of pardon. Per Duer, Cir. Judge, People v. Whipple, 9 Cowen’s Rep. 707. But in Commonwealth ». Knapp (10 Pick. 477, 489 to 495), where an accomplice was promised by the attor- ney-general, that if he would testify he should not be prosecuted, and he promised to testify, and made a full disclosure, but afterwards refused to testify, his con- fession was received as evidence against him. So would be the confessions of a prisoner, while he is persuading any one to use their influence to have him ex- amined against his associates. The State v. Thompson, Kirby, 345. To exclude a confession the influence must have arisen from some fear of per- sonal injury, or hope of personal benefit of a temporal nature, unless the collateral inducement be so strong as to make it reasonable to believe that it might have roduced an untrue statement as aconfession. State v. Grant, 22 Maine Rep. 171. rging and obtaining confessions upon religious considerations will not have that effect. That question was mooted in the following case: The prisoner was sus- pected of setting fire to an out-house. Her mistress pressed her to confess, and told: her, os other things, if she would repent and acknowledge her guilt, God would pardon her; but she concealed from her that she would not forgive her herself. Sheconfessed. The next day, another person, in her mistress’ sight, though out of her hearing, told her er mistress said she had confessed, and drew from her a second acknowledgment. Lord Eldon, C.J. (C. P.), allowed the con- fession in evidence, and the prisoner was convicted. ‘The jury, on having the con- fessions offered to them, said they thought the first had been made under a hope of favor here, and the second under the influence of having made the first. Ona case reserved, the judges held these points were not for the jury ; but that if Lord Eldon agreed with the jury, which he did, the confessions were not receivable. But many of the judges thought the expressions not calculated to raise a hope of EVIDENCE. 395 Confessions. But where a threat or promise is thus used, it must appear to have been used by some ‘person concerned in apprehending, examining, or prosecuting the prisoner, or by the person to whom the confession is made, to have the effect of preventing such confession from being given in evidence. Thus where, upon a man being apprehended for larceny, several of his neighbors admonished him to tell the truth and consider his family, and he therefore made a confession to the constable: the judges held this confession to be receivable in evidence, because the in- ducement to confess was not holden out or sanctioned by any person who had any concern in the business.(2) Upon the trial of a girl for the murder of a bastard child, it appeared that a woman, who was present when the surgeon was attending her, mentioned that (a) R, v. Row, R. & Ry. 153. favor here; and, if not, the confessions were evidence. Rex v. Nate, cited Chetw. Supp. to Burn, J., 101, 6 Petersd. 82. This question of religious influence was afterwards directly decided. The pris- oner, being in custody on charge of murder, requested the attendance of a chaplain, who had several interviews with him, and repeatedly urged the importance of his confessing himself to God; but he was not sure but that he might at some times have spoken of confession generally, without saying to God. He also urged on the prisoner the importance of making temporal reparation for the injuries he had committed, and satisfying the violated laws of the country. These things were all urged upon religious considerations, and on assurances that such con- fessions, etc., would be of religious benefit, and tend to the prisoner’s acceptance . with God. ‘ The prisoner appeared to be strongly impressed. And he sent for the jailer, and after being admonished by him, that what he said would be used as evidence against him, he confessed the murder. He also confessed to the mayor, after the same admonition from him; and being warned to say nothing but what was right. Held, by the twelve judges, except Hullock, B., absent, that the con- fession was admissible. They assigned no reasons, but the ground evidently was as stated in the marginal note, that ‘‘a confession made in consequence of per- suasion by a clergyman, not with any view of temporal benefit, is admissible.” The counsel for the Crown insisted that if the persuasion would render the con- fession inadmissible, yet the impression was countervailed by the warning from the mayor. The same thing was contended for at the trial, were Littledale, J., pre- sided ; and he refused to put it on that ground, saying anything. the mayor said could not do away the effect which the chaplain had produced on the mind of the prisoner. Rex v. Gilham, Ry. & Mood. Cr. Cas. 186 to 205. By undue means of obtaining a confession, the law generally alludes to illegal influence. The abstract objection, that the confession was made while the pris- oner was in jail, or otherwise confined in a legal way, though for the very crime confessed, has never been recognized as an objection, but expressly denied. Rex ». Derrington, 2 Carr, & Payne, 418; People v. M’Collister, before Riker, recorder, 1 Wheel. Cr. Cas. 392; Com. v. Mosler, 4 Barr, 264; Stephen v. State, 11 Ga. 225. And it was denied, though the prisoner was a boy only fourteen years of age, who had been confined without food nearly a whole day. Rex v. Thornton, Ry. & Mood. Cr. Cas. 27. . Though a witness may testify that the confessions of the defendant were made under threats, still the court may inquire what these threats were, in order to as- certain their sutticiency in-law to exclude the confessions. Whaley v. State, 11 Ga. R. 123. 396 EVIDENCE. Confessions. [*129] *she had advised her to confess, and the girl then made a con- fession to the surgeon; Parke, J., and Hullock, B., held that the confession was receivable in evidence, because the inducement to confess was holden out by a person who had no authority whatever to do so; if it had been by the constable, prosecutor, or the like, it would have been otherwise.(a)(1) But where a married woman was apprehended for felony, and her 4‘ (a) R. v. Gibbons, 1 Carr & P. 97; and see R. v. Tyler, ibid. 129. (1) In R.v. Tyler, cited in the text, the prisoner, being locked up alone in a room, was told by a man that the other prisoner had told all, and he had better do the same to save his neck; and on this he confessed to the constable. On objection, Hullock, B., held, that as the promise (if any) was by a person wholly without authority, the subsequent confession to the constable, who had held out no induce- ment, must be considered as voluntary, and was therefore evidence. On trial for stealing a hymn-book, one Fieldhouse testified that, on the prisoner’s offering to sell the book to him, he told the prisoner he had better tell where he got it. Bo- sanquet, J., stopped the witness and said, ‘‘You must not tell what he said.” Scott, for the prosecution, said the witness was not a person in any authority. Bosanquet, J., said any person offering an inducenient would exclude a confession to that person. If made to another, it often became a nice question. Rex v. Dunn, 4 Carr. & Payne, 543. In South Carolina, on the trial of an indictment for mur- der, it appeared that, when the prisoner was first arrested, one of the two special constables who had him in charge said to him, ‘‘Come, Jack, you might as well out with it,” the magistrate interposed and warned him not to confess ; some hours afterwards the prisoner made confessions to B., who was in no position of authority over him, but with whom and in whose buggy, as a convenient mode of trans- portation, he was riding to jail, the two constables being near, but not within hearing; held that the confessions to B. were admissible. State v. Vaigneur, 5 Richardson, 391. In another case in the same state, the jailer was present, and to some extent participated with two others (private persons) in conversation with one in prison for a minor offence, but suspected of murder. In this conversation (upon the effect of a confession, etc.), the jailer held out no inducements to the prisoner to confess. An hour or more afterwards (the jailer being absent) the prisoner made a confession of the murder to the two persons with whom he had held the preliminary conversation—held, that the confession was admissible. State v. Kirby, 1 Strobh. 378. The prisoner being in custody of constable A., constable B. came in, and A. left, when the prisoner immediately confessed to B. Held, that’ to prevent collusion between constables in such a case, A. should be called to negative all inducements before the confession should be received, as B. did not caution the prisoner not to confess. But it appearing, on further examination, that the prisoner was not then detained as an accused party, but merely as an unwilling witness, the testimony was received without putting the prosecution to call the other constable. Rex v. Swatkins, 4 Car. & Payne, 548. With respect to a police confession, made after a promise by the prosecutrix to the prisoner, and before the prisoner’s apprehension, the effect of which did not appear to have been counteracted, the N. Y. General Sessions say: ‘The confessions before the police officers we have ever received as good evidence ; although, before the prisoner was apprehended, a promise of favor may have been made by persons not attached to that department.” Per Curiam, including Radcliff, mayor, in Charity Jackson’s case, 1 C. H. Rec. 28. And see Austin v. State, 14 Ark. 556. It has been held, in South Car olina, that a confession made in jail to a third person, in the presence of a deputy sheriff who had no control over the jail, was admissible: State v. Gossett, 9 Rich. 428. EVIDENCE. 397 Confessions. husband, being present, told her that if she knew anything about it, to tell the truth: this was holden not to be receivable in evidence, as the inducement, being holden out in the presence of the constable, was the same as if it had been holden out by him.(a) So, where a girl, being apprehended for the murder of her child, was left by the constable in the custody of a woman, who told her she had better tell the truth, otherwise it would lie upon her, and the man would go free: upon which she made a confession to the woman: Parke and Taunton, JJ., held this confession not receivable, as it was made in consequence of an inducement held out to the prisoner by a person who had her in custody.(6) And where the committing magistrate told the prisoner that if he would make a disclosure, he would do all he could for him, and the prisoner afterwards made a disclosure to the turnkey of the ’ jail; Parke, J., held that it was not receivable in evidence after the promise holden out by the magistrate, more especially as the turnkey had not given any previous caution to the prisoner.(c) If, however, after an inducement by threat or promise has been holden out to a prisoner to confess, and, before any confession actually made, the prisoner be undeceived as to the promise or threat, and assured that he has nothing to hope from the one or fear from the other, any confession he makes afterwards -will be receivable in evidence. Where a man, committed for murder, was told by a magistrate that, provided he was not the person who struck the fatal blow, he would use all his endeavors and influence to prevent any ill consequences to him, if he would disclose all he knew of the murder; and the magis- trate wrote upon the subject to the secretary of state; but, upon learning from him that mercy could not be extended to the prisoner, he informed the prisoner of it; afterwards the prisoner made a con- fession before the coroner; but he was previously told by him that any confession or admission he should make would be given in evidence against him at the trial, and that no hope or promise of pardon could be held out to him; Littledale, J., held clearly that this confession was receivable in evidence.(d) So, upon the trial of a girl for ad- ministering poison, it appeared that she was threatened by her mistress that, if she did not tell all about it that night, a constable should be sent for the *next morning to take her before the [*130] magistrates; and she made a statement accordingly, which : (a) R. v. Laugher, 2 Car. & K,. 225, (c) R. v. Cooper, 5 Car & P. 585. (6) BR. v, Enoch, 4 Car, P, 539, (d) R. v. Cleeves, 4 Car, & P, 221. 398 EVIDENCE. Confessions. the judge refused to receive in evidence; but it appeared, also, that the constable was actually sent for the next morning, and took her into custody, and that whilst on the way to the magistrate’s, in his custody, she made another confession to him: Bosanquet, J., held this latter confession to be admissible in evidence; for, at the time the prisoner made it, the inducement was at an end.(a) “So, where the constables had induced a prisoner to confess, by telling him that his companions had “split,” and he might as well do so; but, afterwards, upon this appearing before the magistrate who took the examination, he informed the prisoner that his confessing would do him no good, but that .he would be committed to prison to take his trial; Denman, C.J., held, that a confession by the prisoner te the magistrate, after this caution, was receivable in evidence.(d) (1) (a) R. v. Richards, 5 Car. & P. 318. (b) R. uv. Howes, 6 Car. & P. 404; see Stat. 11 & 12 Vict., c. 42, § 18; post, pp. 132, 133, (1) It is said by Mr. Justice Buller, that there must be very strong evidence of an explicit warning by a magistrate not to rely on any expected favor, and that it ought most clearly to appear that the prisoner thoroughly understvod such warning, before his subsequent confession can be given in evidence. 2 East P. C. 658; Peter v. State, 4 Sm. & Marsh. 31; Van Buren v. State, 24 Miss. 512. In the following cases the warning was not considered sufficient: A confession having been improperly obtained, hy giving the prisoner two glasses of gin, the officer to whom it had been made read it over to the prisoner before a magistrate, who told the prisoner that the offence imputed to him affected his life, and that a confession might do him harm. The prisoner said, that what had been read to him was the truth, and signed the papers. Best, J., considered the second confes- sion, as well as the first, inadmissible; and said, that had the magistrate known that the officer had given the prisoner gin, he would, no doubt, have told the prisoner that what he had already said could not be given in evidence against him ; and that it was for him to consider whether he would make a second confes- sion. If the prisoner had been told this, what he afterwards said would have been evidence against him ; but for want of this information he might think that he could not make his case worse than he had already made it, and under this ‘impression might sign the confession before the magistrate. Sexton’s case, Burn, tit. Confessions. In Cooper’s case, cited in the text, the committing magistrate told the prisoner that if he would make a confession he would do all he could for him, and no confession was then made, but after his committal the prisoner made a statement to the turnkey, who held out no inducement, and gave no caution. Parke, J., said he thought the evidence ought not to be received after what the committing magistrate had said to the prisoner, more especially as the turnkey had not given any caution. The prisoner, who was indicted for murder, worked in a colliery, and some sus- picion having fallen upon him, the overlooker charged him with the inurder. The prisoner denied having been near the place. Presently the overlooker called his attention to certain statement made by his wife and sister, which were incon- sistent with his own, and added, that there was no doubt he would be found guilty : it would be better ‘for him if he would confess. A constable then came in, and said to the overlooker, in a tone loud enough for the prisoner to hear, “Robert, do not make him any promises.” The prisoner then made a confession. Patteson, J.: “That will not do, The constable ought to have done something to remove the impression from the prisoner’s mind.” The overlooker, in about ten EVIDENCE. 399 Confessions. But even in cases where the confession of a prisoner is not receiva- ble in evidence on account of it having been obtained by means of some threat or promise, any discovery made in consequence of it may be proved ;(a) and in such a case, the counsel for the prosecution is merely allowed to ask the witness, whether, in consequence of some- thing he heard from the prisoner, he found anything, and where, etc., and the witness in answer can only give evidence of the fact of the discovery.(1) In one case, indeed, the judges were reported to have gone further. The case was thus: the prisoner was indicted for steal- (a) 2 Hawk,, c. 46, § 38, minutes after the above confession, delivered the prisoner to another constable, who stated, that when he received the prisoner the overlooker told him (but not in the prisoner’s hearing) that the prisoner had confessed. That he took the pris- oner to his house, and, there said, ‘‘I believe Sherington has murdered a man in a brutal manner.” That the wife and brother of the prisoner were there, and they said to the prisoner, ‘‘ What made thee go near the cabin?” That the pris- oner, in answer, made a statement similar in effect to the one he had made before. That he used neither promise nor threat to induce the prisoner to say anything, but did not caution him. That it was not more than five minutes after he received the prisoner into his charge that the prisoner madg the statement. ‘That he was not aware that the overlooker had held out any inducement, and that the over- looker was not present when the statement was made. Patteson, J., rejected the second confession, saying, ‘‘ There ought to be strong evidence to show that the impression, under which the confession was made, was afterwards removed, be- fore the second confession can be received. I am of opinion, in this case, that the prisoner must be considered to have made,the second confession under the same influence as he made the first; the interval of time being too short to allow of the supposition that it was the result of reflection and voluntary determination.” Sherington’s case, 2 Lewin C. C. 123. A female servant being suspected of steal- ing money, her mistress, on a Monday, told her that she would forgive her, if she told the truth. On the Tuesday, she was taken before a magistrate, and,'no one appearing against her, was discharged. On the Wednesday the superintendent of police went with her mistress to the bridewell, and told her, in the presence of her mistress, that she ‘ was not bound to say anything unless she liked ; and that if she had anything to say, her mistress would hear her,” but (not knowing that her mistress had promised to forgive her) he did not tell her that if she made a statement it would be given in evidence against her. The prisoner then made astatement. Patteson, J., held that this statement was not receivable in evi- dence, as the promise of the mistress must be considered as still operating on the prisoner’s mind at the time of the statement, but that if the mistress had not been then present it might have been otherwise. Hewett’s case, 1 Carr. & M 534. In Mississippi, where an extra-judicial confession of guilt is voluntarily made, it is not necessary that the accused should have been previously warned that he was not bound to criminate himself. Dick v. The State, 30 Miss. 593. (1) Though some have thought otherwise, the later cases are uniform to the point that a circumstance tending to show guilt may be proved, although it was brought to light by a declaration inadmissible per se, as having been obtained by improper influence. Holt’s N. P. Rep. 498, note; Charity Jackson’s case, 1 C. H. Rec. 28; Tucker’s case, 5 ibid. 164; 2 Curw. Hiwk., 595, cited and approved in State v. Aaron, 1 South. 285. Conceded by Emmet, arg in Milligan and Welch- man’s case, 6 C. H. Rec. 69, 78. Therefore, where a fact has been ascertained, e.g., the finding of a weapon, in consequence of a prisoner’s confession, improp- erly obtained, a& by encouragement to hope for a pardon, yet such fact may be shown ; and also that it was ascertained in consequence of such confession, though 400 EVIDENCE. Confessions. ing a guinea and two bank notes for 5%. each; the prosecutor in his evidence was about to state a confession of the prisoner, but admitting that he had previously told the prisoner that it would be better for him to confess, Chambre, J., who tried the case, would not allow the confession to be given in evidence; but he allowed the prosecutor to prove ‘that the prisoner brought him a guinea and a 5/. bank note, which he gave up to the prosecutor as the guinea and one of the notes had been stolen from him:” and a majority of the judges (Lord Ellen- borough, Mansfield, Macdonald, Heath, Grose, Chambre, and Wood) held that the evidence was. properly receivable.(z) On the very same day, the judges appear to have decided another case, which was (a) R. v. Griffin, R. & Ry. 150. without such ascertainment, the confession would have been inadmissible. Com- monwealth ». Knapp, 9 Pick. Rep. 496, 511. Though the fact or circumstance discovered in consequence of a disclosure ob- tained by improper influence be admissible as an independent fact disconnected with the disclosure, yet there are very respectable authorities which deny that the disclosure itself may be shown in connection with it, or be in any way coupled with it or explained by it. 2 Curw. Hawk., 595, cited and approved in State ». Aaron, 1 South. 235; Charity Jackson’s case, 1 C. H. Rec. 28; Milligan and Welchman’s case, 6 C. H. Rec. 69, 77, 78, semb.; State v. Roberts, 1 Dev. 259. But it has been held in South Carolina, that where a confession, in itself inadmis- sible, leads to the ascertainment of a fact admissible in evidence, and material in the case, so much of such confession as relates strictly to the fact may be re- ceived in evidence. State v. Vaigneur, 5 Richardson, 391; State v. Motley, 7 Richardson, 327. And there is a strong current of authority, that both the dis- closure and the fact or circumstance connected with it, and going to its corrobora- tion, shall also be received in evidence, and they go to the jury with their joint force. This was so held where a boy, being threatened, admitted that he stole the prosecutor’s bearskin and concealed it in the oven, where it was found.’ Stage’s ease, 5 C. H. Rec. 177, 178, before Colden, mayor. And similar ground was taken by the same learned judge, charging the jury in Tucker’s case, 5 ibid. 164, 166. On a trial for murder, it appeared that two men met the prisoner, and he produced some money of the deceased. They then charged him with the crime and beat him because he denied it. They tied him and ordered him to produce the deceased’s money. He then led them to a swamp and showed the residue; acknowledged the murder and the manner of it: viz., striking on the left side with a club, as the deceased rode along the road; said he dragged the body out of the road, and left the club lying by it; covered the body with brush where the old road formerly ran, about ten or twelve yards from the present road. Some time afterwards, about four miles distant, he pointed out a log, not far from the road, as containing the deceased’s saddle-bags. All these circumstances were proved to be true, and the deceased’s clothes were found with the bags. It was objected that the prisoner’s confession, being extorted, could not be received ; that the circumstances showed his knowledge, but his confession alone showed his commission of the crime. But the court said a confession, though extorted, which relates a number of circumstances (established by other proof) with which the prisoner could not well be acquainted but as a perpetrator of the crime, is adinissi- ble, and may go the jury. State v. Moore, 1 Hayw. 482. In the State v. Jenkins (2 Tyl. 377), it was said a confession is evidence though extorted, but the jury are ‘to determine its weight; and if extorted or obtained by promises, it should be disregarded, unless supported by corroborating facts. EVIDENCE. 401 Confessions, ; thus: the prisoner was indicted for stealing money, to the amount of 1. 8s.; when he was apprehended, the prosecutor went to him, and asked him what he had done with his money which he had taken out of his pack, saying at the same time “that he only wanted his money, and if the prisoner gave him that, he might go the devil if he pleased ; the prisoner therefore took 11s. 63d. out of his pocket, and said it was all that was left of it: a majority of the judges (Macdonald, Chambre, Lawrence, LeBlanc, *aud Heath) held, that this was [131] not receivable in evidence: Wood, Grose, and Mansfield were of a different opinion, Lord Ellenborough, dubitante.(a) There is also another case upon the same subject, decided ata later period ; the for- mer cases were decided in 1809, the following case in 1822: the prisoner was indicted for stealing several gowns and other articles; he was induced, by promises of the prosecutor, to confess his guilt, and after that confession he took the officer to a particular house, as the house where he had disposed of the property, and pointed out the person there to whom he had delivered it; that person denied having received it, and the property was never found; the confession was not admitted in evidence, but the taking of the officer to the house above mentioned was, and the prisoner was convicted; Bayley, J., who tried the prisoner, entertaining a doubt whether the latter evidence was properly receivable, submitted, the matter to the judges, who held that it was not, and that the conviction therefore was wrong: that the con- fession was excluded, because, being made under the influence of a promise, it could not be relied on; and the act of the prisoner, under the same influence, not being confirmed by the finding of the prop- erty, was open to the same objection; the influence which produced a groundless confession might also produce a groundless conduct.(d) The above case of R. v. Jones, however, shows that the finding of the property makes no difference. There is no doubt that if the goods in Jenkins’ case had been found at the house, the officer might prove that he found them there in consequence of something he learned from the prisoner; but whether that would also let in evidence of the prisoner’s act in accompanying the officer to the house, is another question. (c) Before a magistrate. A confession made by a party charged with felony [or misdemeanor] on his examination before a magistrate, or before a secretary of state, (a) BR. v. Jones, R. & Ry, 151. (6) R. v. Jenkins, R. & Ry. 492. 26 402 EVIDENCE. Confessions. upon a charge of treason, has always been allowed to be given in evi- dence against the defendant upon his trial.(a) And by a recent stat- ute,(b) we have seen,(c) that where a prisoner is brought before a justice of the peace, charged with an indictable .offence—after the ex- amination of the witnesses on the part of the prosecution has been com- pleted—the justice, or one of the justices, by or before whom such ex- amination shall have been so completed, shall read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to the like effect: “ Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but what- [132] ever you say will be taken down in *writing, and may be given in evidence against you on your trial;” and whatever the prisoner shall then say in answer thereto shall be taken down in writing, and read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them to the proper officers of the court where the defendant is to be tried ; and afterwards, upon his trial, the same may, if necessary, be given in evidence against him, without further proof thereof, unless it shall be proved that the justice or justices pur- porting to sign the same did not in fact sign the same.(d) Such is the humane provision of the English law, to prevent a prisoner from com- mitting himself, by any unadvised admission, which, otherwise, in his confusion and agitation, arising from the proceedings against him, he might make without calculating on its consequences. It is in the true spirit of fairness towards the prisoner, which distinguishes the admin- istration of criminal justice in this country, from its administration in any other country in Europe.(1) (a) 2 Hawk., c. 46, §§ 31, 32. (c) Ante, p. 42. (b) 11 & 12 Vict., v. 42, § 18. (d) 11 & 12 Vict. v. 42, § 18. (1) On one occasion the confession was drawn out by questions put by the mag- istrate, the prisoner first having been refused professional assistance, though he had requested to be allowed the aid of an attorney; and though the confession was held technically receivable, Littledale, J., adverted to counsel having been refused, and thought the case ought not, for that reason, to be further pressed ; and the prisoner was acquitted. Rex v. Ellis, Ry. & Mood. N. P. Rep. 432. It has often been ruled by the criminal courts of New York, that a questioning of the prisoner by the justice forms no objection to his examination being read. People v. Smith, 1 Wheel. Cr. Cas. 54, N. Y. Gen. Sess. before Riker, recorder, Oct. term, 1822. And this was allowed though the whole examination stood by way of question and answer; and one question was improper, viz.: whether the prisoner had not before been guilty of petit larceny. People v. Smith, before EVIDENCE. 403 Confessions. The prisoner’s statement, when required by the prosecutor for the purpose of being given in evidence before the grand jury or at the trial, is merely produced from among the depositions, and proves itself.(a) And as the usual form of such statement recites the charge against the prisoner, and that after examination of the witnesses against him the magistrates addressed to him the caution above men- tioned, setting it out in the very words of the statute—the written state- ment itself, purporting to be signed by the magistrate, and accompa- nying the depositions, proves all that recital, as well as what the prisoner said upon the occasion. But if the usual form have not been adopted, then the caution, the prisoner’s statement, and the magis- trates signature, must be proved as at common law,(d) namely, by the magistrate or his clerk, or by some person who was present at the examination.(c) But, although the prisoner be thus cautioned before he makes his statement, yet if his statement amount to a confession, and he were induced to make it by any previous promise of favor or threat, as already mentioned,(d) it cannot be read in evidence against him— unless, indeed, before he make the statement, he have been undeceived as to the threat or promise, and told that he has nothing to fear from e : (a) R. v, Sansome, 19 L. J. 143 m. (c) R. v. Hearn, Car. & M. 109; R. v. Wil- (b) Per Alderson, B.,in R. v.Boyd,19 Law shaw, ibid. 145. J. 141. (@) Ante, p. 126. Riker, recorder, N. Y. Gen. Sess., Oct. term, 1822, 1 Wheel. Cr. Cas. 54. The same general doctrine was held before Holroyd, J., at Carlisle spring assizes, 1824, 2 Stark. Ev. 52, note. Where the confession is made to the district attorney, and by him reduced to writing, he may, notwithstanding, give parol evidence of it. The writing, being a mere memorandum, need not be produced. Fulton v. Freeman et al., Coxe’s Rep. 118. See Rex v. Hollingshead, 4 Carr. & Payne, 242. But where a justice of the p&ace took the confessions of an accused in writing, at the time they were made, it was held erroneous to allow the justice to testify of these confessions from recollection when the non-production of the writing was not accounted for. Peter v. The State, 4 Smedes & Marsh. 31. Where a confession has been signed by a prisoner, it is read by the officer of the court; but where the examination is taken down by some person, and not signed by the prisoner, the person who took it down is called as a witness; and he states what the prisoner said, refreshing his memory from the paper. This was done by a magistrate in the case of Rex v. Jones, Car. Supp. 13, and by a magistrate’s clerk, who had taken down what the prisoner said before the com- mitting magistrate, in the case of Rex v. Watkins, tried before Mr. Justice Bosanquet, at the Oxford spring assizes, 1831. See note (a) to the case of Rex v. Swatkins, 4 Carr. & Payne, 548. The requisition upon the magistrate to reduce the examination to writing, being only directory, the state may have the benefit of oral confessions made before “him, as well as when they are made to a third person. State v. Irwin, 1 Hay- wood, 180; State v. Parish, Busbee N. C. Rep. 239. 404 EVIDENCE. Confessions. the one or hope from the other.(a) To meet this difficulty, the same section of the statute which directs the above cantion to be given, contains, also, this proviso, ‘that the said justice or justices, before such accused person shall make any such statement, shall [*133] state to him and give *him clearly to understand, that he has nothing to hope from any promise or favor, and nothing to fear from any threat, which may have been holden out to him, to in- duce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon his trial, notwithstanding such promise or threat: provided, neverthe- less, that nothing herein enacted and contained, shall prevent the prose- cutor in any case from giving in evidence any admission or confession, or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person.”(d) It was at one time attempted to be argued that no confession, made after the first caution above mentioned, could be given in evidence against a prisoner, unless the second proviso were also complied with, and the defendant told that he had nothing to hope from any promise: of favor, and nothing to fear from any threat which might have been holden out to him to induce him to confess; but the judges in the criminal appeal court, in the case éf R.-v. Sansome,(c) unanimously decided that this was necessary only int cases where such a threat or promise had actually been holden out, in order to undeceive the pris- oner in respect of it, as mentioned,(d) and make his confession evidence against him notwithstanding ; but that, in all other cases, it is sufficient to give the first caution, after which any confession not induced by threat or promise, may be given in evidence against the prisoner. The case of R. v. Sansome was thus: The prisoner was tried upon an indictment for murder; when he was before the committing magis- trate, the ordinary caution, that first mentioned,(e) was read to him, after which he made a statement, amounting to a confession, which was signed by him, and by the committing magistrate, and transmit- ted with the depositions; at the trial, however, it was objected that the statement could not be given in evidence against the prisoner, as the caution as to the threat or promise had not also been given to him by the magistrate ; but the judges, on reference to them, held that this was (a) Ante, p. 129. (@) Ante, p. 129, (b) 11 & 12 Vict., c. 42, § 18. (e) Ante, p. 181. (c) 19 Law J. 143, m. EVIDENCE. 405 Confessions. not necessary: the latter was not a condition precedent to the admis- sibility of a confession of the prisoner before the committing magis- trate, and was necessary only where there had been a previous threat or promise; if given, it has the effect of rendering the confession ad- missible in evidence, notwithstanding such previous threat or promise ; and if not given, the case remained as at common law, and the con- fession was adinissible in evidence, unless the party were influenced by some previous threat or promise to make it.(a) So, where, after the first of these cautions, the prisoner made a statement, which was taken down, but was not signed by him or by the magistrate ; *he was then remanded, and upon being brought up again, [*134] some questions were put to the witness by the prisoner’s at- torney, who then objected, that as an addition had been made to the evidence, the prisoner’s former statement could not be evidence against him; afterwards at the trial, the same objection being made, the state- ment was admitted in evidence against the prisoner, and the point reserved for the opinion of the criminal appeal court: and that court afterwards held that the evidence was properly received.(6)(1) (a) R. v. Sansome, 19 Law J. 143, m. (b)_R, v. Bond, 19 Law J. 138, m. = 7 (1) It is a general rule, that the declarations of a party, accused of a crime, made in his own favor after the time of the alleged commission of the crime, are not evidence for him. State v. Hildreth, 9 Iredell, 440. Such declarations are not admissible on his own behalf, unless they accompany acts and are a part of the res geste, and are offered as such. State v. Scott, 1 Hawks, 24; Campbell v. State, 23 Ala. 44. On the trial of an indictment for negro stealing, evidence offered by the accused of his assertion of a claim to the negro, when he was ar- rested, was rejected. The court say: ‘This claim of right must be asserted be- fore, or at, the taking, to enable the prisoner to give evidence of his own declara- tions.” State v. Wisdom, 8 Porter, 511. So it has been held, on a trial for mur- der, that it is not competent for the accused to give in evidence his own account of the transaction, related immediately after it occurred, though no third person was present when the homicide was committed. State v. Tilley, 3 Iredell, 424; Gardner v. The People, 3 Scam. 83; Bland v. The State, 2 Carter, 608. Upon the trial of an indictment for murder, a witness for the prosecution testi- fied, that on the day on which the crime was charged to have been committed, he met the accused half a mile from his house, and that he had blood upon his hands ; and, upon cross-examination, the witness stated that the accused was coming from hig own house at the time spoken of, and directed his (the witness’s) attention to the condition of his hands. The court would not allow the witness to be asked, in behalf of accused, what the accused said when he showed the blood upon his hands. Scaggs v. State, 8 Sm. & Marsh. 722. On the trial of an indictment for knowingly having an instrument for making counterfeit coin, with intent to use the same for that purpose, it was held that the accused could not give in evidence his statements to a workman, at the time he employed him to make such instrument, as to the object for which he wished it to be made. Com. v. Kent, 6 Mete. 221. Where an officer was indicted as an accessory to a burglary, it was held that he night, in order to explain his association with the persons indicted as principals, . 406 EVIDENCE. Confessions. and to show his own diligence and fidelity in pursuing them, prove the conversa- tions between him and another officer as to the best mode of gaining their confi- dence, and thereby bringing them to justice, and also the information which he received in reply to inquiries made of persons whom he met while pursuing the burglars. Com. v. Robinson, 1 Gray, 555. On a criminal trial, a witness for the prosecution testified that, having, in a con- versation with the accused, expressed his entire conviction of a particular fact, the accused admitted the fact, which, in its nature, tended strongly to establish his guilt, but made an explanatory statement (which, if taken as true, would ex- culpate him), the accused then offered to show that he had previously, and under different circumstances, made the same declaration to another person—held, that such proof was inadmissible. Earhart’s case, 9 Leigh, 671. The declaratidns of the accused in his favor are not admissible in order to draw out the reply of the witness to whom they were made, unless they form a part of a conversation put in evidence by the state. Campbell v. The State, 23 Ala. 44. For further information as to what declarations of a party constitute part of the res geste, see Cornelius v. The State, 7 Eng. Ark. Rep. 782, and cases cited. (On a trial for murder the acts and cries of defendant’s wife done and uttered in his presence and hearing at the time of the killing, may be proved by the State. People » Murphy, 45 Cal. 137. On an indictment for assault with intent to mur- der and for shooting at another, the prisoner’s statements as to how he received a certain bruise, made 10 or 15 minutes after the shooting, and after he had been arrested and was in charge of an officer, were held inadmissible as part of the res geste when offered on the part of the defence. Hall v. State, 48 Geo. 607. Threats of the deceased against defendant made after the fatal wound was re- ceived, are no part of the res geste. Cane v. People, 3 Neb. 357.] [In a trial for murder the outcries of the deceased during the assault or upon the defendant’s approach, and also those of another person murdered a few minutes after, during the same burglary on another part of the same premises, are admis- sible as part of the res gest@, even when these cries included defendant’s name. State v. Wagner, 61 Me.173. When evidence of an act done by a party is admissible, his declarations made at the same time and tending to elucidate, explain, or give character to the act, are also admissible, no matter whether for or against the party; if the act may be criminal, and the declaration tends to show it innocent, such declaration can be proved by the defendant. Hamilton v. State, 36 Ind.,281, On a trial for murder the declarations of the deceased on the day before the homicide and continuing to be repeated down to the time of the death, stating his intention to kill the accused, are competent evidence for the defence as part of the res geste. State v. Keene, 50 Mo. 557. Declarations accompanying an act are not admissible unless the act, itself is pertinent to the issue. On an indictment for poisoning, evidence that deceased, on going out of her house just before she was poisoned, said that she was going to meet the defendant, is not admissible, even in connection with proof of her illness on her return, and her attributing it to what defendant had given her to drink. People v. Williams, 2 Abb. App. Dec. 596. Statements to a thief at the time of the larceny are admissible as res gest, on the trial of an accessory before the fact. Parsons v. State, 43 Geo. 197.] [Declarations of the accused when first charged with the crime are admissible in his favor as part of the res geste. Comfort v. People, 54 Ill. 404. On a trial for homicide by shooting, the declarations of the defendant made at the time of the shooting as to the effect of his shots, are not technically confessions ; they are part of the res gest and are admissible. Head v. State, 44 Miss. 731. The defendant on his trial for murder cannot prove his own declarations made immediately after the homicide in regard to it; they are‘not part of the res geste, but are simply a narrative ofa past transaction. Forrest v. State, 21 Ohio St. 641. How far decla- rations of the accused made about the time of the crime charged are proper to sustain or disprove an alibi, see Com. v, Williams, 105 Mass. 62. Prior state- ments of the deceased are not part of the res geste, and are incompetent to im- peach his dying declarations. Wroe v. State, 20 Ohio St. 460. Statements by one found in possession of goods recently stolen, made when arrested, explaining his possession, are not admissible in his favor on a trial for the larceny. Maynard v. Btate, 46 Ala. 85.] (On a trial for assault and battery with intent to commit a rape on a girl so young EVIDENCE. 407 Confessions.—Presumptions. (d) By Presumptions. A presumption is where, some facts being proved, another follows as a natural or very probable conclusion from them, so as readily to gain assent from the mere probability of its having occurred, without fur- ther proof.(a) The fact thus assented to is said to be presumed, that is, taken for granted, until the. contrary be proved by the opposite party: stabiter presumtiont donec probetur in contrarium.(b) And it is adapted the more readily, in proportion to the difficulty of proving the fact by positive evidence, and to the obvious facility of disproving it, or of proving facts inconsistent with it, if it really never occurred. It is, therefore, we have seen,(c) adopted in proof of intent, of the wilful doing of an act, of malice, and of guilty knowledge, for these can be proved only by the admission of the party, or from his overt acts, from which the jury may infer or presume them. It is adopted, also, in proof of the commission of the offence itself, in the absence of evi- dence any person who actually saw it committed, as shall be noticed presently.(1) (a) Arch. Pl. & Ev. Civ. Act. 362, 363. (c) Ante, pp. 119-122, (b) Co. Lit. 373. as not to be competent to testify, her statements made soon after the affair in the absence of the defendant and in answer to questions put by her parents, were held inadmissible to prove the crime charged. Weldon v. State, 32 Ind. 81.] [For further instances of declarations accompanying a transaction, contempora- neous, and forming, or claimed to form part of the res geste. See State v. Gregor, 21 La. An. 473; Com. v. James, 99 Mass. 488; Taylor v. State, 42 Ala. 529.] (Declarations which are simply a narrative of past transactions are not part of the res geste ; as applied to statements by a co-conspirator, see People.v. Davis, 56 N. Y. 95. As to complaints made by the prosecutrix in a case of rape, see Hig- gins v. People, 58 N. Y. 377.] (For a peculiar case of threats held competent on a murder trial as part of the res geste, see Shaw v. People, 5 T. & C. (N. Y.) 489; McGuire v. People, 10 N. Y. 8. C. (3 Hun), 213, As toa memorandum of statement made to the police officer by the complainant, see Adams v. People, 10 N. ¥.S. C. (3 Hun), 654. As to declarations accompanying an act, when part of the res geste, see further, Walker v. State, 49 Ala. 398; Taliaferro v. State, 40 Tex. 522; Maddox v. State, 41 Tex. 205; Hays v. State, 40 Md. 633 (declarations by injured party as to his condition) ; Blount v. State, 49 Ala. 381.] (1) Circumstantial evidence has been admitted in every age of the common law, and is to be acted on after it has generated full conviction; everything calculated to elucidate the transaction should be received, since the conclusion depends on a number of links which alone are weak, but taken together are strong and able to bring to a conclusion. McCann v. State, 13 8. & M. 147. The law presumes that a man intended the result which naturally followed the means voluntarily used by him. People ». Cotteral, 18 Johns. 115; People v. Herrick, 18 Wend. 87; Miller v. People, 5 Barb. 203; State v. Jarrot, 1 Ired. 76 ; State ». Council, 1 Overt. 305; Com. v. Snelling, 15 Pick. 337; State ». Mitchell, 5 Irved. 350; State v. Cooper, 1 Green N. J. Rep. 361; The Feople v. Orcutt, 1 408 EVIDENCE. Presumptions. Parker, 252. On this principle, a libel injurious in its tendency was declared actionable per se. Haire v. Wilson, 9 Barnw. & Cress. 643; Rex v. Shipley, 4 Doug. 177, per Willes, J. 8. P. And several persons, having caused a plate to be struck calculated for the alteration of bank bills from a lower to a higher denomi- nation, were held to intend the usual consequence, and were convicted of a con- spiracy to defraud, though not a bill was altered. Malone’s case, before Radcliff, mayor, N. Y. Gen. Sess., Jan., 1817, 2 C. H. Rec. 22; and see the People ». Brad- ford, 1 Wheel. Cr. Cas. 219, 221. The seeking of opportunities and means to commit a criminal act, the flight of the accused, concealing or showing anxiety to conceal evidence of guilt, are cir- cumstances for the prosecution. The fabrication of false or contradictory accounts is a familiar instance; as of the prisoner’s residence or occupation or acquaintances. Coe’s case, before Radcliff, mayor N. Y. Gen. Sess., 1816, 1 C. H. Rec. 141, 143. So, making arrangemefits to escape. Ibid. Using or signing a feigned name. Ibid. So, concealing -instruments of violence or counterfeit money. See 1 Stark. Ey. 29 to 33, and 2 Ev. Poth. 337, No. 16,§14. Fraudu- lently passing, or possessing with intent to pass, counterfeit bills, is a crime where guilty knowledge and intent must generally be derived from circumstances. Among these are entries of the purchase of counterfeit bills in cabalistic lan- guage used among counterfeiters ; coincidence between false bills found in the prisoner’s pocket-book and those found in the recesses of his house or residence ; that the prisoner had failed to show a good character; the possession of large quantities of spurious notes (The People'v. Gariner, Sept. 1822, N. Y. Gen. Sess., before Riker, recorder, 1 Wheel. Cr. Cas. 23, 25); paying away the bill without calling for change due on the purchase (Rhode’s case, before Radcliff, mayor, N. Y. Gen. Sess., Jan. 1816, 1 Cit. H. Rec. 1, 2); passing a comparatively large bill for a small quantity of liquor not drank, and immediately leaving the store ; ashort time after returning with a similar bill, attempting the same practice; and, on being charged, fleeing into the woods, and not accounting for the posses- sion of the bills. Helm’s case, before Riker, rec., N. Y. Gen. Sess., March, 1816, 1C. H. Ree. 46, 47. So, an attempt to conceal or destroy a counterfeit bill, the prisoner refusing to give an account of himself or to tell his name, a large amount of counterfeits being found in his portmanteau (Galbrant’s case, before Radcliff, mayor, N. Y. Gen. Sess., July, 1816, 1 C. H. Rec. 109, 110); denying that he passed the forged check, and refusing to disclose from whom he obtained it ; held sufficient to convict, no satisfactory account being given. Vosburg’s case, before Radcliff, mayor, August, 1816, N. Y. Gen. Sess., 1 C. H. Rec. 130. So, two persons being engaged in passing the bill, and contradicting each other, and giving unsatisfactory accounts on their separate examination. Reynold’s case, before Radcliff, mayor, N. Y. Gen. Sess., March, 1817, 2 C. H. Rec. 47. Conceal- ment or attempt to conceal false money (called a strong circumstance in Stewart’s case, before Radcliff, mayor, N. Y. Gen. Sess., June, 1817, 2 C. H. Rec. 87). In this case one bill was found in the cuff of the prisoner’s coat, and, on search at his boarding room, another was found in his pantaloons pocket. So, pretending that the bill was received'from 8. in the market, without further account, averring that the note was good, catching up the change in a hurried and confused manner, without counting it; offering a sum of money to the officer to release him; and on this being declined, attempting to escape by knocking the officer down, and giv- ing a confused and unsatisfactory account of the transaction. The People v. Snes eres before Riker, recorder, N. Y. Gen. Sess., Dec. 1822, 1 Wheel Cr. as. 91, 93. On acharge of receiving stolen goods with knowledge, finding them secreted in the prisoner’s store, in a place convenient for concealment, considerable stolen property being found up stairs, the prisoner, on being questioned, giving no satis- factory account of them, a great quantity of stolen goods being found in his house, with bad character of the accused, were allowed as proof of knowledge. People v. Teal, before Riker, recorder, N. Y. Gen. Sess., March, 1823, 1 Wheeler's Cr. Cas. 199, 201. So, buying the goods at a reduced price, they being of a large amount, receivirig them of a stranger ; throwing them into a trunk in a confused and crowded manner ; the trunk being found in a room up stairs, in the prisoner’s house, though he kept a store. People v. Cochrane, before Riker, recorder, N. Y. Gen. Sess., Nov. 1822, 1 Wheel. Cr. Cas. 81, 84. But the possession of stolen EVIDENCE. 409 Presumptions. goods, to raise a reasonable presumption that the possessor stole them, must be recent, b@ unexplained, and be under the defendant’s exclusive control. State v. Merrick, 19 Maine, 398; Hughes v. State, 8 Humph. 75; Warren »v. State,.1 Greene Iowa Rep. 106; State v. Wolf, 15 Mis. 168; State v. Floyd, 15 Mis. 349; Jones v. State, 26 Mis. 247; Sertorius v. Smith, 24 Miss. 602; Jones v. People, 12 Til. 259. The falsity of pretences on which goods are obtained may also be inferred from circumstances. Lazarus’s case before Radcliff, mayor, N. Y. Gen. Sess., June, 1816, 1 C. H. Rec. 88. The introduction of false or fabricated evidence in defence is always regarded as an inferential admission of guilt, although not of a conclusive character. Such testimony must always be liable to more or less uncertainty in its intrinsic weight. Its force depends so much upon the temperament, education and habits of life and business of the accused, that no very great reliance is to be placed upon it. And, to be entitled to any force, its truth should be established’ beyond all question or cavil. Redfield, Ch. J., in State v. Williams, 27 Vt. Rep. 724. Proof that the prisoner offered money, in order to effect his escape, is admissi- ble as a circumstance of guilt. Whaley v. The State, 11 Geo. 123. On a trial for burglary, implements with which the offence was supposed to have been committed may be submitted to the jury, together with evidence tending to prove that they were used in its commission, and to connect them with the accused. The People agt. Larned, 3 Selden, 445; 8. P., Com. v. Wilson, 2 Cush, 590. In cases of counterfeit bills, circumstances considered favorable to the prisoner are, his receiving the counterfeit bills as good in the regular course of business (People v. Bryan, before Riker, recorder, N. Y. Gen. Sess., Sept. 1822, 1 Wheel. Cr. Cas. 21, 22); passing the note to an acquaintance, and giving a true state- ment of the prisoner’s business. So, having been in the state prison before, -he might have offered money to procure his escape, though innocent, he knowing the impression to be against him. So, no other spurious bill being found upon him ; and, since he was discharged from the state prison, so conducting as to be thought trustworthy by his employers. The People v. Quackenbush, supra. In charges for knowingly receiving stolen goods, the following circumstances have been recognized as favorable to the prisoner ; going out to sell the goods in the daytime, stating that he had other goods of the like kind; and offering to be present at an auction sale of them; leaving the original marks on most of the goods; and after being arrested, aiding in the arrest of the thief, who refuses to answer on examination. People v. Cochrane, supra. So, part of the goods being found in the prisoner’s store, open to the view of those who called in ; the original * letters ona stolen dressing-box being allowed to remain, by which the owner could identify it; with good character as to honesty. People v. Teal, supra. But the prisoner will not be permitted to show that, though he-had an opportunity to escape, he did not embrace it. The People v. Rathbun, 21 Wend. 509; Campbell ». State, 23 Ala. 28. In a trial for murder, the professional license of the accused to practice law was allowed to be read, in order to explain what was construed into a threat by the prisoner, namely, that he would take the law into his own hands—meaning thereby, as it was insisted, that he intended to manage his own case in re-occupying premises in dispute from which he had been ejected by the deceased. Haynes v. The State, 17 Geo. 465. Where it is proved that there was a conspiracy, and that one of the conspira- tors was in a situation in which he might have given aid to the perpetrator at the time of the murder, the presumption is that he was there to carry into effect the preconcerted crime, and it is.for him to rebut the presumption by showing that an wie there for a purpose unconnectéd with the conspiracy. Com. v. Knapp, 9 ick. 496. On a trial for murder by strangling, the prosecution was allowed to prove that, shortly after the murder, the defendant and other persons were in a grocery; that, during the time they were in said grocery, a row occurred between other parties; that shortly thereafter, on the same day, the defendant remarked that he could have rid the grocery very easily ; that he could kill a man-by throwing him on the ground, jamming his knees into him, and knocking the breath out of him, then grasping him by the throat, and his breath would never return. Moore v. State, 2 Ohio N. 8. 500. 410 EVIDENCE. Presumptions. In Tennessee, on the trial of a slave for the murder of another slave, by shot- ing him as he lay on the kitchen floor, the prosecution were allowed to Brove that tracks were found, the next morning after the homicide, fifteen or twenty steps from the kitchen where the deceased lay. The night had been cold, and the tracks were only visible at a mud hole near the kitchen, and at a spring. These tracks had been recently made by a person running. At the mud hole, the water above the tracks had been formed into ice; but the ice was not so thick over the tracks as it was in other parts of the mud hole. There was a mark on the inside of the right track that showed there was a deficiency in the sole of the shoe that made it; on examining the prisoner’s shoes, a piece was wanting in the sole of the inside of the right foot. The tracks were measured, and on applying the measure to the prisoner’s shoes, it corresponded to the width, but was about half an inch shorter than the shoe. A witness was allowed to testify that he had run, and seen the track measured carefully, and found that the tracks would be from one-half inch to an inch and a half shorter than the shoe that made them. Jim v. The State, 5 Humph. 145. In the case of Colt, who was tried in the city of New York, in 1842, for the murder of Adams, convicted and executed, it appeared from the testimony that Adams went to the room of the prisoner to obtain payment of a debt due from the latter; that a witness in the adjacent room heard a scuffling, and the noise of some heavy body falling on the floor, and looking through the key-hole of the prison- er’s door, which did not enable him to see within three or four feet from the floor, he discovered the prisoner stooping down and doing something which caused his shoulders to rise and fall alternately. The body of the deceased had been put into a box by the prisoner, and taken to one of the wharves of the city to be shipped to a distant place. And when found, there was upon the head of the corpse the marks of one or more blows with a hatchet or hammer; and a small round hole in the side of the head, leading directly to the brain, about the size of a pistol bullet, which it was found difficult to account for, as no report of a pistol was heard by the witness who was in the adjacent room. It appeared, however, by the testimony before the coroner and on the trial, that there was found in the prisoner’s room, where the supposed murder was committed, one of Colt’s revolv- ers, which was not loaded, and a ramrod, which was detached therefrom, but fitting the bore of the revolver ; a hammer-hatchet was also found in the prisoner’s room. Under a count in the indictment, charging the murder to have been per- petrated with some instrument to the jurors unknown, the prosecution was allowed to introduce evidence tending to show that the round hole in the head of the deceased might have been produced by a pistol ball propelled from the revolver by means of a percussion cap, or in some other way which would not cause an explosion sufficiently loud to be heard in the adjacent room. Colt v. The People, 1 Parker’s Cr. Rep. 616. On a trial for murder, a witness was within thirty or forty yards of the house when the deceased was shot. Upon hearing the report of the pistol, witness looked towards the house and saw a person, that he took to be the prisoner, run out—who ran a few paces, and turned and ran again into the house, and immedi- ately ran out again, and ran to where witness was standing; he ran slowly and awkwardly, which induced witness to suppose he was very drunk; when he came to witness he seemed greatly agitated and troubled, and at the moment of his coming up to him he exclaimed that ‘he would not have done it for the world.” The witness further testified that, ‘one minute would probably cover the time from the firing until the prisoner uttered the exclamation—two certainly would.” Held, that the foregoing evidence was admissible, as a part of the res gest@. Mitchum v. The State, 11 Geo. Rep. 615. In The People v. Videto (1 Parker, 608), the defendant was convicted, upon circumstantial evidence alone, of the murder of a female by shooting her, in Feb., 1825; and so in the case of Webster, who was tried in 1850, in Boston, for the murder of Dr. Parkman. In the latter case, the strongest circumstance that pointed against the accused was the finding, in the furnace of his laboratory, the remains of a set of artificial teeth, which a dentist of Boston identitied as the ones which he had, a short time previously, made for Dr. Parkman. Where the evidence against the accused is entirely circumstantial, his conduct, situation, and locality, as affording him opportunities of knowing at what time the EVIDENCE. 411 Presumptions. deceased left a certain place, on the morning of the murder, where she was last seen in life, whether or not it was unusual for him to be in that place at that par- ticular time, are all circumstances which, though weak in themselves, are not so disconnected with the main inquiry as to warrant their exclusion. Campbell v. State, 23 Ala. 44. . ; In applying circumstantial evidence, great caution should be used; it is always insuflicient to convict, or warrant a verdict, that assuming all to be proved which the evidence tends to prove; some other hypothesis may still be true. Algheir ». State, 25 Miss. 584. The true test is, not whether the circumstances proved produce as full conviction as the positive testimony of a single credible witness, but whether they produce moral conviction to the exclusion of every reasonable doubt. Mickle v. State, 27 Ala. 20. Where, upon a trial fur a capital offence, ‘the evidence is solely circumstantial, it should be so strong as to exclude every supposition inconsistent with the accused’s guilt. Sumner v. State, 5 Blackf. 579° But in such case, although the jury believe from the evidence that it was possible that some other person than the accused committed the crime, it does not neces- sarily follow that there should be a verdict of acquittal. Ibid. The rule which obliges a party to produce evidence which will contradict, or explain circumstantial evidence against him, requires him to do so only in cases when he is pressed. by circumstantial proof, and has it in his power to destroy its EpEPEene force. People v. McWhorter, 4 Barb. 438; Com. ». Webster, 5 Cush. 95. The books furnish numerous cases in which it is said that persons have been unjustly convicted upon circumstantial evidence, and that it was afterwards ascertained they were innocent. It has, however, been truly said, by Walworth, J., in The People v. Videto (1 Parker, 603), that ‘‘in nearly all of those cases, the fact of the innocence of the accused depends altogether upon hearsay or tradition.” “Tt is but a few years since,” continues the same authority, ‘‘a story was pub- lished in nearly all of the newspapers in the United States, that a man by the name of Hamilton had been condemned and executed in one of the Western States, and that his innocence was afterwards clearly established, by the confession of the man who had actually committed the murder. This story, for a time, gained entire credit, and was generally believed wherever it was told. Yet, fortunately for the administration of justice, the report of his innocence was discovered to be a base fabrication, put in circulation by some of his surviving friends, for the purpose of removing a stigma from the name of the man who had justly suffered the penalty of the law for a most wicked and aggravated robbery and murder.” [Evidence that the ground where deceased was struck and fell was rough and stony, is admissible in a case where the wound on the head was such that it could not have resulted from a blow by the fist. Cane v. People, 3 Neb. 357. On a trial for forgery, a witness may show the effect of a chemical powder, found in defendant’s possession, produced on a check similar to the one in question, and such check may be shown to the jury. People v. Brotherton, 47 Cal. 388.] {Circumstantial evidence need not be absolutely incompatible with innocence ; the true rule is, that the facts should be consistent with guilt and inconsistent with any other rational conclusion. People v. Murray, 41 Cal. 66. It should produce neavly the same degree of certainty as direct eviderice. People v. Padillia, 42 Cal, 585. A person is not to be presumed guilty merely from the fact of his being in the company of one who committed an? offence, unless some participation is shown. State v. Farr, 83 Iowa, 553.] [The escape of accused during trial is admissible against him on a new trial, when it appears that there was no other reason for it than the fear of conviction ; but itis not conclusive. Murrell v. State, 46 Ala. 89. Circumstantial evidence is sufficient to warrant a conviction, e.g. for larceny ; all the law requires is, that the jury shall be satistied beyond a reasonable doubt of the guilt. Law v. State, 83 Tex. 37. The evidence must produce a moral certainty of guilt, and exclude any other reasonable hypothesis. Circumstantial evidence, in order to convict, must thus exclude every other reasonable supposition inconsistent with defend- ant’s guilt, but need not show it to be impossible that any other person could have committed the crime. James v. State, 45 Miss. 572. On the trial of an issue of bastardy, if the child is shown to the jury, they may take into cousideration any 412 EVIDENCE. Presumptions. Presumptions are of three kinds: violent presumptions, where the facts and circumstances proved necessarily attend the fact presumed;(a) probable presumptions, where the facts and circumstances proved usually ’ attend the fact presumed;(d) and light, or rash presumptions, which, however, have no weight or validity at all.(c) Under this head is classed that every usual mode of proving offences, adopted from necessity, called circumstantial evidence. Direct and positive evidence of the commission of offences cannot, in all cases, be procured. People do not always commit offences publicly, in the open day, but oftener commit them in secret, or at night; and if circum- stantial evidence were excluded: by our law, all secret offences might be committed with impunity. Circumstantial, or presumptive [*135] evidence, therefore, *is allowed in all cases where direct and positive evidence of the defendant’s having committed the of- fence cannot be procured ; and it is often as satisfactory as direct and positive evidence. It is also adopted as confirmatory evidence, even where there is direct (a) Gilb, Evy. 157. see Arch. Pl. & Ey. Civ. Act. 363, and the (b) 8 BL. Com. 372. cases and other authorities there collected. (c) Ibid.; Gilb. Ev. 157; Co. Lit.6b; and _ resemblance between its features and those of defendant. State v. Woodruff, 67 N.C. 89; per contra, see Reitz v. State, 33 Ind. 187.] [There is no rule that circumstantial evidence must be as strong as the testi- mony of one witness swearing positively to the offence, or else that the jury must acquit. There is no such test; the proper question is, whether the circumstances are such as to satisfy the jury beyond a reasonable doubt of the guilt. State v. Coleman, 22 La. An. 455. The principles applicable to such evidence are dis- cussed in People v. Phipps, 39 Cal. 326; Pitts v. State, 43 Miss. 472; State v. Van Winckle, 6 Nev. 340. The flight of the accused is pertinent evidence, but only against the one fleeing ; it is not against a co-conspirator. People v. Stanley, 47 Cal. 113. Thatthe prisoner gave no evidence on the preliminary examination, cannot be proved against him on the trial. Templeton v. People, 27 Mich. 501. Circumstantial evidence need not exclude every hypothesis except that of guilt ; it must produce a moral certainty, and exclude any other reasonable hypothesis. state v. Mathews, 66 N.C. 106. That the defendant declines to testify, when the statute allows him to do so, may be ¢onsidered by the jury in Maine. State »v. Cleaves, 59 Me. 298. The contrary rule is expressly prescribed by the statutes of several states in which the accused is permitted to testify on his own behalf. It is so in New York, and any allusion by the court, in the charge, to the fact that defendant has not testified is error. See Ruloff v. People, 45 N. Y. 213; 11 Abb. Pr. N. 8. 245.] [On the subject of circumstantial evidence in general, and for particular in- stances, see U.S v. Isle de Cuba, 2 Cliff. 295; Mason v. State, 42 Ala. 532; Riggs v. State, 6 Coldw. 517; Clark v. People, 5 T. & 0. (N. Y.) 33; 2 Hun, 520; Wood- ford v. People, 5 T. & C. (N. Y.) 539; Foster v. People, 5 T. & C. (N. Y.) 670; Murphy 2. People, 6 T. & C. (N. Y.) 369; People v. Myers, 9 N. Y. 8. C. (2 Hun) 6 (burglary); Williams ». State, 41 Tex. 209; Barnes v. State, 41 Tex. 342; Com. v. Costley, 118 Mass. 1.] EVIDENCE. 413 Presumptions. and positive evidence of the offence committed, in order to induce the jury to yield a more ready credence to the direct and positive evidence. In larceny, for instance, after proving that the goods were taken or stolen, proof that they were found in the possession of the prisoner shortly afterwards, and that he did not give any satisfactory account of the manner in which he came by them, is deemed good presumptive evidence of the prisoner having stolen them ;(a) and if to this be added evidence that the goods, when found, were concealed or disguised, or that the prisoner, when charged with the offence, absconded, it will very much strengthen the presumption. On the other hand, if the goods be not found for a considerable time after they were stolen, the -presumption is proportionally weakened. And in larceny, even where there is direct and positive evidence of the prisoner’s guilt, if at the same time there be any doubt whatever of the jury believing the witnesses, it is usual in practice to add evi- dence of all circumstances the case furnishes, from which the jury may infer the guilt of the prisoner, and that the witnesses are speaking the truth ; as, for instance, that the prisoner was seen in the neighborhood of the place from whence the goods were stolen, shortly before they were missed, or about the time when it is probable they were stolen; that shortly afterwards they were found in his possession, or that he pawned or sold them; that he gave a false name in doing so; that he sold them very much under their value; that he gave a false or un- satisfactory account of the manner in which he came by them ; or the like. ; . Upon an indictment against any person exercising an office, profes- sion, or employment, for a criminal act done by him as such officer, etc., proof that he acted as such officer, etc., will raise the presumption that he was duly appointed, and his appointment, therefore, need not be proved.(6) And as to offences against officers:—By stat. 8 & 9 Vict., c. 87 (for the prevention of smuggling), it is enacted by § 132, that if, upon any trial, a question shall arise whether any person is an officer of the army, navy or marines, being duly employed for the pre- vention of smuggling, and‘on full pay, or an officer of customs or excise, evidence of his having acted as such shall be deemed sufficient, and such person shall not be required to produce his commission or deputa- tion, unless sufficient proof should be given to the contrary. (a) See post, tit. LARCENY. (b) Sec 6 T. R. 585,n; 4 T. R. 366, per Bul- ler, J, 1 Stark, 405; Peake, 286. 414 EVIDENCE. Presumptions.—Best evidence. So, in the case of peace officers, justices of the peace, constables, etc.; it is sufficient to prove that they acted in those characters, [*136] without *producing their appointment; and that even in the case of murder ;(a) and the same in other cases, where it be- comes a question whether a person acting as a public officer was so at the time. Therefore, upon an indictment against an officer under gov- ernment for malversation in his office, a letter of instructions, signed by three of the lords of the treasury, was allowed to be read in evi- dence, without producing the commission by which they were ap- pointed ;(6) for it is a general presumption of law, that, a person act- ing in a public capacity is duly authorized to do so.(c) For the same reason, upon an indictment for perjury, in an oath taken before a sur- rogate in the Ecclesiastical Court, the fact of the person who adminis- tered the oath having acted as a‘surrogate was holden sufficient evi- dence of his being so, without producing his appointment.(d)(1) As to the presumptive proof of intent the wilful doing of an act, malice, and guilty knowledge.(e) (e) Best evidence. Whatever is not confessed, and cannot be presumed, must be proved by direct and positive evidence. This evidence is of to kinds—writ- ten evidence, and the parol testimony of witnesses—both of which shall be treated of in the next two sections. T shall in this place merely notice the general rule, which is applica- ble to criminal cases as well as to civil, namely, that the best evidence the nature of the case will admit of must be produced, if it be possible to be had; but if not possible, then the next best evidence that can be (a) Per Buller, J., Berriman v. Wise, 4 Tr., (ec) Per Ld. Elenborough, C.J., 3 Camp. 366. 483, 434. (b) R. v. Jones, 2 Camp. 131. (d) R. v. Verelst, 3 Camp. 482. s (e) See ante, pp. 119-122. (1) It has been held in Connecticut, that a clergyman, in the administration of marriage, is a public officer ; and his acts, as such, in the celebration of marriage, are admitted as prima facie proof of his qualification, without higher evidence. Goshen ». Stonington, 4 Conn. Rep. 209. Proof that an individual had executed and returned a writ, directed to him as coroner, has been held sufficient evidence of his being commissioned as such, without proof of his commission. Young 2. Com., 6 Bin. Rep. 88. The collector and trustees of a school district may be proved such by their acts and reputation. M’Coy v. Curtice, 9 Wend. 17. And persons acting publicly as officers of a corporation are presumed rightfully in office. See United States v. Dandridge, 12 Wheat. 70; also, All Saints’ Church v. Lovett, 1 Hall’s Rep. N. Y¥. 8. C. 191. EVIDENCE. 415 Best evidence. kad shall be allowed.(a) For if it be found that there is any better evidence existing than that which is produced, the very non-produc- tion of it creates a presumption that it would have detected some falsehood which at present is concealed.(6) Within the meaning of this rule, written evidence is better than parol evidence; and, therefore, if a deed or other private written instrument is to be proved, nothing else but the deed or instrument itself shall be admitted in evi- dence, unless it be proved to have been destroyed or lost, or be in the hands of the opposite party ;(c) .but in the case of records-and other public instruments which cannot or ought not to be removed, they are proved by examined copies or certificates, as we shall see hereafter. Upon an indictment for the forgery of a written instrument, the forged instrument must be produced, unless it has been destroyed by the defendant, or unless *it be in his possession, and he refuse ['*137] to produce it after notice.(¢@) But upon an indictment for steal- ing a written instrument, or destroying a will, or the like, no notice to produce it is necessary, but secondary evjdence of the instrument is admissible without it.(e) (1) (a) Arch, Pl. & Ev. Civ. Act. 372. (c) Arch. Pl. & Ev. Civ. Act. 372. (bd) 3 Bla. Com. 368; Gilb. Ev. 16; 1 Show. (d) See post, p. 138. 397 ; Carth. 220; 3 Hast, 192. (e) R. v. Aickles, 1 Leach, 330. (1) The reason of the rule limits the extent of its application; consequently it does not operate where the law itself obviates the presumption of fraud, which would otherwise arise. Hence, in general, to prove that a person is a public officer, it is sufficient to show that he acted as such; for, then, in the absence of evidence to the contrary, it is to be presumed that he was duly and legally ap- pointed. 3 Starkie’s Ev. 392, 393. So, where a document is of a public nature, a copy is sometimes admitted; for the production of the original is dispensed with on account of the inconvenience resulting from the frequent removal of such papers, and therefore the absence of the original affords no presumption of fraud. 3 Starkie’s Ev. 393. And in a variety of cases where the opposite party has admitted the facts sought to be established, or by his conduct precluded himself from denying them, primary evidence is dispensed with. Indeed, the whole doc- trine as to secondary evidence of written instruments, when applied to the com- mon instance of the best evidence being proved to be unattainable, rests upon much the same principle ; all presumption of fraud is there of course repelled, and the rule, after first disarming the parties of the means of imposition, suffers itself to be relaxed as circumstances in justice shall require, by the admission of the next best evidence. Per Haywood, J., Ingram v. Hall, 1 Hayw. Rep. 193, 206; see also 9 Petersd. Abr. 157, note; per Thompson, J., Milner v. Tillotson, 7 Peters, 99, 101; U. 8. », Reyburn, 6 ibid. 352. The secondary evidence, however, must in all cases be in itself competent: for the rule is never so far relaxed as to allow evidence to be given intrinsically ille- gal, as hearsay, for instance, merely because a party happens to be so unfortu- nately situated, that it is the best of which his case is susceptible. 2 Ev. Poth. 147; 3 Chitty’s Bl. 368, note; Pentland v. Somers, 2 Serg. & Rawle, 23; and see Johnson v. Chase, 1 Tyl. Rep. 449; Bonnet’s Lessee v. Devenbaugh, 3 Binn. 175. And, on the other hand, the rule is not to- be extended to such a rigorous ex- . 416 EVIDENCE. Best evidence. treme as to debar a party from justice, because he originally neglected to furnish himself with the highest possible assurance of the disputed facts. For then two witnesses would be better than one ; one hundred better than two, and so on pro- gressively ; a writing would be better than a parol contract, a deed better than either, and a record better than all. Per Haywood, J., Ingram v. Hall, 1 Hayw. Rep. 193, 206; see also 2 Ev. Poth. 148. : Nor does the rule operate in any case to exclude evidence, merely because it is not all, nor the most satisfactory which ‘might be adduced, when the evidence offered, and that which is withheld, is all of the same general quality or grade (8 Starkie’s Ev. 391; Leibman v. Pooly, 1 Starkie’s Rep. 167; Macnally’s Ev. 342; 9 Petersd. Abr. 155, note; 1 Chit. Cr. L. 567) ; but in such case, it in general goes no further than to forbid that evidence, which is in its nature merely circumstan- tial, shall be received, when direct and conclusive evidence may be had. Com. v. James, 1-Pick. 375; 1 Big. Dig. 322, § 11. This is forcibly illustrated by Govy- ernor v. Roberts (2 Hawks’ Rep. 26). There, the secretary of state was called as a witness, to produce certain papers belonging. to the office of the comptroller ; it appeared that the comptroller was absent on a visit, and before his departure he had deposited the keys of the office with the secretary, requesting him to attend to any applications at the office during the absence of the former; the comptrol- ler had not been summoned to attend court, and the secretary testified that he attended as the agent, or on behalf of the comptroller, with the papers. Under these circumstances, it was held, that though the testimony of the comptroller would be more satisfactory than that of the secretary, yet both being oral, and both, therefore, of the same grade, either was competent to be submitted to the jury. “If,” as is well observed by Henderson, J., who delivered the opinion of the court in the above case, ‘the rule was, that the most full and satisfactory evi- dence should be produced, it would follow that where it appeared there were others present, they should be also produced ; or where a person, from his situa- tion, had a better view of the transaction, one who had a less favorable position should not be received; or where it appeared that another could give a more de- tailed account of the affair, one who could not give so full a one should be excluded, although there may be no doubt as to his knowledge of the facts to which he deposes.” , It should be observed here, however, that wherever written evidence exists of the facts sought to be proved by parol, it must be produced; whether the ex- istence of such evidence appear on the direct or cross-examination of the witness introduced, makes no difference. Its disclosure, at any period of the trial, brings its importance into view as the best evidence. Hence, though a party may con- duct his examination so as to prove the contents of a writing and keep its exist- ence out of sight, if it turn out that it is the highest evidence, and should have been produced by him, whenever its existence appears, the inferior evidence given will be excluded altogether. Boone v. Dyke’s legatees, 3 Monroe, 539, 531; Rex v. The Inhabitants of Padstow, 4 Barn. & Adol. 208, 8. P. So, though the writing be not the foundation of the action, but comes in question collaterally, the highest evidence of its execution must be produced. Roberts v. Tennel, 3 Monroe, 247, 250. And the original in such cases, as in others, must be ee or its non-production legally excused. Cope v. Arberry, 2 J. J. Marsh. 296. The following decisions may, perhaps, be most appropriately introduced by way of concluding this note. Upon an information for passing a counterfeit six- teen-penny piece, it was held that, before any evidence of its want of genuineness could be received, the piece itself must be produced. State v. Osborn, 1 Root’s Rep. 152. So in ordinary cases of a writing charged to be a forgery. State v. Blodget, ibid. 534. But where the information was for counterfeiting only, and the prosecutor had never been able to get hold of the money, he was allowed to prove the defendants confession respecting his having made counterfeit pieces of the denomination specified in the information, without producing them. State v. Phelps, 2 Root’s Rep. 87. ¥ In a case before Lord Kenyon, at Nisi Prius, a witness was asked whether the plaintiff's bushel measure had not beeh tried and found to correspond with the public Belford bushel. But his lordship was of opinion that the question could not be asked, inasmuch as ‘“‘ the best evidence the case would admit of was a EVIDENCE. 417 Best evidence. ’ production of both measures in court, and a comparison of them before the jury.” Chenie v. Watson, Peake’s Addi. Cas. 123. , In Massachusetts, where, upon an indictment for having in possession a counter- feit bank note, it appeared that the note was passed to one P., who suffered it to re- main out of his hands for a long time, during which it was lodged with a magistrate, who might have been produced as a witness; held, that the testimony of P. anu his wife, who swore positively to the note from certain accidental marks upon it, was improperly received, unless they had made a private artificial mark upon it; and also, that the testimony of the magistrate was indispensable, upon the general principal requiring the best evidence. Com. v. Kinison, 4 Mass. Rep. 646. Upon an indictment, however against a miller for stealing, where it appeared that P. sent barilla to the defendant’s mill, and, after it was ground, a mixture of three- fourths barilla and one-fourth of plaster of paris was returned by the same truck- man who took the barilla to the mill, it was held that the government need not produce the truckman to prove that it was not adulterated in the transportation, although there was merely circumstantial evidence of its having been done by the miller. Com. v. James, 1 Pick. 375. ~ [The defendant cannot prove the declarations of a third person to the effect that he committed the crime in question. State v. Haynes, 71 N.C. 79. On a trial for larceny of boots from a store, an altercation between the defendant and a clerk at the time the goods were taken, cannot be proved by the bystanders; the cierk himself should be called to prove it. Davis v. State, 37 Tex. 277. Evidence that a third person had made threats to kill deceased shortly before the homi- cide in question, and that immediately after the killing, such person had left the country, held inadmissible on part of the defence, in Crookham v. State, 5 W. Va. 510.] [If evidence of defendant’s plea of guilty at the preliminary examination can be given at the trial, it cannot be: by parol until the fact has been established by pee set no entry of the plea was made by the magistrate. Metzer v.. State, 39 Ind, 596. (Photographic likenesses of dead bodies, taken when the bodies were somewhat disfigured from lying in water where they were found apparently drowned, were admitted on the trial, together with other evidence; it was important to identify these bodies with certain persons with whom defendant had been associated in the commission of the crime (murder), and who had tried to escape, and had, as it was supposed, been accidentally drowned in their attempt to escape. Ruloff v. People, 45 N. Y. 213; 11 Abb. Pr. N 8. 245.] [The record is the best evidence of a conviction of a witness for crime, and the fact cannot be proved by parol against the objection of the opposite party. People ». Rheinhart, 39 Cal. 449; People v. Melvane, 39 Cal. 614; People v. McDonald, 39 Cal. 697. But if oral evidence of the fact has been admitted without objection pede at the time, objection cannot be made on appeal. People v. Rheinhart, 39 al. 449, _ [The ae that the best evidence should be given, does not entitle the prosecu- tion to demand that the defendant shall himself testify to matters peculiarly within his own knowledge, in a state where the accused is permitted by statute to be a witness if he chooses, as in Califotnia. The fact that his evidence necessarily has less weight than that of a disinterested witness, is a sufficient reason for his pref- erence to establish the fact, if possible, by the testimony of others. People v. Anderson, 39 Cal. 703.] [When the condition of clothes or other articles is material, it may be described by witnesses; the things need not be produced. Com. v. Pope, 103 Mass. 440. A witness may look around the court-room and point out. the person who did the _erime; this is not compelling the prisoner to furnish evidence against himself; it is the best mode of identifying the one who did the crime with the accused. State ». Johnson, 67 N. C. 55.] ‘ [See, as to hearsay evidence held incompetent, Wiggins v. People, 11 N. Y.8. Cc. (4 Hun) 540; Smith v. State, 41 Tex. 352. Evidence of what witness said to de- fendant is not hearsay. Charles v. State, 49 Ala, 332, In regard to secondary evidence, see People v. Hust, 49 Cal, 653,] 27 418 | EVIDENCE. Secondary evidence. As to parol evidence, there is no distinction between one kind and another; all kinds are of equal degree in the eye of the law; you cannot object to a fact being proved by one witness, because another could have proved it much better; it may be matter of observation to the jury; but if the witness be competent, jit is not matter of legal objection to him. (f) Secondary Evidence. If the written instrument be destroyed or lost, then upon proof of its destruction, or on proof of search for it in every place where it was likely to be found, without effect, the party will be allowed to give secondary evidence of it; that is to say, he will be allowed to give in evidence a counterpart or examined copy of it, or to give even parol evidence of its contents.(a)(1) (a) Arch, Pl. & Ev. Civ, Act. 378; 1 Arch. N. P. 21. (1) In general, where the best evidence is unattainable a party may resort to secondary evidence. If a paper be on file in a public office under such ¢circum- stances that the party can neither obtain it, nor compel its production, and it is not made the duty of any person to give out certitied copies to be used as evidence, parol testimony will be received. Semble, Denton v. Hill, 4 Hayw. Rep. 73. See Butler v. The State, 5 Gill & John.. Rep. 511, 519. But, if the paper is one that might be withdrawn from the files, on application for that purpose, such applica- tion should appear to have been made. Even if the application is refused, it will not always be a matter of course to admit secondary proof. The court may refuse to receive inferior proof upon principles of public policy. Accordingly, in Pennsylvania, where an action was brought for a libel upon the plaintiff, an officer, consisting of certain charges preferred against him to the governor; though the governor had declined delivering the libellous paper to the plaintiff, and the court had refused a suphena duces tecwm (which can only issue there on special application), yet, parol evidence of the contents was held inad- peng Gray v. Pentland, 2 Sergeant & Rawle, 28. See Yoter v. Sanno 6 Watts’ Rep. 166. s The question has occasionally arisen, whether proof that a paper is out of the atate will, of itself, be sufficient to lay the foundation for introducing secondary: evidence of its contents, without further evidence showing an effort to obtain it. In Connecticut, it has been held that it will not. Townsend v. Atwater, 5 Day’s Rep. 298, 306. So, also, in Louisiana. Lewis v. Beatty, 8 Mart. Lou. Rep. N.S. 287, 288, 289. Otherwise, however, in Kentucky ; and the court liken it to the case of a subscribing witness, absent from the state. Boone v. Dyke’s Legatees, 3 Monroe, 532, See also Eaton v, Campbell, 7 Pick. 10. A written contract, de- posited by the parties with a witness in a neighboring state, was allowed to be proved by a deposition on commission, it being out of the jurisdiction of the court. Bailey v. Johnson, 9 Cowen’s Rep, 115, See, further, what is said by Saffold, J., in May’s Adm’rs v. May, 1 Porter’s Rep. 131. Where the defendant had placed a deed in the hands of M., his agent, who had gone to another state, and carried it with him, and some unsuccessful attempts, the nature of which was not explained, had been made to obtain it; held, that no commission having been sent to examine M. about the deed, or to ascertain what had become of it, and there being some grounds for suspecting a designed sup- pression of it, parol evidence was inadmissible. Bunch’s Adm’r vy. Hurst Adm’r, 3 Dess. Eq. Rep. 290, 291, An instrument having been executed at Caraccas, and EVIDENCE. _ 419 Secondary evidence, : it appearing that, according to the law of that place, the original was deposited with a notary and kept by him, the parties only being allowed to have certified copies; held, that this was sufficient to account for the non-production of the orig- inal. Mauri v. Heffernan, 13 Johns. Rep. 58. If the paper is in the hands of a third person, under such circumstances that the law will not compel him to produce it, this is a ground for allowing secondary evidence. For various causes showing this, as also when a paper is privileged so as to be unattainable through a suphena duces tecwm, see Phillipps on Ev. Cow. & Hill’s notes, part 2, page 357. See, also, United States v. Reyburn, 6 Peters’ Rep: 352, 356, 857. That proof of the loss or destruction of an instrument is sufficient to lay the foundation for introducing secondary evidence of its contents, is as a general rule, well established. Sometimes the loss or destruction is proved directly, e. g. by the person who destroyed it swearing to the fact; and sometimes the fact is made out by circumstantial evidence, as by showing that it was deposited in a particu- lar chest, office or house, which was subsequently destroyed by fire, or the ravages of war (Jackson ex dem. Livingston v. Neely, 10 Johns. Rep. 374; Franklin v. Creyon, Harp. Eq. Rep. 243; Jeffrey’s ex’rs v. Parsons, 2 Verm. Rep. 456; Jack- son ex dem. Taylor v. Cullum, 2 Blackf. 228; Peay v. Pickot, 3 M’Cord’s Rep. 322; Lorton v. Gore, 1 Dow & Clark, 190; Rochell v. Holmes, 2 Bay’s Rep. 487; Fallis v. Griffeth, 1 Wright’s Rep. 305); that it was put into the mail, directed to a par- ticular person, and never reached its place of destination (Bank of the United States v. Sill, 5 Conn. Rep. 106; Champion v. Terry, 3 Brod. & Bing. 295); or put into the letter-bag of a vessel, which was chased by a privateer, and the letter-bag thrown overboard (Anderson v. Robson, 2 Bay’s Rep, 495) ; or that it has been dili- gently sought for, and cannot be found (Proprietors of Braintre v. Battles, 6 Verm. Rep. 399 ; Renner v. Bank of Columbia, 9 Wheat. Rep. 581; Hall v. Hall, 6 Gill & Johns. 386; Taunton Bank v. Richards, 5 Pick. Rep. 436; Benjamin ». Garee, 1 Wright’s Rep. 449, 450; M’Mullen v. Brown, 1 Harp. Rep. 76). The like principles apply in criminal cases. See Rex v. Chadwick, 6 Carr. & Payne, 181; = aaa v. Snell, 3 Mass. Rep. 82; United States 7. Doebler, 1 Bald. Rep. 519. : Tt is not by any means a matter of course, to let a party in, to give secondary evidence, even where he produces direct proof of the fact of destruction. If the destruction was accidental, and occurred without his agency or assent; or even if it was voluntary, and his own acl, but yet done under a mistake, so as to rebut all idea of contemplated fraud, inferior evidence will usually be allowed. Thus, should a party destroy a paper under the erroneous impressson that it could be of no further use, he may afterward, notwithstanding, prove its contents by secondary evidence. Riggs v. Tayloe, 9 Wheat. 483. Or should he destroy a note on its being paid in bank bills, he supposing at the time they were genuine, when in truth they were counterfeit, the same result would follow. Ibid. 487. So, should he destroy one paper supposing it to be another. Ibid. See Dumas v. Powell, 3 Dev. 103; _also Williams v. Crary, 5 Cowen’s Rep. 368, 370. But a party who, under no pretence of a mistake or accident, voluntarily destroys primary evidence, to pre- vent its being used against him, or to create an excuse for its non-production, to injure the opposite party, or for other fraudulent purposes, thereby excludes him- self from the benefit of superior evidence. Riggs v. Tayloe, 9 Wheat. 483, 487; Renner v. Bank of Columbia, ibid. 596; Bank of U.S. v. Sill, 5 Con. Rep. 106, 111; Broadwell v. Stiles, 3 Halst. Rep. 59. A fraudulent alteration of a note by the promisee will prevent him from recovering either on the note itself or the orig- inal consideration. Martendale v. Follet,1 N. Hamp. Rep..95. See also S. P. Clute v. Small, 17 Wend. Rep. 238, 242. Otherwise, as to an alteration or de- struction, originating in an honest mistake of fact. Ibid. And see Atkinson v. Hawdon, 2 Adol. & Ellis, 628. Where a note sued upon was shown to have been voluntarily burnt up by the plaintiff a short time before it fell due, the court held he was bound to explain the act so as to make it appear honest and justifiable, or he could not recover. For it would be a violation of all the principles upon which secondary evidence is tolerated, to allow a party the benefit of it, who has wilfully destroyed the higher and better testimony. Blade v. Noland, 12 Wend. 173, 174, 175. Even a pretended negligent destruction or loss of an instrument, if the neg- ‘ligence is such as to awaken’ a suspicion of design, will be followed by the like 420 EVIDENCE. Secondary evidence. result. Semble, Ibid. See Livingston v. Rogers, 2 Johns. Cas.488. In Farrar», Farrar (4 N. Hamp. Rep. 191), it was held, that where a grantee cancelled a deed, with intent to revest the title, though it would not have this effect directly, yet the destruction being voluntary, he could not give it in evidence; and so, indi- rectly, it should work the consequence intended. See Tomson.v. Ward, 1 New Hamp. Rep. 9; Commonwealth v. Dudley, 10 Mass. Rep. 403. And it has been held, that a fraudulent alteration made by the grantee, will operate the like. result. Chesby v. Frost, 1 New Hamp. Rep. 145; but see Barrett v. Thorndike, 1 Greenl. Rep. 73; Hatch v. Hatch, 9 Mass. Rep. 311. It has been held, as matter of practice, that a party may prove the existence of the instrument first, or its loss, as suits him. Thus, when he intends to show that it was consumed in a particular office destroyed by fire, he may begin by proving the destruction of the office. Denn v. Pond, 1 Coxe’s Rep. 379. In Kimball »v. Morrell (4 Greenl. 368, 370), it was laid down that the party must first show the existence or due execution of the instrument, second its loss, and then, and not till then, he may inquire specifically as to the contents. Such has been said, in another case, to be the natural order. Per Burnet, J., in Allen’s Lessee v. Parish, 3 Hamm.. Rep. 107, 108; M’Credy v. Schuylkill Nav. Co., 3 Whart. Rep. 424. But these facts are so intimately blended together, and have such a mutual rela- tion to, and dependence upon each other, that it is difficult and many times im- possible to separate the proof one part from the other. Ibid. And see per Sherman, J.,. Ibid, p. 121; 2 M’Laurin v. Talbot, 2 Hill’s Rep. 526, per Harper, J. It is quite clear, however, that unless proof is adduced of the loss or destruc- tion, satisfactory to the court, the evidence, as to the execution and contents, cannot be submitted to the jury. Jackson ex dem. Livingston v. Frier, 16 Johns, Rep. 193, 196; Rees v. Lawless, 4 Litt. Rep. 218, 219, 220; De Haven v. Hender- son, 1 Dall. Rep. 424; Dorsey v. Dorsey’s Heirs, 3 Harr. & John. 219; Showders ». Harper, 1 Harring. Rep. 444. : The proof of loss or destruction must generally be by witnesses testifying under oath. Accordingly, where a justice of the peace acted upon his own personal knowledge of the fact of the loss of a note, left with him at the time of joining issue in the cause, it was held erroneous, and good ground for reversing his judg- ment upon certiorari. Cary v. Campbell, 10 John. Rep. 363. The loss may be proved by the declarations of the adverse party (Bristol v. Wait, 6 Car. & Payne, 591; Taunton and South Boston Bank v. Whiting, 10 Mass. Rep. 332; North v. Drayton, Harp. Eq. Rep. 34); or of those under whom he claims title (Corbin v. Jackson ex dem. Garnsey, 14 Wend. Rep. 619); and this, as to the latter, even though they might be called as witnesses. Ibid. Stanley ». Addison, 8 Lou. Rep. (Curry) 207. In respect to the admission of one joint tenant or tenant in common, to prove loss, etc., as against the other, see Phillipps on Ev., Cow. & Hill’s Notés, part 1, p. 397 e¢ seg. In general, the declaration of a person who might be brought to testify on the subject is mere hearsay and inadmissible. The Governor v. Barkley, 4 Hawk’s Rep. 20. Rex v. Denio, 7 Barnw. & Cressw. 620; 8. C., 1 Mann. & Ryl. 294; Taunton Bank v. Richardson, 5 Pick. 441; Mitchell ». Mitchell, 3 Stew. & Porter,’ 81, 84. Nor can yourely upon the naked declarations of a deceased person as to his having had the paper and destroyed it, without showing search. Rex v. Rawden, 2 Adol. & Ellis, 156. Rumors ofthe destruction of an instrument stand, of course, upon the same ground. Angel v. Felton, 8 John. Rep. 149. Parties and persons interested are recognized as competent witnesses in respect to the facts and circumstances necessary to lay a foundation for secondary evi- dence. This exception to the general rule rests upon the ground that the point is preliminary and incidental, addressed solely to the court, and not affecting the issue to be tried by the jury. See per Marshall, C.J., in Tayloe v. Riggs, 1 Pet. Rep. 591, 596, 597; Jackson ex dem, Livingston v. Frier, 16 Johns. Rep. 193, 195, 196; 8 Amer, Jurist, 28, 29. The doctrine has been held as to proof of search, loss, ete., in Kentucky (Grimes v. Talbot, 1 Marsh. Ky. Rep. 205, 206); in the Supreme Court of the United States (Tayloe v. Riggs, 1 Pet. Rep. 591; see, also, Riggs v. Tayloe, 9 Wheat. 485, 486) ; Pennsylvania (see De Haven v. Henderson, 1 Dall. Rep, 454); South Carolina (Smith v. Wilson, 1 Dev. & Batt, 40, 41), and Massachusetts (see Poignard v. Smith, 8 Pick. 278; Donelson », Taylor, ibid. 390) ; but parties and persons lraving an interest cannot be allowed to speak in respect: EVIDENCE. 421 Secondary evidence. to the contents of the instrument. Adams »v. Leland, 7 Pick. 62; Donelson ». Taylor, 8 ibid. 390 ; see Seekright v. Bogan, 1 Hayw. Rep. 178, note. The doc- trine as to the competency of parties, etc., on questions preliminary to the intro- duction of secondary evidence has been held in Virginia, North Carolina, and New Hampshire. So, semble, in Maine. 8 Amer. Jurist, 29, note 1. In New York, also. See Blade v. Noland, 12 Wend. 173 ; Jackson ex dem. Brown v. Betts, 6 Cow. Rep. 200. And in the latter state, where one party is sworn to prove the loss, the opposite party may be examined to disprove it and account for the in- strument. 2R.S. 406, § 74. In Delaware, parties are competent to prove loss, and the other party may produce witnesses to impeach the credit of his adversary thus sworn, before secondary evidence is given to the jury. This is upon the principle that the court must be satisfied as to the fact of loss by credible testi- mony. Shrowders v. Harper, 1 Harring. Rep. 444. In some cases it has been held, that the party must testify in order te rebut the suspicion that he is endeavoring to substitute inferior for primary evidence in order to defraud; as, where he is presumed, from the circumstances, to be in possession of the instrument. Tayloe v. Riggs, 1 Pet. Rep. 591; Blanton v. Miller, 1 Hayw. 4; Poignard v. Smith, 8 Pick. 278; De Haven vy. Henderson, 1 Dall. 424; Park v. Cochran, 1 Hayw. 410; Givens v. Manns, 6 Munf. Rep. 201; Smith ». Martin, 2 Tenn. Rep. (Overt.) 208. But in Connecticut, the loss of a specialty upon which the suit is founded cannot be proved by a party; for in that case the fact of loss is a material and travers- able one, to be determined by the jury. Coleman v. Wolcott, 4 Day’s Rep. 388. So, semble, in actions upon lost simple contracts, as notes, ete. ‘Swift v. Stevens, 8 Conn. Rep. 431. Such is the doctrine in South Carolina ‘Sims v. Sims, 2 Rep. Const. Ct. So. Car. 215; Davis v. Benbow, 2 Bail. Rep. 427), and in Vermont (Wright v. Jacobs, 1 Aik. Rep. 394; Penfield . Cook, ibid. 96). As to the rule in New Hampshire and North Carolina, see M’Neil v. M’Clintock, 5 N. Hamp. Rep. 355, 358 ; Cotton v. Beasley, 1 N. Car. Law. Repos. 239. The doctrine has been held otherwise in New York, Massachusetts, Pennsylvania and Louisiana ; and there, in actions upon lost notes, parties, etc., are competent witnesses to prove the fact of the loss. Chamberlain v. Gorham, 20 Johns. Rep. 144;-Blade v. Noland, 12 Wend. 173 ; Meeker». Jackson, 3 Yeate’s Rep. 442; Donelson v. Taylor, 8 Pick. 890; Page v. Page, 15 ibid. 399; Miller v. Webb, 8 Lou. Rep. (Curry) 516. So, in Delaware, in an action on a lost deed. Shrowders v. Harper, 1 Harringt. Rep. 444. But they cannot be allowed to testify to the jury. Donelson v. Taylor, supra ; see Jones v. Fales, 5 Mass. Rep. 101, and Forbes v. Wale, 1 W.Black. 532. In respect to the form of the oath to be administered where a party or person interested is sworn to prove loss, etc., see Phillipps on Ev., Cow. & Hill’s Notes, part 2, p. 695 et seq. : In several cases the party’s affidavit has been recognized as competent on the question of loss. See Givens ». Manns, 6 Munf. 201; Taunton Bank v. Rich- ardson, 5 Pick. 436; Poignard v. Smith, 8 ibid. 278; Tayloe v. Riggs, 1 Peters’ Rep. 591; Smith v. Wilson, 1 Dev. & Batt. 40, 41; Donelson ». Taylor, 8 Pick. Rep. 390; Patterson v. Winn, 5 Peters’ Rep. 240; Riggs v. Tayloe, 9 Wheat. 486 ; Smith v. Martin, 2 Tenn. Rep. (Overt.) 208; Page v. Page, 15 Pick. Rep. 374, 375. But a person, competent to testify generally in the cause, must testify in the ordi- nary way, that the advantage of a cross-examination may be preserved. Poignard 4% Smith, 8 Pick. 272, 278. See, however, Smith v. Martin, 2 Tenn. Rep. (Overt.) 08. : Where a paper has been deposited in a publie office, an official certificate of the officer is sometimes made evidence of the loss by statute. See Jackson ex dem. Swartwout v. Cole, 4 Cowen’s Rep. 589. But, unless there be a statute, authoriz- ing the certificate, it cannot be made evidence. See Hammond v. Norris, 2 Harr. & John. 130. A surrogate’s certificate, as to ineffectual search for a will deposited in his office, is not admissible independent of a statute rendering it so. Jackson ex dem. Schuyler v. Russell, 4 Wend. 547. And even where this certificate is made evidence, the party is not obliged to resort to it, but may still prove search to have been made in any other regular mode. Ibid. Or, he may show that the opposite party obtained it surreptitiously, and thus supersede the necessity of getting the certificate of the officer, which might otherwise be requisite. Davis v. Spooner, 3 Pick. Rep. 287, 288. ° 422 EVIDENCE. Secondary evidence. Where, in order to account for the non-production of an indenture of apprenticeship, a witness stated that hearing it was in the possession of the pauper (who was then very ill, and shortly afterwards died), he called upon him to make inquiries about it, and he told him that when, the indenture expired, it was given up to him, and he burnt it: it ’ was proved also that inquiry was made of the executrix of the master, who said she knew nothing about it; but it did not appear that any search had been made for it among the papers of the master or of the pauper; the court held this to be sufficient; it was not, perhaps, sufficient as proof of the actual destruction of the indenture by the pauper, but it was sufficient to discharge the party of laches in not making further inquiry.(a2) And in a case ina note in East's Re- ports,(6) Lord Ellenborough, Ch. J., said, “‘I remember an indictment tried before the late Mr. Justice Buller, against a man, I think, of the name of Spragg, for forging a note, which he afterwards got possession of and swallowed; and parol evidence was permitted to be given of the contents of the note, though no notice to produce it had been given ; but, then, indeed, it might be said that such a notice would be nuga- tory, as the thing itself was destroyed.” Where the document is lost, the proof of the search for it must be by persons who actually at one time had the custody of the original, or by the persons legally entitled to the custody of it,(c) and must be such as to satisfy the court that sufficient diligence has been used in the search.(d) [5138] — *So, if the deed or other instrument be in the hands of the opposite party, and he refuse, on notice, to produce it at the trial, you may give secondary evidence of its contents.(¢) So, if a witness, served with a subpana duces tecum to produce a deed or other writing, appear at the trial, but refuse to produce the docu- ment required of him, for a reason which the judge may deem suffi- cient—as if it be a deed, and he claim title under it,( 7) or if he be an attorney, and claim a lien upon it,(g) or object that it is the title deed of his client,(z)—the judge upon application will allow the party to give secondary evidence of its contents. And where a witness, who had (a) R. v. Morton, 4M. &S&. 48. (e) See infra. (b) How ». Hall, 14 East, 276, n. (f) Doe v. Owen, 8 Car. & P. 110. (c) See R. v. Castleton, 6 T. R. 236; R. v. (g) Doe v. Ross, 7 Mees & W. 102; R. v. Piddlehinton, 3 B. & A. 460; R. v, Stour- Hankins, 2 Car. & K.-823. bridge, 8 B. & C. 96. (kh) Mills v. Oddy, 6 Car. & P. 730; Ditcher (d) See R. v. East Farleigh, 6 D. & R. 147. v. Kendyick, 1 Car. & P. 161. EVIDENCE. 423 Secondary evidence.—Notice to produce. been subpcenaed to produce a letter, stated in his examination at the trial, that after action brought he gave it to the opposite party, who said that he wished to give it to his attorney; upon this the attorney was called upon to produce the letter, and not doing so, Ld. Kenyon allowed the other party to give parol evidence of its contents.(a)(1) (g) Notice to produce. If you wish to prove a document, which is in the hands of the oppo- site party, or of his agent or deputy,(d) or of his banker,(c) you may give him or his attorney notice to produce it; and if, when called upon at the trial, he refuse to produce it, then, upon proof of the notice, and (a) Leeds v. Cook, 4 Esp. 256. (c) Partridge v. Coates, Ry. & M.156; Bur- (b) Baldney v. Ritchie, 1 Stark. 338; Sin- ton v. Payne, 2 Car. & P. 520. clair v. Stephenson, 2 Bing. 514; 1 Car. & P. 582; Taplin v. Atty, 3 Bing. 164. (1) The writings required must, in some way or other, be shown in the party’s possession or power before it can be said that he is in fault for not producing them, and, consequently, before secondary evidence of their contents is received,. or any inference made against him from their non-production. See per Sutherland, J., in Life and Fire Ins. Co. v. The Mechanics’ Fire Ins. Co., 7 Wend. 34; per Taylor, C.J., in Nicholson v. Hilliard, 1 N. Car. Law Repos. 254; per Johnson, J., in Reid v. Colcock, 1 Nott & McCord, 592-604; M’Killip v. M’Ilhenny, 4 Watts’ Rep. 318, 319. ; Some cases, as to the mode of proving the fact of possession, will be found in Phillips on Evidence, Cowen & Hill’s Notes, part 2, p. 411. It cannot be made out as against one defendant by the declaration of his co-defendants, unless a joint liability in all be first shown. Birbeck v. Tucker, 2 Hall’s Rep. N. Y. 8. C. 121. : : But possession is frequently presumed from the nature of the paper, as well as other circumstances indicative of its place of custody. The inquiry, in the first instance, may generally be determined by ascertaining to whom the possession rightfully belongs; for, in the absence of proof to the contrary, the law will pre- sume that the person entitled holds the custody. Thus, an appointment of an officer as overseer was presumed to be in his possession. Rex v. Leicester, 1 Barn. & Ald. 173. On the general question as to the person to whose possession title deeds belong, see Lord Buckhurst’s case, 1 Coke’s Rep. 1. In some of the states, where a prima facie case of possession is made out against a party notified to produce a paper, he may be sworn to prove the contrary. Such is the law in Pennsylvania. Wood v. Corinell, 2 Whart. Rep. 532. Buta party sworn to this purpose cannot be allowed to testify generally as to the very gist of the cause. Ibid. In the Circuit Court of the United States, it was held, that though the party might purge himself by swearing that he had not the paper in his possession, or had diligently searched, but could not find it, yet he could not be wbliged to answer whether he had not received such a paper. Vassee v. Mifflin, 4 Wash. C. C. Rep. 519. Nor is he obliged to testify at all; but he gener- ally does so in order to avoid the inferences which might otherwise be made against him. Wood v. Connell, 2 Whart. Rep. 562, 563. As to this doctrine in New York, see Hammond v. Hopping, 18 Wend.:505. But the attorney of the party may be compelled to testify. See Rhoades, lessee, v. Selin, 4 Wash. C. C. Rep. 715, 718. 424 EVIDENCE. . Notice to produce. that the document is in the possession of the party or his agent, etc.,(a) you may give secondary evidence of its contents.(1) Where, upon a bill of indictment for the forgery of a deed being preferred, the grand jury stated to the judge.that they were informed that the deed alleged to be forged was in the possession of the defend- ant, and asked whether they could return a true bill, if the deed was not produced before them; the judge (Parke, J.) told them, that if the deed, from being in the possession of the prisoner, or from any other (a) See Robb v. Starkey, 2 Car. & K. 148. (1) The rule on this subject, generally, is the same in criminal as in civil cases. See Rex v. Watson, 2 T. R. 201, per Buller, J.; M’Nally’s Ev. 236, 237, 238, 239 ; Roscoe’s Cr. Ey. 9 et seg.; The People v. Holbrook, 13 Johns. Rep. 90; United States v. Britton, 2 Mason, 464 et seq. ; State v. Kenbrough, 2 Dev. Rep. 431, 436 ; State v. Gustin, 2 South Rep. 744, 746; State v. Potts, 4 Halst. 26, 28, 29 e¢ seq. The general rule, that, where one party wishes to avail himself of a written in- strument, in possession of his adversary, he must give notice to produce it, is re- cognized in the following cases, as well as in many others. Waring v. Warren, 1 John. Rep. 340; Rogers v. Van Hoesen, 12 ibid. 221; Nicholson v. Hillard, 1 N. Car. Law Repos. 253; Dobbin v. Watkins, Col. Cas. 33; Pickering v. Meyers, 2 Bail. Rep. 113; Blood v. Harrington, 8 Pick. 552; Smith », Morrow, 7 Monroe’s Rep. 234; Thayer v. Middlesex Mutual Fire Ins. Co., 10 Pick. 326; M’Clean ». Hertog, 6 Serg. & Rawle, 154; Alexander v. Coulter, 2 ibid. 494, 476; Kennedy v. Fowke, 5 Harr. & John. 63; Campbell v. Wallace, 3 Yates’ Rep. 271; Jackson ex dem. Livingston v. Frier, 16 John. Rep. 193; Boyce v. Foster, 1 Bail. Rep. 540; Fraux v. Fraux, 1 Penning. Rep. 166, 167; State v. Kimbrough, 2 Dev. Rep. 431; Thornton v. Moody, 2 Fairf. Rep. 255, 256 ; M’Killup v. M’Ilhenny, 4 Watts’ Rep. 317. The operation of a notice to produce cannot be defeated by the party subse- quently transferring the custody of the paper to another person ; for such conduct, if sanctioned, might compel the opposite party to call a most unwilling witness. Per Best, C.J., in Best v. Osborne, 1 Carr.°& Payne, 632; Knight v. Martin, 1 Gow. 26. Even where the party, in good faith, lets the paper go out of his hands after notice, he ought to apprise the other party of it, so that he may know where to find it. Jackson ex ‘dem. Burr v. Shearman, 6 John. Rep. 18, 21. Where no- tice had been given to the party, and upon a second trial was served upon the attorney, who informed the party serving it that the instrument had been assigned, without his privity, to some one he did not know; heid, that the notice was in- sufficient without further inquiry from the party. Leeds v. Cook, 4 Esp. Rep. 256; see Fury v. Smith, | Hud. & Brooke, 735, 738, 739. ' The party who has a written instrament in his possession, and has been re- quired to produce it, may always prevent his adversary from resorting to second- ary evidence, by producing it, when wanted, on the trial. Dean v. Carnahan, 7 Mart. Lou. Rep. N.S. 258. But, after he has availed himself of the chance that his adversary would be unable to produce secondary evidence, and finds that his artifice has failed him, he cannot, by bringing forward the instrument, exclude the use of such secondary evidence as may have been given, unless he proves the instrument himself. -Semble, Jackson v. Allen, 3 Stark. Rep. 74. ' And a party refusing, on notice, to produce a paper in his possession or under his control, and thus obliging his adversary to resort to parol or secondary evi- dence of its contents, cannot be allowed to contradict the secondary evidence thus given, without producing the paper itself. Bogart v. Brown, 5 Pick. 18. Indeed, it has been held, that a party refusing to produce a paper in his possession, called a under a notice to produce, enemy ba allowed afterwards to retract and put in , the paper. EVIDENCE. 425 Notice ta produce sufficient cause, could not be produced before them, they might receive secondary evidence of its contents.(a) The case was tried at the fol- lowing assizes, and upon that occasion due notice was given to the prisoner to produce the deed ; it was proved that his attorney had given it in evidence in an ejectment, as part of the prisoner's title, and had afterwards received it back; and Vaughan, B., held, that on the pris- oner’s counsel refusing to produce the deed, this was sufficient to let in secondary evidence of its contents.(b) “*Where, upon [*139] an indictment for forging a deed, it was proposed to give sec- ondary evidence of it, upon the ground that it was in possession of the prisoner, and that he had notice to produce it; but it appearing that the notice was given since the commencement of the assizes, Parke, J., held that the notice was not sufficient, as it ought to have been given a reasonable time before the assizes: it was then proved that the prisoner, on an examination on oath upon another occasion as a witness before a magistrate, stated, that he had had the deed in ques- tion, but that thinking it of no value he burnt it; the admission of this examination in evidence was objected to, as being on oath, but as the prisoner at the time was not charged with this offence, Parke, J., admitted it, and held that the prosecutor was entitled to give second- ary evidence of the deed: the secondary evidence offered was a copy of the deed; but as the person who made this copy said that he had never examined it with the original, Parke, J., said, that under these circumstances there could hardly be a satisfactory conviction; and the prisoner was accordingly acquitted.(c)(1) (a) R. v. Hunter, 3 Car. & P. 591. (c) R. v. Haworth, 4 Car. & P. 254, (b) R. v. Hunter, 4 Car. & P. 128, ; (1) In England, a notice to produce may be either parol or written ;- and if both a parol and written notice has been given, proof of either is sufficient. Smith v. Young, 1 Camp. 440; Rosc. Ev. 4; Rose. Cr. Ev. 10; 2 Russ. on Cr. 629, Phil. ed. 1836 ; but see 3 Chitty’s Gen. Prac. 835. In New York, however, a notice to produce is required, by the rules of the Su- preme Court, to be in writing. On the general question as to what notices should be in writing, it has been held, that where a statute requires reasonable notice, and prescribes no form, it need not be in writing. Rex v. Surry, 5 Barn. & Ald. 539. A statute, directing notice to be lefé at a particular place, contemplates written notice. Semble, Gil- bert v. The Columbia Turnpike Company, 3 John. Cas. 107,109. ‘A notice. in legal proceedings means a written notice.” Ibid. p. 109; see the dissenting opinion of Bronson, J., 15 Wend. 428, 429, 430. In most of the United States, persons interested, and even parties to the record, are competent witnesses to prove the service of notice to produce. Jordan v. Cooper, 8 Serg. & Rawle, 575; Smith v. Wilson, 1 Dev. & Batt. 40. The plaintiff was held a competent witness to prove the service of notice of the cause of action. 426 EVIDENCE. Notice to produce. There are some cases, however, in which a notice to produce is not necessary : first, a notice to produce a notice is not necessary in any case ;(a) secondly, in larceny of a written instrument, secondary evi- dence of it may be given at the trial, without giving the prisoner a notice to produce the original ;(6) in the same manner as in civil cases, in trover for a written instrument, the nature of the instrument may be proved, without giving notice to produce the original.(c) The following may be the form of a Notice to Produce. Yorkshire Summer assizes, [or Midsummer sessions for the East Riding of the county of York], 1852. The Queen agamst A. B. Take notice, that you are hereby required to produce to the court and jury, upon the trial of this indictment [a certain, etc., describing the instrument; or if it be an alleged forgery, say, a certain paper writing, purporting to be, etc.], and all other letters, books, papers and writings whatsoever, relating to the matters in question in this prosecution. Yours, etc., G. H., the [prosecutor's attorney]. To [A. B., the above-named defendant].(1) (a) See Arch. Pl. & Ev. Civ. Act. 383, How etal. v. Hall, 14 East, 274; per Gibbs, J., (b) R. v, Aickles, 1 Leach, 330. in Scott et al. v. Jones, 4 Taunt. 868. (c) Bucher et al. v. Jarratt, 3 B. & P. 143; required by statute to be given to a justice of the peace, thirty days before process issued. Kidd v. Riddle, 2 Yeates Rep. 442. Where a notice or demand, not required to be in writing, is served upon a party by reading it from a paper, it may be proved by the person who read it without producing the writing or excusing its absence. Blake v. Ray, 1 Dev. & Batt, 334. (1) As to the form of the notice, it should be sufficiently specific in its terms fairly to apprise the party of the paper which he is required to bring forward. On this subject, the rule applicable to notices generally would seem to apply. See Gra- ham’s N. Y. Prac. 529. A notice not describing the paper sought, but in broad terms requiring the party to produce all papers relating to the bill or debt in question, has been held too vague. France v. Lucy, Ry. & Mood. 341; Jones v. Edwards, 1 McCel. & Younge, 139; see 3 Chitty’s Gen. Prac. 835, 886. Conced- ing, however, that a notice in general terms, to produce all papers in the party’s possession or under his control, relating to the matter in suit, would be held of no force or effect, yet, although the notice does not give a minute description of the paper sought, if it apprise the party that this paper is the one wanted, the object of the notice is answered, and it will be held sufficient. See per Sutherlahd, J., delivering the opinion of the court in Walden v. Davison, 11 Wend. 65, 67. Ac- cordingly, notice to the attorney to produce a certain letter, written by the plain- tiff to the defendant, concerning an execution produced on a former trial of the EVIDENCE. 427 Notice to produce. *This notice should be served such a reasonable time before [*140] the trial, as will allow of the party’s searching for the instru- ment, for the purpose of producing it ;(a) and in country cases, for the “ assizes, it ought to be served before the commission day,(d) unless it appear that the party actually has it in the assize town at the time. Afterwards at the trial, the party giving the notice may call for the instrument or not, at his option.(1) (a) Simms v. Kitchen, 5 Esp. 46; House- (6) R. v. Haworth, 4 Car. & P. 254; Trist v, man v. Roberts, 5 Car. & P. 394; Hargest v. Johnson, 1 Mo. & R. 259; George v. Thomp- Fothergill, ibid. 303. son, 4 Dowl. 656. same cause, ‘and all other papers in your custody or power, relating to the mat- ter in controversy in this cause,” was adjudged sufficiently explicit to notify the attorney that the execution was one of the papers required ; especially where it was shown that, on such former trial, the letter and execution were produced by the attorney himself, and he did not attempt to excuse himself from its production on the second trial, except un the ground of its not being in his possession. Wal- den v. Davison, supra. (1) The notice must be reasonable in point of time ; and whether it is so, or not, is a question exclusively for the court, upon which they are to exercise a sound legal discretion in reference to the circumstances of each particular case. Per Savage, ©.J., in Utica Ins. Co. v. Caldwell, 3 Wend. 296; per Woodworth, J., in Gorham v. Gale, 7 Cowen’s Rep. 639; see, also, M’Pherson v. Rathbone, 7 Wend. 216; Hammond v. Hopping, 13 Wend. 505, 508, 509, per Sutherland, J. In Drabble v. Donner (Ry. & Mood. N. P. Rep. 47), a notice to produce letters written by the plaintiff to the defendant, who was a foreigner, was held sufficient when served four days before the trial, though the defendant had come into the country only seven’ months before, not designing to change his residence, and though the letters were written eighteen years back, and were addressed to the defendant at his foreign domicil. The court did not pretend that the notice was sufficient to enable the party to obtain the papers from his residence, but went upon considerations of the inconvenience and delay which would be occasioned, unless inferior evidence were received under such circumstances. S. C. 1 Carr. & Payne, 188. The English cases, however, generally require that notices to pro- duce should be served in such season as will afford the other side a reasonable opportunity of obtaining the paper. See Atkinson v. Carter, 2 Chitty’s Rep. 403 ; Brown v. Waters, 1 Mood. & Malk. 235; Sims v. Kitchen, 5 Esp. Rep. 46; House- man v. Roberts, 5 Carr. & Payne, 394. A cause was tried on Wednesday morn- ing at the assizes; on the previous, Monday evening, the defendant’s attorney, being at the assizes town, and nineteen miles from his office, was served with notice to produce a paper, which would probably be at his office; held, that the service was too late. Harget v. Fathergill, 5 Carr. & Payne, 303. Notice was given to-the attorney, at Billericay, in Essex county, to produce certain deeds, who went to London and obtained them; afterwards, and on Monday preceding the day of trial, which was appointed for Wednesday, a fresh notice was given to the attorney to produce another deed; the attorney stated to the person who served the notice, that he had not the deed, but that if the adverse party would pay the expense of sending a messenger for them to London, it should be had: this offer not being complied with, the court held the notice insutticient, and that secondary evidence could not be given. Otherwise, however, it seems, if the party had offered to pay the expense of sending. Doe ex dem. Curtis v. Spitty, 3 Barn.-.& Adol. 182. A prisoner, tried at the assizes on Wednesday for setting tire to his house with intent to defraud an insurance company, was, on the Mon- day preceding, served at the prison with notice to produce the policy of insurance given him by the company; the prisoner’s home was ten miles from the prison ; 428 EVIDENCE. Notice to produce.—By dying declarations. (h) By Dying Declarations. In trials for murder or manslaughter, the dying declaration of the deceased, as to the prisoner’s guilt, the infliction of the injury, etc., made at a time when he was perfectly aware of his danger, and entertained no hope of his recovery, is receivable in evidence in proof of the indictment, the consciousness of the near approach of death being deemed equivalent to the sanction of an oath. Therefore, as a foundation for such evidence, expressions or actions of the deceased, indicating the sense he entertained of his danger,(a) or circumstances from which the same may be collected,(6) must first be proved, in order that the court may judge whether the deceased, at the time he made the declaration, was in that awful state of certainty, as to his approaching dissolution, which the law treats as equivalent to the sol- emn sanction of an oath. And it is for the court to judge of this, not the jury; for it is the court that has to decide whether the evidence is receivable.(c)(1) , (a) Tinkler’s case, 1 East P. C. 854-358. (c) John’s case, supra, (bd) 1 East P. C. 354; John’s case, ibid. 357. . and held, that the prisoner could not be presumed to have the policy in his pos- session at the prison, and as the trial might have come on at an earlier period, the notice was not sufficient to let in secondary proof. Rex v. Ellicombe, 5 Carr, & Payne, 522. And it has been laid down generally, that a notice to produce, served upon a prisoner, after the commencement of the court at which he is to be tried for felony, is too late. Rex v. Howarth, 4 Carr. & Payne, 254. It should be given a reasonable time before the court. Ibid. When the party does not live at the shire town, it should be served before the commission day. °1 Mood. & Rob. 259; Rose. Cr. Ev. 11. ; (1) Dying declarations can only be allowed on a trial for homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. Lambert v. State, 23 Miss. R. 323. The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and every hope of this world is gone ; when every motive to falsehood is silenced, and the mind is induced, by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obliga- tion equal to that which is imposed by a positive oath, administered in a court of justice. Per Eyre, C.B., 1 Leach; 202, in Woodcock's case; Woodside v. State, 2 How. 655; vide Campbell v. State, 11 Geo. 353; Nelson v. State. 7 Humph. 542; Smith v. State, 9 ibid. 9; Hill v. Commonwealth, 2 Gratt. 594; Moore v. State, 12 Ala. 764; McLean v. State, 16 Alabama Rep. 672; Dunn »v. State, 2 Arkansas Rep. 229; State v. Tilghman, 11 Iredell, 513; Commonwealth v. Murray, 2 Ashmead,. 41; Commonwealth v. Williams, ibid. 69; People v. Green, 1 Parker, 11; Lam- bert v. State, 23 Miss. 323; Green v. State, 13 Miss. 382; Lewis v. State, 9 Sm: & Marsh, 115; Nelms ». State, 13 ibid. 500; Anthony v. State, 1 Meig. 265. The dying declarations of slaves are admissible, it being presumed that they have a sense of religious accountability. Lewis v. State, 9Sm. & Marsh. 115. It is not necessary, in order to make the dying declaration admissible, that it be uttered in the very act of dying.; it is sufficient if he be under the apprehen- EVIDENCE. 499 By dying declarations. Where an apothecary, upon being called in to.a woman, and seeing she was in a dying state, pressed her to say what she had done, for sion of impending dissolution, when all motive for concealment or falsehood is presumed to be absent, and the party is in a position as solemn as if an oath had been administered. State v. Tilghman, 11 Iredell, 513; State v. Poll, 1 Hawks, 442. Therefore, a declaration, though with such an interval of time as to allow the deceased to go from her own room upstairs into another room, is competent to be put in evidence after her death, as a part of the res geste. The Com. v. McPike, 3 Cush. 181. [The defendant, in a trial for homicide, cannot prove statements by the deceased made three days after he received the wound, but when he was not in expectation of death. People v. McLaughlin, 44 Cal. 435. The declarations to be admissible must be made when the party is expecting immediate death, Scott v. People, 63 Ill. 508; People v. Knapp, 26 Mich. 112; and may be proved by the prisoner as well as by the state, People v. Knapp, 26 Mich. 112. See a case in Pennsylvania, where a dying person was not confronted with the prisoner, Brown v. Com., 73 Pa. St. 321; and for a case where the declarations were held inadmissible,. see Crookham v. State, 5 W. Va. 510.] (Unsworn dying declarations are only admissible when the person is in extremis and fully believes himself about to die, and when his death is the subject of the charge, and the declarations themselves relate to the circumstances of the death. State v. Medlicott, 9 Kans. 257; State v. McCanon, 51 Mo. 160; compare Johnson ». State, 47 Ala. 9. The rule that a dying declaration must be complete in itself, does not mean that it must state all the res geste of the homicide, but only that the statement of any part should be all that the person intended to say concerning it. The loss of a memorandum of such dying declarations only affects their relia- bility. State v. Patterson, 45 Vt. 308. In a case where a part of the statement was made by the dying man, and a part was dictated to a justice of the peace by a third person in the presence of the dying man, and was then read over to him, only that portion uttered by the deceased personally was admitted in evidence. State v. Martin, 830 Wisc. 216.] [The court should not say that dying declarations are entitled to as much weight as evidence taken ordinarily. The courts of Missouri can only decide as to the admissibility of evidence, and have no power to comment upon its weight. State ». McCanon, 51 Mo. 160.] ! : [While the general rule is admitted that the fixed belief that he would soon die, and his being then in a dying condition, render the dying declarations of the killed person admissible, yet the character of the deceased for wickedness, his disregard of the laws of God, and his blasphemy, should be taken into account by the jury in estimating the truth of his statements; if he had no belief in God or in revela- tion, these facts affect the weight to be given to his dying declarations, Nesbit v. State, 43 Geo. 238. Deceased, who was shot at night in a house from the outside through an aperture, said, while in extremis, ‘‘it was E. W. [the defendant] who shot me, though I did not see him:” held inadmissible. Dying declarations are only admissible where the deceased could have testified thereto if he had lived. This was simply an opinion, and not evidence of the fact. State v. Williams, 67 N.C. 12. A dying declaration that the wound was made without any provocation on the part of the deceased, is not incompetent as a matter of opinion. Wroe ». State, 20 Ohio St. 460. The dying declarations of a person who was mortally wounded by the same shot that killed the person for whose murder defendant was on trial, how far admissible. State v. Wilson, 23 La. An. 558. General rules con- cerning dying declarations discussed. Dixon v. State, 13 Flor. 636; Barnett v. People, 54 Ill. 825; Com. v. Britton, 1 Leg. Gaz. Rep. (Pa.) 13; Hill v. State, 41 Geo. 484; Benavides v, State, 31 Tex. 579; Hackett v. People, 54 Barb. 370; Mor- gan v. State, 31 Ind. 193; People v. Perry, 8 Abb. Pr. N.S. 27; Jackson v. Com., 19 Gratt. 656; Young v. Com., 6 Bush, 312; Woten v. Wilkins, 39 Geo. 223; Mar- shall v. Chicago, etc., R. R., 48 Ill. 475; People v. Davis, 56 N. Y. 95; Shaw v, People, 5 T. & C. (N. Y.) 489; People v. Ah Dat, 49 Cal. 652; Wright v. State, 41 Tex. 246; Edmondson v. State, 41 Tex. 496; People v. Olmstead, 30 Mich. 431.] 430 EVIDENCE. By dying declarations. she could not live twenty-four hours unless proper relief was afforded to her, and she then told him what she had taken and who gave it to" her: but at that moment she was a good deal relieved from pain, which the apothecary attributed to mortification, and in fact she died in an hour afterwards; the judges thought that it did not sufficiently appear that she was conscious that she was in a dying state when she made this declaration: on the contrary, she seemed to think that, if she told what she had taken, she might have relief and recover; they therefore held that the declaration ought not to be received.(a) Ina similar case, where a surgeon told the deceased that she would not recover, and she was aware of her danger, but said she hoped he would do what he could for her for the sake of her family; [*141] from the expression of hope, *Bosanquet, J., held, that a dec- laration made by her at the time, could not be received in evi- dence; that, to make such a declaration evidence, it must appear that the deceased had the impression on her mind of almost immediate dissolution.(6) But, if the declaration be made under such an impres- sion, the fact of the party afterwards living for some days will not affect. the admissibility of the evidence ;(c) and on the other hand, if the deceased had not at the time that impression, his declaration is not evidence, although he may have died in an hour after making it.(d) Where the deceased was a child of only four years old, Parke, J., held her dying declarations not to be evidence, because from her tender age it was impossible she could entertain that idea of a future state which is necessary to make such a declaration admissible.(e) (1) (a) Welbourn’s case, 1 East P. C. 358. (2) Welbourn’s case, supra. (b) R. v. Crockett, 4 Car. & P. 544. (e) R. v. Pike, 3 Car. & P. 598. (c) R. v. Bonner, 6 Car, & P. 386. (1) Immediately, and on the evening after being wounded, which was eleven days before his death, the deceased declared to his nurse that he was robbed and killed, and could not get the better of it, and persevered in these and the like declarations to her till his death, though a surgeon was called to him the evening after the wound, who gave him hopes of life till just before his death; but told him there was danger; and he did not express a consciousness that he must die, to the surgeon. Held, that his declarations as to the facts attending the homicide, made eleven days before his death, after the declarations to the nurse, and his declarations as to the homicide made subsequently, were admissible in evidence, though they were made before the surgeon told him his state was hopeless. Rex v. Moseley, Ry. & Mood. Cr. Cas. 97. F On the trial of an indictment against Poll, a domestic of 8. Skinner, for poison- ing him, it was in evidence that he died on Thursday; and his declarations from the Sunday previous, up to his death, were offered in evidence for the state. Dur- ing that interval he was evidently sick from the effect of poison, and stated his EVIDENCE. 431 By dying declarations. belief that he should die, though he was occasionally better. He said he was poisoned ; and, as he believed, by Poll, who gave him something in his food and drink. His declarations were held admissible, being made at times when he despaired of a recovery. State v. Poll and Lavina, 1 Hawks, 442, 518, 519. But the court did not mean to be understood as sanctioning the declaration of belief, as to the person poisoning, as proper evidence. The deceased was robbed and stabbed in several places, one of which was his bowels. He became so weak that he was brought into the city on a litter, where a surgeon dressed his wounds, and he died in a few days after. The surgeon deposed that one of the wounds received by the deceased was such as generally proved mortal. The expressed opinion of the deceased as to his expectation of death, was not in evidence, nor the opinion of his surgeon, as given to him; yet, from the palpable danger of the case, the court inferred his apprehension of death, and received his dying declarations, giving an account of the robbery. State v. Monaquas, Charlt. Rep. 16. But in another case, although-the wound was quite dangerous, and plainly so, a large portion of the entrails being out, which were badly cut and wounded, the surgeon believing from the first that the deceased could not live, the court hesitated to receive the declarations of the deceased, till a witness had deposed to his expression of an opinion that he should not live. King v. Com., 2 Virg. Cas. 78, 80, 81. And in another case, where the deceased was wounded, and died the next day, nothing appearing as to his opinion of his own danger, before the declarations were made, they were held inadmissi-. ble. The court said ‘Declarations of a dying man have some times been received ; but then they must be the declarations of a dying man, of one so near his end that no hope of life remains; for then the solemnity of the occasion is a good security for his speaking the truth, as much so as if he were under the obligation of an oath. But if, at the time of making the declaration, he has reasonable prospects and hope of life, such declarations ought not to be received ; for there is room to apprehend he may he actuated by motives of revenge and an irritated mind, to declare what possibly may not be true.” The State v. Moody, 2 Hayw. 31. In another case, the deposition of the deceased was taken imme- diately after he had received a dangerous wound; but he did not plainly men- tion, even to his most intimate friends, that he thought there was no chance for his recovery, till three days after. The court, deeming it doubtful, on the testi- mony, whether, within the three days, he felt morally certain that he must die, refused to hear any of his declarations except those made after that time. The People v. Anderson, N. Y. 0. & T., Edwards, C.J., presiding, A. D. 1824; 2 Wheel. Cr. Cas. 390, 398. It is put by Evans, that the despair of the deceased may be inferred from his declarations contemporary or previous to the statement proposed as evidence to the jury, or from his situation being such as necessarily to induce that impression. 2 Ev. Poth. 293, 294; and see Trant’s case, Macnally’s Ey. 385. Where, on a trial for murder by poisoning, it appeared that the deceased expressed, during his last illness, his opinion that he should not live, but was encouraged by his attending physician to believe that he would recover, it was held that his statemients made immediately thereafter, were not admissible as dying declarations. The People v. Robinson. 2 Parker, 235. It is error to admit evidence of dying declarations without first ascertaining that the deceased was conscious of his condition when making them. Montgomery v. State, 11 Stan. O. Rep. 424. A prima facie case of the moral consciousness required should be exhibited to the court in the first instance, as preliminary to the admission of the testimony. And of this the judge is to determine alone, without the aid of the jury, for the jury shall not hear such declarations till the judge has determined that they are dying declarations ; this done, the evidence should be received, and left for the jury to determine whether the deceased was really under the apprehension of death when the declarations were made, which they might infer either from circumstances or the expressions used. Campbell v. State, 11 Geo. 353; Nelson v. State, 7 Humph. 542; Lambert v. The State, 23 Miss. 323; Com. v. Murray, 2 Ashm. 41; Smith v. State, 9 Humph. 9; Moare v. State, 12 Ala. 764; Dunn ». State, 2 Ark. 229. A witness cannot give his own opinion, but only depose to the state of the wounds of the deceased, and what he then and there said and did, from which a 432 EVIDENCE. By dying declarations. re ae may decide what he thought of his condition. McLean v. State, 16 a. 672. Where dying declarations made under the belief of impending death, are inconsistent with each other, it is the duty of the jury to weigh them, and to determine which or whether either is to be believed; and if the charge of the court takes this duty from them, or if the court undertakes to determine these questions, it is error. Moore v. State, 12 Ala. 764. Before the judge decides, he hears all the deceased said respecting the danger in which he considered himself, and he should be satisfied that the declaration was made under an impression of almost immediate dissolution. It is not enough that the deceased thinks he shall ultimately never recover. Thus, the deceased being operated upon by a quack surgeon, with a rectum bougie (May 10th), by which he received an injury, took to his bed, and died in about a week (May 17th). On the evening of the 10th, he had declared to L., a regular surgeon, that he had such an injury in the bowels that he should never recover. The surgeon endea- vored to encourage him, really thinking him not in danger of dying; but he per- sisted in saying he felt satisfied he should never recover. Hullock, B., rejected the proposed declaration as evidence against the quack, who was indicted and on his trial for manslaughter. Rex v. Van Butchell, 3 Car. & Payne, 629; andsee Rex v. Callaghan, Macnally’s Ev. 385. The case of R. v. Crockett, cited in the text, was an indictment for the murder of Jane White, by administering corrosive sublimate. Her surgeon testified thus: “T told the deceased she would not recover, and she was perfectly aware of her danger. I told her I understood she had taken something. She said that she had, and that that damned man had poisoned her. I asked her what man, and she said Crockett. She said she hoped I would do what I could for her, for the sake of het family. I told her there was no chance of her recovery.” Bosan- quet, J.: “This shows a degree of hope in her mind. To render a deglaration of this kind admissible, she must have had the impression on her mind of an almost immediate dissolution.” The surgeon was clear that the deceased was mortally wounded, on first seeing him ; and the deceased told the surgeon he thought so, and expressed a conscious- ness that he should not recover, to several witnesses, and was constantly at prayer in the intervals of being easier from pain. His declarations, after this proof given, were received against the prisoner, though, to the witness who heard them, the deceased made use of expressions indicating an expectation of surviving: as that, if his brother (the prisoner) would go off, where he would never more be heard of, he, the deceased, would forgive him; and the witness thought the deceased then expected to live. The declarations received against the prisoner were made a few hours after the surgeon had’ dressed the wound, and given the deceased his opinion that he would die, and after the deceased had expressed the same opinion to another witness. Gibson v. Com., 2 Virg. Cas. 111, 116, 117. Where, upon a trial for murder, it appeared that the deceased, being perfectly conscious, but speechless, was asked if it was the prisoner who inflicted the injury, and, if so, to squeeze the hand of the interrogator, which she thereupon did, it was held, that this was a dying declaration, proper to be submitted’ to the jury. Com. v, Casey, 11 Cush. 417. Where, on an indictment for murder, the dying declarations of the murdered man were offered in evidence, and the witness who proved the precise words used by the dying man was asked whether ‘the deceased did not so express himself as to convey the idea that it (what the deceased stated) was a mere opinion, and not a thing within the actual knowledge of the deceased ;” it was held, that inas- much as the witness gave the exact words used by the deceased, it was for the jury to judge of their import, and that the witness could not answer the question ; though it seems it would be otherwise if the witness were detailing merely the substance of what the deceased said, and not giving his exact words. Nelms v. State, 13 Smedes & Marshall’s R. 500. In the trial of an indictment for murder, when the dying declaration of the deceased is, that “A. B. has shot me, or has killed me,” the court must pre- sume, prima facie, that the deceased intended to state a fact of which he had knowledge, and not merely to express an opinion. The jury must judge of the weight of this, as of other evidence, by the accompanying circumstances. If he EVIDENCE. 433 By dying declarations. merely meant to express his opinion or suspicion, as an inference from other facts, the jury should disregard it as evidence in itself. State v. Arnold, 13 Iredell’s R. 184. In one case, the deceased, though she had not expressly intimated a word of apprehension to her aunt, who attended her, or any other person, yet detailed shocking circumstances concerning a rape which had been committed upon her, and soon after died of the injury. It appearing that she had, previous to this detail, confessed, been absolved, and received extreme unction from a priest, this was considered sufficient evidence that she had given herself up to die soon; and the declarations were received. Rex v. Minton, Macnally’s Ev. 386. Where, on a trial for murder by poisoning, it appeared that the deceased, on the third day of her illness, stated tu her female attendant that she expected to die, because she was poisoned, and also made a similar statement at a subse- quent time, and at no time was of opinion that she might recover; her declara- tions, made after the third day of her illness, down to the time of her death, on the twelfth day of her illness, were received as evidence, although it did not appear that either of her attending physicians had informed her she was going to die; and although it appeared that one of her physicians, notwithstanding the cause of her illness, had spoken to her encouragingly of her prospect of recovery. The People v. Grunzig, 1 Parker's Crim. R. 299. On the same day the mortal stroke had been given, a witness told the deceased that he thought his deposition ought to be taken, as in the opinion of the witness he must inevitably die before morning; the deceased replied that he thought so, too; afterward the deceased exclaimed, ‘‘O, Lord, I shall die soon!” His dec- larations were reduced to writing, read over to him twice, and signed by him. The attending physician, on the evening previous, had held out to the deceased some hope of recovery, but told him his chance was bad. The deceased lived some ten days after making the declaration. Held, that the declarations were admissible. McDaniel v. The State, 8 Sm. & Marsh. 401. Where, under the direction of the attending physician, and in his presence, W. told the deceased, on the day before her death, that she could not live; where- upon the deceased requested the physician to hear a communication that she wished to make, and with his consent she proceeded to give a history of the con- duet of the accused during her illness, tending to show that he had several times during such illness administered arsenic to her; it was held that such communi- cation was admissible, as her dying declaration. People v. Green, 1 Parker’s Crim. R. 11. ; Where the deceased, when first discovered after the wound was inflicted, exclaimed, ‘‘O my people,” but said nothing else which indicated the apprehen- sion of immediate death, it was held that as this exclamation indicated alarm and suffering, but showed no sense of approaching dissolution, his dying declaration was not admissible. Lewis v. State, 9 Sm. & Marsh. 115. If the deceased, at the time he made the declarations, was, in fact, in a condi- tion to make them competent evidence, a hope of recovery at a subsequent time would not render them incompetent. State v. Tilghman, 11 Iredell, 513. Dying declarations are admissible, both as to who was the perpetrator of the injury, and the facts which attended the transaction. Caipbell v. State, 11 Geo. 353. But whether evidence that the prisoner had two or three times before tried to kill the deceased would be admissible, guwre? Nelson v. State, 7 Humph. 542. Declarations, made antecedent to the stroke which caused the death, are, of course, not admissible. Maryland v. Ridgley, 2 Harr. & .M’Hen. 120. The dec- larations which may be given in evidence must be confined to the act of killing, and the circumstances immediately attending the act, forming a part of the res geste. State v. Shelton, 2 Jones, 360. The substance of the dying declarations of the deceased may be proved. Ward ». State, 8 Blackf. R. 101; Montgomery », State, 11 Ohio, 424. And dying dec- larations are admissible, notwithstanding there may be other witnesses by whose testimony the same facts might be shown which are sought to be established by dying declarations. People v. Green, 1 Parker’s Crim. R. 302. On a trial for the murder of a wife by her husband, the declarations of the deceased, made in extremis, as to the cause of her death, are competent evidence against the prisoner. People v. Green, 1 Denio, 614. So, the dying declaration 28 434 EVIDENCE. By dying declarations. of the husband is admissible, under similar circumstances, against the wife. Moore v. State, 12 Ala. 764. A dying declaration is properly taken without oath, even when made before a magistrate; nor, in fact, has the magistrate, thus acting extra-judicially, any authority to administer such oath. 1 Leach, 503; 4 Black. Com. 137; 1 Nun. & Walsh. 365. The declaration, however, is not inadmissible because it was under the additional, although useless, obligation of an oath thus extra-judicially admin- istered. 2 Stark. Ev. 458, 459; Phil. Ev. 302; 1 Leach, 500. . In taking a dying declaration, the presence of the accused is unnecessary, and the necessity of cross-examination is dispensed with, from the supposed absence of any motive for falsehood in the party making the declaration. 1 Phil. Ev. 235; 2 Stark. Ev. 461; 1 ibid. 101. It is no objection, in point of law, to a dec- laration, that it was made in answer to questions, though solicitations natur- ally weaken the effect of the evidence. 7 Car. & P.' 238; 1 Leach, 503; 1 Str. 499. Where the deceased lay, the greater part of the interval between the wound and his death, unable to speak at all, and when able, only to utter a word or two, he was asked, did P. V. (the prisoner) strike you first? to which he answered yes, sir; did P. V. stab you? to which he answered yes, sir; these declarations were held admissible. Vass. ». Com., 3 Leigh, 786. He was immediately asked a. fourth question, which he was unable to answer; but it not appearing that the other answers were intended to be qualified by him, in which purpose he was interrupted, they were received, though it would have been otherwise had this appeared. Ibid. And where the deceased being asked, ‘‘who shot him?” replied, “the prisoner,” it was held that the declaration could not be rejected because, from weakness and exhaustion, he was unable to answer another ques- tion propounded to him immediately afterwards. McLean »v. State, 16 Ala. 672. But where it appeared that the declarations were intended by the dying man to be connected with and qualified by other statements, and with them to form an entire complete narrative, and that, before the disclosure was fully made, it had been interrupted, and the narrative left unfinished—it was held that such partial declarations were not admissible. Vass v. Com., 3 Leigh, 786. The declarant should not be bound over to prosecute; for although that may be said to be the act of the magistrate rather than of the party, still his submit- ting to be bound creates a presumption inconsistent with an expectation of imme- diate dissolution, on the part of the declarant. 1 Nun. & Walsh, 365; Rex ». Crawley, 1 Craw. & Dix. C. C. 248. It has been already stated, that dying declarations need not necessarily be reduced to writing. But as such declarations, when depending on fallible mem- ory, and verbally reported, are‘liable, as other statements, to be misunderstood or misreported, it is said to be usual, and should never be omitted when circum- stances and the situation of the party will permit, to reduce the declaration to writing, for greater precision, and this should be done at the time if is made, and in the very words, or as nearly as possible in the words of the declarant ; and it should be read over to him, in order te ascertain that it is correct. The same principles of law are applicable to the contradictory statements of persons in extremis, as to those of a witness under examination on-oath. M’Pher- son v. State, 9 Yerger, 279. Where the court below charged the jury, ‘that, if they found that the deceased, in her dying declarations, made contradictory statements, they were not to be governed by the rules of evidence in relation to contradictory statements made by a witness,” it was held that this charge was erroneous. Ibid. It seems that evidence is admissible, on part of the defence, to impeach the character of the deceased for truth ; he standing on the same footing as a witness called into court and there examined; and, in one case, where the dying declara- tions of the deceased were admitted, to show that the defendant, with intent to produce on her an abortion, had administered to her oil of tansy, which was the cause of her death, the defendant was allowed to show that she was considered a woman of loose character and light reputation. People ». Knapp, per Edmonds, J, MSS.; see Carter v. People, 2 Hill’s N. ¥Y. R. 317. 1t has been held, however, that it is not competent for the prisoner to prove that before the affray the de- ceased had expressed a violent hatred to him, and a disposition tu do him injury, ‘ EVIDENCE. 435 By dying declarations. These dying .declarations must not be confounded with the deposi- tions take by a justice of the peace, in writing, upon oath, in the presence of the accused, from a person really in a dying state, and who dies shortly after; for in that case the deposition is receivable in evidence, under stat. 11 & 12 Vict., c. 42, § 17, as the ‘deposition of a deceased witness, and it is wholly immaterial whether the witness, at the time he made it, was aware of his danger, or entertained any apprehension of death.(a)(1) (a) See Radbourne’s case, 1 East P. C. 356. or that he was very hostile to him. State v. Varney, 8 Boston Law Reporter, 562. To the principle that, in order to render these declarations in articulo mortis admissible, they should come from a witness who would be competent if on the stand, may also be cited the case of Rex v. Pike (3 Car. & Payne, 598). In this case the declarations were made by a child only four years old to her mother, and. held inadmissible, because so young a person could not have had that idea of a future state which would render her competent. On the other hand, as the wife may testify in respect to violence by her husband, committed against her person, we have seen that, if homicide be imputed as the result of such violence, her dying declarations are receivable.. Pennsylvania v. Stoops, Addis. 381; Wood- eock’s case, Leach, 3d ed., 503,S. P. And see Lambert v. The State, 23 Miss. 322; Green v. State, 13 Miss. 382. : Various other questions of competency may, doubtless, arise after the court shall have determined favorably upon the witness’s condition. We have seen that, if the statement come from the deceased as a mere matter of opinion or belief (State v. Poll, supra, 2 Ev. Poth. 293; 4 Stark. Ev. 461), it would be inad- missible. So, if the deceased be disqualified by conviction ofan infamous crime, his declarations cannot be heard. Indeed, he is to be treated, not only in respect to competency, but (as we'shall see) credibility, the same as a witness proposed to be sworn upon the stand. After the testimony shall have been received as competent, its‘ credibility is yet fully open to the observations of the counsel and the court, and the consideration of the jury. ‘ “Dying declarations should be received with caution, and weighed by the jury with the greatest deliberation. A person in extremis is liable to be impressed, and easily influenced by the feelings and suggestions of those around him. Con- sequently, he is the more apt to confound the impressions thus created in his mind, and inferences drawn from the circumstances of the transaction, with the facts themselves. And it is always to be considered that the acts of violence, to which the deceased may have spoken, were, in general, likely to have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately remembered, and leading to the omission of facts important to the truth and completeness of the narrative.” Smith, C.J., in Brown v. The State, 32 Miss. 433. (1) In North Carolina, on the trial of an indictment for murder, it was held that the affidavit of the deceased, though not taken according to the act of 1715, was competent and proper evidence as a dying declaration, State v. Arnold, 13 Iredell, 184. , 436 : EVIDENCE. Statutes.—Other records. SECTION IL. WRITTEN EVIDENCE, (a) Acts of Parliament. Public acts of Parliament are never proved, as all judges are bound judicially to take notice of them; and, therefore, when we see a copy of a public act of Parliament, printed by the Queen’s printer, used upon a trial, we must consider it, not as evidence, but used merely to aid the judge’s recollection. And the same of all local acts, containing a clause either making them public acts or directing the judges to notice them judicially. ; Private acts, or local and personal acts, not containing any such clause, may be proved, either by an examined copy of the inrolment, or by a printed copy, purporting to be printed by the Queen’s printer or the printers of either house of Parliament, without further proof.(a) So, the statutes of Ireland, previous to the Union, may be proved in the courts in this country by the copies printed and published by the Queen’s printer.(0) (b) Other records. [142] Records of any of the Queen’s courts at *Westminster may be proved by an examined copy, that is to say, by a copy that is sworn to be a true copy by a person who examined it with the orig- inal. -And where an office copy was thus sworn to be examined with the original, but it appeared to have a number of contractions and abbreviations in it—‘‘pnl este,” for personal estate, and the like—it was holden that it could not be given in evidence as acopy.(c) So, the record of an indictment at the assizes or sessions may be proved by an examined copy; or the record itself, if in the court, may be produced. And for this purpose the record must be made up; for the indictment’ itself cannot be given in evidence,(d) nor can you prove the sentence that has been passed upon a party indicted, in any other manner than by the record or an examined copy of it.(e) So, to prove an order of a court of quarter sessions, the record must be made up, and it is then proved by an examined copy, or by the production of the record itself. (a) 8 & 9 Vict., ©. 113, § 3. (@) R. v. Smith et al., 8B. & C. 341; Rv. (b) 41 G. ITI, U. K., c. 90, § 9. Thring, Ry. & M.171; 5C. & P. 607, (c) R. v. Christian, Car, & M. 388. (e) R. v. Bourdon, 2 Car. & K, 366. EVIDENCE. 437 Records. Where the sessions book was produced in such a case, but the clerk of the peace said he would have made up the record on parchment if it had been bespoken, Parke, J., refused to receive the book as evidence.(d) But, on the other hand, where the entry of the order in the sessions book had a regular caption, and was in the present tense, and in every other respect as a record, and it was proved that no other record ever was made up, the court held that the book was legal evidence of the order.(b) So, a conviction before a magistrate is proved by an ex- amined copy ;(¢) or the conviction may be produced ; and if it recite the information, such examined copy or original will be evidence of that also.(d)(1) (a) R. v. Ward, 6 Car. & P. 366, (ec) See 5 Car. & P. 38; 1 Arch. P. A. 546; (b) R. v. Yoeviey, 8 Law J., 9, m. 2 ibid. 70. (d) 5 Car. & P. 38. (1) Whether an instrument produced is, in truth, a record or not, has been held to be always open to inquiry. Thus, in Brier ». Woodbury (1 Pick. Rep. 362), parol evidence was admitted to show that an execution, which was returned and filed, had been fraudulently altered, by inserting a direction to a constable. “It cannot be doubted,” says Parker, J., delivering the opinion of the court, “that anything produced as a record may be shown to be forged or altered ; if it were not so, great mischief might arise. A record is conclusive evidence, but what is or is not a record is matter of evidence, and may be proved like other facts.” Ibid. And if words have been struck out of a record so as to render it erroneous, witnesses may be examined to show such words were improperly struck out; but not to falsity the record by showing that an alteration, whereby the record was made correct, was improperly made. 2 Ev. Poth. 154; Dickson v. Fisher, 1 Bl. Rep. 664; 4 Bur. 2267S. C.; Adams 2, Betts, 1 Watts’ Rep. 425, 8. P. A minute-book in which an entry is made of the proceedings of the quarter sessions, aud from which the roll, containing the record, is subsequently made up, is not a record, nor in the nature of a record, so as to be admissible evidence to prove the facts there stated, Rex v. Bellamy, Ryan & Mood. N. P. C. 171; Ros- coe’s Ev. 54; Roscoe’s Crim. Ev. 154. See Cooke v. Maxwell, 2 Starkie’s N. P. Rep. 183. Where, in order to prove an allegation that an indictment for felony had been preferred, the indictment itself (which was in another court), indorsed, “a true bill,” was produced by the clerk of the peace, together with the minute- book of the proceedings at the sessions at which the indictment was found; the King’s Bench held, that it was inadmissible, though no record had been made up; and that to maintain the allegation. the record shonld be regularly drawn up, and an examined copy produced. Such, said Lord Tenterden, has always been the practice. And per Bayley, J., the record itself, or an examined copy, is the only legitimate evidence. Rex v. Smith, 8 Barnw. & Cress: 341; Roscoe’s Ev. 54; Roseoe’s Crim. Ey. 154. So, an allegation that the grand jury at the sessions found a true bill, is not proved by the bill itself, with an indorsement upon it, but a record regularly drawn up must be produced, or an examined copy:of it. Por- ter v. Cooper, 6 Carr. & Payne, 354; Roscoe’s Crim. Ev. 154. On an indictment for perjury in order to prove the allegation that an appeal came on to be heard at the sessions, the sessions-book was produced by the deputy clerk of the sessions: on objection being made, the deputy clerk was asked, whether, on being applied to, he would have drawn up the record of the appeal on parchment, as if he were making a return to a certiorari, to which he answered in the affirmative: it was then stated by the clerk of the assize, that at the assizes, the judgment roll is not the record ; but that from it, and from the indictment, a record can be made up. And per Park, J.: “I am of opinion the objection is fatal. There is certainly a 438 EVIDENCE. Records. To the above rule, that indictments and convictions must be proved by the record or an examined copy, however, there are the following exceptions: great difference between the case of an indictment and that of an appeal; yet still, an appeal is a matter before a court of record, and we ought to consider the importance of having the proper evidence: for if it was not heard before a court of competent jurisdiction, perjury cannot be committed on the hearing of it. The defendant must be acquitted. Rex v. Ward, 6 Carr. & Payne. 366. So, in Rex v, Thring (5 Carr. & Payne, 507), the prisoner was indicted for perjury committed at the quarter sessions, and to prove that the proceedings alleged were had before the sessions, the minute-book was produced by the officer of the sessions. Gur- ney, B., inquired if the record was made up on parchment, and was answered in the negative by the counsel for the prosecution, who added, that it was not con- sidered necessary. Gurney, B.: ‘‘The minute-book of the court of quarter ses- sions is not evidence. The record should be made up on parchment, and then an examined copy of it would be evidence.” \ A plea of autrefois convict must be proved by the record regularly made up; and the indictment, with the finding of the jury indorsed upon it by the proper officer, is not sufficient. Rex v. Bowman, 6 Carr. & Payne, 101. See the case of the State v. Benham, 7 Conn. Rep. 414. In Tooke’s case (25 How. St. Tr. 446), the minutes of the court were received to prove the acquittal of Hardy. This case is distinguished by Lord Tenterden from the foregoing, on the ground that the matter proved by the minutes occurred before the same court, sitting under the same commission. Rex v. Smith, 8 Barnw. & Cress. 341. When the proceed- ings of inferior courts are sought to be proved, inasmuch as their proceedings are not usually made wp in form, the minutes will be admitted, if they are perfect and omit nothing material. See Rex v. Smith, § Barn. & Cress. 341, 342. In Hyer’s case (6 City Hall Rec. 39), it was held, that to prove a record of conviction or acquittal, it was necessary that it should be under the seal of the court, signed by the magistrate, before whom the cause was tried: and that it should be pro- duced by the clerk from the files of the court. The record songht to be intro- duced in this case was a record of the same court where the trial in which it was offered took place, and was rejected because it lacked the above requisites. By statute, in New York, a copy of the minute of any conviction with the sen- tence of the court thereon, entered by the clerk of any court, duly certified by the clerk in whose custody such minutes shall be, under his official seal, together with a copy of the indictment on which such conviction shall have been had, cer- tified in the same manner, shall be evidence in all courts and places of such con- viction, in all cases in which it shall appear by the certificate of the clerk, or otherwise, that no record of the judgment on such conviction has been signed and filed. 2R.8. 739, §10. It is also provided, that within ten days after the ad- journment of any court at which any conviction for offences shall have been had, the clerk thereof shall make out and certify a transcript of the entries in his min- utes of all such convictions and sentences thereon, and shall transmit the same to the secretary of state. 2 R. S. 788, § 7. The secretary of state is to file such transcripts, and when required by the attorney-general or district attorney of any county, he shall furnish an exemplification of such transcripts, or a part thereof, which shall be sufficient evidence on the trial of any person for a second or sub- sequent offence, of the conviction stated in such transcript. Ibid. §8. But neither the transcript nor the exemplification thereof shall in any other case be evidence of such conviction. Ibid. § 9. Under a former statute, similar in its provisions to the 7th and 8th sections above cited (1 R. L. 462, K. & R.), wheré an objection was made to the compe- tency of a witness on the wee of his having been convicted of an infamous offence, and it was shown that the records of the court where the conviction was had were lost and destroyed, a copy of the transcript, required to be sent to the exchequer by the above statute, was held to be the next best evidence to show such conviction, and that parol evidence could not be resorted to till it was shown that such transcript had not been filed. Hilts v. Colvin, 14 John. Rep. 182. EVIDENCE. 439 Records. 1. As proof of indictments against a person sentenced to transporta- tion, for being at large before the expiration of his sentence, or against a person for rescuing or attempting to rescue him, it is enacted by stat. 5 Geo. IV, c. 84, § 24, that the clerk of the court, or other officer having the cusvody of the records of the court where such sentence or order of -- transportation shall-have been passed or made, shall, at the request of any person on His Majesty’s behalf, make and give a certificate in writ- ing, signed by: him, containing the effect and substance only (omitting the formal part) of every indictment and conviction of such offender, and of the sentence or order for his or her transportation (not taking — for the same more than 6s. 8d.), which certificate shall be suffi- cient evidence of the conviction *and seutence or order for [*143] the transportation of such offender; and every such certificate if made by the clerk or officer of any court in Great Britain, shall be received in evidence, upon proof of the signature and official character of the person signing the same; and every such certificate, if made by the clerk or officer of any court out of Great Britain, shall be received in evidence, if verified by the seal of the court, or by the signature of the judge or one of the judges of the court, without further proof.(a) 2. As proof of a former conviction, upon an indictment for a subse- quent felony, it is enacted by stat. 7 and 8 Geo. IV, c. 28, § 11, that a certificate containing the substance and effect only (omitting the for- mal part) of the indictment and conviction for the previous felony, purporting to be signed by the clerk of the court or other officer having ~ the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer (for which certificate a fee of 6s. 8d: and no more shall be demanded or taken), shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same. Where the certifi- cate under the statute stated that the prisoner had been indicted and convicted, but did not state the judgment, Creswell J. held it to be insufficient.(d) 3. As proof of a previous acquittal or conviction, it is enacted by stat. 14 and 15 Vict., c. 99, § 13, that whenever, in any proceeding what- ever, it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable ‘offence, it shall not be necessary to produce the record of the conviction or acquittal of such (a) See R. v. Jones, 2 Car. & K. 524. (b) R. v. Ackroyd et al.,1 Car. & K. 158, 440 EVIDENCE. Records.—Matters quasi of record. person, or a copy thereof, but it shall be sufficient that it be certified or purport to, be certified under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction and judgment, or acquittal, as the case may be, omitting the formal parts thereof. It seems, therefore, that the record for this purpose must be made up, although the formal parts need not be included in the certificate.(1) (c) Matters quasi of record. Bill, answer, depositions, and decree in a court of equity, are proved by examined copies.(a) So, libel, answer, depositions and sentence in the ecclesiastical courts are proved by examined copies.(b) And the same as to proceedings in the Admiralty court.(c) As to evidence of proceedings in the county courts: by stat. [*144] 9 *& 10 Vict., c. 95, § 111, the entries in the clerk’s book, ora copy thereof bearing the seal of the court, and purporting to be signed and certified as a true copy by the clerk of the court, shall at all times be admitted in all courts and places whatsoever, as evi- dence of such entries and of the proceedings referred to by the same,- and of the regularity of such proceedings, without further proof. The proceedings of other inferior courts, such as the court baron, etc., are usually proved, by producing the books in which they are entered, (a) Gilb. Ev. 49, 50, 56. (b) Ibid. 66, 67. (c) Com. Dig., Evidence, C. 1. (1) In New York, it is also provided by statute, that whenever any conviction shall be had before any court of special sessions, held in any other county than New York, the magistrate shall make a certificate of such conviction, briefly stat- ing the offence charged, and the conviction and judgment thereon, and if any fine has been collected, the amount thereof, and to whom paid. This-certificate is to be filed in the office of the county clerk within twenty days after the conviction ; and, when so made and filed, such certificate, or a certified copy thereof, is made evidence, in all courts and places, of the facts stated therein. 2R.8. 717, § 48, 44. It’ has been decided that a certificate of conviction in the form directed by the above section of the statute, and which was filed in the clerk’s office within the prescribed time, is competent evidence of the facts therein stated, although it» does not contain evidence that the court had obtained jurisdiction over the person of the prisoner. The People v. Powers, 7 Barb. 462. Such a certificate, being made evidence, by statute, of the facts contained in it, cannot be contradicted by parol evidence showing that there was, in fact, no trial and conviction. Yet, it scems that a party may so far contradict a record of conviction by a court of infe- rior jurisdiction, as to prove’that the court had no jurisdiction of the offence, or of the person of the prisoner. Ibid. EVIDENCE. 441 Matters quasi of record. and proving them by the clerk of the court; or, it seems, they may be proved by examined copies.(a) As to judgments, etc., in foreign courts:—By stat. 14 & 15 Vict., c. 99, § 7, all judgments, decrees, orders, and other judicial proceed- ings of any court of justice in any foreign state or in any British col- ony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved in any court of justice, or before any person, having by law, or by consent of parties, authority to hear, receive, and examine evidence—either by examined copies, or by copies purporting either to be sealed with the seal of the foreign or colonial court to which the original document belongs, or, in the event of such court having no seal, to be signed by the judge, or if there be more than one judge, by any one of the judges, of the said court, and such judge shall attach to his signature a statement in writing on the said copy, that the court whereof he is a judge has no seal; which copies shall be admitted in evidence, without any proof of the seal or signature, or of the judicial character of the person appearing to have made such signature and statement.(1) (a) See Gilb. Ev. 74, 20; Com. Dig., Evidence, C. 1. (1) By the Constitution of the United States, it is declared, that ‘full faith and credit shall be given in each state to the public acts, records, and judicial pro- ceedings of every other state.” And Congress is authorized by general laws to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Constitution of the U. S8., art. 4. In pursuance of this authority, Congress, by act of May 26th, 1790, c. 11 (2 L. U. States, 102), after providing for the mode of proof, has declared, that “the said records and judi- cial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken.” By the second section of a supplementary statute, passed March 27th, 1804, the pro- visions of the act of 1790 are extended to the records and judicial proceedings of the respective territories of the United States, and the countries subject to the jurisdiction of the United States. 3 L. U. States, 621. With respect to the interpretation of the above-mentioned clause of the Consti- tution, there has been some diversity of opinion, particularly as to the words in the latter branch of the section, ‘‘and the effect thereof.” Some judges: have thought that the word “thereof” had reference to the proof or authentication, so as to read, ‘‘ and to prescribe the effect of such proof, or authentication.” Others have thought that it referred to the antecedent words, ‘“‘acis, records, and pro- ceedings,” so as to read, “and to prescribe the effect of such acts, records, and proceedings.” See Bissell v. Briggs, 9 Mass. Rep. 462, 467; Winchester v. Evans, Cooke’s Rep. 420; Hitchcock v. Aciken, 1 Cain. Rep. 460; Green v. Sarmiento, 1 Peters’ C. C. Rep. 75; Field v. Gibbs, ibid. 155; Commonwealth v. Green, 17 Mass. Rep. 515, 543, 544. ‘hose who were of opinion that the preceding sec- tion of the clause made judgment in one state conclusive in all others, naturally: adopted the former opinion; for otherwise the power to declare the effect would be either wholly senseless, or Congress would possess the power to repeal, or vary the full faith and credit given by that section. Those who were of opinion that ¢ 449 EVIDENCE. Matters quasi of record.. such judgments were not conclusive, but only prima facie evidence, as naturally embraced the other opinion ; and supposed that, until Congress should by law de- clare what the effect of such judgment should be, they remained only prima facie evidence.” 3 Story’s Comm. on the Const. 181, 182. The former seems the interpretation generally adopted. But it is not practi- cally of much importance which é@onstruction prevails, since each admits of the competency of Congress to declare the effect of judgments when duly authenti- cated ; which ‘has been done as we have before noticed. It may be stated, as a principle now uniformly received and sanctioned throughout the United States, that the judgment of one of the state courts is of the same dignity in every other state, as in the one where it was pronounced; and hence, if, in the courts of the state where the judgment was pronounced, it is conclusive in its operation as evi- dence, or otherwise, it must be equally so, and to the same extent, In all the courts throughout the Union. Mills v. Duryee, 7 Cranch, 481; Clark’s Ex’rs v. Carring- ton, 7 ibid. 308; Hampton v. McConnell, 3 Wheat. Rep. 234 ; Mayhew v. Thatcher, 6 ibid. 129; Hoxie v. Wright, 2 Vermont Rep. 263; Buford v. Buford, 4 Munt. Rep. 241; Borden v. Fitch, 15 Johns. Rep. 121 ; Andrews v. Montgomery, 19 ibid: 162; Field v. Gibbs, 1 Peter’s C. C. Rep. 155 ; Commonwealth v. Green, 14 Mass. Rep. 515; Gibbons v. Livingston, 1 Halst. Rep. 236, 275; Newell v. Newton, 10 Pick. Rep. 470, 472; Hall v. Williams, 6 Pick. Rep. 232; Spencer v. Brockway, 1 Hamm. Rep. 259 ; Benton v. Burgot, 10 Serg. & Rawle, 240; Mitchell v. Osgood, 4 Greenl. 124; Wheeler v. Raymond, 8 Cowen’s Rep. 311; Shumway v. Stilwell, 6 Wend. Rep. 447; Starbuck v. Murray, 5 ibid. 148 ; Halbrook v. Murray, 5 ibid. 161; Rogers » Coleman, Hard. Rep. 413; Scott v. Coleman, 5 Litt. Rep. 349; Evans v. Tatem, 9 Serg. & Rawle, 259, 260 ; Kean v. Rice, 12 Serg. & Rawle, 203; Gillman v. Houseley, 5 Martin’s Lou. Rep. N.S. 661; Mackee v. Cairnes, 2 ibid. 599; Clarke’s Adm’r v. Day, 2 Leigh’s Rep. 172; Hayman’s Ex’r v. Miller, 1 Bailey’s Rep. 242; Holt ». Alloway, 2 Blackf. Rep. 108; Galick v. Loder, 1 Green’s Rep. 68; Eatthman’s Adm’r v. Jones, 2 Yerg. Rep. 484; see also Jacobs v. Hull, 12 Mass. Rep. 25; Wade v. Wade, Cam. & Norw. 486; Betts v. Death, Addison’s Rep. 265; Armstrong v. Carson’s Ex’rs, 1 Dall. Rep. 302 ; Ben’s Guardian, 2 Bay, 485 ; Curtis v. Gibbs, 1 Penn. Rep. 399 ; Kibbe v. Kibbe, Kirby’s Rep. 124; Smith v. Rhoades, 1 Day’s Rep. 168 ; Wernwag v. Pawling, 5 Gill & Johns. Rep. 500; Bradshaw v. Heath, 13 Wend. 407; McRae v. Mattoon, 13 Pick. Rep. 53; Tipton v. Maryfield’s Ex’rs, 10 Louisiana Rep. (Curry) 189; Hinton v. Townes, 1 Hill’s Rep. 439; Adams v. Rowe, 2 Fairf. Rep. 89; 1 Baldw. Rep. 617; Goodrich »v. Jenkins, 1 Wright’s (Ohio) Rep. 348; Hunt v. Lyle, 8 Yerg. 142 ; 6 ibid. 412 ; Hall v. Williams, 1 Fairf. Rep. 278. ; All the cases above cited will be found to agree that the judgment of a neigh- boring state may be wholly impeached, by showing that the court rendering it had not jurisdiction ; and it makes no difference whether the judgment comes in question directly or incidentally. See Elliott v. Piersoll, 1 Peters’ Rep. 328, 340 ; Thompson v. Tolmie, 2 ibid. 157; Holmes v. Boughton, 10 Wend. R. 75; Brad- shaw v. Heath, 13 ibid. 407; Walker v. Maxwell, 1 Mass. R. 1083; Fisher v. Harn- den, 1 Paine’s R, 55; see, also, the next succeeding note, and cases there cited. And if the judgment is inconclusive in the state where it was rendered, or if it is inquirable into there during a particular period, and on certain conditions, it will be open to investigation to the same extent everywhere else. This is an ob- vious deduction from the foregoing position with regard to the effect of such judg- ments generally. It is, moreover, directly sanctioned by several well-considered cases. See Green v. Sarmiento, 1 Peters’ C. C. Rep. 75; Baugh v, Baugh, 4 Bibb, 556; Curtis v. Gibbs, 1 Pennington’s R. 399, 403, 404; Rogers v. Coleman, 1 Har- din’s R. 420; Armstrong’s Ex’rs v. Carson, 2 Dall, R. 392; 1 Story’s Comm. on the Const. 183 ; Wernwag v. Pawling, 5 Har. & Johns. R. 500; Spencer ». Sloo, 8 Lou. R. (Curry) 290. . Judicial records are to be authenticated by the attestation of the clerk, the seal of the court, and the certificate of the presiding judge. that the attestation is in due form. All other office records are to be authenticated by the attestation of the keeper thereof, with his official seal, if he have any, and the certificate of the “ presiding judge of the proper court, or the governor or secretary of state, that: the attestation is in due form of law; which certificate if given by a judge, must be accompanied by the certificate of the clerk, under the seal of the court, that EVIDENCE, 443 Matters quasi of record. the judge is duly qualified and commissioned; otherwise it must be under the great seal of the state. In New York, the Revised Statutes provide, that the records and judicial pro- ceedings of any court in a foreign country shall be admitted in evidence in the courts of this state, upon being authenticated as follows: 1. By the attestation of the clerk of such court, with the seal of such court an- nexed, or of the officer in whose custody such records are legally kept, with the seal of his office annexed : . 2. By a certificate of the chief justice or presiding magistrate of such court, that’ the person attesting such record is the clerk of the court, or that he is the ofticer in whose custody such record is required by law to be kept; and in either case, that the signature of such person is genuine: and, 3. By a certificate of the secretary of state, or other officer of the government, under whose authority such court is held, having the custody of the great or prin- cipal seal of such government, purporting that such court is duly constituted, specifying generally the nature of its jurisdiction, and verifying the signature of the clerk, or other officer, having the custody of such record, and also verifying the signature of the chief justice or presiding magistrate. 2N. Y.R.S. 396, § 26. Copies of such records and proceedings in the courts of a foreign country may also be admitted in evidence, upon due proof: 1. That the copy offered has been compared, by the witness, with the original, and is an exact transcript of the whole of such original: 2. That such original was in the custody of the clerk, or other officer, legally having charge of the same ; and, 3. That such copy is duly attested by a seal, which shall be proved to be the seal of the court in which such record or proceeding shall be. Ibid. § 27. It is declared, however, that these provisions shall not prevent the proof of any record or judicial proceeding of the courts of any foreign country, according to the rules of the common law, in any other manner than that pointed out above; nor shall they be construed as declaring the effect of any record or judicial pro- ceeding, authenticated as prescribed in the statute. Ibid. § 28. The different modes of authenticating foreign judgments, independent of any legislative provision on this subject, have been laid down by Marshall, C.J., as follows: 1. By an exemplification under the great seal. 2. By a copy, proved to be a true copy. 3. By the certificate of an officer authorized by law, which certfi- cate must itself be properly authenticated. These he pronounces the ustal, if not the only modes of authenticating foreign judgments. Church v. Hubbart, 2 Cranch, 187, 238. See, also, Mahurin v. Bickform, 6 N. Hamp. Rep. 567, 670; Vandervoort v. The Columbian Ins. Co., 2 Cain. Rep. 155 et seq. We haye stated incidentally, ante, that the national seal of a kingdom, or sov- ereign state, is also noticed judicially by the courts of other countries, and is the highest evidence and most solemn sanction of authenticity, in relation to judicial proceedings, known in the intercourse of nations. Per Gould, J., Griswold v. Pit- cairn, 2 Conn. Rep. 90; per Swift, Ch. J., ibid. 89; Anonymous, 9 Mod. 66; United States v. Johns, 4 Dall. 416; Church v, Hubbard, 2 Cranch, 187; Story’s Confl. of Laws, 530; Lincoln v. Battelle, 6 Wend. 475, 484; Dunlap v. Waldo, 6 N. Hamp. Rep. 453; Ez parte Povall, 3 Leigh, 816 ; State v. Carr, 5 N. Hamp. Rep. 369, 370. Accordingly, in Connecticut, a record of the Supreme Court of Copen- hagen was allowed as evidence where there was no certificate that it was a copy ; but only the signature of Colbiornsen, below the great seal of Denmark, without any addition showing his official character. And Swift, C.J., delivering the opinion, said: “This court does not know the form of making up, attesting or certifying their record. If it appear to be a judicial proceeding under the great seal, itis to be presumed that all the formalities required by their law have been complied with. This appears to be the record of a judgment rendered in a court of the kingdom of Denmark, under the great seal of the king. This seal proves itself, and the court is bound to take judicial notice of it.” Griswold v. Pitcairn, 2 Conn. Rep. 85, 89, 90. We have seen, ante, that the annexation of the great seal will be presumed to have been done by a person having custody thereof, and competent authority to do the act. See United States v. Ammedy, 11 Wheat. Rep. 406, 407; United States v. Johns. 4 Dall. 415, 416; also 1 Bald. Rep. 613, 614. 444 EVIDENCE. Matters quasi of record. But when a civil war rages in a foreign nation, and one part separates itself from the old established government and forms itself into a distinct government, the courts of the respective United States must view such newly constituted goy- ernment as itis viewed by the legislative and executive departments of our general government: and before it is recognized by them as an independent gov- ernment, its seal cannot be allowed to prove itself; but it may be proved by such testimony as the nature of the case admits. United States v. Palmer et al., 3 Wheat. Rep. 610; The Estrella, 4 Wheat. Rep. 298; see 8. P., United States ». Hutchings, 2 Wheel. Crim. Cas. 543; 1 Bald. Rep. 616. Proceedings in St. Domingo, during the short period in which the possession of the island had passed from France to England, were, under the particular cir- cumstances of the case, held sufficiently authenticated by the private seal of the governor. Hadfield v. Jameson, 2 Munf. R. ‘53. What is sufficient to authenti- cate, in the courts of this country, the sentence or act of a foreign tribunal or povermnents after a destruction of such government by revolution or conquest, see Ibid. If these modes of authentication be all beyond the reach of the party, other testimony, inferior in its character, will, it seems, be received. Church v. Hub- bard, supra, per Marshall, C.J.; seé Hadfield v. Jameson, 2 Munf. Rep. 53; Young v. Gregory, 3 Call. 446; also per Washington, J., in Wood v. Pleasants, 3 Wash. C. C. Rep. 201, 208. Thus, the proceedings of a foreign court may be” proved by a sworn copy. Lincoln v. Battelle, 6 Wend. 475; Hill v. Packard, 5 ibid. 387, per Allen, senator; Ibid. p. 391, per Beardsley, senator ; see also ibid. p. 385, per Walworth, Ch.; 1 Stark. Ev. 191, 6th Am. ed.; per Lord Ellen- borough in Collins v. Matthew, 5 East, 475; Baldwin v. Hale, 17 John. Rep. 272, 273. But not by an office copy. See Appleton v. Lord Braybrooke, 6 Maule & Sel. 34; 2 Starkie’s Rep. 6, 7, 8. C. An examined or sworn copy, is in general, to be proved such, by one who has compared it with the original. Kerns v. Swope, 2 Watts’ Rep. 75. Hence the rule. that a,mere copy of acopy is not evidence. Whitacre v. MclIlhaney, 4 Munf. Rep. 310; Ryves v. Braddell, 1 Irish T. R. 184; United States v. Sherman, 1 Pet. C. C. Rep. 98; Norwood v. Green, 5 Mart. Lou. Rep. N. 8. 175. Where, however, a witness testified that a certain record of a power of attorney was a copy of the original made by him, and that the copy produced was a true copy of the record, having been compared with it by himself—held, that this was not the case of acopy simply, but the case of a second copy, verified as a true copy of the original; and, therefore, it was admissible as secondary evidence. Wiun v. Patterson, 9 Peters’ Rep. 668. The court said, that in point of evidence, this was precisely the same.as if the witness had made two copies at the same time of the original, and had then compared one of them with the original, and the other with the first copy, which he found correct. The mode by which he arrived at the result, that the second copy was a true one of the original, might be more circuitous than that by which he ascertained the first to be correct ; but that only furnished matter of observation as to the strength of the proof, and not as to its dignity or degree. Ibid. See Robertson v. Lynch, 18 Johns. Rep. 451. Also, Kerns v. Swope, 2 Watts’ Rep. 75, 80; Winn v. Patterson, supra, would seem a warrant for saying that no discrimination is to be made between copies, as to the * point of competency, on the ground that one is more likely to be correct than another, provided the authentication of both reaches back to the original. So far it goes to sustain the general proposition that there are no degrees of secondary evidence. But Brewster v. Countryman, 12 Wend. 446, in some of its dicta, at least, seems slightly the other way. There, a sworn copy of an agreement was produced against the defendant, who had himself destroyed the original. The case states that the plaintiff proved he had requested H. to make a copy of the agreement, and the paper in question purported to be a copy in H.’s handwriting ; a witness swore, also, that he had seen the original, and that the alleged copy was substantially the same. The court held the copy inadmissible, on the ground that the best evidence was not produced. They say the authenticating testimony was pretty strong, but that H.’s testimony, whose absence was not accounted for, would be stronger ; that the evidence produced showed there was better evidence in the power of the party not produced, the very case in which secondary evidence should not be received as sufficient. Ibid. 488, 489. The decision itself, in this EVIDENCE. 445 Matters quasi. of record. As to the documents signed by the judges in this country :—by stat. 8 & 9 Vict., c. 113, § 2, all courts, judges, justices, masters in chancery, masters of courts, commissioners judicially acting, and other judicial officers, shall henceforth take judicial notice. of the signature of any of the equity or common law judges of the superior courts at West- minster, provided such signature be attached or appended to any decree, order, certificate, or other judicial or official document. All copies of the journals of either House of Parliament, purport- ing to be printed by the printers of the crown, or by the printers to either House of Parliament, shall be admitted as evidence thereof, by all courts, judges, justices and others, without any proof being given that such copies were so printed.(a)(1) As to proceedings in the court of bankruptcy :—by stat. 12 & 13 Vict., c. 106, § 236, any fiat, petition for adjudication of bankruptcy, petition for arrangement between a debtor and his creditors, assign- ment, appointment of assignees, certificate, deposition or other proceeding or order in bankruptcy, or *under any such [**145] petition for arrangement, appearing to be sealed with the seal of the court—or any writing purporting to be a copy of any such document and purporting to be so sealed—shall at all times and on behalf of all persons, and whether for the purposes of this act or other- (a) 8 & 9 Vict., c. 118, § 3. case, would seem in principle, to range along with those which forbid a resort to circumstantial or suspicious evidence where that which is direct and positive is plainly within the party’s reach. See Den. v. McAllister, 2 Halst. R. 55; Bank of Utica v. Hilliard, 5 Cow. Rep. 153, 158. How far a copy of foreign judicial proceedings may be said to be authenticated, by the acts and conduct of the party against whom it is sought to be used, has been sometimes made a question. See Thurston v.. Murray, 3 Bin. Rep. 326; Delafield ». Hand, 3 John. 310. Further, as to when the conduct of the party or his agent, in respect to papers, shall be said to conclude him from objecting to their anthenticity, see Senat v. Porter, 7 T. R. 158; Gorton v. Dyson, 3 Moore, 558, (1) The printed journals of Congress have been allowed to be read in Penn- sylvania without other proof of their authenticity. Commonwealth v. De Long- champs, Oyer and Term. Phil. 1784, MS.; Whart. Dig. 280 pl. 112, 2d. ed. The votes of Assembly in that state have been admitted to prove the time of the “notification of the repeal of an act of Assembly by the council, but not answer- ing the purpose fully, the minutes of the council were sent for, and read without opposition. Albertson’s lessee v. Robeson, 1 Dall. Rep. 9. In New York, the Senate journals, proved by the clerk to have been printed by the printer to the Senate, and laid upon the tables of members, have been received as prima facie evidence. Root v. King, 7 Cowen’s Rep. 613, 636. And a printed copy of public documents proved to have been transmitted to Congress hy the President of the United States, and printed by the printer to Congress, has been holden admissible ee ae authentication. Radcliffe v. The United States Ins. Co., 7 John. ep. 26, 00, , 446 EVIDENCE. Public documents. wise, be admitted in all courts whatever as evidence of such documents respectively, and of such proceedings and orders having respectively taken place or been made, and be deemed respectively records of the court, without any other proof thereof. And by section 237, all courts, judges, justices and persons judicially acting, and other officers, shall take judicial notice of the signature of any commissioner or register of the court, and of the seal of the court, subscribed or attached to any judicial or official proceeding or document, to be made or signed under the provisions of this act. Proceedings in the insolvent court (petition, schedule, order of adju- dication, etc.) may be proved by an office copy, purporting to be signed by the officer in whose custody the proceedings are, and to be sealed with the seal of the court, without other proof.(a) (d) Other public documertis. Inquisitions may be proved by examined copies, or the originals may be produced.(6) The Gazette, printed and published by the Queen’s printer, is evi- dencé of all acts of state.(c) Royal proclamations, purporting to be printed by the printers to the crown, or by the printers to either House of Parliament, shall be admitted as evidence thereof by all the courts, judges, justices, and others, without any proof being given that such copies were so printed.(d) So, the articles of war may be proved by the copy printed and pub- lished by the Queen’s printer.(e) As so the rules of the poor law commissioners:—by stat. 7 & 8 Vict., c. 101, § 71, a copy of any rule, order, or regulation made by the said commissioners, printed by the Queen’s printer, shall, after the lapse of fourteen days from the date thereof, be received in evidence, and judicially taken notice of, and shall, until the contrary be shown, be deemed sufficient proof that such order was duly made, and is in force. Registers of baptisms, marriages and burials, may be proved by the register itself, or by an examined copy of it.(/)(1) (a) 1 & 2 Vict., ¢. 110, § 105. (d) 8 &9 Vict., c. 113, § 3. (b) See Arch. Pl. & Ev. Civ. Act. 408, 499. (e) 5 'T. R, 442, 446; seed B. & C. 304, (c) 5 T. R. 486. (f) Gilb. Ky. 72. (1) A bishop’s register is, in England, evidence of facts stated in it. Arnold o. The Bishop of Bath, 5 Bing. 316; 8. C., 2 Moore & Payne, 559. But a register of burials kept by the Wesleyan ‘Chapel has been there repudiated as incompe- EVIDENCE. 447 Public documents. As to ship’s registers :—by stat. 14 & 15 Vict., c. 99, § 12, every register of a vessel kept under any of the acts relating to the registry of British vessels, may be proved in any court of justice, or before any person having by law, or by consent of parties, authority to tent. Whittuck v. Waters, 4 Carr. & Payne, 375. Likewise, a register of the births of dissenters’ children, kept at a public library. Ex parte Taylor, 1 Jac. & Walk. 463. A sworn copy from the register book of the burials in Christ Church (Philadel- phia) has been received in evidence to show the fact of the death of a person and - the time. ‘ Lewis v. Marshall, 5 Peters’ Rep. 470, 475, 476. In Louisiana, the register of baptisms and births is evidence, and, it seems, when shown to exist, precludes parol testimony. Duplessis v. Kennedy, 6 Lou. Rep. (Curry) 231, 242; Fletcher v. Cavalier, 4 Mill. Lou. Rep. 267. An altera- tion in such baptismal register, by erasing the word “natural,” and writing over it the word “ legitimate,” has no effect in preventing the registry from being used to establish the period of birth, though the alteration be not accounted for. Other- wise, however, if the document were offered to establish the legitimacy of the person named. Fletcher v. Cavalier, supra. offender shall be as guilty, and be prosecuted and punished, as if the death had occurred in the county or corporation in which the stroke of poison was given 54 850 ADMINISTERING POISON... Indictment.—Evidence that poison has been given. Indictment.(1) The jurors for our Lady the Queen, upon their oath, present, to wit. i that A. B., on the —— day of ——, in the year of our Lord, [#256] ——, feloniously did administer to *one C. D. [“ administer to, or cause to be taken by, any person” | a certain poison [“ any poison or other destructive thing”], to wit, two drachms of a certain deadly poison called arsenic, with intent in so doing, feloniously, wilfully, and of his malice aforethought, to kill and murder the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady, the Queen, her crown and dignity. ; [If necessary add another count, charging that the prisoner} ‘ did cause to be taken by the said C. D. a certain poison, to wit,” etc. And if there be any doubt as to the quality of the poison, add other sets of counts, naming it differently ; and add also a set of counts stating it to be “a certain destructive thing to the jurors aforesaid unknown.” Felony, death.(a) Accessories before the fact, the same punish- ment.(0) Accessories after the fact, imprisonment, with or without hard labor, for not more than two years.(c) To maintain this indictment, the prosecutor must prove— 1. That the prisoner administered the arsenic or other poison or destructive thing mentioned in, the indictment.(2) - (@) 1 Viet. c. 85, § 2. {c) Ibid., §§ 7,3; see ante, pp. 17, 18. (b) Ibid., § 7, see ante, pp. 14, 15. or administered.” Code of Va., p. 723, §§6 and 7. “Ifa free person maliciously administer poison to, or expose it with intent that it should be taken by, any horse, cattle or other beast of any person, he shall be confined in the peniten- tiary, not less than one, nor more than five years.” Ibid., p. 782, § 32. In Texas, murder committed by poison is declared by statute to be murder in the first degree. Bartley’s Dig. of Laws of Texas, art. 2515. (1) Form of indictment for murder, by poisoning, with counts at common law, and under the statute of New York. The People v. Robinson, 2 Parker, 235. (2) An indictment for murder, stating that the prisoner gave and administered poison, is supported by proof that the prisoner gave the poison to A. to administer as a medicine to the deceased and that, they neglecting to do so, it was accident- ally given ‘to the deceased by a child, the prisoner’s intention to murder con~ tinuing. Upon an indictment for murder, which alleged that the prisoner felo- niously, etc., did administer a large quantity of laudunm to the child, it appeared that the prisoner delivered to one S. Stephens, with whom the child was at nurse, about an ounce of laudanum, telling her that it was proper medicine for the child, and directing her to administer to the child every night a teaspoonful thereof, which was quite a sufficient quantity to kill the child; the prisoner’s intention in so doing,.as shown by the finding of the jury, was to kill the child. Stephens took home the landanum, and thinking the child did not require the medicine, did not intend to administer it at all, and left it on the mantel-piece of her room. A few days afterwards, a little boy of the said 8S. Stephens, during her accidental absence, removed the laudanum from its place, and administered a much larger 4 ‘ADMINISTERING POISON. 851 Evidence that poison has been given. dose than a teaspoonful to the child, in consequence of which the child died. The jury were directed that if the prisoner delivered the laudanum to Stephens, with intent that she should administer it to the child, and thereby produce its death, the quantity so directed to be administered being sufficient to eause death; and that, if the landanum was afterwards administered by an unconscious agent, while the prisoner’s original intention continued, the death of the child, under such circumstances, was murder by the prisoner, and that, if the teaspoonful was sufficient to produce death, the administration of a much larger quantity by the little boy would make no difference. The jury found the prisoner guilty, and upon a case reserved for the opihion of the judges, whether the facts above stated, constituted an administering of the poison by the prisoner to the child, they were unanimously of opinion, that the administering of the poison by the child was, under the circumstances of the case, as much, in point of law, an administering by the prisoner, as if she had actually administered it with her own hand. Reg. v. Michael, 2 Moo. C. C. R. 120; 8. C., 9 C. & P. 356. ; In case of an attempt to poison, evidence of former, and also of subsequent attempts of a similar nature, are admissible. 2 Stark. Ev. 692. No authority is cited for this position; but see Rex v. Magg (4 C. & P. 364), where, on an indict- ment for administering poison to horses with an intent to kill them, Park, J., held other acts of administering admissible to prove the intent. Very soon after the drinking of the supposed poison, the deceased was asked how he felt. Held, that his answer, that ‘he did not feel comfortable,” was com- petent evidence, though made in the absence of the prisoner. The People v. Robinson, 2 Parker, 235. Where it appeared that a third person had drank with the deceased at the same time he was supposed to have been poisoned, of the same beverage, and administered by the same person, and had died soon afterwards, the court per- mitted evidence to be given that arsenic was found in the stomach of such person, and that she died from the effects of that, poison. The People v. Robinson, 2 Parker, 235. {Fraud or deception is not a necessary element in the crime of “administering poison,” under the Ohio Crimes Act. Blackburn v. State, 23 Ohio St. 146. What assistance given to a suicide will amount to the crime of ‘‘administering poison ” under the same statute, see Blackburn v. State, 23 Ohio St. 146.] {An indictment framed under the Massachusetts Gen. Stat. ch. 160, § 32, against mingling poison with food with intent to kill, need not expressly aver a knowledge on the part of the defendant that the substance so mingled was poisonous; charg- ing that the act was done ‘‘feloniously, wilfully, and maliciously,” includes an allegation of the necessary knowledge. Com. v. Bearse, 108 Mass. 487, An in- dictment under the Tennesee Code, § 4626, for an attempt to poison, need not charge an assault. Collins v. State, 3 Heisk. 14.] (Evidence of intimacy between defendant and the wife of the deceased, is proper. Templeton v. People, 27 Mich. 501. For indictment, evidence, and instructions, see Madden v. State, 1 Kans. 340.] EVIDENCE OF MEDICAL MEN. In proving murder by poison, the evidence of medical men is frequently re- uired, and in applying that evidence to the facts of the case, it is not unusual for ifficulties to occur. Upon this subject, the following observations. are well deserving of attention. In general, it may be taken, that where the testimonials of professional men are affirmative, they may be safely credited; but where negative, they do no appear to amount to a disproof of a charge otherwise estab- lished by strong, various and independent evidence. Thus, on the view of a body after death, on suspicion of poison, a physician may see cause for not positively pronouncing that the party died by poison; yet if the party charged be interested in the death, if he appears to have made preparations cf poison without any probable just motive, and this secretly; if it be in evidence that he has in other instances brought the life of the deceased into hazard; if he has dis- covered an expectation of the fatal event; if that event has taken place suddenly and without previous circumstances of ill health; if he has endeavored to stifle the inquiry by prematurely burying the body, and afterwards, on inspection, signs agreeing with poison are observed, though such as medical men will not 852 ADMINISTERING POISON. Evidence that poison has been given. positively affirm could not be owing to any other cause, the accumulative strength of circumstantial evidence may be such as to warrant a conviction, since more cannot be required than that the charge should be rendered highly credible from a variety of detached points of proof, and that, supposing poison to have been employed, stronger demonstrations could not reasonably have been ex- pocad, under all the circumstances, to have been produced. Lofft, in 1 Gilb. vid. 302. For the following summary, in relation to the medical evidence of poisoning, I am indebted to Dean’s Medical Jurisprudence, p. 305 e¢ seg. ; The sources of medical evidence of the administration of poison are five in number, viz.: 1. The symptoms developed ; 2. The appearances presented on a post-mortem examination; 8. Chemical analysis; 4. Experiments on animals; and 5. Moral circumstances. 1. The symptoms.—These were formerly much relied on as evidence of general poisoning. They are not regarded as furnishing anything more than a high probability. There are certain peculiar features of the symptoms that are to be. regarded. These have reference— 1. To the suddenness of their occurrence.—The symptoms developed by the more active poisons, whether irritants or narcotics, are extremely sudden; some are instantaneous, and most of them occur within an hour after the poison has been taken. But the most violent may be so administeréd in small doses as to cause the symptoms to be developed slowly. Even corrosive. sublimate may be so administered as to cause at first only a mild salivation. In criminal cases which arise for investigation in courts of justice, the more active poisons are commonly given, and the dose administered is very large ; so that the fact generally remains true, and the symptoms are sudden in their occurrence. : 2. The second feature to be noticed is, the regularity. in their inecrease.—This feature cannot be universal. Where the poisoning is by repeated small doses, there will be remissions and exacerbations, the same as in natural diseases. Some poisons admit of exacerbations and remissions, even when given in one large dose, while others produce violent symptoms in frequent paroxysms. Of these latter, the strychnia tribe afford instances. In poisoning with arsenic, after the first five or six hours, there is often a remission, and a subsequent return with increased violence. Christison, 42. It is, nevertheless, generally true, that the symptoms of poisoning are steady in their progress. 3. The third feature is, wniformity in their nature.—This, although stated as a general characteristic, is, nevertheless, true in the case of but comparatively few poisons. Many poisons cause very different symptoms at the close, from what they do at the beginning. The first symptoms of arsenic may be inflammation of the alimentary canal; afterwards, palsy or epilepsy. Nux vomica may excite, at first, violent tetanus ; afterwards, inflammation of the stomach and bowels. Even the fact of change is sometimes cited as evidence of poisoning. Although, there- fore, the presence of this feature generally adds little, if any, weight to the evi- dence in favor of death by poison; yet its absence may sometimes afford even positive proof in favor of natural death. Changes may occur in the symptoms, during their progress, that may be incompatible with the known effects of poison, and capable of being accounted for only on the supposition of natural disease. Christison, 46. : 4. The fourth feature is, that the symptoms begin soon after a meal. — Although poisons, as mushrooms, may remain for a long time in the alimentary canal before their effects commence, yet the more common. poisons, such as arsenic, corrosive sublimate, the mineral acids, oxalic acid, nux vomica, and some others, begin to develop their symptoms soon after they have been taken. It must, however, be borne in mind, that poisons may be introduced into the system through other avenues than the cesophagus and stomach. So, also, there are causes that may delay for some time the action of poisons. One of these is certain diseases, as already mentioned ; another is sleep, occurring immediately or soon after taking the poison. This should always be taken into consideration in connection with the time intervening between the taking of a meal and the commencement of the symptoms. ~ 5. The fifth and last feature noticeable is, the appearance of the symptoms during ADMINISTERING POISON. 853 Evidence that poison has been given. a state of perfect health. This, although generally, is by no means universally true. It has no application in case of slow poisoning. Poisons may also be administered to a person at the time diseased. The symptoms developed by the poison may be analogous to those produced by the disease, which would render the case extremely embarrassing. Christison, 44, 45. We have brought under review, briefly, the principal features of the symptoms which characterize general poisoning. It now remains to examine how far they are distinctive, or can be distinguished from those of natural disease. 1. As to suddenness of occurrence. — This is also a peculiarity of many diseases. The plague, inflammation of the stomach, inflammation of the intestines, cholera, may, for the most part do, all develope their symptoms suddenly ; generally run- ning on speedily to a fatal termination. Diseases of the heart and apoplexy may also-prove suddenly fatal, without previous warning. This feature, therefore, except what can be collected from particular poisons, cannot be regarded as dis- tinctive. 2. The regularity of increase is also to be noticed in many diseases. — Apoplexy, cholera, most acute diseases, when they prove rapidly fatal, are marked by a regularity in the increase of their symptoms. 3, In their uniformity they are hardly less distinctive. — Many diseases are characterized by the same uniformity. 4. The symptoms beginning soon after a meal. — This also occurs in some dis- eases. Apoplexy is likely to take place after a hearty meal. So, also, is cholera, occurring from some causes. Distention of stomach, rupture of its coats, are likely to happen soon after an ingestion of food and drinks. As the diseases, however, that have this characteristic are comparatively few in number, and of unfrequent occurrence, this feature is justly regarded as entitled to considerable weight. Ir is not alone as positive evidence that this feature is entitled to consideration. Its negative force is often greater than its positive ; that is, where the symptoms are such as usually characterize the most active poisons, but their occurrence is so long after taking any food, drink or medicine, as to exclude all reasonable probability that they could have been produced by the action of any poison which was taken with any such food, drink or medicine. This was particularly exemplified in the case of the Crown Prince of Sweden, which occurred in 1810. While reviewing his troops, he was observed suddenly to waver on his horse, and soon afterwards fell. He was immediately found insensible, and expired in half an hour. A rumor was circulated that he was poisoned. It appeared in proof that he had taken nothing after he had break- fasted, which was about four hours previous to his falling from his horse. No other poison than an active narcotic could have caused the symptoms developed in the case, and such could only have produced them when given in a large dose. No poison of this character could have had its effects suspended for four hours, and then have proved so suddenly fatal. It was undoubtedly an attack of apo- plexy, of which he had already had some warnings, and of which come marks were found about the head after death. Christison on Poisons, 47, 48. The practice is sometimes resorted to of substituting poisonous mixtures for medicinal drafts or powder. In the case of Sir Theodosius Boughton, who was poisoned, in 1781, by his brother-in-law, Donnellan, the most important evidence against the prisoner was the fact that alarming symptoms came on in two minutes after the deceased had swallowed what was supposed to be a simple medical draught. Laurel water was substituted for the medicine. 5. The symptoms first appearing while the body is in a state of perfect. health. — ‘Although almost all acute diseases commeuce during health, yet those of the inflammatory kind seldom begin without some adequate and obvious natural cause. From a careful review of everything relating to symptoms, it is obvious that the medical jurist cannot be justified in placing any very great reliance upon them alone in any case of suspected poisoning. They should by no means be neglected, as they may furnish the first hints of the cause of mischief. They may furnish evidence of probability, but not of certainty. — They may demonstrate the impossibility of the poisoning. They may also furnish a necessary link in the chain of proof tc determine whether the poison was the cause of death. In illus- 854 ADMINISTERING POISON. Evidence that poison has been given. tration of the last remark, Dr. Christison cites the case of Charles Munn, tried in 1824 for procuring abortion and of murder by poisoning. The evidence went to show that arsenic had been given, under the effects of which the deceased labored for twelve days. After that she recovered, and in two weeks was free of every symptom, except weakness and pains in the hands and feet. She soon afterwards became affected with headache and sleeplessness, and died in nineteen days under symptoms of obscure general fever, but without any local inflammation. The medical witnesses in the case decided that, admitting the first symptoms to be owing to arsenic, the death could not be ascribed to it with any degree of certainty. 2. The second source of evidence consists in the appearances which present them- selves on @ post-mortem examination.— These also were formerly much relied upon, but with little reason. There are but very few poisons that leave any dis- tinctive marks upon the organization. Dr. Christison thus briefly states his conclu- sions in reference to this source of evidence: “‘The appearances after death, which are really morbid, and which may be produced by poisons, are in one great class the signs of inflammation of the alimentary canal in its progressive stages, in another class, the signs of congestion within the head, and in a third, a combination of the effects of the two preceding classes; that neither set of appearances is invariably caused by the poisons wiich usually cause them; that congestion within the head is really seldom produced by those which are currently imagined to produce it; and that most of the appearances of both kinds are exactly similar to those left by many natural diseases.” It is of little use here to dwell further on this source of evidence. It will be found, when we arrive at the mineral acids, that the cor- rosives, and some of the simply irritant poisons, leave distinct traces in the body, although sometimes not so easily distinguishable from those left by some natural diseases. : It was formerly supposed that unusual blackness or lividity of skin afforded a general indication of death by poisoning. A more enlarged experience has given to this a decided negative, and has also affirmed as true, that there is no differ- ence in kind between the lividity that succeeds death by poison and that which’ follows death from disease. Nor does early putrefaction, as was once supposed, follow death by poisoning. It is not generally caused by poisons, and, in some cases, as in that of arsenic, the putrefactive process is delayed by the action of the poison. It should be remarked, that post-mortem appearances may sometimes furnish negative evidence that may be valuable. Where, for instance, it is alleged that corrosives have been administered, the absence of all corrosion would serve to disprove the charge. So, also, the entire absence of all inflammation, in case of alleged poison by irritants, would render doubtful, or entirely disprove, the truth of the allegation. 7 If a poison is introduced into the body after death, with a view to inculpate an innocent person, the post-mortem appearances may become important. The ab- sence of the peculiar appearances produced by the poison would, in such cases, frustrate the malicious purpose. : 3. Evidence oe chemical analysis.—To this source of proof is justly attached a high degree of importance. Although its failure, for reasons which will presently be rendered apparent, cannot be received as evidence that no poison has been ad- ministered, yet, its clear detection of the poison must always satisfy the affirma- tive inquiry. In order, however, to rest upon this evidence, the poison should be found either in the stomach, intestines, or gullet; or in the matter vomited ; or ia articles of food, drink, or medicine, of which the sufferer has partaken ; or, in ar- ticles found in the possession of the prisoner, and unaccounted for. The main inquiry should always be in relation to the cause of death. Although other apparent causes may develop themselves, yet this should not supersede the investigation of any suspicious substance, exhibiting the appearance of a poison. An interesting case is given by Dr. Christison (55, 56), quoted from Dr. Willd- berg, of Rostock, of a girl, who actually expired while her father was chastising her severely for stealing. Her death was supposed to have been the result of the beating, but, on the examination, although there were found the marks of many stripes on the arms, shoulders and back, with extravasated blood under them, yet they did not appear, by any means, sufficient to account for death. On opening the stomach it was found very much inflamed, and lined with a whité powder, ADMINISTERING POISON. 855 Evidence that poison has been given. which chemical analysis proved to be arsenic. Tte girl had taken arsenic, through fear of her father’s displeasure, after being detected, had vomited during the flogging, and died in slight convulsions. : If, on the closest examination, no poison can be detected, it does not, therefore follow that none has been administered. For, 1. It may have been discharged by vomiting and purging. In the case of Thom, tried in 1821, although the deceased had clearly died of poisoning by ar- senic, yet none could be detected in the stomach or its contents. He had lived seven days, and allthe time had labored under frequent vomiting. In another case, arsenic could not be found in the matter vomited twenty-four hours after it had been swallowed. In another case, a grocer died eight hours after swallowing an ounce of arsenic, and yet chemical analysis could detect none whatever in his body. It is, nevertheless, true, that poisonous substances not easily soluble, and which have been taken in a state of minute division, do adhere to the villous coat of the stomach with such strong tenacity as not to be easily dislodged by vomiting. Many instances of this have occurred in the case of arsenic. Christison, 56, 57. The length of time that a poison, which has excited vomiting, may remain in the stomach, will depend onits solubility ; the frequency of the vomiting ; the rem- edies taken ; and other similar circumstances. 2. The poison may have been absorbed, and may thus have disappeared. This is more, especially the case where poisons are taken in a liquid form, particularly laudanum. It has taken place where solid opium has been taken. In a case of Jaudanum, which occurred in 1823, none could be detected, although the circum- stances left no doubt but that it had been swallowed seven or eight hours before death. The readiness and celerity with which the absorption would take place must depend much upon whether the poison was in a liquid form ; or, if it was not, whether it was easily soluble. Some mistakes have been made in arriving at hasty conclusions that no poison had been taken, because none could be found in the stomach which have occurred in consequence of overlooking its disappear- ance through the means of absorption. ‘ 8. Poisons may be decomposed, and hence not to be found in the stomach or its contents. Many poisons are destroyed by the process of digestion. Some of the mineral poisons are also decomposed in the stomach. Among these are corrosive sublimate, lunar caustic, and hydro-chlorate of tin. Their decomposition is owing to a chemical, not a vital purpose. Other poisons become changed by entering into combination with other sub- stances, without themselves undergoing decomposition. The decay of the-body, prior to examination, may also have caused the disappearance of the poison. Where any considerable portion of time has elapsed between dissolution and the examination, ‘‘some poisons, such as oxalic acid, might be dissolved, and then ex- ude; others, such as the vegetable narcotics, will undergo putrefaction ; and oth- ers still, such as prussic acid, are partly volatilized, partly decomposed, so as to be undistinguishable in the course of a few days only.” The results of experimental inquiries conducted by Orfila and Lesueur were, that after a time the acids became neutralized by the ammonia disengaged dur- ing the decay of animal matter ; that by the action of the animal matter the salts of mercury, antimony, copper, tin, gold, silver, and likewise the salts of the vege- table alkaloids, undergo chemical decomposition, in consequence of which the bases become less soluble in water, or altogether insoluble ; that acids may be de- tected after several years’ interment—not always, however, in the free state ; that the bases of the decomposed metallic salts may also be found after interment for several years ; that arsenic, opium, and cantharides undergo little change after a long interval of time, and are scarcely more difficult to discover in decayed, than in recent animal mixtures, but that hydrocyanic acid disappears very soon, so as to be undistinguishable in the course of afew days. Christison on Poisons, 61. The discovery of poison, by means of the chemical test, affords, undoubtedly, the clearest and most satisfactory evidence that can be obtained. Some have even gone so far as to insist that no case of poisoning should be considered as proven, unless the poison had been discovered by these tests. A case, however, is related by Dr. Christison (62, 63), in which, although the tests failed to discover any, yet no doubt could really exist but that poison had been administered. A man, known to have some design on another, persuaded him to breakfast with him at a tav 856 ADMINISTERING POISON. Evidence that poison has been. given. ern. They had beef-steaks, fried potatoes, eels, claret, and rum. Soon after commencing, the guest complained of feeling unwell, and began to vomit violent- ly. This contintinued, with excruciating pain inthe abdomen, long before a physi- cian was procured. The physician, at first, imputed the whole to cholera; but on returning in the evening and finding him dead, said he had been poisoned. The body presented much external lividity, contraction of the fingers, great inflamnia- tion of the stomach and intestines, the appearance resembling that of gangrene. Some fluid was found in the stomach, but, on analyzing it, no arsenic or other poison could be detected. The attention was turned particularly to arsenic, as the prisoner was proved to have bought that poison, and to have made a solution of some white powder in his kitchen not long before the occurrence of this event. ‘The deceased also present- ed symptoms of stupor, and other signs of derangement of the nervous system, remarked in rapid cases of poisoning with arsenic. Under all these circumstan- ces, ‘‘the kind and character of the symptoms, their commencement during a meal, the rapidity of death, the signs of violent inflammation in the stomach after so short an illness, and the facility with which the absence of poison in the con- tents of the stomach may be accounted for, more especially if it be supposed that the poison was administered in solution,” leave little doubt but that arsenic had been administered, most probably in solulion, although none could be detected in the stomach or its contents. In relation to the results obtained from experiments on animals, this source of evidence is not often resorted to in courts of justice. MORAL CIRCUMSTANCES. 1. The first circumstance relates to suspicious conduct on the part of the pris- oner before the event—such dabbling with poisons, conversing about them, and showing a knowledge of their properties. The medical witness may here be called upon to state the extent and accuracy of the knowledge which the pris- oner manifests by his acts and conversation. 2. Another circumstance relates to the purchase or possession of poison, at or about the time of the alleged crime, and the pretence under .which it was pro- cured, and whether the pretence turns out to be true or false. : 3. The circumstances attending the administration of poison, either in food, drink, medicine or otherwise. The great object, in case of any suspected admin- istration, is to ascertain the fact and the intent. ‘Two cases may be found in Dr. Christison (75), which will serve to illustrate. The one occurred where the poison (arsenic) was contained in a bowl of porridge. A part of the meal, from which the porridge was made, was preserved. Another portion was obtained from the family stores. The former was shown by chemical analysis to contain arsenic, which the latter did not. ‘There were also other circumstances going to show, that the poison must have been mixed with the meal in the morning, before any stranger entered the house. The accused was convicted. The other case is cited from Barruol, and in that the arsenic was found mixed with a large mass of flour, of which only a small portion had been used in making bread. ‘This was presumed to be accidental, the very large portion of flour, in which the mixture occurred, negativing the presumption of criminal intent. The wheat was, in all probability, intended for seed ; and was sent by mistake to the mill, the arsenic having been mixed with it to destroy insects. Where corrosive poisons have been used, the examination of the clothes has, ‘sometimes, led to the conviction of the murderer. This has, at least, once oc- eurred, in the case of poisoning with nitric acid. Guy, 537. 4, The intent of the person who is proved to have administered the poison. This will depend for its proof much upon the quantity given, and the circum- stances under which it was administered. In the trial of Hodgson, in 1824, for attempting to poison his wife, it was proved, that he had substituted corrosive sublimate for calomel and opium in pills, which had been prescribed by her physician. Also, that a laudanum draught contained corrosive sublimate. These he attributed to mistakes, and the first, also, to in- toxication. In the latter case, he also alleged that he had mistaken for the water- bottle an injection of corrosive sublimate, which he had previously prepared for. a sailor. The chemical analysis of the draught and the injection disproved the ADMINISTERING POISON. 857. Evidence that poison has been given. truth of this, by showing that the former contained fourteen grains to the ounce, and the latter only five. 5. The simultaneous illness of other members of the family, besides the person chiefly affected. Where several persons have partaken of the same dish, and have been seized at the same time, with the same kind of symptoms, it affords strong evidence of general poisoning. The symptoms, however, must be charac- teristic of the action of some particular poison, in order to be justly attributable to it ; otherwise the cause of the difficulty may be in the food itself. Where all who have eaten of a particular dish have suffered, and all who have not have escaped, the moral evidence of poisoning is possessed of great strength. So, also, the several persons affected may suffer in proportion to the quantity taken, by each, of a particular dish. Thus; in the case of Lanargan, tried for the murder of O’Flaherty, it was proved ' that the daughter of the deceased and two servants were affected at the same time and with the same symptoms as himself: that they had partaken of the same dish with him; that the severity of their several complaints was in propor- tion to the quantity each had taken; and that others of the family, who did not eat it, were not affected. Christison on Poisons, 85. A very instructive case is recorded by Morgagni, of a clergyman who was tray- eling in company with another gentleman and two ladies. They had all dined together at an inn, and were about to resume their journey, when the clergyman was suddenly taken ill with violent pain in the stomach and bowels, and soon after with vomiting and purging. Of the rest of the company that had dined together, one of the ladies was similarly affected, but in a less degree; and likewise the other gentleman, though in a still less degree; but “the other lady was not at all affected. It was found that this lady was the only one of the party who had not tasted a dish of soup at the commencement of dinner. But the gentleman, who had suffered least, had eaten the largest share of it, while the clergyman had taken less than either. But it was then the custom to use scraped cheese with soup, and it was ascertained that each had added cheese exactly in proportion to the extent of their illness. There was no difficulty, therefore, in deciding that the poison was contained in the cheese; and, after the recovery of the whole party, the landlord admitted that he had served up to his guests cheese that had been seasoned with arsenic to kill rats. Christison on Poisons, 85, 86. 6. Another item of moral evidence consists in suspicious conduct on the part of the prisoner during the illness of the person poisoned. He may prevent medical advice being procured, or the relatives being sent for. He may attempt to de- stroy food or drink, or vomited matter which may have contained the poison. 7. Suspicious conduct after the person’s death, as hastening the funeral, prevent- ing inspection of the body, giving a false account of the previous illness, and other things of a like character. 8. The personal circumstances and state of mind of the deceased, his death-bed declarations, and other particulars. 9. The fact that a motive or inducement exists on the part of the prisoner, such as his having had difficulties with the deceased, or a hatred of him, succeeding to property on his death, or being relieved of a burden by it, and other particulars of that charac- ter. 10. The most approved methods of medico-legal examination in case of poisoning. Where a suspicion is created, that a case of poisoning has occurred, several im- portant points are to be attended to: 1. In reference to the symptoms. When did they commence? In what state or condition of the system? How long after a meal, or the taking of food or medicine? What was the nature of the symptoms? What the order of their occurrence? Have they been uniformly progressive, or attended with exacerbations? 2. In reference to the matter vomited, or passed by stool. What is its character, its quantity, its color? Was there any sense of acridity or burning in the throat or mouth, previous or subsequent to the vomit- ing? 8. In reference to the dishes used at the previous meal. In what manner were they prepared? What was the nature of all the different articles of food used at the meal? If several persons have partaken of it—what articles have been taken by those who have suffered and by those who have escaped—and in what quantities? Had the same articles of food been previously taken, without any bad effects, by the parties attacked? If more than one person partook of the meal, how many, and were they all affected, and how? 4. In case of the death 858 ADMINISTERING POISON. Evidence that poison has been given.—Evidence of poisoning by arsenic. of the patient. What was the exact time at which it occurred, and how long had he survived after the first appearance of the symptoms? What was the attitude and position of the body, the state of the dress, the surrounding objects? What bottles, paper-packets, weapons, or spoiled liquids, are lying about ?—and, if any, collect and preserve them. 5. In reference to a post-mortem examination. What are the external appearances of the body? Is the surface livid or pallid? What is the state of the countenance? Are there any marks of blood or violence on the: person? Any discomposure of the dress? What is the temperature of the legs, arms, abdomen, mouth, or axille? Is there any rigidity or cadaverous spasm in the body? 6. In reference to the inspection of the body. Observe the state of the abdominal viscera... Are there any signs of inflammation in the stomach and intestines, and where are its seats? Are there any marks of ulceration, effusion of blood, corrosion, or perforation? What is the state of the large intestines, especially the rectum? What is the state of the larynx, fauces, and esophagus ? What that of the thoracic viscera, and of the brain? 7. In reference to preserv- ing the identity of substances that are to'be submitted to chemical analysis. The main question to be settled is, are they the same substances? Have they always been in the possession of the person who first took possession of them? Has he preserved them under lock and key? If transported from one place to another, have they been carefully sealed, so as to preclude the possibility of their having been tampered with ? EVIDENCE OF POISONING BY ARSENIC. Of arsenic, Mr. Dean (Med. Juris. 340, 341) remarks: ‘Of all the substances within the entire range of toxicology, this is the most important to be understood. by the medical jurist. It is a substance extremely common, so cheap that it may be purchased by almost everybody; may be bought under plausible pretext; may be mixed, without suspicion, with many articles used as food; possesses scarcely any taste, and is, when administered, a deadly poison. All these circum- stances go to favor the employment of this, as the most common means of effecting murder in a secret manner. As a compensation for all this, it happens to be very fortunate that there is, perhaps,-no other poison, the presence of which can be detected in such minute quantities, and with so great a degree of certainty.” There are many different preparations of arsenic, such as fly-powder, the arsen- ious acid, or white arsenic, the arseniate of copper, or mineral green, the various sulphurets, etc. But, the only preparation necessary for the medical jurist to be well acquainted with is, the arsenious acid, or white arsenic, or as it is more com- monly called, arsenic. This is met with in two forms, the one the more usual, that of a fine snow-white powder ; the other, in solid masses, generally opaque, some- times translucent. This preparation is an oxide, arising from the combination of the metal with oxygen. The metal itself is entirely inert, possessing no poisonous quality. The two properties of arsenic, which are the most important to be in- quired into, are its solubility and its taste. Its degree of solubility is important to be settled, as on that depends very much the fact, whether, when swallowed in the solid state, we may expect to find it in such a state, or dissolved among the finid contents of the stomach. Water dissolves it, but its power of doing so has been variously estimated by different experimentalists. Hahnemann states, that, at the temperature of the blood, a thousand parts of water dissolve ten parts' of the arsenious acid, having the aid of ten minutes agitation. The presence of organic principles in the water renders the poison less soluble. In consequence of its insolubility, while among the organic mixtures of the stomach, it is the most generally found solid, but it is sometimes found among the fluid contents. Chris- tison, 23, 25; Guy, 484. As to its taste, it was once asserted that it had an acrid taste, but, in reality, it has little or no taste at all, If anything, it has a faint sweetish taste. It makes very little impression, as it is often swallowed unknow- ingly with articles of food. Some other qualities are, that in solution it has a eth slight acid reaction ; when dissolved in boiling water, and slowly evaporated, it deposits well formed, octohedral crystals; and when taken combined with alkalies it forms soluble arsenites. Guy, 584. In the case of Stephens, who was tried and convicted in the city of New York, in March, 1859, for the murder of his wife by poison, the subject of poisoning by arsenic was very fully investigated. This case is somewhat remarkable, from the . ADMINISTERING POISON. a 859 Evidence of poisoning by arsenic. fact that the deceased had been buried over a year before any inquiry was insti- tuted as to the cause of her death. Professor Doremus, who was the principal medical witness on behalf of the prosecution, as to the presence of arsenic in the body of deceased, estimated the amount of arsenic found at about two grains. He described the process by which he arrived at this conclusion at great length: *‘Should estimate that there was loss of the metal in the process. If one should - examine a body and there was an ounce, or half an ounce, the loss would be small, but when there would be only six grains or so in a large body, which should be subjected to all these processes, unquestionably a great portion would be lost; it was very difficult to estimate the quantity of arsenic in the body, yet, on consul- tation with his assistants, he thought that from four to six grains were in the body. All the apparatus, glass ware, coiled tubes, porcelain, etc., were new, and pur- chased‘ for this special purpose in order that they might feel fully assured that they had not by accident introduced arsenic; all the acids, sodas, potashes, zincs, etc., were pure when purchased, and the latter was re-purified afterwards. “Portions from the lid, sides and bottom of the coffin, a portion of the shroud and of the lining of the coffin, the nails and the screws thereof, were also tested, as were also portions of the soil, and no arsenic was found either in the article so tested, or in the soil. “The absorption of arsenic into the body would depend upon how it was ad- ministered ; the most favorable circumstance being solution, it could not, how- ever, be absorbed in the body by this process, because it might be discharged by vomiting and other evacuations, still less of the arsenious acid, and less still of sulphate of arsenic could be absorbed ; after absorption into the body it might be removed by the kidneys, this being the best means of removal; the removal of arsenic from the system began almost immediately ; it was rapidly removed, and certainly began to exhibit itself within twenty-four hours; arrived at this conclu- sion from an experiment made where witness took one-sixteenth of a grain three times a day ; the urine voided during the first twenty-four hours was examined, and arsenic obtained; believed arsenic did not exist as a natural constituent of the human body, partly from an announcement made by a celebrated French toxicolo- gist, who said he had found arsenic in the bones of the human body ; but, although witness had obtained bones from various sources, and tested them, he could find no arsenic. Again, other chemists had examined the human body and found no arsenic; again, there had been cases of poisoning by arsenic, and chemists could detect none; and, again, the body of a female which bore the appearance of being between twenty and twenty-five years of age, treated in the same elaborate method, and with longer experiments than those made on the body of Mrs. Stephens, and not a portion or trace of arsenic was discovered, although the most delicate tests had been employed for that purpose and with that view ; a fatal dose of arsenic was variously estimated, as small a dose as a grain, and a quarter of a grain, and seven or eight-tenths, two grains, three grains and four grains had been reported; it would vary with the state in which it was given, the time of taking it, and whether vomiting occurred—also, its effects on various individuals— it was impossible to answer categorically, although it might be said that from two to four grains were a fatal does, more, however, has been taken without fatal results. Arsenic was discovered in the body of Mrs. Sthephens, in the small and large intestines, in the viscera, in the ‘skin, in the muscular and adipose tissues, and also in the bones. The symptoms of arsenical poisoning varied in the human body, according to the amount taken, and the manner it was administered, the time before or after meals, and the condition of the system. — There was generally vomiting, burning pain at the pit of the stomach, and pain in the throat; again, it might attack the nervous system, and as in one recorded remarkable case where instant death occurred, the system may be paralyzed, and anesthesia take place ; again, there may be (but not invariably) diarrhoea, as swelling of parts of the body, a peculiar anxious appearance of the countenance, death most commonly ensuing by the poison being in a condition of collapse.” ; ; In the case of Stephens (supra), Dr. William Detmold described the pain felt by a person poisoned by arsenic to be “a fiery pain from the pit of the stomach, ex- tending upwards, with a sore mouth and lips, and extending downwards to the orifice of the anus, so as to make the evacuation painful. In cases where death follows in a few days after a large dose being taken, the eyes might either have a 860 ADMINISTERING POISON. Evidence of poisoning by arsenic. In R. v. Harley, (a) it appeared that the prisoner, who was a female servant of the prosecutrix, in preparing the breakfast of her mistress, had put arsenic into the coffee pot, and afterwards told her that she had prepared the coffee for her; upon which the mistress took the (a) 4 Car. & P. 369. wild, brilliant appearance, or be sunk deeply in the head, and frequently injected with blood; but in cases which were not so immediately fatal, and where death occurred in a week or two after repeated doses, the eyes were apt to be swollen; in the slower cases there is frequently edematous swelling of the lids with pain in the eyes; at first the color of the vomited matter would depend much on the con- tents of the stomach, but after the stomach was emptied, then the color would depend on the secretions, and the ejected masses would be yellow, with spots or streaks of blood; if there were a great deal of blood, it might be much darker; the vomited matter might at times be of the color of coffee-grounds; the patients are very frequently exceedingly restless, tossing their arms and hands about; very frequently there is numbness and loss of sensation, also paralysis or convulsive twitchings, showing that the nerves are affected; the manner of death varies according to the quantity taken; in most cases it occurs under collapse (cold, clammy skin, weak pulse, etc.); at times there is great lethargy when death ap- proaches ; great prostration is noticeable through the whole course of the decease ; Jaudanum produced drowsiness and a contraction of the pupil, which in large doses becomes smaller; the patient becomes drowsy, and before death gets’ into convulsions, together with coma; the respiration is very slow and snoring, a loud breathing that can be heard; when medical men give over two drachms ata time, it is an exceptional case ; three and a half ounces, between 9 a. M. and 7 P. M., would certainly be a colossal dose ; when arsenic is taken in successive small doses, it will accumulate in the body more rapidly than it would be thrown out again ; it is removed chiefly by the kidneys, and begins about the loins ; but within twenty- four hours after the first dose there was reason to suppose that such removal goes on until the whole of the arsenic leaves the system, provided no new doses are introduced ; arsenic would be eliminated more rapidly where the blood and all the functions performed their active duties than when they move slowly ; the dose thus supposed must be a very small one; if one-sixteenth of a grain, it is difficult to find minute particles, but in three days the witness does not believe that’ any could be found after one dose. A dose of arsenic begins with one-sixteenth of 2 grain, which would be given only twice a day, and then the patient would be watched for poisonous symptoms, which occur sometimes after such doses, and then it would cease to-be medicinal. The effects of medicinal doses of arsenic are slow, and those of laudanum very rapid—so that, if a dose of arsenic and lauda- num be given at the same time, the laudanum would be mainly noticed, while in larger doses of each it would be directly the reverse, and the doses of arsenic would be but slightly influenced by the laudanum, which would, in a measure, relieve the pains, and partially stop the vomiting and diarrhoea, but all these would be overpowered by the arsenic ; the post-mortem appearances of a case of arsenical poisoning are, at first, negative: thus, if death occurred rapidly and a rent were found in the stomach, they would not go further and suspect poisoning ; they generally find a slight inflammation extending through the intestines from the mouth to the anus, with black patches under the mucous membrane which could not be washed off; there might be abrasion of the skin in the intestines, in looking at these spots or patches by the microscope, probably blood would be found ; arsenic is a preventive of putrefaction; ina great many cases, when a, body poisoned by arsenic is exhumed, the body is found in a state of good pre- servation; the non-existence of those post-mortem appeurances described would prove nothing, but their existence would be proof positive.” Symptoms of poisoning by arsenic described by physicians. People ». Robin-. son, 2 Parker, 235, ADMINISTERING POISON. 861 Evidence of poisoning by arsenic. coffee for her breakfast; Parke, J., held that this was an adminis- tering of poison, within the meaning of the former statute upon this subject.(a) : In another case, where the prisoner, after mixing corrosive subli- mate with moist sugar, and putting it in a paper parcel, with a written direction on it, “to be left at Mrs. Daws, Townhope,” left it on the counter in a tradesman’s shop where she had purchased some salt; and the tradesman finding it there, but mistaking the direc- tion, sent it toa Mrs. Davis, who used some of it as sugar: Gurney, B., held this to be an administering of the poison, within the mean- ing of the statute; if it were intended for Mrs. Daws, and found its way to Mrs. Davis, and she took it, the crime was as much within the act as if it had been for Mrs. Davis.(b) The propriety of this decision, however, has since been doubted by Parke, B., and Alder- son, B., in R. v. Ryan,(c) where the poison, being intended for A., was taken by B., and the offence charged was causing the poison to be taken by B. with intent to murder B., which was not the fact; Parke, B., therefore, *ordered a fresh indictment to be [257] preferred, stating the intent to have been, “to commit mur- der,” in the words of the statute, without saying of whom, and on that indictment the prisoner was tried and convicted. Upon an indictment on a former statute,(d) for administering poison to one Elizabeth Davies, it appeared that the prisoner gave Davies a piece of cake containing the poison, and pressed her to eat it; but, suspecting, from circumstances, that it contained poison, she merely put it into her mouth, spit it out again, and did not swallow any part of it: it being referred to the judges to consider whether this amounted to an administering of the poison, within the meaning of the statute, it is stated in the case, as reported, that they seemed to think that swallowing the poison was not essential to the completion of the offence ; but they held that the mere delivery of it to the woman was not an administering of it within the meaning of the statute ; and a pardon was accordingly recommended.(e) The accuracy of this report, how- ever, so far as respects the reason of the judges for their decision, is doubted: and Parke, J., in R. ». Harley,( 7’) said that the judges, in determining that case, had holden that the poison was not administered (a) 9 G. IV, e. 31, § 11. (d) 43 G. TTT, ¢. 58. (b) R. v. Lewis, 6 Car. & P. 161. (e) R. v. Cabman, Ry. & M. 114. (c) 2 Mo, & R, 218. (f) Supra, 862 ADMINISTERING POISON. Evidence of intent. within the meaning of the statute, because it had not been taken into the stomach, but only into the mouth. : Where it appeared that the prosecutrix had accused the prisoner, her maid-servant, of stealing a table-cloth; the next morning the pris- oner brought a tea-pot and cup and saucer into her bed-room (she being in the habit of taking her breakfast in bed), and went down stairs; and the prosecutrix then helped herself to some of the tea from the tea-pot, which she found to have an acid taste, and on its being analyzed it was found to contain oxalic acid; the jury found that she administered the poison; but they also found that she did not intend to murder, which was of course holden to be equivalent to a verdict of not guilty.(a) Where, upon an indictment for poisoning, it was proved that the prisoner administered two berries of the coculus indicus to a child of nine weeks old, with intent to murder it; it was proved that the kernel, which is a strong narcotic poison, is inclosed in a strong shell’ or pod, very difficult to break, which is innoxious, and that the digestive pow- ers of a child of that age wonld not break or affect the pod, so as to allow the kernel to act, but that it would either be ejected from the stomach, or pass through such a child without harm; and in fact such was the case—one berry was thrown up, and the other passed through, without injury to the child: it was objected that, under the circum- stances, these berries could not be deemed poison, for, being in the pods, they could not effect any injury to such a child; the prisoner was convicted, and the question being reserved for the opinion of [*258] the criminal appeal court, *the judges held that it was sufti- cient that these berries were poison, and that they were administered with intent to kill, to bring the case within the statute, and that, therefore, the conviction was right.(d) 2. That the prisoner did it, with intent to murder the prosecutor, or (where the offence is laid with intent to murder generally, without saying of whom, as meutioned in Ryan’s case),(c) with intent to murder some other person, and that the poison was accideutly taken by the prosecutor. This is proved, first, by proving admissions or acts of the prisoner from which the jury may presume the intention,(d) and secondly, by proving the offence to have been committed under such circumstances (a) R. v. Draper, t Car. & K. 176, (c) Supra. (b) R. v. Cluderoy, 2 Car. & K. 907; 19 Law (d( See ante, pp, 119, 120, J. 119, m. ATTEMPTING TO ADMINISTER POISON. 863 Indictment. that, if the prosecutor died, the offence would have been murder.(a) If _ it be doubtful whether the act charged against the prisoner were done wilfully or by mistake or accident, it seems that other attempts by him upon the life of the prosecutor may be given in evidence, to prove that it was done designedly.(d)(1) SECTION VIII. ATTEMPTING TO ADMINISTER POISON. Indictment. . ! The jurors for our Lady the Queen, upon their oath present that A. B., on the day of , in the year of our Lord —, feloniously did attempt to administer to one C. D. a certain poi- son [“‘ any poison or other destructive thing”), to wit, two drachms of a certain deadly poison called arsenic, with intent in so doing then and thereby feloniously, wilfully, and of his malice aforethought, to kill and murder the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [As to the addition of other counts, when to wit, (a) Ibid, p. 208. ‘ (b) See R. v. Voke, R. & Ry. 531; andR. v, . Dossett, 2 Car. & K. 306; ante, p. 120, (1) If the poison was not wilfully administered, and a deliberate mischievous intention does not appear, and the act was done heedlessly and incautiously, it will be only manslaughter at most. Where the prisoner’s purpose really was to superinduce a state of quietude or sleep, without more, in order to afford better opportunity or greater facility for carrying on her own illicit intercourse with a man; it was held that this, however culpable in morals, would not involve her in the guilt of murder. Ann v. State, 11 Humph. 159. ; . We have already (ante, p. 59) alluded to the distinction with regard to the law of principal and accessory between the case of murder by poison and other modes of killing. If A., with an intention to destroy B., lays poison in his way, and B. takes it and dies, A., though absent when the poison is taken, is a principal. So, if A. had prepared the poison and delivered it to D. te be administered to B. as a medicine, and D., in the absence of A., accordingly administered it, not knowing that it was poison, and B. had died of it, A. would have been guilty of murder as principal. For, D. being innocent, A. must have gone unpunished, unless he could be considered as principal. Butif D. had known of the poison as well as A. did, he would have been a principal in the murder, and A. would have been accessory before the fact. Foster, 349; Kel. 52; 1 Russ, by Grea, 35. 864 ATTEMPTING TO ADMINISTER POISON. Evidence. necessary, see note to the last form.(a) Where the prisoner was indicted Sor an attempt to poison, by mixing small pieces of sponge with milk— Alderson, J., held the indictment to be bad, because it did not allege that sponge was of a deleterious or poisonous nature].(b) Felony, transportation for life, or not less than fifteen fears—or imprisonment [with or without hard laber],(c) for not more than three years.(d@) Accessories before the fact punishable in the same manner.(e) Accessories after the fact to be imprisoned [with or without hard labor],(7) for not more than two years.(”) [*259] * Evidence. To maintain this indictment the prosecutor must prove— 1. That the prisoner attempted to administer to the prosecutor the arsenic or other poison or destructive thing mentioned in the indict- ment; and that the attempt was unsuccessful. In Cadman’s case,(h) where the poisoning was holden not to be completed, because the poi- son was not actually taken into the stomach—the offence it should seem would be punishable under the clause of this statute, as an attempt to poison. But where A. gave poison to B., with directions to administer it to C.; and B., instead of doing so, handed it over to C., telling him at the same time the instructions he had received from A.: this was holden not to be an attempt to administer the poison by A.(:) 2. The intent to murder, as in the last case.(j) In R. v. Hanson,(h) where a man gave a woman a quantity of cantharides mixed in rum, which made her very ill and sick, but did not endanger her life, the counsel for the prosecution, seeing that the facts would not sustain an indictment for poisoning or attempting to poison, framed an indict- ment as for a misdemeanor at common law: but V. Williams, J., after conferring with Cresswell, J., held that it was no misdemeanor at com- mon law; and the prisoner was accordingly acquitted. It is not necessary to prove that any bodily injury was affected by the attempt.(Z) (a) Ante, p. 256. (g) Ibid. § 7. (a) R. v. Powles, 4 Car. & P. 571. (h) Ante, p. 257. (ce) §8. (i) R. v, Willams, 1 Car, & K. 589. (d) 1 Vict., c. 85, § 3. (j) Ante, p. 258. (e) Ibid. § 7. (k) 2 Car. & K, 912. (Ff) §8. (2) 1 Vict., o. 58, § 3. STABBING, ETC. WITH INTENT TO MURDER. 865 Evidence. SECTION IX. STABBING, CUTTING, OR WOUNDING, WITH INTENT TO MURDER. Indictment. The jurors for our Lady the Queen upon, their oath, pre- to a sent, that A. B., on the —— day of , in the year of our Lord , with a certain [knife] which he, the said A. B., in his right hand then had and held, feloniously did stab, cut, and wound [‘stad, cut or wound”} one C. D., with intent in so doing then and thereby feloniously, wilfully, and of his malice aforethought, to kill and mur- der the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add counts for stabbing, cutting, and wounding, with in- tend to maim, etc., in the form.](a) Felony, death.(®) Accessories before the fact, punishable in the same manner.(c) Accessories *after the fact, to be im- [*260] prisoned [with or without hard labor](d) for not more than two years. (¢)(1) Hvidence. To maintain this indictment, the prosecutor must prove— 1. The stabbing, cutting, or wounding, stated in the indictment. Where the indictment charged a cutting only, and the evidence was of a stabbing only, the judges held that the evidence did not support the indictment.(7) I have, in the above form, used all the terms in (a) Post, p. 262. (d) § 8. (6) 1 Vict., c. 85, § 2. (e) 1 Vict., c. 85, § 7. (c) Ibid. § 7. : (f) R. v. McDermott, R. & Ry. 356. (1) In relation to assaults with intent to commit felony—see post. An indictment for felonious stabbing charged that the prisoner ‘at the county, and within the jurisdiction of the court, feloniously and maliciously did stab one A. with intention to maim, etc., and kill him.” Held, that the indictment ought not to be quashed, upon objection that it did not allege any assault, striking or wounding, nor that A. was within the county or jurisdiction, nor that the intent was felonious and malicious. Woodson’s case, 9 Leigh, 669. ; Where the indictment alleges that A., feloniously, and of his malice aforethought, assaulted B. with a sword, etc., then and there struck him, etc., the allegation of feloniously and of his malice aforethought, applied to the assault, applies also to the stroke, to which it is essential, The State v. Owen, 1 Murphey’s R. 452. 55 866 STABBING; ETC., WITH INTENT TO MURDER. Evidence. the statute—“ stab, and cut, and’ wound;” there is no objection to it in point of pleading, and in doubtful cases it may be usefully adopted; and, if the prosecutor prove any one of them, he will sustain the indict- ment. Stabbing means a wounding with a pointed instrument; cutting, the making of an incised wound with a cutting instrument. But where the cut was made with an instrument not originally intended for cutting, nor ordinarily used for such a purpose, and which was not in fact used by the prisoner with intent to cut the prosecutor, but rather with a design to break or lacerate his head, but which was capable of cutting, and did in fact cut his head: the prisoner being convicted, the judges held the conviction to be right(a) So, where a man struck a woman in the face with the small claw of a hammer, and it cut her, this was holden by the judges to be a cutting, within the meaning of the statute.(b) But a blow with a square iron bar, which inflicted a contused or lacerated wound merely, was holden not to be a cutting within the act ;(c) it is, however, a wounding within it. “Wound” is a generic term, including not only incised wounds, but: also contused ‘wounds, where the skin is broken, no matter with what instrument or how inflicted.(1) Where it appeared that the prisoner, upon the prosecutor’s attempting to apprehend him for some offence, (a) R. v. Hayward, R & Ry. 78. (c) R. v. Adams, 1 Russ. 728. (b) R. v. Atkinson, R. & Ry. 104. (1) Some difference of opinion has arisen in relation to what is readily included under the term wound, which has sometimes created embarrassment in medico- legal ex :minations, and even in the framing of indictments. Dr. Watson, in his work on homicide, page 18, says, that ‘‘in legal medicine, under the term wound is to be included every local alteration of any part of the body, produced by vio- lent. means, whether the cause has been directed against the body or the body against the wounding cause.” ‘ Hence,” he says, “‘ we refer to wounds, incisions, lacerations, contusions, concussions, fractures, dislocations, sprains and burns, whether by fire or by escharotics.” This is a more comprehensive definition than is generally adopted. The law, as expounded by the English and American courts, asserts that, in order to con- stitute a wound, the skin should always be broken or injured. It excludes burns, whether produced by heated metals or corrosive liquids, although they would seem to be included in the above definition. So, also, would the definition ‘exclude the fracture of a bone which was unaccompanied with a solution of continuity. Taylor’s Med. Juris. 232. Mr. Dean (Med. Juris. 199) adopts the first definition given, which is also that of Dr. Guy, viz.: that every species of injury inflicted on the body, by mechanical means or agents, is, in a medico-legal sence, a wound. A bruise, inflicted _with a stone, so as to leave a scar for a year after, is a “wound.” State ». Lunard, 22 Miss. 449. In the statute of Missouri, the word stab is not used_as a technical term, but ae be construed in its ordinary acceptation, Ruby v, The State, 7 Missouri R. STABBING, EVTC., WITH INTENT TO MURDER. 867 Evidence. threw a heavy hammer at him, hit him over the eye and nose, breaking the skin on the side of the nose, to the extent of an inch and a half, from which he bled profusely; the blow was given with such force, as to cause the prosecutor to fall senseless from his horse : the judges held this to be a wound within the meaning of the former statute(a) upon this subject.(0) So, where the wound was inflicted with a bludgeon which broke the skin and drew blood, Patteson, J., held it to be a wound within the meaning of the act.(c) So, where it appeared that the prisoner, in attempting to rob the *prosecutor, threw [*261] him down, and kicked him in the face. with great violence, cutting the skin of the face near the lip, and breaking it a little near the eye—this was holden to be a wounding.(d) So, where the prisoner struck the prosecutor twice with an air-gun, at the side of a thick hat he had on his head, and inflicted a contused wound on his head, not directly with the gun, but with the hat—the prisoner being convicted, the judges held the conviction to be right.(e) And where the indict- ment stated that the prisoners, with a stick and with their feet wounded the prosecutor, and it appeared that one of the prisoners knocked the prosecutor off his horse by a blow on the head with a hedge-stake, and the others afterwards kicked him about the head and body with their feet; he was cut on the mouth, and had a severe con- tused wound on the head, the muscle being divided to the skull: it was contended that a wound given by a foot, with a shoe on it, was not within the statute, or even if it were, it was badly described in this indictment, which stated it to have been done with the feet only ; but the judges held, that whether the wounds were inflicted with a stick or a kick from a shoe, in either case the indictment was supported : it was not necessary to state in the indictment the means or instrument by which the wound was inflicted, nor did the statement confine the prosecutor to the means stated, which might be rejected altogether as surplusage.(/’) A wound, however, inflicted with the hands or teeth, as by beating with the fists or biting, is not within the act.(g) But, to constitute a wounding, there must be a breaking of the skin; and not merely of the cutis or outer skin, but of the whole skin.(z) It is immaterial, (a) 9G. IV, ¢. 31, § 12. (f) R. v. Briggs, Ry. & M. 318. (b) Ibid. (g) Per Patteson, J., in R. v. Harris, 7 Car. (c) R. v. Payne et al., 4 Car. & P. 558. & P. 446; Rv. Stevens, Ry. & M. 409, (d) R. v. Shadbolt, 5 Car. & P. 504, (kh) R. v. McLaughlin, 8 Car. & P. 635, (e) BR. v. Sheard, 7 Car. & P. 846, 868 STABBING, ETC. WITH INTENT TO MURDER. Evidence. however, whether it be an outward or inward wound.(a) It is immaterial, also, on what part of the body the wound is inflicted ;(6) butif the nature of the wound be one of the circumstances from which the jury are to infer the intent with which the wound was inflicted, it will, no doubt, be most material to prove that it was inflicted near, or aimed at, a vital part. Where three men were indicted for cutting and wounding a police constable, it appeared that one of them first attacked him, and the second came and joined him in the attack, and after a while the first ran away; the constable, who had been knocked down, and was then on the ground, was endeavoring to retain his hold of the second man, when the third came up, and kicked him violently several times on various parts of the body: Tindal, C.J., held that as the third [*262] man did not come *until the first had got away, he could not be found guilty upon a joint charge with the other two; he was accordingly acquitted and the other two found guilty.(c) 2. The intent to murder, as ante, p. 258. As to the verdict: by stat. 14 &15 Vict., c. 19, which enables a prosecutor to indict as for a misdemeanor any person who shall unlaw- fully and maliciously cut, stab, or wound him, it is provided by sect. 5, that “If, upon the trial of any indictment for any felony, except murder or manslaughter, where the indictment shall allege that the defendant did cut, stab, or wound any person, the jury shall be satisfied that the defendant is guilty of the cutting, stabbing, or wounding charged in such indictment, but are not satisfied that the defendant is guilty of the felony charged in such indictment—then and in every such case the jury may acquit the defendant of such felony, and find him guilty of unlawfully cutting, stabbing, or wounding; and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misde- meanor of cutting, stabbing, or wounding,” [that is to say, by imprison- ment, with or without hard labor, for not more than three years.(a)(1) As to costs, see ante, p. 186 ; and costs of apprehension, see anie, p. 189. (a) R. v. Smith, 8 Car. & P. 173; R. v. Wal- (c) R. v. McPhane et al., Car. & M. 212; see tham, 13 Shaw’s J. P. 183. ante, p. 249, as to the principals in the second (b) Per Parke, J., in R. v. Griffith,1 Car. & degree in murder, which is equally applica- P, 298. ble to this offence. 7 (@) § 4. (1) In Virginia, on an indictment for unlawful stabbing with intent to maim, disfigure, disable and kill, a verdict that the prisoner is ‘‘ guilty of unlawful stab- bing” will not authorize a judgment; but the court should direct a new trial. Marshall v. Com., 5 Gratt, 663, WOUNDING, WITH INTENT TO DO BODILY HARM. 869 Indictment. . SECTION X. STABBING, CUTTING, OR WOUNDING, WITH INTENT TO DO GRIEVOUS BODILY HARM.(1) Indictment. — ‘The jurors for our Lady the Queen, upon their oath, present, to wit. i that A. B., on the day of »in the year of our Lord . with a certain [Anife] which he, the said A. B., in his right hand then had and held, feloniously did stab, cut, and wound [‘‘stab, cut, or wound”] one ©. D., with intent in so doing then and thereby to maim the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Second count.] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, with a certain other [knife], which he the said A. B. in his right hand then had and held, feloniously did stab, cut, and wound the said C. D., with intent in so doing then and thereby to disfigure the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and *dignity. [Third count.] And the jurors aforesaid, upon their [*263] oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, with a certain other [knife], which he, the said A. B., in his right hand then had and held, feloniously did stab, cut, and wound the said U. D., with intent in so doing then and thereby to disable the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown (1) A person may be convicted of an aggravated assault and battery under an indictment for maiming. Guest v. State, 19 Ark. 405; Benham v. The State, 1 Clarke’s Iowa Rep. 542. ; : : In Missouri, an indictment, under section 38 of article 2d of the act concerning crimes and punishments (Rev. Code of 1845), averring that the defendant ‘“unlaw- fully and feloniously made an assault on one D., and feloniously struck him, the said D., with a large block of wood, whereby the said D. was maimed, wounded and disfigured, and received great bodily harm,” is sufficiently minute (State v. Bailey, 21 Mis. 484) ; and an indictment, which charges that the prisoner made an unlawful and felonious assault upon one A. B., and with a certain rock did then and there beat, bruise and wound in and upon the head of him, the said A. B., and did bite off the thumb of him, the said A. B., whereby the said A. B. was greatly maimed, wounded and disfigured, and received bodily harm, etc., is good although it does not allege malice, or that the rock was a dangerous weapon. State v. Bohannon, 21 Mis. 490. 870 WOUNDING, WITH INTENT TO DO BODILY HARM. Indictment.—Evidence. and dignity. [Fourth cownt.] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, with a certain other [Anife], which he, the said A. B., in his right hand then had and held, feloniously did stab, cut, and wound the said C. D., with intent in so doing then and thereby to do some grievous bodily harm to the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Fifth count.] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, with a certain other [Anife], which he, the said A. B., in his right hand then had and held, feloni- ously did stab, cut, and wound the said C. D., with intent in so doing then and thereby to resist and prevent [‘“‘ resist or prevent” ] the lawful apprehension [or detainer] of him the said A. B. [or of one HE. F.]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [The first four of these counts are those usually joined, in practice ; the last is used only when the circumstances of the case require it. In practice, these counts usually are joined with and follow the count for stabbing, etc., with intent to murder.(a) Felony, transportation for life, or not less than fifteen years—or imprisonment for not more than three years.(d) As to costs, see ante, p. 186; costs of apprehension, ante, p. 189. As to verdict, see post, p. 267. Evidence. To maintain this indictment, the prosecutor must prove— 1. The stabbing, cutting, or wounding, as in the last case.(c) 2. The intent, as laid in the indictment.(1) The previous statute (a) Ante, p. 259. (6) 1 Vict., c. 85, § 4. (c) Ante, p. 260. (1) The prosecutor and some other men had got hold of a woman, who, as they conceived, had been using another person ill, and said that she deserved to be ducked in a trough which was near; but it did not appear that they intended to duck her. The prisoner, who was at some distance at the time, on being informed that they were using the woman ill, exclaimed: ‘TI have got a good knife,” rushed. immediately to the place where she was, entered among the crowd, and instantly struck the prosecutor on the shoulder with a knife. The prosecutor turned round upon him; a struggle ensued between them; and in that struggle the prosecutor received other wounds. After they had foug ‘ht some time, the prisoner dropped his knife and ran away. The wound upon the prosecutor’s shoulder was about seven inches long, and two deep; and the lap of one of his ears was cut. There WOUNDING, WITH INTENT TO DO BODILY HARM. 871 Evidence. upon this subject(a) contained a proviso, that if at the trial the act of stabbing, cutting, wounding, shooting, or attempting to shoot, laid in the indictment, were committed under such circumstances that if death had *ensued it would not have amounted to the [**264] crime of murder, the defendant should be acquitted. And, under that section, a vast number of acquittals took place, and in very bad cases, because the circumstances were such that, if the death had ensued, the offences would have been manslaughter-only. That pro- viso, however, has been omitted in the present statute,(b) on which this indictment is framed; and, therefore, if the circumstances of the case be such that, if the death had ensued, it would be only man- slaughter, still it is within this act, if the jury believe that the offence was committed with any of the intents mentioned in the statute and charged in the indictment.(c) There is one exception to this, however —where the wound is inflicted ‘‘to resist or prevent the lawful appre- hension or detainer of any person,” where, as the statute requires the apprehension or detainer to be lawful, a wound given in resisting or preventing it, if death had ensued, would be murder.(d) The intents stated in the statute are—to maim; to disfigure; to disable ; to do some grievous bodily harm; and to resist or prevent apprehension or detainer of any person. Disabling means the doing of some injury to the person, by which a permanent disability is created. Therefore, where it appeared that (a) 9 Geo. IV, c. 31, § 12, (c) Anon., 2 Moody, 40; R. v. Griffiths, 8 (b) 1 Vict., c. 85, § 4. Car. & P. 248. (d) See ante, pp. 236, 237. was likewise a slight wound on the gland of his neck, and a cut on his left arm. Upon this evidence, the counsel for the prisoner objected, that the first count of the indictment, which stated an attempt to murder, etc., and the second count, which stated an attempt to maim, disfigure, and disable, could not be supported; and that the only question was upon the third count, which stated an intent to do some grievous bodily harm. And upon this question, he submitted, that the wounds were not of that kind from which grievous bodily harm could ensue; that the transaction was a scuffle, in which a knife was used accidentally, without any ‘settled design to ‘‘maim, disfigure, or disable,” or to do “ other grievous bodily harm” to the prosecutor ; and also that the wounds were not inflicted in a part of the body which could produce such a consequence. Bayley, J., entertained some doubts on the ease; which appear to have proceeded principally on the grounds, that the wounds were not in a vital part;.that it was questionable whether the injury done was a grievous bodily harm, contemplated by the act; and whether, if death had ensued, the crime would have been more than manslaughter. And taking all the circumstances of the case into consideration, he directed the jury to acquit the prisoner. * Rex v. Akenhead, 1 Holt’s N. P. Rep. 469. [See 2 Stark. Ey. 691.] 872 WOUNDING, WITH INTENT TO DO BODILY HARM. Evidence. the prisoner, upon being detected: by a watchman in the act of com- mitting a burglary, struck him two very severe blows with a crowbar and cut him, and then ran away ; and the jury found that he cut the watchman with intent to disable him until he could effect his escape ; but, as the indictment charged the offence to have been committed with intent to murder, maim, and to disable only, the judges held that the conviction could not be supported; because, by the finding of the jury, the prisoner intended to produce a temporary disability merely, and not a permanent one, as intended by the statute.(a) A grievous bodily harm is a generic term and may comprehend severe wounds or hurts of various kinds; but they are not [*265] required *to be such as are likely to produce permanent injury. Where a man cut a female child’s private parts, for the purpose of enlarging them for a time, but the hymen was not injured, the incision was not deep, and the wound was not eventually dangerous: Graham, B., left it to the jury to say, whether this was not a grievous bodily injury to the child, though eventually not dan- gerous; and as to the intent, he said, that although it probably was the prisoner’s intention to have committed a rape, yet if, to effect that, he did the child a grievous bodily injury, he was not the less guilty of the latter crime, because his principle object was another; the inten- tion of the prisoner might be inferred from the act—the jury found the prisoner guilty, and the judges held the conviction to be right.(0)(1) Where a man, passing along the highway, received a blow from one of two persons which severely wounded him, and he was immediately (a) R. v. Boyce, Ry. & M. 29. (b) R. v. Cox, R, & Ry. 362, (1) To constitute the crime of malicious stabbing, such malice as is necessary to make killing murder in the first degree is not necessary ; malice, according todts common law signification, is sufficient. Where the stabbing is proved, the law presumes the existence of malice, to rebut which, the proof, either on the part of the state or the prisoner, must be of: such a nature as to show that the stabbing was done under such circumstances as would, had death ensued therefrom, have mitigated the offence from murder to seeing tists or excusable homicide, or to leave it doubtful whether it was not so done. : Evidence that the prosecutor—a mulatto, and the person stabbed—was a tur- bulent, insolent, saucy fellow, is inadmissible upon a prosecution for malicious stabbing. So also is evidence that he said, some time after the stabbing, he had pee ee defendant before he stabbed him. Wright v. The State, 9 Yerger’s ep. 342. In Connecticut, the words, ‘with actual violence,” used in the statute, are not a technical phrase essential in an indictment; and an averment in an indictment that the defendant, with a knife, stabbed, cut, etc., is a sufficient description of the offence. State v. Nichols, 8 Conn. Rep. 496. , WOUNDING, WITH INTENT TO DO BODILY HARM. 873 Evidence. robbed of money and goods; upon the prisoner being indicted as one of the two, for the wounding, Coleridge, J., told the jury, that if they believed that the prisoner inflicted the wound on the prosecutor, with an intent to rob him, but had at the same time an intent to do him some grievous bodily harm to effectuate his intention of robbing, then, in law, the prisoner ought to be convicted of the wounding; it was objected that there was no evidence that the prisoner inflicted the wound, but the judge said, that if the prisoner did not with his own hand inflict the wound, yet he might still be convicted, if the jury were satisfied that the prisoner and the other man were jointly engaged in a common purpose of robbing the prosecutor, and that the wound was inflicted by the other man.(a) Where the prisoner was indicted for cutting a man named Cam- bridge on the wrist, with intent to prevent his apprehension, and with intent to do Cambridge some grievous bodily harm. It appeared that the prisoner was seized by Cambridge and one Headley, in the night time, immediately after he had attempted to break open Headley’s stable, for the purpose of stealing. He was taken into the house, and whilst sitting there beside Headley, he got up quietly, took a knife from the table, then returned to his seat, and saying to Headley, ‘I'll be revenged on you, let the consequences be what they will,” he endeavored to strike him with the knife. Headley then struggled to get the knife from him, and the prisoner made two attempts to stab him with it, but without success; the prisoner then rushed forward and cut Cambridge with the knife on the wrist, Headley still endeav- oring to get the knife from him, in which he at length succeeded ; the prisoner said he was very sorry he cut the wrong man, he intended to have cut Headley, and he would be revenged on him some time or other. The wound was not dangerous, and was healed in about a week. It was admitted *that the evidence didnot support [266] the count, which charged the offence to have been committed (a) R. v. Bowen, Car. & M. 149. _A. came up, during an affray, with a picket in his hand, and told the by-stand- res that, if tase would put Bh down and paddle him, he would pay fifty dollars and expenses; and then said to B. that, if no one else would do it, he would whip him himself. Thereupon B. said: ‘Then you are the man I amatter ; God damn, I have got you now; God damn, I will kill you,” and threw an axe, which he held in his hand, at A. A. then threw the axe back at B., with violence; where- upon B. took up the axe and pursued A., who ran until B. was about to overtake him, when he turned, and B. struck at_him with the axe, missing him with the poll and hitting him with the handle. Held,.that B. was properly convicted of an aggravated assault. Brown v. State, 16 Texas, 122. 874 WOUNDING, WITH INTENT TO DO BODILY HARM. Evidence. with intent to prevent the prisoner’s apprehension; and the question remaining was, whether it was done with intent to do grievous bodily harm to Cambridge. It was objected that, as the wound was not on a vital part, the prisoner could not be said to have intended grievous bodily harm ; but the judge overruled this objection at the trial, hold- ing that it was for the jury to say with what intent the stroke or thrust was made by which the cut was given; and the judges after- wards held that, if there be an intent to do grievous bodily harm, it is immaterial whether grievous bodily harm have been actually done or not.(a) Where the intent laid is to resist or prevent the lawful apprehension or detainer of any person, it must appear that the apprehension or detainer was lawful. In what cases an offender may lawfully be apprehended without warrant ;() in what cases with warrant.(c) In Hunt’s case,(d) it was objected that, as the original offence (an attempt to break into a stable, to steal) was merely an attempt to com- mit a felony, which is but a misdemeanor, the prisoner was not law- fully in custody, not being in custody under a warrant; but the judges held that the prisoner, being detected in the night time attempting to commit a felony, might be lawfully detained without warrant until he could be carried before a magistrate.(e) The evidence in Boyce’s case(’) would have supported a count of this kind; but there was no such count in the indictment. Where, upon an indictment for cutting, with intent to prevent the prisoner's apprehension, one of the objections was, that the prosecutor, when he attempted to apprehend the prisoner, did not inform him for what offence he was about to arrest him; but the judges held that, as he was seen in the commission of the offence, and taken on fresh pur- suit, this was unnecessary.(g) But, where the prisoner was indicted for cutting one Walby, to pre- vent his, the prisoner’s, apprehension, and it appeared that a stranger had complained to a constable of the prisoner’s having ill-used him (and it did not appear what the ill-usage was), the constable called upon Walby to assist him, and they both took the prisoner into cus- (a) R. v, Hunt, Ry. & M. 93. (e) R. v. Hunt, Ry. & M. 93. (b) See ante, p. 21, etc. (f) Ante, p. 264. (c) Ante, p. 33; and see ante, p. 236, etc. (g) R. v. Howorth, Ry. & M. 297; 8. P. R. (d) Supra. v. Fraser, Ry. & M. 419; R. ». Robinson, 2 Stark Ey. 693, n.; sce ante, p. 246. WOUNDING, WITH INTENT TO DO BODILY HARM. 875 Evidence. tody; as they were taking him to a magistrate, the prisoner struck Walby in the presence of the constable, and some time afterwards ran away; Walby pursued him, and in attempting to take him, the pris- oner gave him a cut with a knife in the face. The judges held that the original arrest was illegal, and that the recaption would have been illegal also, and that the case, consequently, was not within the statute.(a) *By the former statute,(b) the cutting, etc., [*267] must have been to resist or prevent the apprehension or detainer of the party so offending, or of any of his accomplices; for an offence for which he might by law be abprehended or detained; but, by this act,(c) it is to resist or prevent the apprehension or detainer of ‘any person.” As to the proof of the intent, it may be proved by the admissions or acts of the defendant.(d) It may be laid down as a safe rule that the prisoner may in all cases be charged with having intended that which he has actually effected; as, if by cutting the prosecutor he has maimed him, he may be charged with having cut him with intent to maim him. é Or if the prisoner's intent be proved aliunde from his acts or words, he may be convicted, although he did not effect all he intended.(e) Care must be taken that there is no material variance between the intent laid and that proved. Where the prisoners were charged with cutting the prosecutor, with the several intents to murder, to disable, and do him some grievous bodily harm, and the jury found that it was done with intent to prevent their apprehension, and for no other purpose: the judges held, that as the intents stated were actually negatived by the jury, the defendants could not be convicted.(/) But where, upon an indictment for shooting a man, with intent to do him some grievous bodily harm, the jury found, that the prisoner’s motive was to prevent his lawful apprehension, but, that, in order to effect that purpose, he had also the intention of doing the prosecutor some grievous bodily harm: it was objected that as the principal intent was to prevent apprehension, that should have been charged as the intent in the indictment; but the judges held the con- viction right ; for if both intents existed, it was immaterial which was the principal, which the subordinate one.(g) (a) R. v. Curvan, Ry. & M. 122; and see R. (e) See R. v. Hunt, ante, p. 266. v. Thompson, Ry. & M. 80. (f),R v, Duffin et al. R. & Ry. 365; and (b) 9G. IV, ov. 81, § 12, see R. v. Boyce, ante p. 264. (c) 1 Vict., c. 85, § 4. (g) R. v. Gillon, Ry. & M. 85; and see R. (d) See ante, pp. 119, 120. v. Bowen, ante, p. 265. ' 876 WOUNDING, WITH INTENT TO DO BODILY HARM. Mayhem.—Statutes. But, if none of the intents be proved, the jury, by stat. 14 & 15 Vict., c. 19, § 5, may acquit the defendant of the felony, and find him guilty of a misdemeanor, in cutting, stabbing, or wounding the prose- cutor; and he may thereupon be sentenced to imprisonment, with or without hard labor, for not more than three years.(a) Mayhem.(1) Mayhem is such an injury to any part of a man’s body as may render him less able, in fighting, either to defend himself or to annoy (a) 14 & 15 Vict., c. 19, § 4; vide infra. MAYHEM AT COMMON LAW. (1) Mayhem was always an offence at common law. It was there defined to be a bodily hurt, whereby a man is rendered less able in fighting to defend him- self or annoy his adversary. Therefore, the cutting off, or disabling, or weaken- ing a man’s hand or finger, or striking out his eye, or fore-tooth, or depriving him of those parts, the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off an ear, nose, or the like, would not, at common law, be mayhem, because the effect would be simply to disfigure, not to weaken. To render the act indictable it must have been done maliciously. STATUTES RELATIVE TO MAYHEM. New York and most of the other states have statute enactments upon this sub- ject. In New York it is enacted, that ‘every person, who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner, or with intention to kill or commit felony, shall, “1, Cut out or disable the tongue ; or, «9, Put out an eye; or, «3. Slit the lip, or slit or destroy the nose ; or, “4, Cut off or disable any limb or member of another, on purpose, upon con- viction thereof shall be imprisoned in a state prison, for such term as the court shall prescribe, not less than seven years.” 2 N. Y. R. 8. 664, § 27; ibid. (5th ed.), vol. 3, p. 943. The statutes of other states make some difference, both in defining the offence and prescribing the punishment. Connecticut punishes the putting out of the eye or eyes of a person, so as to cause blindness, with imprisonment'in the state prison for life ; Delaware and North Carolina, the cutting off the genitals with death. Unite Starus.—By act of Congress, of April 30th, 1790 (§ 3), it is provided, that if any person or persons within any of the places upon the land under the sole and exclusive jurisdiction of the United States, or upon the high seas, in any vessel belonging to the United States, or to Any citizen or citizens thereof, on pur- pose and of malice aforethought, shall unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or lip, or cut, off or disable any limb or member of any person, with intention in so doing to maim or disfigure such person in any of the manners before mentioned, then and in every such case the person or persons so offending, their counsellors, aiders, and abettors (knowing of and privy to the .offence aforesaid), shall, on convic- tion be imprisoned, not exceeding seven years, and fined, not exceeding one ne dollars. ASSACHUSETTS, Micuiaan, Wisconsin.—In Massachusetts, the statute i that if any person, with malicious intent to maim or disfigure, shall oe ce maim the tongue,. put out or destroy an eye, cut or tear off an ear, cut or slit or mutilate the nose or lip, or cut off or disable a limb or member WOUNDING, WITH INTENT TO DO BODILY HARM. 877 Mayhem.—Statutes. of any other person, every such offender, and every person privy to such intent, who shall be present aiding in the commission of such offence, shall be punished by imprisonment in the state prison, not more than twenty years, or by fine, not exceeding one thousand dollars, and imprisonment in the county jail, not more than three years. Rev. Sts. of Mass., c. 125, § 10. In Michigan, there is a similar statute, with a punishment of imprisonment in the state prison, not more than ten years, or by fine, not exceeding one thous- and dollars, or both, in the discretion of the court. In Wisconsin, the statute is the same, with a punishment of imprisonment in the state prison, not more than five years, nor less than one year, or by fine, not exceeding one thousand dollars, nor less than two hundred dollars. Rev. Sts. of Wis., p. 686, § 31; ibid. (ed. of 1858), c. 164, p. 932. In Massachusetts, Michigan, and Wisconsin, it is provided by statute, that if any person shall assault another with intent to murder, or to maim or disfigure his person in any of the ways mentioned in the preceding section, he shall be deemed a felonious assaulter. In Massachusetts, the punishment for such offence is imprisonment in the state prison, not more than ten years, pr by fine, not ex- ceeding one thousand dollars, and imprisonment in the county jail, not more than three years. Rev. Sts. of Mass., c. 125,§10. In Michigan, the punishment is imprisonment in the state prison, not more than ten years, or by fine, not exceed- ing one thousand dollars, or both, at the discretion of the court. Rev. Sts. of Mich., p. 65, § 12. In Wisconsin, the punishment, in such case, is imprisonment in the state prison, not more than five, nor less than one year, or by fine, not ex- ceeding one thousand dollars, nor less than one hundred dollars. Rey. Sts. of Wis., p. 686, § 32; Ibid. (ed. of 1858), c. 164, p. 932. PENNSYLVANIA.—In Pennsylvania, the statute provides that whosoever, on pur- pose and of malice aforethought, by lying in wait, shall unlawfully cut out or dis- able the tongue, put out an eye, slit the nose, cut off the nose, ear or lip, or cut off or disable any limb or member of another, with intention, in so doing, to maim or disfigure such person; or shall voluntarily, maliciously and of purpose, pull or put out an eye, while fighting or otherwise, every such offender, his or her aiders, abettors and counsellors [shall be sentenced to undergo a confinement in the jail and penitentiary house of Philadelphia, for any term, not less than two, nor more than ten years, and shall be kept, treated, and dealt with (as is prescribed by an act, entitled “An act to reform the penal laws of this state”)], and shall also pay a fine, not exceeding one thousand dollars; three-fourth parts whereof shall be for the use of the party grieved. Act of 22d April, 1794 ; 3 Dallas, p. 601; 3 Smith’s Laws, 188 (6th ed); Purdon, 729, § 6; McKinney, 601; Dunlop, 155. . ; ‘In Pennsylvania, a subsequent statute enacts that, instead of the penitentiary punishment heretofore prescribed, the punishment by solitary confinement at la- bor shall be inflicted upon the several offenders, who shall after the first day of July next, commit and be legally convicted of any of the offences hereinafter enu- merated and specified, that is to say: every person convicted of mayhem, his or her aiders, abettors, or counsellors, shall be sentenced to undergo a similar con- finement at labor, for the first offence for a period not less than one year, nor more than seven years, and. for the second offence not exceeding fourteen years, under the same conditions as above ene (see Penal Laws]. Act of 23d April, 1829, Pamph. -p. 391, § 4; McKinney, 721. In-Ohio, it is fen that, # any person shall voluntarily, unlawfully, and on purpose, cut or bite the nose, lip or lips, ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, ear or lip, cut or disable any limb or member of any person with intent to murder, kill, maim or disfigure such person, every person so offending shall be deemed guilty of a misdemeanor, and, upon conviction there- of, shall be imprisoned in the penitentiary and kept at hard labor not more than twenty years, nor less thanone year. Sts. of Ohio, p. 234, § 33; Act of 7th March, 1835. In Maryland, a similar offence, done with intent to “maim or disfigure,”’ is punished by confinement in the penitentiary, not less than two nor more than ten years. Dorsey’s Laws of Maryland, p.574. In ‘Texas, the punishment is confinement to hard lahor in the penitentiary, not less than one nor more than ten years. Hart- ley’s Laws of Texas, p. 744, art. 2453. In Iowa, the punishment is imprisonment in the penitentiary, not more than five years, and by fine, not exceeding one thou- sand dollars, nor less than one hundred dollars. Code of Iowa, p. 350, § 2577. 878 WOUNDING, WITH INTENT TO DO BODILY HARM. Mayhem.—Indictment. In Maryland, the statute provides that every person, his or her aiders and abet- tors, who shall be duly convieted of the crime of mayhem, or of tarring and feath- ering, shall be sentenced to undergo a confinement in the said penitentiary house for a space of time not more than ten years, to be treated as herein directed. 1 Dorsey, 574. In Poniteese: the statute of 1807 (Aik. Dig. 102) enacts, ‘If any person or per- sons, on purpose and of malice aforethought, shall unlawfully cut or bite off the ear or ears, or cut out or disable the tongue—put out an eye, while fighting or otherwise—slit the nose or lip—cut or bite off the nose or lip—or cut off or disable any limb or member of any person whatever—such person shall be deemed guilty of mayhem.” In Arkansas, the statute (Dig., tit. Cr. Law, pt. 4, art. 3, 8) enacts that, “If persons fight by mutual agreement, and one of them be maimed, it shall not be deem- ed maiming, within the meaning of the act; but the parties shall be punished by fine and imprisonment, as for an aggravated affray.” In that state, on the trial of an indictment for maiming, the verdict was: ‘We, the jury, do find the with- in-named A. B. noteguilty, as charged in_the within indictment, but find that he and the within-named C. D. fought by mutual agreement.” Held, that, although the verdict should have stated more explicitly that the defendant and C. D. fought by mutual agreement, whereby the latter was maimed, yet that, as it would bear that construction, it was sufficient to warrant the sentence. Strawn v. The State, 14 Ark. 549. In Arkansas, the statutory offence of mayhem (Code, § 3107) may be committed onaslave. Eskridge v. The State, 25 Ala. 30. INDICTMENT. An indictment for mayhem at common law, in addition to the statement of the injury, must also charge, that the party was thereby “maimed.” The word «“‘maimed” is a word of art, which the law has set apart for the description of the offence, which no other word can supply. Hawkins’ P. C. 179, 224; Chit. Crim. L, 164, 219; 2 Black. 252. In Tennessee, in Chick v. The State (7 Humph. Rep. 161), the indictment charged, ‘that Chick, with force and arms, on the 21st day of August, 1844, un- lawfully and with malice aforethought, in and upon William Maxey an assault did make, and that the said Reuben Chick then and there unlawfully, feloniously, and with malice aforethought, the left eye of the said Maxey did put out; con- trary to the form of the statute in such case made and provided, and against the peace and dignity of the state.” The defendant was found guilty at the April term, 1845, Turner, judge, presiding, in the criminal court. A motion to arrest the judgment having been overruled, the defendant appealed. The Supreme Court, per Green, J., held, that the indictment should have charged that the prosecutor was maimed and disfigured, and that, not having done so, it was bad. In Alabama, in State v. Briley (8 Porter’s Rep. 472), the indictment contained three counts—the first of which charged as follows: that defendant, ‘ with force and arms, in and upon one P. J., did make an assault, and upon the left arm of him, the said P. J., with a certain stick, which he, the said defendant, then and there had and held in both his hands, did strike and break, and did on purpose, and of malice aforethought, unlawfully disable the said left arm of him, the said P. J., with intent him, the said P. J., then and there to maim, contrary to the form of the statute,” etc. A demurrer was filed to the indictment, which was over- ruled, and, upon a plea of “not guilty,” the defendant was convicted, and the suf- ficiency of the indictment was reserved for review. Goldthwaite, J.: ‘It is evi- dent, that wherever the statute speaks of disabling a limb or member, a perma- nent injury is contemplated, as such was the common law notion of the extent of the injury necessary to constitute a mayhem. A temporary disabling of a finger, an arm, or an eye, would not be sufficient to constitute the statutory offence. But it would, at all times, be exceedingly difficult to frame an indictment, with a. view to a specific description of the exact injury sustained. This precision of de- scription is as unnecessary as it is dangerous, indictments on statutes, and all that the law requires is a description of the offence, in the words of the statute creat- ing it. Having regard to this general rule, it would seem only to be necessary, that the indictment should charge an offender against this statute with doing, on WOUNDING, WITH INTENT TO DO BODILY HARM 879 en) Mayhem-—Evidence. purpose, and of malice aforethought, unlawfully, the act complained of. This, with the proper allegations of time and place, with a formal commencement and conclusion, would constitute a sufficient indictment. If we examine the first count,* we ascertain that all these allegations are found there, connected with other mat- ters, which, if superfluous, are neither repugnant nor inconsistent with the charge. The statement of the assault and battery with a stick, and breaking the arm, are, indeed, but a history of the violence, which could have been omitted. The superadding the intention to maim is, when examined, nothing more than a reit- eration of the idea previously conveyed to the mind, by the words ‘on purpose, and of malice aforethought ;’ the indictment is, therefore, sufficient to warrant the conviction.” In Virginia, the statute against mayhem affixes a penalty, when the act is done with intent to maim, disfigure, disable, or kill (in the disjunctive), yet the intents may be properly laid conjunctively ; and although all the intents are laid, proof of either supports the indictment. Angel v. Com., 2 Virg. Cas. 231. In North Carolina, in an indictment under the statute (Rev. Sts., c. 34, § 48), for maiming, by biting off an ear, it is not necessary to state whether it was the right or left ear. State v. Green, 7 Iredell’s Rep., p. 39. [The provision in 2 N. Y. R. 8. 665, § 36, is a statutory definition of the crime ; an‘l the word only includes the injuries there enumerated. A blow aimed at and. struck on the head, cannot therefore constitute assault and battery with intent to maim. Foster v. People, 50 N. Y. 598. That the crime may be within the 4th class of the New York statutes, the cutting and disabling must be done on pur- pose, and not in a sudden heat of passion, ete. Burke v. People, 4 Hun, 481; the external ear is a member of the body, and if at the instant of biting the ac- cused intends to take off the ear and does so, there is a sufficient premeditation. Godfrey v. People, 5 Hun, 365. Instruction that defendant ought to be acquitted “if he bit off the ear under the instinct of self-defence,” held to be properly refused. Molette v. State, 49 Ala. 18. See as to the nature of the crime in Texas. Slatterly v. State, 41 Tex. 619.] EVIDENCE, In Pennsylvania, the act of Assembly of April 22, 1794, § 6, is borrowed from the words of the British statute of 22 & 23 Car. II, c.1,§7. It pursues the same . language, except that the act of Pennsylvania particularly enumerates the cutting off the ear, and mildly varies the punishment. Under the first clause of the act of Assembly, no intent to maim or disfigure in a particular manner is necessary. But on the second clause, a specific intent to pull out or put ont the eye must be shown. The malice and lying in wait may be a matter of inference from the cir- cumstances. This clause was evidently introduced to prevent the infamous prac- tice of gouging. It has been decided that an indictment for mayhem under the first clause of section 6th, of the act of April 22d, 1794, which does not contain the words “lying in wait,” is bad. So, also, if the indictment omits the word “ vol- untary” under the second clause of that section. Lewis Cr. Law, pp. 509, 510, citing Resp. v. Langcake, 1 Yeates, 415; Resp. v. Reiker, 3 Yeates, 282. On an indictment for feloniously assaulting and beating with intent to disfigure, it has been held, that stronger circumstances of malice must be shown than on an indictment for murder, and the express proof of an intent to disfigure must be shown. Ibid., citing Penn v. McBirnie, Addis. 30. In North Carolina, in the case of the State v. Girkin (1 Iredeil Rep. 121), the defend- ant was indicted, for that he “unlawfully, and on purpose, did bite off the left ear of one James Watson, in the peace of the state then and there being, with intent to disfigure the said James Watson, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.” On the trial, it appeared in evidence, that the defendant and Watson engaged in a fight, and after Watson had bitten the defendant’s finger, the latter bit off a piece of Wat- son’s ear, which, on inspection, appeared to be the segment of a circle about an inch along the rim of the ear, and about one quarter of an inch deep in the gristle ; and was abaut one-fifth part of the ear. The defendant’s counsel insisted, first, that the biting off part of the ear did not come within the statute. Secondly, that it was necessary for the state to prove malice aforethought, or preconceived intention; and that the act was done 880 WOUNDING, WITH INTENT TO DO BODILY HARM. Mayhem.—Evidence. with an intent to disfigure. The defendant was found guilty, and, after an inef- fectual motion for a new trial, appealed. + Ruffin, Chief Justice. ‘Both parts of the second objection taken for the pris- oner are in opposition to the cases of the State v. Evans (1 Hay. Rep. 281), and of the State v. Crawford (2 Dev. Rep. 425), which establish that the intent to dis- figure is prima facie to be inferred from an act which does in fact disfigure, unless. that presumption be repelled by evidence on the part of the accused of a differ- eut intent, or at least, of the absence of the intent mentioned in the statute. “Since those cases, which were decided on the act of 1791, the law has been further altered in a manner which closes up all opening for the other branch of this objection. Under the act of 1791, it was contended, not without some plaus- ibility, that, as to cases within the second section, the indictment must lay the acts to be of malice aforethought, as well as on purpose. We appfove, indeed, of the contrary construction, which was adopted by the court in those cases. But still it was a point that counsel could then argue with a serious face, and in a way “to which the legislature seems to have feared the courts might, at some time, incautiously yield, unless the statute should be rendered more explicit on that point. Hence, in revising the statutes, the opportunity was taken of placing the question beyond all cavil. In the “Act concerning Crimes and Punishments” (1 Rev. Sts., c. 34), the 13th section relates to certain maims committed ‘of malice aforethought;” and then, in the 48th section, it is enacted that ‘if any person shall, on purpose and unlawfully, but without malice aforethought bite or cut off an ear,” etc. It is thus seen that those words “without malice aforethought,” which were not in the second section of the act of 1791, are introduced into the revised act of 1837—doubtless with the view of giving expressly to this latter act the same sense in which the former had been received by judicial instruction. In other words, the legislature approved of the interpretation adopted by the courts, and meant to incorporate it as a distinct and express enactment of the statute. “Upon the other point made on the trial, this court also agrees in the opinion given to the jury. The object of the legislature was to protect individu- als from such injuries as disfigure, that is to say, alter and impair the natural personal appearance. Where, therefore, the injury reaches that extent, the case must be within the meaning of the act. Here, such is the case. For, although the ear be not entirely severed from the head, yet, certainly, enough was taken off to attract observation, and to ordinary observation, to render the person less comely. In the opinion of this court, therefore, there is no error in the judg- ment.” In Alabama, to support an indictment for putting out an eye of an individual under the statute of mayhem, it is not necessary, where the injury is done in a sudden conflict, that the defendant should have formed the design previous to the . conflict ; it is sufficient if the defendant maliciously, and on purpose, does the act in pursuance of a design formed during the conflict. The State v. Simmons, 3 Ala. Rep. 497. The offence may be committed without an entire mutilation of a member; but the biting off a small portion of the ear, which does not distigure the person, and could only be discovered on close inspection or examination, when attention is directed to it, is not mayhem under the statute of Alabama. State v. Abram, 10 Ala. Rep. 928. Where a principal, charged with the offence of may- hem, has been found guilty, a person charged as accessory may be found guilty of the beating only, the probable consequences of his acts extending no further. State v. Absence, 4 Port. 397. [See this case also as to what amount of assistance will not constitute a principal in the second degree. ] In Arkansas, under the statute defining maiming to be “unlawfully disabling a human being, by depriving him of the use of a limb, or member, or rendering him lame, or defective in bodily vigor,” it is implied that the act, being unlawful in itself, evidences a malicious intent ; and it is immaterial by what means, or with what instrument, the injury is effected, or whether the party is deprived of the use of a limb or member, or rendered permanently lame, or whether his ‘bodily vigor is-merely affected, by his strength, activity, or the like, being decreased. Baker v. State, 4 Ark. Rep. 56. Son assault is a good defence to an indictment for mayhem ; but the defence can only be sustained by proof, that the. resistance was in proportion to the injury offered. Hayden v. The State, 4 Blackf. Rep. 546. STABBING, CUTTING OR WOUNDING. 881 Indictment. his adversary.(a) And, therefore, the cutting off, disabling, or weak- ening, a man’s hand or finger, or striking out his eye or fore-tooth, or emasculating him, are said to be mayhems.(b) But the cutting off his ear or nose was not holden to be mayhems at common law, because they did not disable or weaken a man, but merely disfigured him.(c) Disfiguring a man, within the meaning of the statute, must, it should seem, be the doing of some external injury to his person, which may detract from his personal appearance, such as the cutting off an ear or nose, as above mentioned. SECTION XI. MISDEMEANOR IN STABBING, CUTTING OR WOUNDING. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. ! that A. B., on the day of ——, in the year of our Lord —, unlawfully and maliciously did* cut, stab, and wound [cut stab or wound”]} one C. D.: against the form of the [*268] statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. (a) 1 Hawk., c. 44,51. (c) Ibid, (b) Ibid. § 2. The law is well settled, that a person thus assaulted may use as much force as is necessary for his defence, but he may not kill, wound, or maim his antagonist, unless it be necessary to save his life, or protect himself from great bodily harm.., Every assault will not justify every battery. 1 Bay’s Rep. 351; Cockcroft v. Smith, 2 Salk. 642; 1 Ld. Raym. 177; Bull. N. P. 18; 2 Stark. Ev. 70. In Arkansas, in McBride v. State (2 Eng. Rep. 374), it has been held, that on an indictment for an assault, with intent to commit mayhem, the defendant ma; be convicted of the assault, and acquitted of the intent charged. So, in England, by statute 1 Vict., c. 85, § 11. In Massachusetts, the breaking and entering a dwelling-house, with intent to cut off an ear of an inhabitant, is not a felony. Com. v. Newell, 7 Mass. Rep. 245. The 22d section of the act of Congress of March 3d, 1825 (7 L. U. 8. 401), pro- viding for the punishment of assaults with dangerous weapons, contemplates a misdemeanor, and not a felony ; and in an indictment under the act for such an offence, it is not necessary to charge that the assault was committed feloniously, or with intent to perpetrate a felony. U.S8..v. Gallagher, 2 Pain, 447. , 56 882 INFLICTING GRIEVOUS BODILY HARM. Evidence.—Indictment. Misdemeanor, imprisonment, with or without hard labor, for not more than three years.(a) Costs to be allowed, as in case of felony.(b) Evidence. To maintain this indictment, the prosecutor must prove— 1. The cutting, stabbing, or wounding.(c) -2. That it was done maliciously.(d) If, in proving this, the prose- cutor happen to prove a felony, within either of the cases No. 5 or 6,(c) the defendant shall not on that account be acquitted; but the court, in its discretion, may discharge the jury, and direct the prisoner to be indicted for the felony.(/) SECTION XII. INFLICTING GRIEVOUS BODILY HARM. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. ' that A. B., on the —— day of ——, in the year of our Lord —, unlawfully and maliciously did [assault one C. D., and did then unlawfully and maliciously, etc., “ stating particularly the acts done,”) and thereby then did unlawfully and maliciously inflict upon the said C. D. grievous bodily harm: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [The facts, I think, must be set out; for, although it is sufficient to state an intent to do grievous bodily harm, generally, yet when a statute, as in this case, makes it an offence to inflict grievous bodily harm, I think it necessary to set out the acts, specially, by which the bodily harm was inflicted.] , Misdemeanor, imprisonment, with or without hard labor, for not more than three years.(g) Costs to be allowed, as in cases of felony.(z) (a) 14 & 15 Vict., c. 19, § 4, (e) Ibid. 259, 262. (b) Ibid. § 14, (f) 14 & 15 Vict., v. 100, § 12. (c) Ante, p. 260. (g) 14 & 15 Vict., c. 19, § 4, (@) Ibid. 120, 121, (h) Ibid. § 14, DOING BODILY INJURY, DANGEROUS TO LIFE. 883 Evidence.—Indictment. Evidence. To maintain this indictment, the prosecutor must prove— 1. The acts done by the defendant, with or without wea- pon; (a) *and that they had the effect of producing grievous [*269} bodily harm, as mentioned.(6) 2. That they were done maliciously; which must be proved as directed.(c) If, in proving this, the prosecutor happen to prove a felony, the defendant shall not on that account be acquitted; but the court, in its discretion, may order the jury to be discharged, and direct the prisoner to be indicted for the felony.(d) SECTION XIII. DOING BODILY INJURY, DANGEROUS TO LIFE. Indictment. — The jurors for our Lady the Queen, upon their oath, to wit. present, that A. B., on the day of , in the year of our Lord , feloniously did [assault one C. D., a child of tender age, to wit, of the age of years, and did then feloniously strike and kick the said C. D., and feloniously did then knock the head of the said C. D. against a certain beam, and feloniously did then with great force and violence cast and throw the said C. D. upon a certain brick floor], and did thereby then cause unto the said C. D. great bodily injury, dangerous to the life of the said C. D., to wit [a concussion of the brain], with intent in ‘so doing then and thereby feloniously, wilfully, and of his malice aforethought to kill and murder the said C. D. [‘ to commit murder”]: Against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [It has been holden not to be necessary to state the nature of the injury dangerous to life, as in the above form ;(e) but it is better to do so, where it can be stated with certainty and proved as stated. ] (a) Ibid. § 4. (d) 14 & 15 Vict., c. 100, § 12. (b) Ante, pp. 264, 265, (e) R v, C.use et ux., 2 Moody, 53; 8 Car. (c) Ibid. 120, 121, & P. 541. 884 DOING BODILY INJURY, DANGEROUS TO LIFR. Evidence. Felony, death.(a) Accessories before the fact are punishable in the same mariner; accessories after the fact, by imprisonment [with or without hard labor],(b) for not more than two years.(c) Evidence. To maintain this indictment, the prosecutor must prove— 1. The acts done by the defendant, as stated in the indictment, and that the injury occasioned by them was such as to be dangerous to life. The words of the statute are—whosoever shall, “ by any means whatsoever, cause to any person any bodily injury danger- [*270] ous to life,” with intent to commit *murder, shall be guilty of felony, and suffer death. So that the acts which caused the injury must, I conceive, be set forth, and proved as laid. And where aman and his wife were indicted for assaulting a child, and causing to it a certain bodily injury dangerous to life, by striking and kicking it, knocking its head against a beam in the ceiling, and then throwing it down upon a brick. floor, so as to cause a concussion of the brain— done with an intent to murder; it was holden to be an offence within the statute,(d) above mentioned.(e) Butif all the facts stated in the indictment be not proved to amount to an offence within the statute, failing to prove the residue shall not hurt.(/) 2. The intent to murder as directed.(y) It is net sufficient to prove merely that, if death had ensued, the offence would have been mur- der; but admissions or acts of the defendant, from which an intent to murder may reasonably be inferred by the jury, must be proved.(h) (a) 1 Vict., ¢. 5, § 2 (f) See ante, p. 119. (b) Ibid., ce. 85, § 8 (g) Ante, p. 258. (c) Ibid. § 7. (h) Per Patteson, J., in R. v. Cruse et ux., (d@) Ibid. § 2. supra, (e) R. v. Cruse et px.,8 Car. & P. 541; 2 Moody, 53. SHOOTING AT A PERSON, WITH INTENT TO MURDER. 885 Indictment. SECTION XIV. SHOOTING AT A PERSON, WITH INTENT TO MURDER.(1) Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. } that A. B., on the day of , in the year of our Lord ——, a certain [pistol] then loaded and charged with gunpowder and {one leaden bullet], which pistol he the said A. B., in his right hand then had and held, did then feloniously shoot and discharge at and against one C. D., with intent in so doing then and thereby feloniously, wil- fully, and of his malice aforethought, to kill and murder the said C. D. [‘‘ to commit the erime of murder” ]: against the form of the statute’ in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [If there be any doubt of his intention to kill the parsicular person mentioned in the indictment—if he Jared at that person, mistaking him for another—then instead of the words, “‘ to kill and murder the said C. D.,” in the above form, say, “‘to commit the crime of murder.”(a) Counts may be and usually are added, for shooting with intent to maim, disfigure, disable, or to do some grievous bodily harm, as in the form No. 12.](6) Felony, transportation for life, or for not less than fifteen years—or imprisonment [with or without hard labor],(c) for not more than . *three years.(d) Accessories before the fact are punishable [**271] (a) See R. v. Holt, 7 Car. & P. 518, (ce) 1 Vict., c. 85, § 8. (b) Post, p. 274. © : (d) Ibid. § 3, (1) An indictment, for an assault with intent to murder by shooting, need not allege that the person assaulted was within the distance to which the gun would carry, for the attempt to shoot must have been coupled with the ability to do the act, or it would not have amounted to an assault; nor is it necessary to allege that the weapon charged to have been used was a deadly weapon. Shaw v. State, 18 Ala. 547. In Tennessee, it has been held that an indictment for malicious shooting need not describe the weapon, the hand in which it was held, the nature of the wound, or the circumstances attending the act; it is sufficient to charge that the accused did “unlawfully and maliciously shoot.” State ov. Ladd, 2 Swan, 226. But in: Texas, where an indictment charged that the defendant did make an assault upon the body of one A. B., and with a loaded pistol, held in his hand, the said A. B. attempted, feloniously, wilfully and maliciously, to kill and murder—it was held that the indictment was bad in not stating the manner in which the defendant attempted to use the pistol. State v. Johnson, 11 Texas, 22; and see State v. Jordan, 19 Mis. 212. é ee In Kentucky, an indictment for shooting at another with intent to kill, under the statute (Rev. ‘Sts. art. 17, § 1), need not allege that the shooting was with malice prepense. Robinson v. Com. 16 B. Mon. 609. 886 SHOOTING AT A PERSON, WITH INTENT TO MURDER. Evidence. in the same manner; accessories after the fact by imprisonment [with or without hard labor},(a) for not more than two years.(b) As to costs, see ante, p. 186; costs of apprehension, anie, p. 189. Evidence. To maintain this indictment, the prosecutor must prove— 1. That the defendant fired the pistol, or gun, as stated in the in- dictment. Where it appeared that the shot had been fired from the barrel of a percussion gun, which had been separated from the stock and lock, but which the prisoner fired by hitting the percussion cap which was on the nipple of the barrel with something which he took from his pocket: Patteson, J., held this to be a case within the statute ; and afterwards, upon consulting with other judges upon the subject, refused to reserve the point for the opinion of the judges.(c) 2. That he fired at the prosecutor, as stated in the indictment. Where the prisoner fired into a room in which he imagined the prose- cutor was at the time, but in fact he was not there, nor within the reach of the shot, it was holden that he could not be convicted, how- ever evident his intention might be.(d)(1) So where a‘man at night fired towards that part of a fence over which he imagined the prose- cutor was passing, when in fact the prosecutor passed over another part of the fence at more than five yards distant from it—it was holden, on the old statute on this subject,(e) not to bé a shooting at the prose- cutor.(f) But if aman fire at A.,and shoot B., he may be indicted (a) Ibid. § 8. (d) R, v. Lovell, 2 Mo. & R. 39. (b) Ibid. § 7. (e) 9G. 1, e, 22, (c) RB. v. Coates, 6 Car. & P. 394, (f) Empson’s case, 1 Leach, 247, (1) In the case of R. v. Lovell, cited in the text, Rex v. Bailey (R. & R. C. C. Rep. 1), was cited for the prosecution, where, on an indictment for shooting at H. T., who was wounded with grape-shot, out of a gun fired at a ship in which he was, Lord Eldon told the jury that he was of opinion, that if they thought the guns were fired at the vessel, and those on board her generally, the gun might be considered as shot at each individual on board her, and therefore at H. T., the person named in the indictment. Gurney, B.: “That case is perfectly distin- . guishable from the present ; cannon-shot fired into a ship more or less endangers every individual in it; every part of the ship may be penetrated by cannon-shot ; but that cannot be said of shot fired from a gun into a room where it is proved no individual then was.” In a late case, in Indiana, it was held that evidence that A. fired into a crowd, of which B. was one, with the deliberate intention, either formed at. the time or previously, of killing and murdering some one of the crowd, and that B. received a portion of the shot and contents of said gun, and was wounded thereby, would support an indictment for an assault and battery on B. with intent to murder B. Walker v. State, 8 Ind. 290. : SHOOTING AT A PERSON, WITH INTENT TO MURDER. 887 Evidence. for shooting and discharging the pistol or gun against B., for in fact he did so.(a)(1) However, this third section of stat. 1 Vict., c. 85, must be considered to have reference more particularly to shooting without wounding; for shooting and wounding with intent to murder is punishable with death, by the second section.(6) 3. That, at the time it was fired, it was loaded with gunpowder and a bullet, or other destructive matter, as laid in the indictment. Where the indictment alleged that the pistol was loaded with gunpowder and a leaden bullet, and it appeared in evidence that no bullet was found, either in the wound or elsewhere, and the wound was such as might have been inflicted with either the wadding ora bullet. Bol- land, B., *after consulting Park and J. Parke, JJ., held that [**272] the evidence did not maintain the indictment.(c)(2) (a) B. wv. Jarvis, 2 Mo. & R. 40. (b) See ante, p. 259. (c) R. v. Hughes et al., 5 Car. & P. 126, (1) Where an indictment, under the 9 Geo. IV, c. 31, charged the prisoner with shooting at A. with intent to murder A., the prisoner could not be convicted if the jury found that he shot at A. intending to shoot at B., and that he did not intend todo A. any harm. R. v. Holt, 7C. & P. 518. But in the following case a different opinion was given. Rex v. Jarvis, 2 M. & Rob. 40. And in a very recent case, in England, it was held that where the pris- oner, intending to murder A., and, supposing B. to be A., shoots at and wounds B., he may be convicted of wounding B. with intent to murder B. Regina v. Smith, 33 Eng. Law & Eq. 567. (2) When an indictment charges a shooting with a felonious intent, it must be proved that the gun was so loaded as to be capable of doing the mischief alleged to be intended. If loaded with powder and wadding only, but if fired so near an’ individual, and in such a direction that it would probably kill him, it would come within the statute. But it would be absurd to say that the discharging a gun, even loaded with ball, at so great a distance as could not possibly effect injury to the person against whom it was directed, evinced an intention to kill; and the same may be said of anything else wherewith the gun may be loaded. Vaughan v. State, 3 Sm. & Marsh. 553. : In England, under Lord Ellenborough’s act, the words of which were substan- tially the same as those of the 9 Geo. IV, c. 31, and of the recent statute, it was ruled, that firing at a person with a gun, loaded with paper and powder only, might be within the statute. Kitchen’s case, Russ. & Ry. 95. Tn Ohio, discharging a gun loaded with powder and wadding only, at a person so far distant that no injury would probably result from the act, is not a violation of the 24th section of the act for the punishment of crimes. Henry et al. v. The State, 18 Ohio Rep. 32. — . . In Indiana, where, upon the trial of an indictment for shooting at one L., with intent to commit murder, the evidence was, that, at the time the defendant fired the gun at L., it was only charged with powder and a light cotton wad, defendant being at the distance of forty feet from L. at the time ; and that at that distance the life of L. was not at all endangered or put in jeopardy by the act of the defendant in discharging the gun at him; it was held, that the defendant could not ‘be convicted, although he might have thought that the gun was properly loaded with powder and pall, and although he might have intended to murder L. The State v. Swails, 8 Ind. 524. 888 SHOOTING AT A PERSON, WITH INTENT TO MURDER. Evidence. Where the indictment alleges that the pistol was loaded with powder and a leaden bullet, it must appear that it was loaded with a bullet, or the prisoner will be acquitted. Hughes’ case, 5 C. & P. 126; and see Whitley’s case, 1 Lewin C. C. 123. In Kentucky, to constitute malicious shooting with intent to kill, within section 2, art. 6, c. 28 of the Revised Statutes, page 251, the offence must be such that, in case death ensued, it would have been murder. And if it be such as would not be murder had death ensued, that is, the wounding be not in self-defence, but done in a sudden affray or in sudden heat and passion, without previous malice, it is a misdemeanor; and if death ensue, it would be manslaughter. Rapp v. Com., 14 B. Mon. 614. Under the statute of Mississippi (act of 1839, v. 64, § 33, Hutch. Dig., p. 960), which provides that ‘every person who shall be convicted of shooting at another with the intent to kill, maim, ete., such other person, shall be punished by impris- onment in the penitentiary for a term not exceeding ten years,” it is necessary for the prosecution to prove that said defendant shot at the person on whom the assault was alleged to have been committed, with the intent to kill. Morgan v. State, 13 Smedes & Mar. 242. It was held in Indiana, upon the trial of an indictment for assault, by shoot- ing, with intent to murder, that the act of shooting produced the same evidence of intent to murder, as though death had ensued. Walker v. State, 8 Ind. 290. [When if death had ensued it would have been manslaughter only, the defendant cannot be convicted of an assault with intent to murder. So, held, when defendant advising his sister to accept an anonymousinvitation to meet her admirer privately, followed her and shot the person meeting her. Elliott v. State, 46 Geo. 459; 8S. P. in Read’s case, 22 Gratt. 924. On a trial for shooting at another who was pur- suing defendant, evidence that the person shot was the sheriff is proper in order to show that he was “‘in the peace of the state” at the time. State v. Denkens, 24 La. An. 29.] [In Ohio, if one, maliciously intending to kill, wound, or maim B., by mistake shoots at and wounds A. supposing him to be B., a conviction on an indictment for maliciously shooting A. with intent to kill, is good under the statute which provides ‘that if any person shall maliciously shoot any other person with intent to kill, wound, or maim such person, every person so offending shall be deemed guilty of a misdemeanor.” Callahan v. State, 21 Ohio St. 306.] [When the first count of an indictment charged an assault with intent to kill and murder a specified person, and the second count alleged that defendant as- saulted another with intent “to kill and murder” without naming the person whom he intended to kill, this latter count was held snfficient in connection with the first one. People v. Murray, 2 Mich. N. P. 94}. [Law of New York as to attempt to kill and other corresponding statutory offences, e. g., an assault with a sharp, dangerous weapon, with intent to do bodily harm. ‘To convict of an attempt to kill, the facts must be such that if death had ensued the accused would have been guilty at least of murder in the second de- gree. Under an indictment for an attempt to kill, the defendant may be convicted of an assault with a dangerous weapon with intent to do bodily harm. (Laws of 1854, ch. 74). Slatterly v. People, 58 N. Y. 354. Also in California. People »v. Lightner, 49 Cal. 226. Defendant may testify as to his intentin doing the act charged against him as criminal. Kerrains v. People, 60 N. Y. 221. What constitutes the crime in New York, see Lenahan v. People, 5 N. Y. 8. C. (T. & C.) 265; 8. C. 3 Hun, 164; Evers v. People, 6 N. Y. 8. C. (f. & C.) 156; 3 Hun, 716. In Georgia, Seborn v. State, 51 Geo. 164; Jackson v. State, 51 Geo. 402; Meeks v. State, 51 Geo. 429; Smith v. State, 52 Geo. 88.] [Indictment and conviction in case of conspirators, and of principals in the sec- ond degree, in Indiana, see Williams v. State, 47 Ind. 568. Unlawful and ma- Helou ae with intent to kill and murder, in Virginia, see Randall’s case, 24 ratt. 644. ; (In New York, a defendant indicted for an assault with intent to murder, may be convicted of an assault with a deadly weapon, or of an assault with intent to ee or to commit any great bodily injury. People v. Kerrairis, 1 Thomp. & {In Michigan, there is no crime called assault with intent to kill, but there is SHOOTING AT A PERSON, WITH INTENT TO MURDER. 889 Evidence. “assault with intent to commit murder ;” on an indictment for the latter offence a verdict “guilty of an assault with intent to kill,” is a verdict of guilty of simple assault. Wilson v. People, 24 Mich. 410. Defendant was indicted under 2 N. Y. R. 8. 665, for shooting at A. with intent to kill him, the proof was shooting at B. with intent to kill him, and the actual killing of A.; a request to charge that defendant could not be convicted for the killing of A. was held too broad. Hollywood v. People, 2 Abb. App. Dec. 376. The defendant was indicted for an assault with intent to murder; the actual assault was made by a mob, and it was claimed that defendant aided and abetted the mob by encouraging them to commit the crime ; held that his words must be proved to have been addressed to and heard by the mob or some of them. Cabbell v. State, 46 Ala. 195.] [In Texas, there is no crime termed “assault with intent to xill,” and a verdict in these words is erroneous. Long v. State, 34 Tex. 566. In California, on an in- dictment for an “assault with intent to commit murder,” the verdict “guilty of an assault with intent to commit great bodily injury,” is merely guilty of a simple assault, which is only a misdemeanor. Ex parte Ah Cha. 40 Cal. 426.] [In order that a defendant may be guilty of an intent to commit murder in com- mitting an assault and battery, there must be some adaptation real or apparent in the act done and means used to accomplish that purpose. If the means are evidently inadequate, a conviction is impossible. Kunkle v. State, 32 Ind. 220; but see Mullen v. State, 45 Ala. 43; State v. Napper, 6 Nev. 113.] (Murder and assault with intent to kill are not crimes of the same nature within the Texas Stat. (Pasch. Dig. §§ 2463, 2464), providing an increased punishment for a second offence of the same nature. For a second offence the indictment should show the previous conviction for the former offence. Long v. State, 36 Tex. 6.] [On a trial for an assault witheintent to murder, the prosecution, in order to show malice, may show the fact of a former difficulty between the defendant and the person assaulted, but cannot prove the circumstances of such difficulty. Tarver v. State, 43 Ala. 354. The charge of an assault upon B. with intent to kill him, is not sustained by evidence at the trial that defendant, being suddenly attacked’ with a deadly weapon and without any previous notice of bis danger, used his pistol in self-defence, there being no proof that he shot at B. Vander- mark v. People, 47 Ill. 122. If defendant threatened to shoot at a person with a pistol, and did shoot at and wound him, the malice which the law implies cannot be rebutted by proof of circumstances tending to show that there was rio actual malice. Collier v. State, 39 Geo. 31. The sufficiency of evidence on a trial for an assault with intent to murder, discussed and determined. Montalvo v. State, 31 Tex. 63; State v. Nations, 31 Tex. 561.] [See, also, State ». Butman, 42 N. H. 490; People v. Keefer, 18 Cal. 636 ; Baker ». State, 12 Ohio St. 214; Rice v. State, 16 Ind. 298; Beckwith v. People, 26 Il. 500; Maher v. People, 10 Mich. 212; State v. Shepard, 10 Iowa, 126; Boyd v. State, 4 Minn. 321; State v. Calligan, 17 N. H. 253; Com. v. Lang, 10 Gray, 11; Guy v. State, 1 Kans. 448 (assaults and batteries are not indictable under Kansas statutes,—but when defendant indicted for an assault with intent to kill, is con- victed of an assault, the conviction is pursuant to statute); Hall v. State, 9 Flor. 203; Worrock v. State, 9 Flor. 404; Gipson v. State, 38 Miss. 295 ; People v. Yslas, 27 Cal. 630 (evidence); Johnson v. State, 30 Geo. 426 (intent to kill an officer); State v. Felner, 19 Wisc. 561; Jeff. v. State, 39 Miss: 593 (by a slave) ; Armstrong v. People, 38 Ill. 513 ; Monday ». State, 32 Geo. 672.] ot [To charge the jury that “‘ purposely and maliciously ” used in the indictment, were equivalent.to “knowingly and wilfully” is error, but to charge that ‘if the assault and battery was knowingly and wilfully done with intent to kill, this was sufficient to sustain the higher offence included in the indictment,” was also error. Long v. State, 46 Ind. 582. For evidence and charge in a particular case, of assault with intent to kill, see Templeton v. People, 6 T. & C. 81; 3 Hun, 357. For an improper charge in case where defendant drew a pistol upon an aggressor, see Agitom v. State, 41 Tex. 501. For the requisites of the charge, etc., see Slatterly v. People, 58 N. Y. 354.) _ : [As to the cross-examination permitted, when the assaulted person had testified that there had been a few weeks’ difficulty between himself and the accused :— defendant cannot ask as to the nature and circumstances of such difficulty. Com. ». Silk, 111 Mass. 431. Where the accused is shown to have given the first insult 890 SHOOTING AT A PERSON, WIFH INTENT TO MURDER. Evidence. and to have begun the attack which resulted in his attempt to kill, he cannot mitigate by showing that he attempted under the heat of passion caused by the resistance of his adversary. Crane v. State, 41 Tex. 494.] : [Indictment.—On an indictment for an assault with intent to commit murder, a conviction for ‘‘an assault with a deadly weapon with intent to do bodily harm” is improper, unless the indictment charges that the assault was made with a deadly weapon. People v. Murat, 45 Cal. 281; see ex parte Max. 44 Cal. 579. Under. the Nevada statute, where an indictment charges an ‘‘intent.to kill and murder,” the words, ‘and murder” are surplusage and will be rejected. State v. Johnson, 9 Nev. 175. For the requisites of an indictment under the Texas Stat. (Pasch. Dig. § 2155) for an assault with intent to murder, see State v. Jennings, 34 Tex. 503; Greenwood v. State, 35 Tex. 587. Under the Nevada Crim. Prac. Act, in an indictment for an assault with intent to murder, it is not necessary to allege the defendant’s ability to carry out his design, the preparation and efficiency of his weapon, etc.; all these can be proved under the general allegations prescribed by the statute; for the necessary averments in such an indictment, see this case. State v. O’ Flaherty, 7 Nev. 153; nor is it necessary in such indictment to allege that the person assaulted was injured. State v. O’ Flaherty, 7 Nev. 153; State v. Rodrigas, 7 Nev. 328. In Texas, an indictment insufficient for an assault with in- tent to murder, may be sufficient for a simple assault. State v. Archer, 34 Tex.646.] (Under the Georgia Code § 4293, which provides that ‘‘an assault with intent to murder by using any weapon likely to produce death, shall be punished” etc., an indictment charging that defendant beat and wounded the person named with a pistol, ‘‘said pistol being a weapon likely to produce death,” was held suf- ficient after verdict. Prior v. State, 41 Geo. 155. In North Carolina, an assault with a deadly weapon with intent to kill, is not a felony, and the indictment, therefore need not charge that the assault was made with a felonious intent. Such an indictment is sufficient which charges that the assault was made “witless certain pistol then and there loaded with gun powder and one leaden bullet,” with- out averring that it was “a firearm” or ‘‘a deadly weapon”’; the court will take judicial notice that a loaded pistol is both. State v. Swann, 65 N. C. 330. An in- dictment for an assault and battery with intent to kill and murder, must state that the offence was committed with a deadly weapon or other means or force likely to produce death. Williams v. State, 42 Miss. 328. Under a statute of Louisianna, imposing the punishment of death upon one who, in the perpetration of any rob- bery etc., shall stab etc., another with intent to murder, the indictment must aver both the facts constituting the robbery, and the facts concerning the stabbing, with the same particularity which would be necessary in an indictment for either offence alone ; merely oe the words of the statute is not sufficient. State v. Brown, 26 La. An. 347. Sufficiency of an indictment for an assault with intent to murder, discussed and determined, see State v. Nations, 31 Tex. 561; Montalvo v. State, 31 Tex. 63.] See, also, Burns v. Com. 3 Met. (Ky.) 13; State v. Shepard, 10 Iowa 126.] Carder v. State, 17 Ind. 307; State v. Harris, 34 Mo. 347; State v. Murphy, 21 Ind. 441; Wall v. State, 23 Ind. 150; State v. Fee, 19 Wisc. 562; Wilson v. State, 25 Tex. 169 (although there is no crime in Texas called ‘assault with intent to kill,” yet charging this is at least good for a charge of simple assault or of an “aggravated _assault”); State v, Davis, 26 Tex. 201; People v. English, 30 Cal. 214; Milan ». State, 24 Ark. 346; McCroskey v. State, 2 Coldw. 178; Harrison v. State, 2 Coldw. 232; Rice v. People, 15 Mich. 9; U. S. v. Donlan, 5 Blatch. 284 (in a navy yard); State v. Daley, 41 Vt. 564; Jones v. State, 37 Geo. 51; State v, Seward, 42 Mo. 206; State v. Newbury, 26 Iowa, 467; People v. Cozad, 1 Idaho fh. 196 (verdict for a lower grade of offence). ] [Proper indictment for an assault with intent to kill an officer, see State v. Cof- fey, 41 Tex. 46. Indictment is sufticient if it follows the statute :—against a principal in the second degree. Falford v. State, 50 Geo. 591. The assault and battery and the intent may be charged generally, without a description of the acts. Williams v. State, 47 Ind. 568. The instrument or means need not be stated. Martin v. State, 40 Tex. 19; Bittick v. State, 40 Tex. 117. Charging an ‘intent to murder” is sufficient, although the statute uses the words “intent to Ey re penens Meredith v, State, 40 Tex. 480, and see State v. Walker, 40 Tex. 485. SHOOTING AT A PERSON, WITH INTENT TO MURDER. 891 Evidence.—Verdict. But, although the ball be not found, yet the jury may judge, from circumstances detailed at the trial, whether the pistol was so loaded or not, and find accordingly. At the trial of Oxford, for shooting at the Queen, with a pistol loaded with gunpowder and a bullet, it was proved that the prisoner had fired two pistols at Her Majesty, but the bullets were never found; however, it was proved by two witnesses that, when he fired the pistols, they were near him, and something whizzed past them ; it was proved by others that he had previously purchased balls and percussion caps, and balls and a bullet were found in his box; and he had said to one person: ‘If your head had come in contact with the ball, you would have found there was a ball in the pistol.” Lord Den- man, C.J., after detailing the evidence, told the jury that it was not a matter of law, but a matter of fact for them to judge of from the cir- cumstances, and to satisfy themselves that the pistol was loaded — (by a juryman) ‘“ with a bullet?” (Ld. Denman) “or a ball?” (Alderson, B.) “not with powder and wadding only.” So, where the prisoner, in endeavoring to effect his escape, said to the prosecutor, “let me pass, or I will blow your brains out,” and immediately fired and wounded the prosecutor in his neck and chin; the prosecutor, in his evidence, said he thought that the wound must have been given by a ball, from the sensation he felt at the time, and because it took him in one place ; and another witness said that the report was very strong for so small a pistol. It was objected that there was not sufficient evidence that the pistol was loaded with a leaden bullet; but the court said that there was evidence to go to the jury, and they accordingly left it to the jury, who found the prisoner guilty.(a) 4, The intent to murder, as ante, p. 258.(6) (a) Weston’s case, 1 Leach, 247. (b) And see R. v. Harris, 1 East P. C. xviii. VERDICT. Under an indictment for shooting with intent to kill or murder, the jury may find the defendant guilty of shooting with intent to kill or wound. Robinson v. Com., 16 B. Mon. 609. : 2 Where, in an indictment, there are counts under one section of an act for the punishment of crimes, for shooting with intent to kill, and under another section of the same act, for assaulting with intent to murder, and the jury find the defend- ant guilty of the first charge, the court cannot, with the consent of the jury, enter a verdict of guilty, generally, on all the counts in the indictment. Wilson v. The State, 18 Ohio Rep. 143. 892 ATTEMPTING TO SHOOT, WITH INTENT TO MURDER. Indictment. SECTION XV. ATTEMPTING TO SHOOT AT A PERSON, WITH INTENT TO MURDER. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. ; that A. B., on the —— day of » in the year of our Lord , having in both his hands a certain [gun] then loaded and charged with gunpowder and [one leaden bullet], did then, by drawing the trigger [“ by drawing a trigger or in any other manner” ] of the said gun, feloniously attempt to discharge the said gun, so loaded and charged as aforesaid, at one C. D., with intent in so doing then and thereby feloniously, wilfully, and of'his malice aforethought to kill and murder the said C. D. [to commit the crime of murder”): [*273] against the *form of the statute in such case made and pro- vided, and against the peace of our Lady the Queen, her crown and dignity. [If there be a doubt whether the defendant did not mistake the person at whom he attempted to shoot, for another, against whom he had malice, then instead of the words ‘‘to kill and murder the said C. D.,” in the above form, say ‘to commit the crime of murder.” (a) Counts may be, and usually are, added, for attempting to shoot, with intent to maim, disfigure, disable, or do some grievous bodily harm, as in the form No. 12.(0)(1) Felony, transportation for life, or for not less than fifteen years—or imprisonment [with or without hard labor],(c) for not more than three years.(d) Accessories before the fact are punishable in the same man- ner; accessories after the fact, by imprisonment [with or without hard Jabor],(e) for not more than two years.(/) As to costs, see ante, p.186; costs of apprehension, ante, p. 189. (a) See R. v. Holt, 7 Car. & P. 518. (d) 1 Vict., c. 85, § 3. (b) Post, p. 274. (e) Ibid.§8. ' (c) Sect. 8. (Sf) Ibid. § 7. - (1) Where the indictment charges that the prisoner feloniously assaulted J. H., and by feloniously “drawing the trigger of a certain pistol, loaded with gunpow- der and a leaden bullet, then and there feloniously and maliciously did attempt to discharge the said pistol at the said J. H.,” with intent to murder him, it is good, eeu Beene that ‘the said pistol” was so loaded as aforesaid. R. v, Baker, 1 ATTEMPTING TO SHOOT, WITH INTENT TO MURDER. 893 Evidence. Evidence. To maintain this indictment, the prosecutor must prove— 1. That the prisoner presented a gun at him, and attempted to dis- charge it at him, by drawing the trigger or otherwise, as stated in the indictment; that the gun at the time was in a state to be fired, and that it was loaded in such a manner that, if it had been fired, it was calculated to produce death. If the gun or pistol have the touch-hole, plugged, so that it cannot be discharged,(a) or if it be not primed,(6) or if the priming be so wet or damp that it cannot take fire,(c) or if the gun or pistol have a flint-lock, but no flint,(d) in these and the like cases, the gun and pistol are not deemed loaded arms, within the meaning of the statute; and, although the prisoner may have imagined them to be in a fit state for shooting, and sufficiently loaded, and, although he level them at the prosecutor, and, by drawing the trigger or otherwise, attempt to discharge them, he can- not be convicted. So, if they be not loaded in such a manner as to kill, if discharged—as mentioned in the last case,(e) the prisoner can- not be convicted. So, the pistol or gun must be levelled at, or pointed towards, the prosecutor, and the prisoner must have made an attempt, by drawing the trigger or otherwise, to discharge it, in order to convict him. Where the prisoner demanded some title deeds from the prosecutor, and being refused, said, “then you are a dead man,” and immediately *unfolded a great coat which he had on his arm, [*274] and took from it a blunderbuss; but, before he could point it at the prosecutor, a person standing near seized him by the two arms, and he was secured ; it was holden that he could not be convicted.(/')(1) So, where it appeared that the prisoner took a small pistol from his pocket, and, saying to the prosecutor, “I'll settle you,” cocked it and (a) R. v. Harris, 5 Car. & P. 159. (d) R. v. Lewis, 9 Car. & P. 528. (b) R v. Carr, RB. & Ry. 877; and see R. v. (e) Ante, p. 271. Baker, 1 Car. & K. 254. (f) R. v. Lewis, 9 Car. & P. 523, (c) R. v. James, 1 Car. & K. 530. (1) If the defendant was in search of the prosecutor with a loaded gun, with a deliberate purpose to take his life, and, attracted by the prosecutor’s breaking the glass, he saw the prosecutor’s gun presented toward him and instantly fired his own gun, in pursuance of his original preconceived purpose to kill, then he is guilty of assaulting and shooting another within the statute of Tennessee of 1829 (c. 23, § 52). Davidson v. The State, 9 Humph. 455. [As to what is a loaded . ‘weapon under English statute, see Carr’s case, R. & Ry. 377; Harris’s case, 5 C. & P. 159; R. v. James, 1 C. & K. 530.] 894 SHOOTING, WITH INTENT TO MAIM. Indictment.—Punishment. pointed the muzzle towards the prosecutor; but at that moment, a person present rushed towards the prisoner, and caught hold of the barrel and cock of the pistol, and had his hand so placed that the trig- ger could not go back; the prisoner, however, had his finger on the ‘trigger, and pulled at it, but, for the reason just mentioned, it did not explode; Parke, J., held that it was not a case within the statute; the words in the statute are, whosoever ‘shall, by drawing a trigger or in any other manner, attempt to discharge any kind of loaded arms at any person; here the trigger was not drawn, the prisoner being pre- vented from drawing it; and the words, “or in any other manner,” mean some manner analogous to drawing a trigger, as in the case of a percussion lock, striking the cap with a hammer, or in the case of a matchlock, putting a brimstone match to the touch-hole, or the like.(a) 2. The intent to murder, as ante, p. 258. SECTION XVI. SHOOTING OR ATTEMPTING TO SHOOT, WITH INTENT TO DO GRIEVOUS BODILY HARM. Indictment. : The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the —— day of ——, in the year of our Lord , a certain [yun] then loaded and charged with gunpowder and [one leaden bullet], which gum he, the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against one C. D., with intent in so doing then and thereby to maim the said C. D.: ound the form of the statute in such case made and provid d and against the peace of our Lady the Queen, her crown and dignity. [Second count] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder, and one leaden bullet, which gun he, the said A. B., in both his hands then (a) R. v. St. George, 3 Car. & P. 483. x SHOOTING, WITH INTENT TO MAIM. 895 Indictment.—Punishment. had and held, did then feloniously shoot and discharge at and against the said C. D., with intent in so doing then and thereby to disfigure the said C. D.: against the form of the statute in such case made and provided, against the peace of our Lady *the [275] Queen, her crown and dignity. [Third count.] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder and one leaden bullet, which gun he, the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against the said C. D., with intent in so doing then and thereby to disable the said C. D.: against the form of the statute in such case made and provided, against the peace of our Lady the Queen, her crown and dignity. [Mourth count.] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder, and one leaden bullet, which gun he, the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against the said C. D., with intent in so doing then and thereby to do some grievous bodily harm to the said C. D.: against the form of the statute in such case made and provided, and-against the peace of our Lady the Queen, her ~ crown and dignity. [2 %j/th count.] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder and one leaden bullet, which gun he, the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against the said C. D., with intent in so doing then and thereby to resist and prevent [“ resist or prevent”] the lawful ap- prehension [or detainer] of him the said A. B. [or of one H. F.]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [An indict- ment for an attempt to shoot may readily be framed from ‘the above form and from the form].(a) Felony, transportation for life, or for not less than fifteen years—or imprisonment [with or without hard labor],(o) for not more than three years.(c) Accessories before the fact are punishable in the same man- ner; accessories after the fact, by imprisonment [with or without hard (a) Ante, p. 272. * (0) 1Vict., c. 85, § 8. (c) Ibid. § 4. 896 ATTEMPT TO COMMIT CRIME, Nature of offence. labor],(a) for not more than two years.(b) As to costs, see ante, p. 186; costs of apprehension, anie, p. 189. Evidence. To maintain this indictment, the prosecutor must prove— 1. The shooting as ante, p. 271; that is to say, that the prisoner fired,(c) that he fired at the prosecutor,(d) that the gun was at [*276] the time loaded in *such a manner as was calculated to effect the injury intended.(e) We have. seen that where the intent is to murder, a loading with gunpowder and wadding merely will not be sufficient; but a gun or pistol so loaded, when fired near to the party, may produce grievous bodily harm, or may disfigure the party, and, therefore, may be deemed “loaded arms” within this section of the statute, although not likely to produce death.(/’) 2. The intent to maim, etc., as ante, p. 264. (a) Ibid. § 8. (@) Ibid. (b) Ibid. § 7. (e) Ibid. (c) See ante, p. 271. (7) R. v. Kitchen, R. & Ry. 95. ATTEMPT TO COMMIT CRIME. “NATURE OF OFFENCE. An attempt to commit any felony, or even a misdemeanor, is itself a misde- meanor. 2 East’s Rep. 8. And all attempts tending to the prejudice of the com- munity are indictable ; as an attempt to provoke another to send a challenge. R. v. Phillips, 6 East, 464. An attempt to bribe a cabinet minister to give the de- fendant an office has been held to be an indictable offence. Vaughan’s case, 4 Burr. 2494; and see R. v. Pollman, 2 Camp. 229. And the same with respect to the promise of monéy to a member of a corporation to induce him to vote for the election of a mayor (Plympton’s case, 2 Ld. Raym. 1877); or an attempt to bribe a juryman to give a particular verdict (Young’s case, 2 East, 14-16); or a judge, with intent to corrupt him in a cause depending before him. 3 Inst. 147. So an attempt to suborn a person to commit perjury was holden by all the judges to be a misdemeanor. 2 East, 14, 17-22. So merely soliciting another to commit a felony is a sufficient attempt to commit it—as soliciting a servant to steal his mas- ter’s goods, though the goods are in fact not stolen. Higgins’ case, 2 East Rep. 5. An attempt may be immediate—an assault, for instance; but it very commonly means a remote effort, or indirect measure, taken with intent to effect an object. An abundance of illustration will be found in The King v. Higgins (2 East, 5), especially in the learned and copious arguments of the counsel. In Virginia, it has been held that an attempt within the meaning of the statute, can only be made by an overt act, done in pursuance and in furtherance of the design to commit the offence ; but such overt act need not be the last proximate ATTEMPT TO COMMIT CRIME. 897 Indictment.—Statutes. act prior to the consummation of the offence attempted. Uhl v. Com., 6 Gratt. 706. But if several combine to commit’ the offence, and they all assent to it, and a part of them only go to do the act, those who are absent, knowing with what intent the others go to the place, and assenting to the same, are principals in the attempt. Ibid. INDICTMENT. In an indictment for attempting to commit an offence, it is not necessary to main- tain an exactness as great as that which is essential in an indictment for the offence itself. R. v. Higgins, 2 East, 5. In such indictment it is not necessary to negative the actual commission of the felony; but it is for the defendant (if he pleases) to show that the misdemeanor was merged in the felony. Cald. 400. ; In Massachusetts, an indictment for an attempt to commit an offence, under the statute (Rev. Sts. of Mass., c. 133, § 10), need not aver that the offence attempted is punishable by law, provided it so appear from the facts alleged. Com. v. Flynn, 3 Cush. 529. In New York, it has been held, that an attempt in any form to commit an offence is within the statute; and that the particular manner in which the attempt was made need not be pointed out in the indictment. The People v. Bush, 4 Hill, 133. In Virginia, an indictment for an attempt to commit an offence, under the statute (Act of 1847-8, c. 11, § 12, p. 123), must allege some act done by the defendant of such a nature as to constitute an attempt to commit the offence mentioned in the indictment. Clark’s case, 6 Gratt. 675; and see Randolph v. Com., 6 Serg. & Rawle, 398, for the rule in Pennsylvania. , 2 In relation to the form of indictment, the indictment may readily be framed, by stating that ‘‘A. B. unlawfully did attempt and endeavor to [stating the offence] by [stating what he did); or where the offence consists of several parts, and was complete, excepting a certain part of it, the indictment may be framed as in the form for attempting to obtain money by false pretences. STATUTES. In Maine, the statute provides that every person, who shall attempt to commit an offence prohibited by law, and in such attempt, shall do any act towards the commission of such offence, but shall fail in the perpetration, or shall be inter- rupted or prevented in the execution of the same, where no express provision is made by law for the punishment of such attempt, shall be punished, when the offence attempted to be committed is punishable with death, or by imprisonment in the state prison for life, by imprisonment in the state prison not more than ten years; and when any other offence is so attempted to be committed, he shall be punished by imprisonment in the state prison or in the county jail, or by fine, respettively, as the offence so attempted to be committed is by law punishable ; but in no case shall the punishment of such last-mentioned attempt exceed one- half the greatest punishment, which might have been inflicted, if the offence, so attempted, had been committed. Rev. Sts. of Maine, c. 167, § 10. In Massachusetts and Michigan, the statute on this subject is as follows: First. If the offence, attempted to be committed, is such as is punishable with death, the person convicted of such attempt shall be punished by imprisonment in the state prison, not more than ten years. Secondly. If the offence, so attempted to be committed, is punishable by imprisonment in the state prison for life, or for five years or more, the person convicted of such attempt shall be pun- ished by imprisonment in the state prison, not more than three years, or in the county jail, not more than one year. Thirdly. If the offence, so attempted to be committed, is punishable by imprisonment in the state prison for a term less than five years, or by imprisonment in the county jail, or by fine, the offender, con- victed of such attempt, shall be punished by imprisonment in the county jail, not more than one year, or by fine, not exceeding three hundred dollars; but in no case shall the punishment, by imprisonment, exceed one-half of the greatest pun- ishment which might have been inflicted, if the offence so attempted had been committed. Rev. Sts. of Mass., c. 183, § 12; Rev. Sts. of Mich. c. 161, § 11. In New York, the statute (7 Rev. Sts. 881, 882) provides, that where no provi- 57 898 ATTEMPT TO COMMIT CRIME. Statutes. sion is made by law, for the punishment of such attempt, the defendant shall be punished as follows: . : 1. If the offence attempted to’ be committed be such as is punishable by the death of the offender, the person convicted of such attempt shall be punished by imprisonment in a state prison, not exceeding ten years. 2. If the offence so attempted be punishable by imprisonment in a state prison for four years or more, or by imprisonment in a county jail, the person convicted of such attempt shall be punished by imprisonment in a state prison, or in a county jail as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed, upon the conviction for the offence so attempted. 3. If the offence so attempted, be punishable by imprisonment in a state prison for any term less than four years, the person convicted of such attempt shall be sentenced to imprisonment in a county jail, for not more than one year. 4. If the offence so attempted be pun- jshable by a fine, the offender convicted of such attempt shall be liable to a fine, not exceeding one-half of the largest amount which may be imposed, upon a con- viction for the offence so attempted. 5. If the offence so attempted be punishable by imprisonment and by a fine, the offender convicted of such attempt may be punished by both imprisonment and fine, not exceeding, one-half of the longest time of imprisonment, and one-half of the greatest fine which may be imposed, upon conviction for the offence so committed. 5th ed. Rey. Sts. of 1858, 3d vol., . 983. e In New York, it seems that merely soliciting one to commit a felony, without any other act being done, is sufficient to warrant a conviction, under the statute. People v. Bush, 4 Hill, 133. ; In New York, no person can be convicted of an attempt to commit an offence when it shall appear that the crime intended, of the offence attempted, was actually perpetrated. 2R. 8. 702, § 26. Nor when it shall appear that he has been previously acquitted on a trial for the principal offence. Ibid.,§ 28. Buta person may be convicted of an attempt. to commit an offence upon an indictment for the commission of the crime itself. Tbid., § 27. In Virginia, the statute provides that, if the offence attempted be punishable with death, the person making such attempt shall be confined in the penitentiary not less than one, nor more than two years. If it be punishable by confinement in the penitentiary, he shall be confined in jail not less than six, nor more than twelve months. If it be punishable by confinement in jail, or fine, he shall be confined in jail, not more than six months, or fined, not exceeding one hundred dollars. Code of Va., p. 750, 751, § 10. In Georgia, the statute provides that the person so offending shall be indicted for a misdemeanor, and, on conviction thereof, shall, in cases where no. provision is otherwise made in this code, or by law, for the punishment of such attempt, he punished as follows. Hotchkiss’ Stat. Law of Geo. 799, § 112. First. If the offence attempted to be committed be such as is punishable by law with death, the person convicted of such attempt shall be punished by imprisonment and labor in the penitentiary for any time not less than two years, nor more than seven years. Tbid.,§ 113. Second. If the offence attempted to be committed be punishable, by law, by imprisonment and labor in the penitentiary for a time not less than four years, the person convicted of such attempt shall be punished by imprisonment and labor in the penitentiary for any time not less than one, nor more than four years. Ibid., §114. Third. If the offence attempted to be committed be such as is punishable, by law, by imprisonment and labor in the penitentiary for a time not less than two years, the person convicted of such attempt shall be imprisoned in the penitentiary at labor for the term of one year. Ibid.,§ 115. Fourth. If the offence attempted to be committed be punishable, by law, by imprisonment and labor in the penitentiary, or for a time not exceeding one year, the person convicted of such attempt shall be punished by fine, not exceeding five hundred dollars, or imprisonment in the common jail, or both, at the discretion of the court. Tbid., 800,§116. Fifth. If the offence attempted to be committed be punishable, by law, by fine, not exceeding five hundred dollars, or imprisonment in the common jail, or both, the person convicted of such attempt shall be punished by fine, or imprisonment in the common jail, at the discretion of the court. Ibid., § 117. In Vermont and Wisconsin, it is provided, by statute, that if any person shall attempt to commit the crime of murder, by poisoning, drowning, or strangling ATTEMPTING TO DROWN. 899 Indictment. SECTION XVII. ATTEMPTING TO DROWN. Indictment. The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the —— day of ,in the year of our Lord » feloniously did [take one C. D. (the said C. D. being then an infant of tender years, to wit, of the age of years) into both the hands of her, the said A. B., and did then feloniously cast, throw and push the said C. D. into a certain pond there situate, wherein there was a great quantity of water of great depth, to wit, of the depth of ——, and did then feloniously keep and continue the said C. D. in the water of the said pond for a long space of time, to wit, for the space of , and by so casting, throwing and pushing the said C. D. into the said pond, and keeping and continuing him there as aforesaid, the said A. B. then feloniously did attempt to drown the said C. D.], with intent in so doing then and thereby feloniously, wilfully, and of her malice aforethought, to kill and murder the said C. D. [‘‘ to commit the crime of murder”): against the form of the stat- ute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony, transportation for life, or for not less than fifteen years — or imprisonment [with or without hard labor],(a) for not more than three years.(b) Acessories before the fact are punishable in the same man- ner; accessories after the fact, by imprisonment [with or without hard labor),(c) for not more than two years.(d) (a) I Viet., ©. 85, § 8 (c) Ibid. § 8, (@) Thid. § 3. (d) Ibid. § 7. another person, or by any means not constituting an assault, with intent to mur- der, such person, so offending, shall be punished, in Vermont, by imprisonment in the state prison, not more than ten years, or by fine, not exceeding one thou- sand dollars; and in Wisconsin, by imprisonment in the state prison not more than ten years, nor less than one year. Rev. Sts. of Vt., p. 542, § 15; Rev. Sts, of Wis., c. 133, § 33. In relation to attempts to commit offences at common law; see ante, p. 85. In England, by stat. 14 & 15 Vict., c. 100, § 9, it is provided that w person, charged with a felony or misdemeanor, may, if it be proved that he did not com- plete the offence, be found guilty of an attempt to commit the same—see ante, pp. 85, 86. 900 ATTEMPTING TO SUFFOCATE. Indictment. Evidence. To maintain this indictment, the prosecutor must prove— 1. The attempt to drown, as stated in the indictment.(1) 2. The intent to murder, as ante, p. 258. SECTION XVII. ATTEMPTING TO SUFFOCATE, Indictment. — The jnrors for our Lady the Queen; upon their oath, present, to wit. § that A. B., on the —— day of ——, in the year of our Lord [a certain , which he, the said A. B., in both his hands then had and-held, in and upon the mouth and nostrils of one C. D., then feloniously did forcibly put and place, and the same , upon the mouth and nostrils of the said C. D., then feloniously did forcibly keep for a long space of time, to wit, for the space of , for the purpose of preventing the said C. D. from breathing ; and did then, by so putting and placing the said in and upon the mouth and nostrils of the said C. D., and keeping the same there as aforesaid, feloniously attempt to suffocate the said C. D.], with intent in so doing then and thereby feloniously, wilfully, and of his malice aforethought, to kill and murder the said C. D. [‘ to commit the crime of murder”]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. (1) See Sinclair’s case (2 Lew. C. C. Rep. 49). In Connecticut, where the charge was, that the prisoner assaulted another, and with great force threw him on the ground, and dragged him into a pond, and held his face in the water and mud, attempting to suffocate him — it was held, that an assault and battery with intent to kill was charged, but, if not, yet, that the offence was a high crime, not within the jurisdiction of the county court. Southworth v. State, 5 Conn. Rep. 325. In Vermont, threats of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put the person threat- ened in fear of their execution, and if they have that effect, and are calculated to , produce that effect upon a person of ordinary firmness, constitute a breach of the public peace, which is punishable by indictment. The State v. Benedict, 11 Verm. Rep. 236. ATTEMPT TO STRANGLE. 901 Indictment. Felony, transportation for life, or for not less than fifteen years — or imprisonment [with or without hard labor],(a) for not more than three years.(b) Accessories before the fact are punishable in the same man- ner; accessories after the fact, by imprisonment [with or without hard labor],(c) for not more than two years.(d) Fividence. To maintain this indictment, the prosecutor must prove — 1. The attempt to suffocate, as stated in the indictment. 2. The attempt to murder, as ante, p. 258. SECTION XIX. ATTEMPTING TO STRANGLE. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the day of , in the year of our Lord —— [a certain silk handkerchief about the neck and throat of one . C. D. then feloniously did forcibly *fix, tie, fasten, twist, and [*278] tighten, and did then, by so fixing, tying, and fastening the said handkerchief about the neck and throat of the said C. D., as aforesaid, and by twisting and tightening the same, as aforesaid, feloniously attempt to strangle the said C. D.], with intent in so doing then and thereby fel- oniously, wilfully, and of his malice aforethought, to kill and murder the said C. D. [‘ to commit the crime of murder”): against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony, transportation for life, or for not less than fifteen years—or imprisonment [with or without hard labor],(e) for not more than three years.(f) Accessories before the fact are punishable in the same man- ner; accessories after the fact, by imprisonment [with or without hard labor],(g) for not more than two yeas.(/) (a) 1 Vict., c. 85, § 8. (e) 1 Vict.,-c. 85, § 8. (b) Ibid. ¢ 3. (Sf) Ibid, §3. (c) Ibid. § 8. (g) Ibid. § 8. G) Ibid. § 7. (%) Ibid. § 7. 902 CAUSING GREVIOUS BODILY HARM BY EXPLOSION. Indictment. Evidence. To maintain this indictment, the prosecutor must prove— 1. The attempt to strangle, as\stated in the indictment. 2. The attempt to murder, as ante, p. 258. SECTION XX a. CAUSING GUNPOWDER TO EXPLODE WITH INTENT ‘TO DO GRIEVOUS BODILY HARM. Indictment. The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the day of ——, in the year of our Lord , unlawfully, maliciously, and feloniously did cause a certain large quantity, to wit, pounds weight of gunpowder [“ gunpowder or other explosive substance”] to explode, with intent in so doing, then and thereby to burn one C. D. [to burn, maim, disfigure, or disable any person, or to do some grievous bodily harm to any person”): against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add other’ counts, to maim—disfigure—disable—and to do some grievous bodily harm —as in the form.|(a) Felony,(d) transportation for life, or for not less than fifteen years— or imprisonment [with or without hard labor],(c) for not more [*279] than *three years;(d) and if a male, under eighteen, he may be publicly or privately whipped, not-more than three times.(e) Accessories before the fact, punishable in the same manner; acces- sories after the fact, by imprisonment [with or without hard labor], (f') for not more than two years.(g) This offence is not triable at any sessions of the peace.(h) (a) Ante, p. 262. (e) Ibid., § 9. (b) 8 & 9 Vict., c, 25, § 4, (Sf) Ibid. § 11. (ce) Ibid. § 11. (g) Ibid. § 10. (d) Ibid., § 6. (h) Ibid. § 15, SENDING TO A PERSON EXPLOSIVE SUBSTANCES. 903 Indictment. Evidence. To maintain this indictment, the prosecutor must prove— 1. That the defendant caused the gunpowder to explode, as men- tioned in the indictment. 2. The intent to burn, maim, disfigure, disable, or do some grievous bodily harm to the prosecutor.(a) That it did burn him, or maim, etc., is in general sufficient evidence that the defendant intended it.(b) But if the intent be otherwise proved by the words or acts of the defendant, it is sufficient, “although no injury be effected.”(c) SECTION XxX. SENDING ANY EXPLOSIVE SUBSTANCE TO A PERSON, WITH INTENT TO DO GRIEVOUS BODILY HARM, Indiciment. — The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the day of , in the year of our Lord , unlawfully, maliciously, and feloniously did send to one C. D. [‘‘send or deliver to, or cause to be taken or received by any person”) a certain large quantity of a certain explosive and dangerous substance, to wit, of [‘‘ any explosive substance, or any other dangerous or noxious thing,” | with intent in so doing then and thereby to burn the said C. D. [ burn, maim, disfigure, or disable any person, or do some grievous bodily harm to any person”): against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add other counts, to maim—dis- Jigure—disable—and to do some grievous bodily harm—as in the form.](d) Felony,(e) transportation for life, or not less than fifteen years—or imprisonment [with or without hard labor],(f) for not more than three years,(g) and if a male, under eighteen, he may be publicly e or privately *whipped, not more than three times.() Acces- [*280] sories before the fact, punishable in the same manner ; acces- (a) Ante, p. 264. (e) 8 &9 Vict., c. 25, § 4. (b) Ante, p. 267. (f) Ibid. $11. \ (c) 8 & 9 Vict., c. 25, § 4, (g) Ibid. § 5. (d) .Ante, p. 262. ® (h) Ibid. § 9. 904 THROWING ON A PERSON CORROSIVE FLUIDS. Indictment. sories after the fact, by imprisonment [with or without hard labor),(a) for not more than two years.(b) This offence is not triable at any sessions of the peace.(c) Evidence. To maintain this indictment, the prosecutor must prove— 1. The sending or delivering of the explosive substance to the prosecutor, or causing it to be taken or received by him, as stated in the indictment. Before the statute, and indeed before stat. 1 Vict., c. 15, § 5, upon the same subject, a man was indicted on stat. 9 G. IV, c. 31, § 14, for attempting to discharge loaded arms at another, and the evidence was, that he sent to the prosecutor a tin case, of the size and shape of a segar case, full of gunpowder, with two fulmi- nating matches on the inside, so placed that they were likely to take fire and explode the gunpowder, by the opening of the box; and the question was reserved for the judges, whether this box was loaded arms, within the meaning of the statute—the judges held that it was not.(d) 2. The intent to burn, maim, disfigure, disable, or do grievous bodily harm, as anie, p. 264. The stat. 1 “Vict., c. 85, § 5, was exactly the same as the statute on which this indictment is framed, except that, under the former act, the sending must not only have been with the intent to burn, etc., but the party must have been actually burnt, dis- figured, or maimed by it, or have received grievous bodily harm from it; but under this statute, sending it with intent, etc., is sufficient, although no injury be effected.”(c) — SECTION XXI. THROWING ANY CORROSIVE FLUID AT OR ON A PERSON, WITH INTENT TO DO GRIEVOUS BODILY INJURY. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the —— day of ——, in the year of our Lord —, (a) Ibid. § 11. (d) R. v. Mountford, Ry. & M. 441; 7 Car. (b) Thid. § 10. & P, 242, (c) Ibid. § 15. ‘6 (e) 8 & 9 Vict., o, . §4, THROWING ON A PERSON CORROSIVE FLUIDS. 905 Indictment.—Evidence. unlawfully, maliciously, and feloniously did cast and throw at and upon one C. D. [‘‘cast or throw at or upon, or otherwise apply to any person”) a large quantity, to wit, -—— of a certain corrosive fluid [‘ any corrosive fluid or other destructive substance] called [**281] [oi of vitriol], with intent in so doing, then and thereby to burn the said C. D. [to burn, maim, disfigure, or disable any person, or to do some grievous bodily harm to any person ”): against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add other counts, to maim—disfigure—disable—and do some grievous bodily harm—as in the Sorm.(a) Felony;(d) transportation for life, or or not less than fifteen years— or imprisonment [with or without hard labor],(c) for not more than three years,(d) and if a male under eighteen, he may be publicly or pri- vately whipped, not more than three times.(e) Accessories before the fact are punishable in the same manner; accessories after the fact, by imprisonment [with or without hard labor,](f) for not more than two years.(9) This offence is not triable at any sessions of the peace.(h) Evidence. To maintain this indictment, the prosecutor must prove— 1. The casting or throwing of the corrosive fluid or other destruc- tive or explosive substance on the prosecutor, as stated in the indict- ment. A previous statute(?) made this offence a felony, and in precisely the same words with the present act, except that the burn- ing, maiming, etc., was not only to be intended, but effected. And upon an indictment on that statute, where it appeared that the defeudant, a married woman, being jealous of her’ husband, poured about a quart of boiling water over his face and into his ears, whilst he was asleep, and then ran off, boasting that she had boiled him in his sleep; the man was grievously injured by it, lost his sight for some time, and permanently lost the hearing of one ear—Rolfe, B., held that the boiling water was a destructive substance within that (a) Ante, p. 262. (Sf) Thid. § 11. (b) 8 & 9 Vict., c. 25, § 4. (g) Ibid. § 10, (ce) Ibid. § 11. (hk) Ibid. § 15. (d) Ibid. § 5. (4) 1 Vict., v. 85, § 5. (e) Ibid. § 9. 906 THROWING ON. A PERSON CORROSIVE FLUIDS. Indictment.—Evidence. statute ; and the woman being convicted, the judges held the convic- tion to be right.(a) 2. The intent to burn, maim, disfigure, disable, or do some grievous bodily harm, as ante, p. 264. It is not necessary to prove that any injury was effected.(d) Formerly, when manufacturers were much dissatisfied at the impor- tation of foreign silks and other articles of female apparel, a custom prevailed of throwing corrosive fluids, such as oil of vitriol [*282] and aquafortis, upon such dresses, when met *with in the streets, not with any intent to injure the wearer, but to spoil the dress. This was made felony by stat 6 G. I, c. 23, § 11 (now repealed by stat. 7G. IV, c. 64, § 32); and on that statute it was holden, that if the act were done for the purpose of injuring the per- son and not the clothes of the party, it was not a case within the meaning of it.(c) Under this act, the intent, on the contrary, must be to injure the person, not the dress of the party; but if, in injuring the dress, the offender also injure the person, or if the necessary conse- quence would be an injury to the person such as is here mentioned, it is probable it would be deemed an offence within the meaning of the present statute. But if the intent be merely to injure the dress, and not the person, and the person be not injured, it is clearly not an, offence within this act, nor is it now punishable criminally by any other statute. (a) R. v. Crawford, 2 Car. & K, 129, (c) R. ». Williams, 1 Leach, 529. (6) 8 & 9 Vict., c. 25 § 4, ASSAULT AND BATTERY. 907 Assault defined.—What constitutes an assault. SECTION XXII. ASSAULT AND BATTERY.(1) . An assault, in its usual and restricted sense, as here intended, and which is usually termed a common assault, means an attempt or offer, \ (1) I propose to treat of assault and battery under tho following heads: 1. ASSAULT DEFINED. . WHAT ESSENTIAL TO CONSTITUTE AN ASSAULT. BATTERY DEFINED. : Wao MAY COMMIT. WHAT WILL CONSTITUTE A BATTERY. NATURE OF REMEDY. . JURISDICTION OF MAGISTRATES. . COMPROMISE BY PARTIES. . INDICTMENT. . EVIDENCE. 11. OF THE VARIOUS JUSTIFICATIONS AND EXCUSES. (a) Provocation to the feelings. (0) Self-defence. (c) Defence of others. (d) Defence of possession. (e) Lawful correction. : (f) Accident. (g) Amicable contest, (h) Preservation of the peace. (i) In making arrest. 12, VERDICT. 18. JUDGMENT. —_ SOOT OP oy bo 1, ASSAULT DEFINED. The word assault is derived from the Latin assuitus assilio, to leap at, upon, or against, to assail. Ainsworth’s Lat. Dict. ; Burrill’s Law Dict., tit. Assawt. Or from the French assayler, to assail or attack, Burn’s Just., vol. 1, p. 268. In Hays v. The People (1 Hill’s N. Y. Rep. 351), Judge Cowen declared an as- sault to be “an attempt, with force or violence, to doa corporal injury to another ; and may consist of any act tending to such corporal injury, accompanied with such. circumstances as denote at the time an intention, coupled with the present ef of using actual violence against the person. Any indirect preparation towards violence, such as drawing a sword or bayonet, or even ae one’s hand upon his sword, would be sufficient.” And see, to the same effect, the remarks of Wash- ington, J., in U. S. v. Hand, 2 Wash. C. C. Rep. 435 $ see, also, U. 8. v. Ortega, 4 Wash. C. C. Rep. 581; Johnson v. Tompkins, 1 Baldwin C. C, 571; State v. Mor- gan, 3 Iredell, 186. , We would define an assault to be an attempt or the unequivocal appearance of an attempt, with force or violence, to do a corporal injury, and may consist of any act which shall convey, to the mind-of the person set upon, a well-grounded ap- prehension of personal violence. 2. WHAT ESSENTIAL TO CONSTITUTH AN ASSAULT. The correctness of our definition will be rendered further apparent by a con- sideration of the authorities. In the first place there must be an overt act. Mere words can never amount to an assault. 1 Hawk., c. 61, §1; State v. Wood, 1 Bay, 351. Bor a purpose to 908 ASSAULT AND BATTERY. e What constitutes an assault. commit violence, however fully indicated, if not accompanied by an effort to carry it into immediate execution, falls short of an actual assault. State v. Davis, 1 Tredell’s Rep. 125. Therefore, although a person goes to a place with the inten- tion of assaulting another, yet he will not be liable, unless he carries his will into effect. Yoes v. The State, 4 Engl. Ark. Rep. 42. . It is not, however, essential, to constitute an assault, that there should be a direct attempt at violence, but any indirect preparation towards it would be suffi- cient. Hays v. The People, 1 Hill’s Rep. 351. To ride a horse so near to one as to endanger his person, and create a belief in his mind that it is the intention of the rider to ride over him, constitutes an as- sault. The State v. Sims, 3 Strobh. 187. [See People v. Lee, 1 Wheeler's C. C. 364; Morton v. Shoppel, 3 C. & P. 373.] oe But the person assailed must believe that he will be attacked; for if he can col- lect, notwithstanding appearances to the contrary, that there is not a present pur- pose to do him an injury, there is no assault. Hence it is said not to be an assault if a man strike at another at such a distance that he cannot reach him or put him in fear. 2 Comyn, Bat. C. Here the attempt to do injury is not even apparent, the distance showing that in truth it is not an attempt, but only a’ menace. So, where a man laid his hand on his sword and said, “If it were not assize time, I would not take such language from you,” the court agreed that it was not an as- sault; for the declaration was, that he would not assault him. Tuberville v. Savage,-1 Mod. Rep. 3; and see the State v. Davis, 1 Iredell’s Rep. 125. And where the defendant raised his whip and shook it at plaintiff within striking dis- tance, at the same time saying, ‘‘ Were you not an old man, I would knock you down”—it was held that this, not importing a present purpose to strike, did not, in law, amount to an assault. State v. Crow, 1 Iredell, 375. So, if a man raise his hand against another within striking distance, and at the same time say, “If it was not for your gray hairs,” etc., it is no assault ; because the words explain the action, and take away any idea of an intention to strike. Com. v. Eyrie, 1 Serg. & Rawle, 347. And the merely pointing a cane at another in derision is no assault. 5 City Hall Rec. 77; 6 ibid. 6; 1 Wheeler’s Cr. Cases, 410. . The present ability to carry the party’s intention into effect is not, in all cases, necessary. It will be sufficient if the aggressor, by his conduct, lead another to suppose that he will do that which he apparently a tempts to do. Therefore, if a man advance towards another in a threatening manner, with an obvious intention of striking him, but is stopped just before he is near enough for the blow to take effect, it will be an assault. Stephens v. Myers, 4 Car. & Payne, 349; State v. Benedict, 11 Vt. Rep. 236. [See also State v. Davis, 1 Iredell, 125; State v. Morgan, 3 Iredell, 186 ; Bloomer v. State, 3 Sneed, 66; Keefe v. State, 19 Ark. 190; Reg. v. St. George, 9 C. & P. 83 ; State v. Smith, 2 Humph. 457; Blake v. Barnard, 9 C. & P. 626; State v. Cherry, 11 Iredell, 475; State ». Blackwell, 9 Ala. 79.] An assault may be committed on one in a house who is not seen or known to be there; as if orle were wantonly to fire a loaded gun, and the ball should pass through a house where persons were, it might be an assault on all of them. Per Shaw, C.J., in Meader & Wife v. Stone and others, 7 Metc. 147. _Striking violently with a club, horses before a carriage in which a person was riding, was held to be an assault upon the person; the subject partaking of personal inviolability. 1 Penn. Rep. 380. So, forcibly towing a boat ashore in which another is sitting. Osgood’s case, 6 City Hall Rec. 4. But where A., havire a right to the immediate possession of the house, broke and entered the same, and forcibly took away the windows of the rocm in which B. was sick in bed—i was held that this did not constitute an assault upon B. without further proof that al that B. was in the house. Meader & Wife v. Stone et al., 7 Mete Rev. [ What is an assault.—Whether the mere striking horses driven by a person cam be regarded as an assault on the driver, quere. Kirland v. State, 48 Ind. 146. Under what circumstances the pointing an’ unloaded gun at a person, and Papestenlg to shoot him, constitutes an assault, see Com. >. Wh.ite, 110 Mass. [Mere words without any acts do not justify an assault made by a person in alleged defence of his own house; but if the occupant of a house i Setaally as- ASSAULT’ AND BATTERY. 909 What constitutes an assault. gaulted therein, he may defend himself and his possession, and need not retreat. State v. Martin, 30 Wisc. 216. When one assailed with threats merely puts his hand in his pocket, the assailant is not authorized to infer that he is about to draw a weapon, and is not therefore justified in using violence against the assailed in alleged self-defence. Mitchell v. State, 41 Geo. 527. While attempting to recap- ture property taken by a trespasser, the owner is not justified in using an unusual degree of violence or means reasonably calculated to endanger life. Kunkle » State, 32 Ind. 220.] (When defendant resisted and assaulted an officer who was lawfully arresting him, the fact that such officer, after the arrest was lawfully completed, omitted to make a complaint against him, is no defence to an indictment for the assault. Com. v. Tobin, 108 Mass. 426. To resist an officer who is making an arrest with- out a warrant for a misdemeanor not committed in his presence is not an assault. Com. v. Bryant, 9 Phila. (Pa.) 395.] {If a person with a cocked pistol by his side say to his opponent, “I am now ready for you,” but makes no attempt or movement to use the pistol, there is no assault. Warren v. State, 33 Tex. 517. The defendant after using threats to- wards another, placed his open hand on the latter’s breast, and pushed him back so that he fell,—held an assault and battery. State v. Baker, 65 N.C. 332. Where several persons with offensive weapons including guns followed the prosecutor with threats and insulting language, and put him in fear, and induced him to go to his home by an unusual way, but did not at any time come nearer to him than 75 yards distance, and did not even level a gun at him,—they were held guilty of an assault. State v. Rawles, 65 N. C. 334. The defendant was advancing upon A. ina threatening manner with a stick in his hand raised as if about to strike, - when he was stopped by a bystander at such a distance from A. that he could not have reached him with the stick and could not therefore have struck the blow— held an assault. State v. Vannoy, 65 N.C. 532. A police officer in the midst of a tumultuous crowd was actually assaulted while in the discharge of his duty; the defendant who was one of the crowd, used words, acts, and gestures tending to incite the assailant, but did not either by his person or by any missile or other in- strument touch the officer. Held guilty of an assault. Com. v. Hurley, 99 Mass. 433. To constitute an assault with a gun or pistol, the weapon must be presented at the complainant within a distance at which it_might carry a ball and reach the party, if fired. Tarver v. State, 43 Ala. 354; under such circumstances, where the assault consists in pointing a gun as though defendant was about to shoot the complainant, the weapon must be loaded. Robinson v. State, 31 Tex. 170. [See, also, State v. Shepard, 10 Iowa, 126 (pointing an unloaded gun is, when the person at whom it is pointed does not know that it is unloaded); Smith v. State, 12 Ohio St. 466 (there can be no assault upon a consenting party,—but the contest may be an affray); Com. v. Lee, 3 Met. (Ky). 229 (upon a slave); Com. v. Presby, 14 Gray, 65 (where a police officer is not guilty of an assault in making an arrest); Com. v. Rigney, 4 Allen, 316 (by one joint tenant upon an agent of the other); Com. ». Haley, 4 Allen, 318 (by a landlord on his tenant); State v. Taylor, 16 N. H. 477; State v. Berritt, 17. N. H. 268 ; State v. Herrington, 21 Ark. 191 (abusive language cannot justify an assault); Guy v. State, 1 Kans, 448 (mere assault and battery is not indictable in Kansas); People v. Yslas, 27 Cal.-630 (what is an assault); State v. Bryson, 1 Wins. No. 2 (N. C.) (in self defence); State v. Black, 1 Wins. No. 1 (by a husband upon his wife); People v. Bransby, 32 N. Y. 525 (violence must be offered, menaced, or intended); White v. People, 32 N. Y. 465; Com. v. Stoddard, 9 Allen, 280 (on a female child); Covey v. People, 45 Barb. 262 (the owner or right- ful tenant of a house being in peaceful possession is not guilty of assault in defending the possession); State v. Johnson, 1 Vroom, 185 (in New Jersey, one indicted for rape may be convicted of an assault); McAffee v. State, 31 Geo. 411 (when not in self defence); State v. Myers, 19 Iowa, 517 (assault does not require any personal injury to be inflicted); State v. Izard, 14 Rich. Law, 209 (ver- “dict) ; Smith v. State, 39 Miss. 521 (mere threatening words are not an assault); Barrett v. State, 25 Tex. 605 (aggravated assault); Stockton v. State, 25 Tex. 772; People v. English, 30 Cal. 214; Grant v. State, 2 Coldw. 216; State v. Mooney, Phill. Law (N. C.) 434 (a threat alone is not an assault); State v. Myerfield, Phill. Law 108; State v. Merritt, Phill. Law, 134 (an assault upon several persons at zo ‘fs an assault upon each); Floyd v. State, 36 Geo. 91 (where an assault is in 910 ASSAULT AND BATTERY. What constitutes an assault.—Battery defined. with force and violence, to do a corporal hurt to another. In [*283] its general sense, it means an attempt to do *a personal injury of any kind, by force, such as.an attempt to rob, an attempt to commit a rape, an attempt to have connection with a girl under ten years of age, or the like—these are also called assaults. A common assault may be, by striking at the prosecutor, with or without a weapon—or presenting a gun at him, at a distance to which the gun will carry, provided it be so loaded that it can be discharged ; (a) or pointing a pitchfork at him, whilst standing within the reach of it; or holding up one’s fist at him; or by any other rash act, done in an angry or threatening manner.(0) So, riding towards a man with intent to do him a corporal injury, so that he was obliged to run away to avoid it, was holden by Lord Tenderden, C.J., to be an assault.(c) So, where it was proved that A. advanced in a threatening attitude, with an intention to strike B., so that his blow would immediately have reached B., if he had not been stopped: Tindal, C.J., held that this was an assault in point of law, although it appeared that at the particular moment when A.-was stopped he was not near enough for his blow to take effect.(d) Battery defined. A battery is an injury, however trifling, actually done to the person of another, in an angry, revengeful, rude or insolent manner, as by (a) R. v. James, 1 Car. & K. 530. (c) Martin v. Shoppee, 8 Car. & P. 373. (b) 1 Hawk., c. 62, §1. (d) Stephens v. Meyers, 4 Car. & P, 349. self defence); Balkum v. State, 40 Ala. 678; State v. Hull, 34 Conn. 182; State v. ner ie 63 N.C. 13; State v. Church, 63 N.C. 13; State ». Burwell, 63 N. . 661.) [Pointing a gun at a person is an assault, unless it is not loaded, and the burden of proving that fact is on the defendant. Threats accompanying the acts aggra- vate the assault. Crow v. State, 41 Tex. 468. Where a person is assailed and is in such a position that he is justified in exposing the assailant’s person to danger, the firing a pistol at the assailant merely to frighten him, but which hits him, is not an assault and battery. Com. v. Mann, 116 Mass. 58. By Alabama Rev. Code, § 4198 makes opprobious words a justification for an assault and battery, but the fact that the prosecutor struck the first blow is no defence. Riddle v. State, 49 Ala. 389. Where the assaulting party got a constable to complain of him before a.justice, plead guilty and was fined, this was held to be no bar to an indictment for the same assault. Com. v. Dascom, 111 Mass. 404. Omission to complain to the authorities, does not deprive a person of the right to defend himself* when assaulted. Evers v. People, 6 T. & C. 156; 3 Hun, 716.] ASSAULT AND BATTERY. 911 Battery defined.— Who may commit.— What will constitute a battery. spitting in his face, or in any way touching him in anger, violently jostling him out of the way, or the like.(a)(1) (a) 1 Hawk., c. 62, § 2, (1) 8. BATTERY DEFINED. Battery is derived from the Saxon batte, a club, or beaton, to beat, from which is also derived the word battle. The Circuit Court of the United States has defined a battery to be “ the touch- ing or commission of any actual violence on the person of another, in a rude and angry manner. Johnson v. Tompkins et al., 1 Baldwin’s C. C. Rep. 571. ‘We should say that a battery in law, is “any unlawful touching of the person of another, either by the aggressor himself, or any other substance put in motion by him, provided it be wilfully committed, or proceed from the want of due care.” -Burrill’s Law Dict., tit. Battery; 3 Chit. Blk. 120, note. 4, WHO MAY COMMIT. Infants are liable in the same manner as adults, for trespass and assault and battery. 3 Wend. 301. 5. WHAT WILL CONSTITUTE A BATTERY. Among the slight acts of violence which constitute a battery may be enumerated the following : The mere taking hold of the coat, or laying the hand on the person of another, if done in anger or in a rude and insolent manner. United States v. Ortega, 4 Wash. C. C. Rep. 531. Spitting in another’s face, which, though not calculated to injure the person, is a gross indignity (Wheeler’s Cr. Cas. 410) ; sprinkling paint on another ; thrusting ar pushing a man in anger (per Holt, C. J., 6 Mod. 142); holding him by the arm (6 Mod. 172); pushing another against him (Bull. N. P. 16); striking a horse upon which he is riding, whereby he is thrown (1 Mod. 24; W. Jones, 444); or throwing water upon him. Purcell v. Horne, 3 N. & P. 564. Striking one’s cane while in his hand; so a blow onthe skirt of one’s coat, when upon his person, is an assault and battery. 1 Dal. 114; State v. Davis, 1 Hill South Car. 46. If parish officers cut off the hair of a pauper in a poor-house, by force and against the will of such pauper, this will be an assault and battery; and if it is done as a matter of degradation, and not with a view to cleanliness, that will be an aggravation and go to increase the damages. Forde v. Skinner, 4 Car. & Payne Rep. 239. tt is not necessary, however, in order to constitute an assault and battery, that the act complained of should be actually accompanied with violence, provided it be improper in itself, and be done against the free will of the party complaining, or without his consent, whether such party be in a condition to assent or not. Con- sequently, it has been held that the improperly exposing a femule servant to the inclemency of the weather, whereby the servant became sick and emaciated, was an act in the nature of an assault and battery. Rex v. Ridley, 2 Campb. 650, 653. But if one has an idiot brother, who is bedridden, in his house, and he keeps him in a dark room, without sufficient warmth or clothing, this is not an assault or imprisonment, as it is an omission without a duty, which will not create an indict- able offence. y If a master take indecent liberties with a female scholar, without her consent, he is liable to be punished for an assault, though she did not resist. A master took very indecent liberties with a female scholar of the age of thirteen, by put- ting her hand into his breeches, pulling up her petticoats, and putting his private parts to hers; she did not resist, but it was against her will. The jury found him guilty of an assault with intent to commit a rape, and also of a commen assault; and the judges thought the Fae as ‘to the latter clearly right. R. v. Nichol, Russ. & Ry. 130. And making a female patient strip naked, under pretence that 912 ASSAULT AND BATTERY. What will constitute-—Nature of remedy.—Jurisdiction of magistrates. the defendant, a medical practitioner, cannot otherwise judge of her illness, if he himself takes off her clothes, is an assault. [R. v. Rosinski, Moo. C. C. 191.] Where the injury is inflicted with the consent of the party, it is not a battery. Attempting, therefore, to have connection with a girl between the ages of ten and twelve, or under twelve years of age, if done with the girl’s consent, is not an assault and battery. Reg. v. Meredith, 8 Car. & Payne, 589. So, where one inflicted a whipping on another at the request of the latter, and to save him, as it was thought, from a prosecution for a felony, and it appeared that it was not done from a malicious or revengeful disposition, it was held not to be an assault and battery. State v. Beck et al., 1 Hill’s S. C. Rep. 363. But where the party has no consenting power, as where an attempt is made to have carnal knowledge of a girl under ten years of age, this will be an assault, whether she assent or not. The injury may be inflicted through fraud. As if a man have connection with a married woman under pretence of being her husband. Rex v. Williams, 8 Car. & Payne, 286. So, also, to cause another to take a deleterious drug, though, at the time, he takes it willingly and in ignorance that there is anything hurtful in the liquid. Reg. v. Buttons, 8 Car. & Payne, 660. . [Persons may be guilty of assault and battery by aiding, abetting, counte- nancing or procuring the act, although they do not actively participate in it; for example, see Sikes v. Johnson, 16 Mass. 389; Avery v. Bulkley, 1 Root, 275; Gil- lon v. Wilson, 3 Monr. 217; Jaque’s case, 5 City Hall Rec. 77; Phillips v. Phillips, 7 B. Mon. 268; Thompson v. State, 25 Ala. 41; Bird v. Lynn, 10 B. Mon. 422; Bell v. Miller, 5 Ohio, 250; State v. Lymburn, 1 Brevard, 397; Drake v. Ramsay, 5 Ohio, 251; Balbie’s case, 5 City Hall Rec. 135; 1 Lewin, 17.] 6. NATURE OF REMEDY. The party injured may proceed against the defendant by action and indictment for the same assault; and the court in which the action is, will not compel him to make his election to pursue either the one or the other; for the prosecution in behalf of the people of the state and the civil action for damages, by the party, are perfectly distinct in their natures. But the court will not give a severe judg- ment on the criminal conviction, unless the prosecutor will agree to relinquish his civil remedy. State v. Beck, Dudley 8. C. Rep. 168 ; (State ». Frost, 1 Brev. 385, overruling State v. Blyth, 1 Bay, 166.] In Arkansas, under the 14th section of the 2d article of the Constitution, an assault and battery is a criminal offence, and, therefore, can only be prosecuted. by ar as or presentment. Rector v. State, 1 Eng. 187; Durr v. Howard, ibid. 461. In Massachusetts, where a civil action and an indictment for an assault and bat- tery are pending at the same time, the trial upon the indictment cannot be con- tinued till the trial of the civil action, unless the injured party is to be used as a witness on behalf of the government. Commonwealth v. Elliot et al., 2 Mass. Term Rep. 372. Where the defendant has committed two assaults and batteries on the same day, within a short period of each other, the prosecution may elect to try either, under the same indictment; but both cannot be submitted to the jury at the same time. Tompkins v. The State, 17 Geo. 356. Whether, if the prosecution fail to support the one assault and battery by proof, they can abandon that and proceed to try the defendant for the other—quare. Ibid. In South Carolina, where the indictment charges two assaults, it is customary to require the solicitor to elect for which assault he will proceed, after the evidence has been heard, and not before. State v. Sims, 3 Strob. 137. One may be indicted for an assault committed in view of the court, although previously fined for the contempt. State v. Mann, 2 Dey. 263 ; State v. Yancey, 1 Car. Law Rep. 519. Where several persons are jointly indicted for an assault and battery, and one of them pleads guilty, the others who plead not guilty, cannot claim, as a matter . of right, to be tried separately from him. Thompson 'v. The State, 25 Ala. 41 JURISDICTION OF MAGISTRATES. _ In New Hampshire, the trial of common assaults and batteries is confined to justices of the peace, and the Court of Common Pleas has not jurisdiction of the ASSAULT AND BATTERY. 913 Jurisdiction by magistrates.—Compromise by parties. same, except upon appeal, or upon a proper binding over by a magistrate; and an indictment found by a grand jury, for an assault and battery without such previous binding over, will be dismissed. Therefore, before the Common Pleas can take cognizance of an indictment for an assault and battery, the indictment must allege that the respondent has been arrested, and brought before a justice of the peace, and bound over to appear at the succeeding term of the common pleas. State v. Hilton, 32 New Hamp. Rep. 285. _In Arkansas, under the amendment of the Constitution made in 1846, jurisdic- tion of simple assaults, affrays and common assaults and batteries might be con- stitutionally conferred upon justices of the peace without indictment or present- ment by a grand jury; and such jurisdiction, having been conferred by the act of Dec. 16, 1846, was given over offences committed before, as well as after, its passage. State v. Cox, 3 Eng. Rep. 486. But that act did not deprive the circuit courts of the jurisdiction of indictments pending at its passage. Gooch v. State, 3 Eng. 448. : ’ In Delaware, in the case of The State v. Mousely (4 Harr. Rep. 553), the defend- ant was arrested and taken before a justice of the peace, who bound him over to appear at court. The prosecutor afterwards agreed to settle the matter, and went with defendant before another justice, who allowed them to compromise on payment of costs. It was contended, on the part of the defendant, that the act of assembly gives authority to any justice of the peace, whether the committing magistrate or another, to permit the parties to settle cases of assault and battery. Held, that the justice had no authority to review the decision of the committing magistrate, nor to prevent the case from going to the court—after a decision by the committing magistrate that it was a case that ought to be tried. __ In Indiana and Missouri, an ordinary assault is not indictable, and by statute is within the jurisdiction of a justice of the peace to punish. State v. Hailstock, 2 Blackf. 257. State v. Ledford, 3 Missouri, 102. In Indiana, the act of 1849, p. 78, provides that justices of the peace in certain counties shall have exclusive jurisdiction of simple assaults and batteries. Nelson v. The State, 2 Carter, 249; see Smith v. The State, ibid. 251. In Texas, where the assault and battery is of an aggravated nature, a justice of the peace has not jurisdiction to try and punish, but only to recognize the offender for his appearance at the district court to answer to the indictment which shall be preferred against kim. Norton v. The State, 14 Texas Rep. 387. There-, fore, in Texas, on a trial, in the district court, for an aggravated assault and bat- tery, the record of conviction and fine by a justice of the peace, for the same - offence, cannot be given in evidence. Flournoy v. The State, 16 Texas, 30. 8. COMPROMISE BY PARTIES. In the state of New York, it is provided by statute, that where any person shall be bound by recognizance to appear, or shall be committed to prison, on any charge for an assault and battery, or other misdemeanor, for which the injured party shall have a remedy by civil action, except such offences as are thereinafter specified, if the injured party shall appear before the magistrate who may have taken the recognizance, or made the commitment, or before any judge of the county courts, and acknowledge in writing, that he has received satisfaction for such injury and damage, such magistrate or judge may, in his discretion, on pay- ment of the costs which have accrued, by an order under his hand, discharge such recognizance, or supersede the commitment of the offender ; and may, in like manner, discharge every recognizance which may have been taken for the appearance of any witness in such case. Rev. Sts., 780, § 68, ed. 1858, vol. 3, p. 1021. ; “Every such order, discharging any recognizance, shall be filed in the office of the clerk of the county; and every such order, superseding the commitment of the offender, shall_be delivered to the keeper of the jail where he shall be con- fined, who shall immediately discharge such offender, on the receipt thereof. Ibid. § 69. 3 “Tf an indictment shall be found on any such charge, the injured party may, in like manner, appear in the court where such indictment is pending, and ackowledge satisfaction for the injury and damage sustained by him; and such court may, in its discretion, on paynient of the costs incurred, order that no fur- 58 914 ASSAULT AND BATTERY. Battery defined.—Compromise by parties. But it is no battery to lay one’s hand gently on another, against whom an officer has a warrant, and to tell the officer this is the man he seeks ;(a) or to lay one’s hand on a man, if it be necessary to do so, in order to serve him with process.(b) Or if a horse, being suddenly frightened, run away with a man without his fault, and run against and injure another man, this is no assault in the rider, for which even a civil action could not be maintained against him.(c) So, if an officer, having a warrant against a man, who will not suffer himself to be arrested, beat or wound him in an attempt to take him; or if a parent in a reasonable manner chastise his child, or a master his servant, or a schoolmaster his scholar, or a jailer his prisoner; or if one confine a friend who is insane, and bind or beat him, in such a manner as is proper in his circumstances; or if a man force a sword from one who threatens to kill another therewith; or if a man gently (a) Thid. (c) Gibbon v. Pepper, 1 Ld. Raym., 38; 2 (b) Harrison v. Hodgson, 10 B. & C. 445. Salk. 637. ther proceedings be had on such indictment, and may discharge the defendant therefrom ; which order shall operate as a perpetual stay of all further proceed- ings on such indictment. Ibid. § 70. ; “The provisions of the three last sections shall not extend to any charge or in- dictment, for an assault and battery, or other misdemeanor, charged to have been - committed, ; “1, By, or upon any officer or minister of justice, whilst in the execution of the duties of his office: or, “2, Riotously: or, “3. With an intent to commit a felony.” Ibid. § 71. Provisions similar to the foregoing are to be found in the statutes of several of the states. See Rev. Sts. of Mass., pp. 754, 755 ; Laws of Penn., by Dunlop, p. 287. Under the foregoing statutes, an assault and battery cannot be compromised after conviction. ‘An acknowledgment of satisfaction by the injured party, for the injury sustained by him, after conviction, will not authorize any court to dis- charge the defendant. An offence for an assault and battery or other misde- meanor, except in certain cases, may be compromised either before or after an indictment ; but I know of no authority to sanction a compromise after convic- tion.” The People v. Bishop, 5 Wen. 111, per Savage, Ch. J. In Pennsylvania, by the act of 17th March, 1806, it is provided that “any jus- tice of the peace, before whom a complaint or charge may be made for an assault and battery, or for an assault only, either before or after the recognizance is en- tered for the appearance of the defendant, may, before the next session, and he is enjoined, at the mutual request of the parties, by agreement signed by them mutually, to dismiss the same, and make a record thereof, for the fee of twenty- five cents ; and no fee shall be demanded of the justice by any officer of the com- monwealth on account of settling any such dispute or complaint. Provided that " the justice shall be fully satisfied that the settlement of such complaint or charge will not injure the safety of the citizens, or the peace of society.” And by the act of March 29, 1819, the allomey general is allowed, after bill found, to enter a nolle prosequi in cases of assault and battery, on agreement between the parties. Thus for small offences of this description, where the peace of society, or the safety of the citizens may not be endangered by a settlement, the legislature have kept the door open for repentance, and reconciliation by the parties. ASSAULT AND BATTERY. 915 Battery defined.—Indictment. lay his hand upon another, and thereby stay him from inciting a dog against a third person; or if I beat one (without wounding him or throwing at him a dangerous weapon), who wrongfully en- deavors to dispossess me of my lands or *goods, or the goods [*284] of another delivered to me for safe custody, and will not desist upon my laying my hand gently on him and disturbing him; or if a man beat, or (as some say) wound or maim one, who makes an assault upon him, or upon his wife, parent, child or ‘master, especially if it appear that he did all he could to avoid fighting before he gave the wound; or if a man fight with or beat one, who attempts to kill a stranger—these and the like are not deemed breaches of the peace,(a) and the defendant in such cases may justify the battery, by giving the special circumstances in evidence, under the plea of not guilty.(0) But if two men go out to fight with their fists, and they strike one another, they are each of them guilty of an assault, and it is immaterial which of them struck the first blow.(c) So, where it appeared that the defendant, although he at first struck in his defence, afterwards continued to strike the prosecutor from revenge, after the necessity for it had ceased, he was holden guilty of an assault and battery.(d) Where an excise officer gave a man a search warrant to look at, who refused to deliver it back to him, and a scuffle ensued: on an indict- ment against the officer for an assault, Ld. Tenterden, C.J., left it to the jury to say, whether the officer had used more force than was necessary to recover possession of the warrant.(e) If a man conduct himself in a disorderly manner, in a public house, and, upon the land- lord’s requesting him to depart, he refuse to do so, the. landlord is justified in laying hands upon him to put him out.(/) Indictment.(1) — The jurors of our Lady the Queen, upon their oath, present, to wit. \ that A. B., on the day of ——, in the year of our Lord (a) 1 Hawk., c. 62, § 8. (a) RB. v, Driscoll, 1 Car. & M, 214, (b) Ibid. (e) R. v. Milton, Mo. & M. 107. (c) Per Coleridge, J., in R. v. Lewis, 1 Car. (f) Howell v. Jackson, 6 Car. & P. 723; & K. 419. Moriarty v. Brooks, ibid. 684. 9. INDICTMENT. (1) In an indictment for assault and battery, it is sufficient to allege that the offence was committed “on or about” a day named. Cokely v. The State, 4 Clarke’s Iowa Rep. 477. In an early case, in Alabama, it was held that an indict- 916 ASSAULT AND BATTERY. Indictment. . ment for an assault and battery must show a certain year and day of the material facts alleged’ in it, or judgment would be arrested for such omission. State v. Beckwith, 1 Stewart, 318. But now, in Alabama, under the Code (§ 3512), an indictment for assault and battery may charge generally that the offence was committed before the finding of the indictment, without specifying the time. Thompson v. The State, 25 Ala. 41. i It has been held in Iowa, that where the indictment states, at least in sub- - stance, all the facts which constitute the offence of an assault, under the R. &., p. 169, § 20, and discloses clearly an indictable offence, sufficiently specific to advise the accused of its nature, and to enable him to plead a conviction or acquittal upon it in bar of another prosecmtion for the same offence, this is all that is necessary. State v. Seamons, 1 Iowa (Greene) 418. In Tennessee, it has been held that an indictment, charging “that the defendant, in and upon the body of the said C. D. did make an assault, and other wrongs and injuries, then and there did to the said C. D.,” is sufficient without specifically setting forth the particular acts constituting the assault. Bloomer v. The State, 3 Sneed, 66. In Pennsylvania, an indictment, for assault and battery, alleged that “the defendant maliciously, wickedly, and unlawfully did bite or cut off the ear of C. ;” it was held that the disjunctive “or” would have been a fatal objection, but for the assault and battery which was the offence, but that the mode in which the injury was inflicted was only a circum- stance of aggravation, Scott v. Commonwealth, 6 Serg. & Rawle Rep. 224. An indictment, alleging that the defendant presented a gun at another within the dis- tance the gun would carry, need not charge that the gun was pointed at the party assaulted. State v. Smith, 2 Humph. 457. An indictment, which avers that the defendant did, with force and arms, make an assault in and upon A. B., laborer, on the day of , 1812, and then and there did, with force and arms, beat, wound, etc., does not lay the venue suffi- ciently definite, even though the name of the county be in the margin. Kennedy ». The Commonwealth, 3 Bibb, 490. After conviction of assault and: battery, upon trial before a justice of the peace—it was held, on motion in arrest of judgment, that the allegation, that the assault and battery was committed in and upon the body of R., wife of the com- plainant, was a sufficient description. Commonwealth v. Gray, 2 Cush. 535. Where an indictment charged that “A. Hunt, etc., in and upon one P. Harvey, etc., did make an assault, and her, the said P. Hunt, then and there did beat, wound, and ill treat, with an intent, her, the said P. Harvey, etc., to ravish ”—it was held that the words, ‘‘her the said P. Hunt then and there,” did not vitiate the indictment, and might be rejected. Commonwealth v. Hunt, 4 Pick. 252. An indictment, charging an assault upon “A. B., late of M., deceased,” whereby “the said A. B. was cruelly and dangerously beaten and wounded, and his life greatly endangered,” charges an assault and battery upon a living person. Com. v. Ford, 5 Gray, 475. : In South Carolina, an indictment, for an assault and battery, upon a free person. af ae need not allege that he isa free person of color. The State v. Young, 7 ich. 1. _ The indictment need not allege that the person assaulted was late of the county, nor is it necessary to aver that the beating and wounding were to the prosecutor’s damage. State v. Wimple, 8 Blackf. 214. Neither need it allege that the person beaten was in the peace of the state. 3 Chitty C. L. 821,n.e. Nor are the words, force and arms, or the word, unlawfully, necessary in the description of the offence. 1 Ibid. 241; State v. Elliott, 7 Blackf. 280. Where a count, in an indictment for a common assault, would be good, with the addition of the battery, it is held to be equally good for the assault without the battery. State v. Burt, 25 Vt. Rep. 373. And a count in an indictment, which charges an assault and battery and false imprisonment, is not bad for duplicity ; and the defendant may be convicted of the false imprisonment and acquitted as to the battery. Francisco v. The State, 4 Zab. 30. So, where the indictment is for a rescue, and also for an assault and battery, and the defendant is convicted generally, if the averments as to the rescue are uncertain or bad, these may be rejected as superfluous, and the court may proceed to pass judgment upon the verdict as for an assault and battery. State v. Morrison, 2 Iredell’s R. 9. But where the indictment contains but one count, and that for an assault and battery, ASSAULT AND BATTERY, 917 Indictment. the jury have no right to find a true bill for the assault alone. They must find for the entire charge. State v.Wilburne, 2 Brevard, 296. In Tennessee, under the statute of 1842 (c. 141, § 4), a presentment for an assault may be made by the grand jury, though not committed in term time. State v. Hunter, 5 Humph. 597. ‘ Judgment will not be arrested because husband and wife are jointly indicted, but the fine will be assessed against each defendant. Commonwealth v. Ray et al., 1 Virg. Cas. 262; Jones v. Commonwealth, 1 Call, 555. {For proper form of indictment under the Indiana statute defining assault, see Sloan v. State, 42 Ind. 570. The indictment. must charge an intent to injure. Grayson v. State, 37 Tex. 228. As to the svatement of the name of the person assaulted, see Hart v. State, 38 Tex. 382. For the proper form of indictment in case of an assault upon a person specially deputized to serve process, see Roun- tree v. U. S., 1 Pinney (Wis. T.), 59. One count against two defendants for an ame and battery upon three persons does not embrace distinct offences. Fowler v. State, 3 Heisk. 154. Proceedings on affidavit before a J. P. are authorized in some states ; the affidavit in such a case should set out all the facts. Cranor v. People, 39 Ind. 64; State v. Mullen, 52 Mo. 430. In Texas (Pasch. Dig. §§ 2142, 2160) one indictment may contain a higher and a lower grade of the offence, if both are charged to have been ‘the result of the same act; and it may allege the assault to have been committed upon two persons at the same time. State v. Bradley, 34 Tex. 95. An indictment insufficient to charge an assault with a special felonious intent, e. g., with intent to murder, may be‘sufficient for a sim- ple assault. State v. Archer, 34 Tex. 646. An indictment may be found and conviction had in the Superior Court in Massachusetts under the general statute, for an assault committed before the statute conferring such jurisdiction took effect. Com. v. Bradley, 16 Gray, 241.] {Indictment charged that defendant made “an assault with a certain gun, the same being then and there a deadly weapon, and him the said W. did attempt with the gun aforesaid to shoot,” ete. Held defective for omitting to allege that the gun was loaded. Of course the averment that the assault consisted in the attempt-to shoot, that is, in merely pointing the gun at W., cut off all implica- tion that it was used as a club or otherwise, for the purpose of inflicting a blow. Rohinson v. State, 31 Tex. 170. Under a Vermont statute, Gen. Stat., ch. 116, §1, providing for the punishment of any one who-shall “break the public peace by tumultuous and offensive carriage, by threatening, quarreling, challenging,” etc., an indictment is not double which charges that W. did break the peace “by his tumultuous and offensive carriage, and by threatening and challenging.” The statute constitutes but one offence, “breaking the peace,” which may be done in one, some, or all the modes described; one or all these modes may be alleged, and a conviction would be proper by proof of any of the acts averred, and such conviction would be a bar to a subsequent indictment for breaking the peace at the same time and place by any of the other acts. But such an indictment will not be sufficient which sets forth the offence in the language of the statute; the specific acts constituting the tumultuous and offensive carriage, or the threatening, quarreling, or challenging, must be alleged. State v. Mathews, 42 Vt. 542. Under an indictment for assault and battery, the jury may convict of an assault only. Lewis v. State, 33 Geo. 131.] ; \ [See, also, State v. Barrett, 42 N. H. 466 (requisites of. for rescuing cattle when driven to a pound). State v. Craighead, 32 Mo. 561; State v. Bitman, 13 Iowa, 485 (for beating one’s own child); Com. v. McLaughlin, 5 Allen, 507 3 Dawson v. People, 25 N. Y. 399; State v. Taylor, 16 N. H. 477; State v. Berritt, 17 N. H. 268; State v. Murrah, 25 Tex. 758 cg an aggravated assault by being made in the presence of a court); State v. Wall, 39 Mo. 532; State v. Hardy, 47 N. H. 538 ; Jackson v. State, 25 Tex. (Supp.) 229; Evans v. State, 25 Tex. (Supp.) 303 ; Stuckmeyer v. State, 29 Ind. 20; Clarke v. Territory, 1 Wash. T. 82. (The offence is sufficiently charged if described in the language of the statute. State v. Trulock, 46 Ind. 289. Charging that defendant “did commit and (instead of ‘‘an”) assault,” is sufficient. Martin v. State, 40 Tex. 19. Charging that the offence was committed “on the —— day of December,” etc., is insuffi- cient; the day should be alleged, or the defect will be fatal. State v. Eubanks, 41 Tex. 291. The unlawful charactor of the assault, or the intent to injure need 918 ASSAULT AND BATTERY. Eviuence. not be charged. State v. Hays, 41 Tex. 526; State v. Hartman, 41 Tex. 562. Where the injured party is unknown, the assault may be charged to have been made upon a certain person, to the grand jurors unknown. State v. Snow, 41 Tex. 596. For requisites of an indictment for an aggravated assault, see Blackburn v. State, 39 Tex. 153.} . 10. EVIDENCE. Where the indictment charges that the assault was committed with several weapons, it is immaterial whether the defendant used one or all of the instru- ments described in the indictment. State v. McClintock, 1 Greene’s Iowa Rep. 392. Where, on a trial for assault and battery, the defendant does not set up any dis- tinct independent fact in defence of the charge, but contends that, taking the facts and circumstances as proved by the evidence on both sides, he is not guilty—the burden of proof is upon the prosecution to show that the assault and battery was unjustifiable. Com. v. McKie, 1 Gray, 61. : : Where an assault upon the prosecutor followed soon after his declaration, “that no honest man would avail himself of the bankrupt laws ”—it was held that the state could show this circumstance as tending to point out the individual who ‘committed the assault. State v. Griffis, 3 Iredell, 504. ‘A variance between the averment of the indictment and the proof, as to the name of the person assaulted, is immaterial, where the names may be sounded alike without doing any violence to the letters found in the variant orthography— as in the name of Chambless and Chambles. Ward v. State, 28 Ala. 53. But proof that the defendant had beaten Catharine Swails will not support an assault and battery on Ratharine Swails. Swails v. State, 7 Blackf. 324. Where the indictment charged the defendant with an assault and battery on T. A., a deputy-sheriff, and on the trial it appeared that the person upon whom the assault and battery was committed was commissioned as a deputy-sheriff by the name and addition of T. A., junior—it was held that there was no variance. Com. v. Beckley, 3 Mete. 330. Where there is a conflict of evidence as to which party was the aggressor, the acts and declarations of third. persons, tending to show a conspiracy to mob the defendant, are admissible, whether notice thereof has been brought home to the defendant or, not (Tompkins v. The State, 17 Ga. 356) ; and the complaint or affi- davit, made before a magistrate, upon which a criminal prosecution for assault and battery is founded, may be used on the trial, either to contradict or corrobo- rate the complainant's testimony. State ». Lazarus, 1 Rep. Con. Ct. 34. The preconceived intention of committing the assault and battery may be proved in aggravation. Yoes v. State, 4 Engl. 42. The defendant cannot be allowed to prove his general good character and usual peaceable deportment as a citizen. Drake v. Commonwealth, 10 B. Monroe 225. In South Carolina, where the plea to an indictment for assault and battery is “not guilty,” no evidence of mitigating circumstances can be offered; such evidence pus Pa Resets to the court at the time of sentence. State v. Smith & Cameron, ay, 62. A person having been indicted for an assault and battery, pleaded a former conviction for the same offence, and, in order to sustain this plea, he offered the record of conviction; and, to show that the offence was the same, he produced a witness to prove what a witness on the former trial swore to, the latter witness being still living and within the state—it was held that the produstion of such witness was proper, and that his testimony was admissible for the purpose intended. State ». Smith, 11 Iredell, 33. A defendant, being indicted in the Supreme Court for an assault and battery, cannot plead in bar, a former conviction before a justice of the peace, founded upon ae information and confession of the offender himself. 2 Mass. 371 3,4 ass. 477. [Hvidence.—Whan an aggravated assault and battery is proved by direct and positive testimony, evidence of defendant’s good character is not admissible in defence. Mathews ». State, 32 Tex. 117. When an owner of certain cattle was on trial for an assault, the testimony of the prosecutor that he was a town officer, ASSAULT AND BATTERY. 919 Justifications and excuses. and as such was driving the cattle to a pound, was held competent to prove prima, facie that he was an officer de facto. Com. v McCue, 16 Gray, 226.] {When a number of persons meet together, and there is evidence going to show a common design on their part to commit an assault, all may be found guilty, although only one of them used threatening and insulting language. The state having proved that just before the assault, one of the defendants had a conversa- tion with the person assaulted, the defence was held entitled to show the whole of this conversation as part of the res geste. State v. Rawles, 65 N. C. 334. Language used by the combatants at the time of the assault may be proved as part of the res geste. Colquitt v. State, 34 Tex. 550. On the trial of an indict- ment for assault and battery, evidence that the complainant had charged defend- ant with theft, which charge had been communicated to the defendant, is wholly irrelevant and inadmissible in defence. Boone v. State, 31 Tex. 557.] [When w person procures himself to be arrested, proceeded against before a magistrate, and fined for an assault and battery, this is no defence to a subsequent prosecution by the injured party. State v. Cole, 48 Mo. 70.] {In Texas, the fine fixed by the jury in a case of aggravated assault will not be changed by the court, if within the limits authorized by law. March v. State, 35 Tex. 115.] [For the rule in California, as to payment of costs, under Crimes Act, § 49, and Crim. Prac. Act, §§ 638, 679, see Petty v. County Court, 45 Cal. 245.] [Under the Alabama Rev. Code, when 4 defendant indicted for an assault and battery pleads “guilty,” the amount of fine must be fixed by the jury; if he pays the fine and refuses to pay the costs, he may be imprisoned at hard labor long enough to work out the amount of the costs at the rate of forty cents per day. Nelson v. State, 46 Ala. 186.] (See, also, Com. v. Burke, 14 Gray, 100 (proof of an assault with a dangerous weapon will support a complaint for simple assault); Orton v. State, 4 Greene (Ja.) 140; Com. v. McLaughlin, 5 Allen, 507; Champer v. State, 14 Ohio St. 437 (evidence showed an affray and not an assault); State ». Alford, 31 Conn. 40; White v. People, 32 N. Y. 465; Bell v. State, 25 Tex. 574 (proof of the name stated in the indictment); Evers v. People, 6 T. & C. 156; 3 Hun, 716.] 11. OF THE VARIOUS JUSTIFICATIONS AND EXCUSES. In criminal, as in civil cases, if there be an assault, it cannot be justified other than by showing specially all the circumstances which render the act rightful; and the sufficiency of the alleged justification is a matter of law. (a) Provocation to the feelings. The law makes reasonable allowance for the infirmity of the human temper: men often doing under an excited state of feeling, aroused by sudden and great provocation, that which reflection and a calm judgment condemn. But matter of provocation cannot be shown in justification of an assault and battery, unless so immediately preceding the assault as to create a fair presumption that the vio- lence was committed under the sudden influence of passion excited by it. Coxe v. Whitney, 9 Mis. Rep. 531. No words of provocation will justify an assault although they may constitute a ground for the reduction of damages. Cushman ». Ryan, Petry oh sna epee In Jowa, it has been held that strong provocation is not a justification of an assault under Rev. Sts. (p. 169, § 20), when the circumstances show malignity on the part of the offender. Winfield v. State, 3 Iowa, 339. . ; Taking hold of a teamster’s horse, and turning the horse’s head, and, upon being told by the teamster to let go, striking the horse on the head with the hand, causing the horse to step back three or four feet, will not justify the teamster in severely beating the other, and knocking him down with the butt of the whip. Com. v. Ford, 5 Gray, 475. Evidence showing that the person assaulted “was a lazy vagabond, who would not work, if he could help it; that money could not be obtained, from him by: legal process; that he had been indebted to the defendant a long time, and would not pay; and that defendant, on the morning of the day the assault was committed, had offered him ten dollars an hour if he would work for him in 920 ASSAULT AND BATTERY, Justifications and excuses. payment of the said indebtedness, which he refused to'do,” is not admissible for the defendant in mitigation or extenuation of the assault. Ward v. State, 28 Ala. 53. , (b) Self-defence. Self-defence is a primary law of nature, and it may be laid down as a general principle, that a man is justified, in order to defend himself against the attack of another, in resorting to any violence which the particular circumstances of the case may require for his protection, even should his conduct involve the life’ of his assailant. Scribner v. Beach, 4 Denio, 448. ; ; Although an officer have no right to execute process, yet, in so doing, he may defend himself against unreasonable and unnecessary violence, without being guilty of an assault. People v. Gulick, Hill & Denio, 229. : We have seen that, where one manifestly intends and endeavors, by violence or surprise, to commit a known felony upon a man’s person (as to rob, or murder, or to commit a rape upon a woman), or a man’s habitation or property, (as arson or burglary), the person assaulted may repel force by force; and even his servant, then attendant on him, or any other person present, may interpose for preventing mischief ; and, in the latter case, the owner, or any member of his family, or even alodger with him, may kill the assailant, for preventing the mischief. Foster’s Crown Law, 278. . But care must be taken that the resistance does not exceed the bounds of mere defence, prevention, or recovery, so as to become vindictive ; for that would make the defendant the aggressor. The fact that the prosecutor struck the first blow will not justify an enormous battery. State v. Quin, 2 South Car. Const. Rep. 694. The force used, must not exceed the necessity of the case. Gates v. Louns- bury, 20 Johns. Rep. 427; Elliott v. Brown, 2 Wend. 497; Curtis v. Carson, 2 N. H. Rép. 539; Baldwin v. Hayden, 6 Conn. Rep. 453; Shain v. Markham, 4 J. J. Marsh. Rep. 578. It may be stated, therefore, as a rule, that in every case in which an assault is made upon another, he is justified in instantly repelling it by force, without. wait- ing until he has actually received corporeal injury. As, where a man offers to strike another, the latter may at once attack him, without waiting to be struck first. Bull. N. P. 18; 2 Roll. Abr. 547, c. 37; Dale v. Wood, 7 Moore, 33 3; State v. Davis, 1 Iredell’s Rep. 125. But we repeat, great care must be taken that the battery be such only as was necessary to repel the intended violence; for if it be excessive, if it be greater than is necessary for mere defence, the prior assault will be no justification. Bull. N. P. 18; Cotton v. State, 4 Texas, 260; Hazel v. Clark (3 Harr. Rep. 22). Burke’s case, 5 City Hall Rec. 93. A party having been struck has no right to retaliate by an assault, when it is in his power to keep aloof from the party striking. State ¥. Gibson, 10 Iredell, 214; Reg. v. Driscoll, 1 C. & Mars. 214. And if the act be accompanied by declara- tions or other unquestionable evidences of an absence of intention to do any vio- lence, then the party, thus apparently put in jeopardy, is notified of the absence of any intention to commit a battery, and need not resort to violence in order to prevent it. State v. Sims, 3 Strobb. 137. Where there was a question, which party was the aggressor, it was held that the fact, that the defendant went to the place where the other party was, and called him out for the purpose of having a difficulty with him, did not of itself render him guilty of the assault and battery, unless he carried his intention into effect. Yoes v. The State, 4 Engl. Ark. Rep. 42. (c) Defence of others. A man may justify an assault and battery in defence of his wife, child, or ser- vant; or either of these characters in defence of her husband, father, or master ; and any violence necessary to this end will be excusable (Roll. Abr. 546; 1 Hawk., c. 60, §§ 23, 24; Tickell v. Read, Lofft, 215); but in these, the assault must only be made for the purpose of prevention, and cannot be justified by way of retaliation after the attack is over. Barfoot v., Reynolds, Str. 953. It is the duty of persons, when it is in their power, to prevent a merciless bat- tery upon a feeble, old man. Gillon v. Wilson, 3 Monroe, 217. . « ASSAULT AND BATTERY. 921 Justifications and excuses. (a) Defence of possession. An assault and battery may be justified in defence of real or personal property. DEFENCE OF REAL PROPERTY. If a person enters another’s house with force and violence, the owner of the house may justify turning him out (using no more force than is necessary), with- out a previous request to depart. McDermott v. Kennedy, 1 Harrington, 148; Mcllvoy v. Cockran, 2 A. K Marsh. 669; State v. Sagarus, 1 Rep. Con. Ct. 34. (Com. v. Clark, 2 Met. 23; Com. v. Goodwin, 3 Cush. 154; McIlvoy v. Cockran, 2 A. K. Marsh. 669; Shain v. Markham, 4 J. J. Marsh. 578; Mead’s Case, 1 Lewin C. C. 185; Scribner v. Beach, 4 Denio, 448. If a person enters another’s premises peaceably, there must be a request for him to leave, before violence can be used to him. Watson v. Steel, 4 Vt. 629; but when the person enters with violence or uses violence after he enters, no previous request is necessary. Green v. Godard, 2 Salk. 641; Weaver v. Bush, 8 Term R. 78; Buller’s N. P. 19; 1 East P. C. 406.] If the assault and battery was committed in resisting persons entering upon the premises to open and work a highway, the defendant may prove that the alleged highway was laid through his orchard of four years growth, without his consent. Harrington v. The People, 6 Barbour Sup. Ct. Rep. 607, A tenant in common has no right to inflict a battery upon a co-tenant entering upon the land, nor upon one entering with him, or under his authority (Causee v. Anders, 4 Dev. & Batt. 246); even though the co-tenant enter with the declared purpose a removing the defendant’s wagon. Commonwealth v. Lakeman, 4 Cush. 597. The resumption of the possession of land and houses, by the mere act of the - party, is frequently allowed. Thus, a person having a right to the possession of lands may enter by force and take out a person who has a mere naked possession, and cannot be made answerable in damages to a party who has no right, and is: himself a tort feasor. Although, if the entry, in such case, be with a strong hand, or a multitude of people, it is an offence for which the party entering must answer criminally. Hyatt v. Wood, 4 John. Rep. 150; Sampson v. Henry, 13 Pick. R. 36; Higgins v. The State, 7 Ind. 549. But a person, who has a right of entry, and who makes an actual entry in consummation of that right, can only be removed in the mode pointed out by the statute of forcible entry and detainer. Any forcible intrusion, on a person so in actnal possession, is actionable. And he may repel, by force, any forcible attempt to expel him. He must be removed secundem legem. Tribble et al. v. Frame, 7 J. J. Marshall’s Rep. 599. So aman who is in peaceable, possession of a tenement, though holding over after the expira- tion of his term, is justifiable in making use of as much force as may be necessary in repelling an attempt made by any person, without the aid of legal process, to dispossess him by force. Though he who has been forcibly ousted from a naked possession, by the owner of the premises, cannot maintain trespass, yet in retain- ing such possession he has a right to repel force with force. Mickle’s case, 1 City Hall Rec. 96. \ The mere suspicion or fear of an encroachment will not justify an assault. Mc- Auley v. State, 3 Iowa, 435. Therefore, where a person has a right to enter on land and make improvements, not interfering with the tenant, he cannot be forcibly ejected until he does so interfere. Ibid. . i If the regulation for the collection of railroad tickets is a reasonable one, and essential for the interests of the company, and a passenger refuses to comply with it, he may be requested to leave the car, and, if he refuses to go, may be ejected without unnecessary violence. People v. Caryl, 3 Parker, 326. In the State of New York, the thirty-fifth section of the act of 1850, to authorize the formation of railroad corporations, provides that, “if any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the cor- poration to put him and his baggage out of the cars, using no unnecessary force, at any usual stopping-place, or near any dwelling house, as the conductor shall elect on stopping the train.” It has been held, under this statute, that the right of the conductor to put a person off the train, upon his refusal to pay the fare, is not done away by the person’s subsequent offer to pay, and that the conductor, 922 ASSAULT AND BATTERY. Justifications and excuses. under such circumstances, is not bound to receive the fare and permit the com- plainant to remain on the train. People v. Jillson, 3 Parker, 234. The conductor of a train may eject a passenger for profane or indecent language, or for such other violent and disorderly conduct as seriously disquiets the other passengers ; and the conductor, in his justification, may give evidence of the mis- conduct of the passenger during the entire trip. The People v. Caryl, 3 Parker, 326. But the conductor of a railroad train, in ejecting a person from the cars, must use no more force or violence than is necessary to accomplish his purpose. The State v. Ross, 2 Dutcher, 224. The officers of. a railroad depot have a right to exclude therefrom persons who persist in violating the reasonable regulations of the company. Com. v. Power and others, 7 Metc. Rep. 596. But the officer in charge of a railroad depot has no right to eject a person therefrom without some proof that the person ejected had violated the regulations of the corporation. Hall v. Power and others, 12 Metc. 482. , “Tf one unlawfully attempt to dispossess another of his personal property, he may be repelled with such force as‘is necessary to maintain possession. This is the law of self-defence, which is recognized only in those cases where, if one were compelled to resort to the slow process of the law the injury would be irrepara- ble.” Per Evans, J., in Davis v. Whitridge, 2 Strobhart’s Rep. 232; and see Har- rington v. The People, 6 Barb. Sup. Ct. Rep. 607; Baldwin v. Hayden, 6 Conn. 453. And in order to make the defendant criminally liable, the onus lies on the state to show that the prosecutor was at the time a lawful officer and was armed with a lawful execution. And it makes no difference whether the defendant does or does not raise the objection to the prosecutor’s authority at the time. State v. Briggs, 3 Iredell, 357. A tenant at sufferance put windows into a dwelling-house occupied by such tenant during the tenancy; and after the tenancy had expired, and after the house so occupied was sold to another party, who had taken possession by his tenant, returned to remove the windows from the house, and was proceeding to carry off the windows, when the latter occupant forcibly seized and took away the windows, causing some injury to the former tenant; it was held that no assault and battery pee committed by thus retaking the windows. State v. Elliott, 11 New Hamp. In Massachusetts, in Com. v. Kennard et al. (8 Pick. Rep. 183), it was held that if an officer would take goods belonging to A., and in A.’s possession, upon a writ against B., A. may maintain his possession by force, in the same manner as he might against any trespasser who is not an officer. And, in Alabama, it has been held; that where an officer attempts to levy an execution on articles exempt by law from levy and sale by execution, after being warned of the fact, the owner may employ as much force as is necessary to pre- vent the levy. State v. Johnson, 12 Ala. 840. 3 But, in Vermont, a contrary doctrine has been held. State v. Donner et al., 8 2mm Rep. 424. 8. P. 12; ibid. 437; and see State v. Buchanan, 17 Vt. Rep. In Ohio, it has been held, that, whenever the question of property is so far doubtful that the creditor and officer may be supposed to act, and do in truth act, in good faith, and on reasonable grounds for believing the property to be that of the debtor, the owner has no right to resist the execution or attachment by a breach of the peace. Faris v. State, 3 Ohio, N. S., 159. “The right of recaption exists with the caution that it be not exercised vio- lently, or by breach of the peace ; for, should these accompany the act, the party would then be answerable criminally. In the case of personal property improp- erly détained, or taken away, it may be taken from the house and custody of the wrong-doer, even without a previous request; but unless it was seized or at- tempted to be seized, forcibly, the owner cannot justify doing anything more than gently laying his hands on the wrong-doer to recover it.” Per Jewett, J., in cribner vy. Beach, 4 Denio, 448, citing Weaver v. Bush, 8 Term. Rep. 78; Spen- cer v. McGowen, 13 Wend. 256. : _ Where the plaintiff took hold of a rake in defendant’s hands, in order to take it from him, upon which the defendant immediately knocked the plaintiff down with his fist, and the plaintiff again attempted, on rising, to possess himself of the ASSAULT AND BATTERY. 923 Justifications and excuses. rake, and the defendant struck a blow with it which broke the plaintiff’s arm ; it was held that the defendant was not justified in either blow. Scribner v. Beach, 4 Denio, 448. In New York, where a constable, having an attachment against A., seized a trunk belonging to B., it was held an indictable offence in the latter to attempt to regain possession of the trunk by assaulting the officer, and that, although he might not be subject to a private action of trespass for forcibly regaining posses- sion of his own property thus taken, it was clearly an indictable offence thus to obstruct the officer in the execution of his duty. People v. Cooper, 18 Wend. 379; and see Cokely v. State, 4 Clarke (Lowa), 477. : : (e) Lawful correction. A parent may correct, in moderation, his child, and a guardian his ward. 1 Chitty’s Genl. Pr. 64 et seg. Butif a parent, in chastising his child, exceed the bounds of moderation, and inflict cruel and merciless punishment, he is a tres- passer and liable to be punished by indictment. It is not the infliction of punish- ment which constitutes the offence, but the excess; and what shall be regarded as excessive, is not a conclusion of law for the court to announce, but is a ques- tion of fact, for the determination of the jury. Johnson and Wife v. The State, 2 Humph. Rep. 283. Every master has a right to correct his scholar with moderation ; and, as long as he confines himself within proper bounds, is protected in law. Morris’ case, 1 City Hall Rec. 52. Buta teacher, in inflicting corporal punishment upon ascholar, must exercise reasonable judgment and discretion, and be governed as to the mode and severity of the punishment by the nature of the offence, and by the age and strength of the pupil; and it will be for the jury to determine whether the punishment was excessive and improper. Com. v. Randall, 4 Gray, 36. The master of a vessel may inflict moderate correction, for sufficient cause, upon his seamen; but should he exceed the bounds of moderation, and be guilty of cruelty, or unnecessary severity, he will be liable as a trespasser. Brown v. Howard, 14 Johns. Rep. 120; [and see Sampson v. Smith, 15 Mass. 365; Flem- ming v. Ball, 1 Bay. 3; 3 Day, 225; 2 Bos. & Pul. 224; Captain Kidd’s case, 5 State Tr. 287.] . “As the husband is the guardian of the wife, and bound to protect and main- tain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraint upon her liberty if her conduct be such as to require it.” 2 Kent’s Com. 181. But a husband has no right to beat his wife, or inflict corporal punishment upon her. People v. Winters, 2 Parker Cr. Rep. 10. And he may be indicted for striking his pregnant wife with his fist. 2 Harr. 552. But he may defend him- self against her, and may restrain her from acts of violence towards himself or towards others. People v. Winters, 2 Parker Crim. 10. In Alabama, where a husband is tried for assault and battery committed on his wife, he may prove, in mitigation of the fine, that when he committed the assault and battery he was provoked to do so by the misbehavior and misconduct of his wife. Robbins v. The State, 20 Alabama, 36. In relation to assaults upon apprentices and servants, see post. (f) Accident. If two persons, engaged in an unlawful act, inadvertently hit a third person, this is a battery, and cannot be justified on the ground that it was accidental. James v. Campbell, 5 Car. & Payne, 372. For no principle of law is better set- tled than that every one shall be held responsible for the consequences of his unlawful act. ; < . j Subject to the foregoing exception, if the injury committed were accidental and not the result of negligence, it will not amount to a battery. Thus, if one soldier hurt another by discharging a gun in exercise, it will not be a battery. Weaver ». Ward, Hob. 134; 2 Rol. Ab. 548. If two, by consent play at cudgels, and one happens to hurt the other, it will not amount to a battery, the injury not being foreseen, but being purely accidental. Bacon’s Abridgement, tit. Assault and Battery. Where skins were thrown down into a man’s yard, being a public way, by which a person’s eye was knocked out, and it appeared by the proof, that the 924 ASSAULT AND BATTERY. Justifications and excuses. wind blew the skin out of the way, and that the injury was caused by this cir- cumstance, the defendants were acquitted. Rex v. Gill-et al., 1 Stra. 190. Neither is it a battery, if a horse, by sudden fright, runs away with his rider, and rung against a man. Gibbons v. Pepper, 4 Mod. Rep. 405. And it is a general rule, that, if a party be in the prosecution of a legal act, an action does not lie for an injury resulting from an inevitable or unavoidable accident which occurs without any blame or default on his part. 2 Chit. Rep: 639; 1 Bing. 213. : (9) Amicable contest. If the blows given be part and parcel of an amicable contest, and the contest be lawful, the party will not be liable, either civilly or criminally. Hence, if an injury be received in playing at any lawful sport, as ball, by consent, it will not amount to a battery, in law, for the intent of the parties is not unlawful, but rather commendable, and tending mutually to promote activity and courage. But if the contest was unlawful, it would be otherwise; as if the fighting were with naked swords, because no consent can make so dangerous a diversion lawful. Com. Dig. pl.; 3 M.18; Bul. N. P. 15. In an action for assault and battery, where it was insisted, as a defence, that the plaintiff and defendant fought by consent, Parker, C.B., said: “That tighting being unlawful, the consent of the plaintiff would be no bar to the action;” and he cited a case, where Reynolds, C.B., in an action to recover five guineas on a boxing match, held the considera- tion illegal. Boulter v. Clarke, Bul. N. P. 16. These decisions appear only to apply to unlawful games, among which boxing and boxing-matches are to be con- sidered. Although a party, who voluntarily enters into a lawful contest, cannot sue the other for an injury naturally arising out of such contest, still the party commiting the injury will, in most cases, be liable to answer to the public for any breach of the peace or mischief he may commit. But even the criminal liability of a party will mainly depend upon the question, whether or not he was engaged in a lawful or unlawful pursuit. Thus, prize-fighting, and, indeed, all kinds o fighting, by previous arrangement, as also all struggles in anger, whether by fighting, wrestling, or in any other mode, are unlawful, and death occasioned by them is manslaughter, at the least. Reg. v. Caniff, 9 Car. & P. 359. But if the pursuit be lawful, and no blame can attach to the party inflicting the injury, he cannot be made to answer criminally. (h} Preservation of the peace. Every person is justified in committing an assault and battery in order to pre- serve the peace. 3 Hawk. 156. We have seen that a person has not only a right, bnt it is his duty to interfere to preserve the peace. If, therefore, A. and B. are fighting, and ‘C. comes up and takes hold of one of them by the collar, in order to separate the combatants, he is not guilty of assault and battery. So, to lay one’s hand gently on another whom‘an officer has a warrant to arrest, and to tell the officer that this is the man = ise is no battery. 1 Hawk. P. C., c. 62,§2; Bac. Abr., tit. Assault and attery. Where a sheriff, having a warrant to apprehend several persons, who had riot- ously assembled together, and committed an assault, etc., came to the house where they were assembled, and being resisted, and unable to make the arrest, commanded A. and others to guard the house in which the persons were assem- bled, and prevent their escape, while he went to the next town, about four miles distant, to get a sufficient force to enable him to execute the warrant — it was held that A. and the others were bound to aid and assist the sheriff, on his order or summons, In preserving the peace, or apprehending the offenders; and that the sheriff was to be deemed constructively present, so as to justify A. and others,. to arrest the offenders, during his temporary absence. Coyles v. Hurtin, 10 John. Rep. 84. It has been holden that defendant may justify even a mayhem, if done by him as an officer in the army, for disobeying orders; and that he may give in evi- dence the sentence of a council at-war, upon a petition against him by the plain- tiff; and that, if, by the sentence, the petition is dismissed, it will be conclusive evidence in favor of the defendant. Bull. N. P. 19. ASSAULT AND BATTERY, 925 Justifications and excuses.—Verdict. () In making arrest. _ In cases where officers have authority to arrest, their laying hands upon per- sons, in order to do so, is no battery in law. So, if a justice make a warrant to J. 8. to arrest J. D., and J. N. comes in aid of J. 8., and gently puts his hands on the shoulders of J. D., and says, this is the man — this is no battery. There may be cases in which a person may justify laying hands upon another in order to serve him with civil process. Harrison v. Hodgson, 10 B. & C. 445.° But in all such cases the force used must be only so great as is rfecessary for the purpose of effecting the object in view, and, if there be an excess of violence, the officer will be guilty of an assault. If, therefore, a constable is preventing a breach of the peace, and any person stands in the way with intent to prevent him from so doing, the constable is justified in taking such person into custody, but not in striking him. Levy v. Edwards, 1 C. & P. 40. So, where one of the mar- shals of the city of London, whose duty it was, on the day of the public meeting in Guildhall, to see that a passage was kept for the transit of the carriages of the members of the corporation and others, directed a person in the front of the crowd to stand back, and, on being told by him that he could not, for those behind him, struck him immediately on the face, saying that he would make him — it was held that a more moderate degree of pressure ought to have been exercised, and some little time given to remove the party in a more peaceable way, and that, consequently, the marshal had been guilty of too violent an exertion of his authority. 5 C. & P. 193, per Tindal, C. J. If a marshal of the city of New York, by virtue of a warrant, issued by one of the ward justices, commit an assault and battery not justified by his warrant, it is no defence to prove that the complainant was an habitual drunkard. The defendant may impeach the testimony of the party injured, by showing that he was drunk at the time of the affray, and with this view only can the testimony be introduced. Bartlett’s case, 1 City Hall Recorder, 87. An officer is entitled to the possession of the warrant under which he acts, and if he deliver it to the party against whom it is issued, and he refuse to redeliver it, the officer may use so much force as is necessary to get possession of it again. An officer having a warrant to search for an illegal still in the defendant’s house, the defendant asked to see the warrant, and it was given him, and he then refused. to return it, upon which the officer endeavored, by force, to retake it, and a scuffle ensued — it was held that the officer was justified in using so much vio- lence as was necessary to retake the warrant, and no more. 3C. & P. 31. It is the duty of a citizen to submit to the arrest of a watchman, if found in the streets during the hours of the nightwatch ; but, if the watchman unwarrantably exercises the power with which he is intrusted, to the injury and oppression’ of the citizen, he must be responsible for the consequences, and may be convicted of assault and battery. In a case of this description, the watchman was fined sifty dollars and the costs. Williamson’s case, 4 City Hall Rec. 56. Upon a trial for assault and battery, evidence that the prosecutor had com- initted petit larceny, and that the alleged assault ayd battery, by the defendant, consisted in arresting the prosecutor therefor, without process, and delivering him to a public officer, will constitute a complete defence. The People v. Adler, 3 Parker, 249. ‘ As to authority of private persons to arrest, see ante, p. 97; and also post, tit Fase ImpRIsoNMENT. : VERDICT. If the evidence show that a battery was committed, and the jury render a ver- dict of guilty of an assault only, the court may, in the exercise cf a sound discre- tion, set the verdict aside. The State v. Ross, 2 Dutcher, 224. : The defendant, under an indictment for manslaughter, may be convicted of assault and battery. State v. Scott, 24 Vt. 127. So, the jury may find a common assault, or assault and battery, upon a count in an indictment for an assault with intent to murder. Gardenheir v. State, 6 Texas, 348. But, in order to authorize a, conviction for assault and battery under an indictment for sn affray, the indict- ment must contain all the substantive allegations necessary ‘o let in proof of the assault and battery. Childs v. State, 15 Ark. Rep. 204. And where a count is 926 ASSAULT AND DOING BODILY HARM. Indictment. ——,, in and upon one C. D. did make an assault, and him, the said C. D., did then beat, and other wrongs to the said C. D. then did: against the peace of our Lady the Queen, her crown and dignity. [There is no objection to charging the defendant, in one count, with assault- ing two persons, when the whole forms one transaction. ](a) Misdeméanor at common law. Fine or imprisonment, or both.(d) As to costs: in all cases where a case of an assault is brought before justices of the peace out of sessions for summary decision, and the jus- tices shall be of opinion that it is a fit subject for prosecution by indict- ment, and shall thereupon bind the complainant and witnesses in recognizance to prosecute and give evidence at the assizes or sessions of the peace — the court are authorized to allow the prosecutor and witnesses their costs and expenses, and compensation for trouble and loss of time, in the same manner as in cases of felony.(c) SECTION XXIII. ASSAULT AND DOING BODILY HARM. Indictment. — The jurors of our Lady the Queen, upon their oath, present, to wit. that A. B., on the day of ——, in the year of our Lord , in and upon one C. D. did make an assault, and him, the said C. D., then did beat [if it be a very aggravated assault, you may state it more specially], and thereby then occasioned unto the said C. D. great actual bodily harm, and other wrongs to the said C. D. then did: (a) See ante, p. 96. (6) See ante, p. 185. (c) 14 & 15 Vict., c. 55, § 3. laid for a riot and assault, a finding by the jury that the defendant is guilty of a riot is partial and void. State v. who 1 Nott & McCord, 256. In Texas, in a case of an aggravated assault, the jury have a discretion, within certain prescribed limits, to assess or fix the punishment (Hartley’s Dig., art. 554); and the court cannot control their discretion in that respect, even though it should appear that it was not judiciously exercised. Brown v. State, 16 Tex. 122. JUDGMENT. Upon conviction of assault and battery, judgment may be rendered against the defendant, in his absence. Hughes v. State, 4 Clarke Iowa Rep. 554. ASSAULT, WITH INTENT TO COMMIT A FELONY. 927 Nature of offence. against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor at common law, fine or imprisonment, or both. And in all cases of assaults “occasioning actual bodily harm,” the court, if they order imprisonment, may *order the offender to. [°*285] be kept to hard labor during the whole or any part of the time.(a) Hwidence. To maintain this indictment, the prosecutor must prove— 1. An assault, as in the last case.(0) 2. The great bodily harm occasioned by it to the prosecutor. If he fail in proving this, still the defendant may be found guilty of a com- mon assault. SECTION XXIV. ASSAULT WITH INTENT TO COMMIT A FELONY.(1) An assault, with intent to commit a felony, where it is not otherwise specially punishable by statute, is, by stat. 9 G. IV, c. 31, § 25, punish- (a) 14 & 15 Vict., u. 100, § 20. (b) Ante, p. 282. (1) NATURE OF OFFENCE. Assaults, or assaults and batteries, when committed with any atrocious design, are regarded as aggravated offences, and are punishable at common law, accord- ing to the circumstances of the case. Such are assaults, with intent to kill, to rob, to ravish, to maim; or to commit any felony or misdemeanor. In Connecticut, a battery, with intent to maim and kill, isa high crime and misdemeanor at common law, cognizable by the Superior Court. State v. Dan- forth, 3 Conn. 112. ; In Tennessee, the act of 1829 (c. 23, § 52) provides for the punishment of any person who shall, “feloniously and of malice aforethought, assault another with intent to commit murder in the first degree.” A person who forms a premeditated design to take the life of another, and, acting upon such design, without legal provocation and passion, fires upon him and wounds him, is guilty under this section ; and this is so, though such other may have been attempting to shoot him. The guilt or innocence of the party, in such cases, depends upon the fact whether he acted on the apprehension of danger at the time, or upon his preconceived malice and design. Davidson v. State, 9 Humph. 455. In Missouri, on an indictment for a felonious assault and battery, under the 38th section, 2d article, of the act concerning crimes and punishments, if the wound inflicted be a dangerous wound, likely to produce death, it is sufficient, although the weapon be not a deadly weapon; and if the weapon be a deadly weapon, or likely to produce great bodily harm, it is not necessary that the wound should be a dangerous wound. Carrico v. The State, 11 Mis. Rep, 579. In North Carolina, to assault one with intent to commit murder, although form- 928 ASSAULT, WITH INTENT TO COMMIT A FELONY. Nature of offence. erly a felony, is now only a misdemeanor, and, like other misdemeanors, may be punished in the discretion of the court. State v. Boyden, 18 Iredell, 505. In Tennessee, under the 52d, 53d and 54th sections of the statute of 1829, the besetting the house of another is not a felonious assault. An actual and personal assault must be made upon the party, coupled with a felonious intent, in order to complete the offence. State v. Freels, 3 Humph. 228. a In Indiana, under the Rev. Sts. of 1843 (c. 53, § 7), one may be indicted for an assault and battery, with intent to commit murder in the second degree. State v. Kesler, 8 Blackf. 575. : a In Maryland, an assault with intent to murder is not a felony, although the intent was to commit one. The State v. Dent,3 G.& J. 8. But otherwise in Alabama. Hughes v. State, 12 Ala. Rep. 458. : ; A statute in the following language, ‘(If any person, being armed with a dan- gerous weapon, shall assault another with intent to murder, kill, maim, rob, steal, or to commit arson or burglary, he shall be punished,” etc., makes an assault with intent to murder and an assault with intent to kill distinct offences. State v. Waters, 39 Maine, 54. j / In the case of offences, in which force is an element in their commission, there is no essential difference between an assault, with intent, and an assault, with attempt to commit the crime. Johnson v. The State, 14 Geo. 55. [In California, an assault with intent to do bodily harm is a feluny only when done with a deadly weapon; otherwise it is a misdemeanor. People v. Murat, 45 Cal. 281; ex parte Max, 44 Cal. 579. In New York, a defendant indicted for an assault with intent to murder, may be convicted of an assault with a dead): weapon, and with intent to maim, or with intent to commit other felony. People v. Kerrains, 1 Thomp. & C. 333.] : i [An assault with intent to rob is distinct from robbery, and is not merged in the higher offence; the state may elect which crime to proceed for and to try, but a trial for one is a bar to a subsequent trial for the other. On the trial for an assault and battery with intent to rob the person of a certain sum of money, it is no defence to show that the party assaulted had no money in his possession. Hamilton v. State, 36 Ind. 281. See State v. Brown, 21 La. An. 347; Dickerson -~. Com., 2 Bush. 1.] : [See, also, Corneille v. State, 16 Ind. 232 (intent to steal); State v. Ullman, 5 Minn. 13 (with intent to compel a person to do any act against his will).] : [For the law concerning assaults with intent to ravish, see Alexander v. Blod- gett, 44 Vt. 476. On an indictment for an assault with intent to commit a rape, the defendant may be convicted by proof that the rape was actually accom- plished. State v. Smith, 43 Vt. 324.] [Indictment charges an “assault upon a female with intent, etc., to ravish her ;” held sufficient, although the statute defining rape uses the word “ woman.” Robertson v. State, 31 Tex. 36. On trial of an indictment for an assault with intent to commit a rape, an instruction éhat if the jury believed the accused made an attempt to commit a rape as charged, they should convict, was held to be mis- leading. Priesker v. People, 47 Ill. 382.] : [See, also, Com. v. Merrill, 14 Gray, 415; Smith v. State, 12 Ohio St. 466; People v, McDonald, 9 Mich. 150; State v. Cross, 12 Iowa, 66; State v. Wells, 31 Conn. 210; Rhodes v. State, 1 Coldw. 351; Prindeville ». People, 42 Ill. 217; State - v. Warner, 25 Iowa, 200; Hull v. State, 22 Wis. 580. Indictment charged that defendant feloniously assaulted a female “by throwing her on her back, and attempting to have sexual intercourse with her with intent to outrage her per- son,” held, not to charge an-assault with intent to commit a rape. People »v. O’Niel, 48 Cal. 257.] [See, also, Sharp v. People, 29 Ill. 464; State v. Dineen, 10 Minn. 407 (mtent to do great bodily harm, nature of the offence, evidence, etc.); Hussy v. People, 47 Barb. 503 (verdict); State v. Carpenter, 22 Iowa, 506; Tarpley v. People, 42 Ill. 340 (with a deadly weapon); State v. Lawry, 4 Nev. 161 (ditto); Wilson v. Com., 3 Bush. 105.] [A verdict of “ guilty of aggravated assault and battery ” is good, although no battery is charged or proved. Bittick v. State, 40 Tex. 7. Evidence on trial of oe for an indecent assault upon a female, see Com. v. Bean, 111 Mass. 4 ASSAULT, WITH INTENT TO COMMIT A FELONY. 929 Indictment. able with imprisonment, with or without hard labor, for not more than two years, and the court may, also, if it think fit, fine the offender, and require him to find sureties for keeping the peace. As to the form of an indictment for such an assault, see ante, p. 285, from which an indictment in any case may be readily framed. Formerly, by stat. 1 Vict., c. 85, § 11, on the trial of any person for any of the offences therein mentioned, or for any other felony which should include an assault against the person, the jury might acquit of the felony, and find a verdict of guilty as to the assault. But this is now repealed by the stat. 14 and 15 Vict., c. 100, § 10, and the more geueral provision introduced, allowing the jury, upon all indictments for felony or misdemeanor, to acquit of the offence, and find the party guilty of an attempt to commit it. As to soliciting or inciting others to commit offences, which are not afterwards committed, see ante, p. 19. Indictment.(1) — The jurors for our Lady the Queen, upon their oath, present, to wit. \ that A. B., on the —— day of ——, in the year of our Lord , in and upon one C. D. did make an assault, and her, the said (1) An indictment for an assault, with intent to commit a felony, must specify the felony. State v. Hailstock, 2 Blackf. 257. In general, in an indictment for an assault, with intent to murder, it is sufficient to describe the intent in these words: ‘‘ With intent in and upon him, the said John F. Walton, then and there feloniously, wilfully, and of his malice afore- thought, to commit a murder.” Curtis v. People, Breese, 197; State v. Williams, 83 Fost. 321; State v. Howell, Geo. Decis., pt. 1, p. 168; State v. Nelson, 7 Bla. 610. And, in Arkansas, it has been held that such an indictment would be suffi- cient, without the employment of the term “wilfully.” McCoy v. State, 3 Engl. Rep. 451. But, in Mississippi, an indictment in a case of assault and battery, with intent to kill, under the statute, must charge that the act was done with express malice ; and it is not sufficient that it charges the offence to have been committed “feloniously, wilfully, and of his malice aforethought.” Anthony »v. The State, 13 Sm. & Marsh. 263. F In Connecticut, an indictment, under the 14th section of the statute of 1830, need not employ the term, “ with actual violence,” contained in the statute. In order to give a description of the offence, other words of the same meaning may be used. State v. Nichols, 8 Conn. 496. In Missouri, an assault, with intent to commit manslaughter, is sufficiently described in the indictment as an assault, with intent to kill. 4 Missouri R. 618. But, in Mississippi, an indictment, which charges the accused “with an assault and battery with a deadly weapon, upon a certain slave, with the intent to com- mit manslaughter,” can be construed to be an indictment for only an aggravated assault. It is not an indictment for an assault, with intent to kill, by which is understood an intent to commit murder. Bradley v. The State, 10 Smedes & Marsh. Rep. 618. ape In Mississippi, under the statute (How. & Hutch. 698, § 39), an indictment for an assault, with intent to kill, must aver that the accused shot at a certain person, 59 930 ASSAULT, WITH INTENT TO COMMIT A FELONY. Indictment. with intent to kill that person; and it is not enough to allege that the intent was to kill generally. Jones v. State, 11 Smedes & Marshall, 315. An indictment against two persons, charging one with an assault, with the intent maliciously to kill and murder, and the other with maliciously and feloniously exciting his co- defendant to make an assault with that intent, is good at commonlaw. ‘The State -». Pile, 5 Alabama R. 72. An indictment for an assault, with intent to murder, must state the facts which constitute the assault. Trexler v. State, 19 Alabama, 21. In Alabama, it has been held that, under the statute, the assault should be alleged as at common law, with the additional averment of the intent with which it was committed. Beasley v. State, 18 Ala. 535. In Missouri, under the 35th section of the second article of the statute (Rev. Code of 1855), it must state the circumstances attending the commission of the offence; and aver the circumstances themselves, which, if death had ensued, would have made the offence manslaughter; and this is suffi- ciently done in the' averment, that the assault is made feloniously, and with a dangerous weapon. Jennings v. State, 9 Missouri, 852. The manner in which the assault was made need not be stated. State v. Chandler, 24 Mis. 371. In Maryland, the facts and circumstances, to show the murderous intent, are matters of evidence to be submitted to the jury, and are not necessary to be charged in the indictment. State v. Dent, 3 Gill & John. 8. In New York, where an indict- ment stated that the prisoner, with force and arms, to wit, with knives, etc., made an assault upon G., with intent to commit murder upon him, and did then and there cut, beat, strike, wound, and ill-treat the said G., to his damage, etc., and against the peace, etc., it was held to be a sufficient indictment for an assault, with intent to kill; and that it was enough to state, with the usual precision, the facts necessary to constitute an assault and battery, and aver the intent with which it was made. People v. Pettit, 3 Johns. Rep. 511. But, the same particu- larity is not required in an indictment for an assault, with intent, to commit an offence, as in an indictment for the commission of the offence. Therefore, an indictment for an assault with a loaded pistol, with intent to murder, need not state the manner in which the defendant attempted to use the pistol, as by shooting or otherwise. State v. Croft, 15 Texas, 575. In an indictment for an assault, with intent to kill, the person whom the de- fendant intended to kill must be named. Therefore, an indictment charging the defendant with “intent, in so striking and beating him, the said J. W., with the club aforesaid, upon the head as aforesaid, then and there and thereby feloniously, wilfully, of his (the defendant’s) malice aforethought, to kill and murder, against, etc., is bad for uncertainty; J. W. being only named as the person assaulted. State v. Patrick, 3 Wis. 812. ° In Iowa, no particular description of the instrument used in the assault is neces- sary under § 20, R. 8., p. 169. If designated as a deadly weapon or- instrument, it is sufficient. State v. Seamons, 1 Iowa (Greene), 418. Where a person is in- dicted for an assault made with an axe, the axe will be considered a deadly weapon without being so alleged in the indictment for such assault. Dollarhide v. U. States, 1 Morris, 233. Iu Massachusetts, it has been held that an indictment for a felonious assault with a dangerous ‘weapon is sufficient, without repeating the words “then and there” before the words “did actually strike.” Com. v. Bugbee, 4 Gray, 206. An indictment against several, which charges that “they, with a knife, which they then and there with their right hand held, made an assault,” will be bad. State v. Gray, 21 Mis. 492. Where two persons are indicted for a joint assault, with intent to murder, the one with a knife, and the other with a gun, a count in the indictment, which charges them jointly, is not objectionable for duplicity. Shaw 2. State, 18 Ala- bama, 547. i The word “assault” or ‘assalt,” in an indictment for an assault with intent to kill, will not vitiate the indictment. The State v. Crane, 4 Wis. 400. _ The offence of being accessory before the fact of an assault, with intent to kill, is not necessarily included in an indictment for an assault, with intent to kill and murder. State v. Scannell, 39 Maine, 68. ; _ Where an indictment for assault with intent to kill is defective, and, after con- viction, the. judgment is reversed, for that reason, the accused cannot be dis- ASSAULT, WITH INTENT TO COMMIT A FELONY. 931 v Indictment.—Evidence. C. D., did then beat and ill treat, with intent [here state the felony in- tended, as, for instance: with intent “her, the said C. D., then violently and against her will, feloniously to ravish and carnally know”); and other wrongs to the said C. D. then did: against the form of the statute in such cases made and provided, and against the peace of our Lady the Queen, her crown and dignity. [You may add a count for a common assault, as ante, p. 282.] ‘ Ewidence.(1) To maintain this indictment, the prosecutor must give the same evidence as if he had indicted the defendant for the felony—some charged, but proceedings must be had again under a new indictment, and the accused must be remanded to jail in default of bail. Jones v. State, 11 Smedes & Marsh. 315. ‘ ‘ s (Indictiment.—Mere surplusage does not vitiate an indictment. Hence, when a felonious assault was attempted to be charged, but by omitting the word “deadly” in the description of the weapon used, the charge was insufficient, the indictment was held good for w simple assault and battery. Kruger v. State, 1 Neb. 365. In an indictment for an assault with intent to commit a felony, robbery, it is sufficient to state with the usual precision the facts necessary to constitute an assault and battery, and to aver the intent with which it was made; such indict- ment is not-vitiated by the allegation that defendant made the assault “ with intent feloniously to rob.” Hollohan v. State, 32 Md. 399.] [In Texas one indictment may charge a higher and lower degree of assault, if both are stated to have been the result of the same act; and it may charge an assault to have been made upon two persons at the same time. State vy. Bradley, 84 Tex. 95. In Indiana, for the requisites of an indictment for an assault with intent to commit a felony, see Adell v. State, 34 Ind. 548. Requisites of an indictment for an assault with a deadly weapon, the weapon being a pistol used as a club, see State v. Franklin, 36 Tex. 155. Example of an indictment held to be sufficient for an assault with a deadly weapon; the phrase intent “to do bodily harm upon the person,” is substantially the same as intent “to inflict upon the person of another a bodily injury.” People v. Congleton, 44 Cal. 92. In Tllinois an indictment for an assault with a deadly weapon, with intent to’ doa bodily injury, must either aver that no considerable provocation appeared, or that the circumstances showed an abandoned and malignant heart, and in the absence of such averments it will be fatally defective. Baker v. People, 49 Ill. 308. See Com. v. Sanborn, 14 Gray, 393; People v. Keefer, 18 Cal. 636; Corneille ». State, 16 Ind. 232 (with intent to steal) ; Dawson v. People, 25 N. Y. 399; People ». War, 20 Cal. 117; White v. State, 13 Ohio St. 569; Reddan v. State, 4 Greene Ta.), 137; Orton.v. State, 4 Greene (Iowa), 140; Millar v. State, 2 Kans. 174; tate v. Ray, 37 Mo. 365 (with a deadly weapon) ; People v. Jacobs, 29 Cal. 579 ; State v. Dineen, 10 Minn. 407 (intent to do great bodily harm) ; State v. Garvey, 11 Minn. 154; Taylor v. Com., 3 Bush. 508 (with intent to rob) ; State v. Elborn, 27 Md. 483 (shooting at.a person with intent to maim.] (1) Under an indictment for an assault, with intent to murder, the intent must be proved (State v. Jefferson, 3 Harr. 571); and the evidence must show that, if death had ensued, it would have been murder. McCoy v. State, 3 Eng. 451; State v. Neal, 37 Maine, 468. ; ; } [Blenis’ case, 1 Cit Hall Rec. 117; Hagerman’s case, 3 ib. 73. The intent to murder must be distinctly proved. R. v. Cruse, 8C. & P. 5415 contra, it may be inferred from the fact that the killing would have been murder. Hagerman’s Case, supra; Cole v. State, 5 Eng. (Ark.) 318; McCoy v. State, 3 Eng. 451; 932 ASSAULT, WITH INTENT TO COMMIT A FELONY. Evidence.—Verdict. Moore v. State, 18 Ala. 532. As to presumptions of malice under R. S. of N. Y. see People v. Shaw, 1 Park. Cr. 327; People v. Vinegar, 2 Park. Cr. 24. See also, as to proof of malice. State v. Parmelee, 9 Conn. 259 ; State v. Nicholls, 8 Conn. 496; Sharp v. State, 19 Ohio, 379.; Read v. State, 2 Carter, 438.] The defendant may ask a witness as to threats made, by the person assaulted, to drive the defendant from the place, or take his life; and whether the words and threats, on the part of the party assaulted, were such as to excite the fears of a reasonable ‘man, and to induce the defendant to apprehend violence to his person, so as to justify an attack upon the party making them, is a question for the jury under the law; and if not a justification, it may, in their judgment, rebut the presumption of malice on the part of the defendant. Howell v. State, 5 Georgia, 48. pen the trial of A. for an assault upon B., with intent to kill, a charge to the jury, that they must find A. guilty if they believe he assaulted B., with intent to take his life, was held to be error, because it took from the jury all consideration: of provocation or self-defence. The State v. Williamson, 16 Mis. 394. ‘ On the trial of an indictment.against a son for an assault, with intent to mur- der, in aiding his father in a wanton assault upon a third person, the jury cannot consider the.son’s relation to his father, nor the circumstances of peril in which his father was placed. Sharp v. State, 19 Ohio, 379. It has been held in Alabama, that the fact that the defendant was intoxicated at the time of an assault with intent to murder, so as to be reduced to a state of temporary. insanity, should have no influefice with the jury. State v. Bullock, 13 Ala. 413. Evidence cannot be given of a fight between the prosecutor and the prisoner, two years before the alleged offence. Hatcher v. State, 18 Geo. Rep. 460. The court is not bound to instruct the jury that an unloaded pistol is not a deadly weapon, and that a pistol without a cap is not a deadly weapon. Flournoy v. The State, 16 Texas Rep. 31. Whether an assault committed with a belaying-pin is an assault with a dangerous weapon, is a question to be determined by the jury. U.S. v. Small, 2 Curtis C. C. Rep. 241. Where the indictment alleges that the defendant assaulted Silas Melville, with intent to kill, and the evidence is, that the name of the person assaulted was Mel- vin, the variance will be fatal. State v. Curran, 3 Mis. 320. ‘ Where two persons are charged in an indictment with assault, with intent to murder, both using weapons which may produce death, the one who was present participating in the affray, and attempting to strike or inflict a blow, whether he struck a blow or not, is equally guilty with the person who struck the blow. King v. The State, 21 Geo. 220. Upon the trial of A. for an assault upon B., with intent to kill, it appeared that A. had previously written a very obscure letter concerning his own wife (B.’s mother-in-law), which provoked B. to make the first assault—held, that the letter was incompetent as evidence against A. State v. Williamson, 16 Mis. 394. VERDICT. Where an unlawful blow is given at sea, followed by death on shore, the ac- cused may be convicted of an assault with a dangerous weapon ; although there - ne ie Congress in reference to such an offence. U.S. v. Armstrong, 2 Curtis Where a verdict is, that the defendant is guilty of an assault, with intent to kill, without the words, “‘as charged in said indictment,” it will be referred to the charge in the indictment. Nancy ». State, 6 Ala. 483. In Connecticut, where the indictment alleged an assault, with intention to-murder, and the jury found 4 ver- dict of guilty of an assault, with intent to kill without malice aforethought—it was held to be a good finding. State v. Nichols, 8 Con. 496. But under an in- dictment for an assault, with intent to murder, a special verdict, which finds the defendant guilty of striking with a loaded whip, calculated to produce death, without cause or provocation, does not warrant the rendering judgment of guilty in manner and form as charged in the indictment, Scitz v, The State, 23 Ala. 43. Where an assault, with intent to murder, and an assault, with intent to kill, are dade by the statute distinct offences, an indictment for the former offence will sus- tain a conviction of the latter. State », Waters, 39 Maine, 54, But in Alabama, a ASSAULT, WITH INTENT TO COMMIT A FELONY. 933 Evidence.— Verdict. act, however, not being done, which was necessary to complete the felony. And the felony so described and proved must be an offence against the person of the prosecutor. Where a girl was delivered of a child, and A. and B., pretending to her that the child was to be taken to a public institution to be defendant having been convicted of an assault, with attempt to kill and murder, under the statute, the language of which is, ‘‘an assault with intent to murder,” upon motion in arrest of judgment, the conviction was held erroneous. State v. Marshall, 14 Ala. Rep. 411. In Alabama, when a white person is indicted for an assault, with intent to kill and murder, and the jury by their verdict find him guilty of an“ assault with intent to kill,” the legal effect of the verdict is, that the party is guilty of an assault, or assault and battery, as the case may be. The State v. Burns, 8 Ala. Rep. 313. Under the rule that where the accusation includes an offence of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the inferior one; we have seen'that, in an indictment for an assault and battery with intent to murder, the defendant may be found guilty of asimple assault and battery, and not guilty of the felonious intent to murder. State v. Kennedy, 7 Blackf. 233; State v. Coy, 2 Aik. 181; Clark v. State, 12 G. 350; McBride ». State, 2 Engl. 374; Stewart v. State, 5 Ohio, 241. In Indiana, a contrary rule seems to have been recognized, in Wright v. The State (5 Ind. 527); but that case did not arise under the present statute. Foley v. The State, 9 Ind. 363; see 2 Rey. Sts. of Ind., p. 388, §14._ - [And soin England. R. v. Ellis, 8 C. & P. 654; R. v. Nicholls, 9 C. & P. 267. But defendant cannot be convicted of an entirely distinct assault, as on an indict- ment for rape he cannot be convicted of a previous separate assault on the woman. R. v. St. George, 9 C. & P. 483. The general rule also prevails in Texas. Rey- nolds v. State, 11 Tex. 120.] In New Hampshire, under the Rev. Sts. (c. 214, § 8), a person, indicted for an assault with intent to commit a murder, may be convicted of an assault with in- tent to commit murder in the second degree. State v. Williams, 3 Foster’s R. 321. Under an indictment, charging the same offence in one count as an assault with intent to kill, and in another count, as a simple assault, a general verdict of guilty may be rendered, and judgment passed for the greater offence. Manly v. State, 7 Md. Rep. 135. In New York, the Revised Statutes provide that no person shall be convicted of an assault, with the intent to commit a crime, or of any other attempt to com- mit any offerice, when it shall appear that the crime intended, or offence attempted, was perpetrated by such person at the time of such assault, or in pursuance of such attempt. 5th ed., 1858, vol. 3,p. 989. ones In Georgia, under the statute limiting the bringing an indictment for an assault, with intent to murder, to four years from the commission of the offence, and an assault and battery to two years, a person was indicted for the former and found guilty of the latter offence, more than two years after it was committed; held, that the statute of limitations applied to the offence for which the accused was indicted, and not to the minor Utecee of which he was found guilty on a traverse of the indictment. Clark v. State, 12 Geo. 350. ae A conviction upon an indictment for an assault, with intent to murder, cannot be pleaded in bar to an indictment for murder, for the offences are distinet in their legal character, and in no case, said the court, could a party on trial for one be convicted of another. ‘The true test,” said Chief Justice Shaw, “to deter- mine whether a conviction or acquittal upon one indictment is a good bar to another, is well expressed in East’s Crown Law, as drawn from the case of Rex v. Vandercomb and Abbott, 2 Leach, 816.” ‘These cases establish the principle, that, unless the first indictment were such as the prisoner might have been con- victed upon by proof of the facts contained in the second indictment, an acquittal on the first can be no bar to the second.” 12 Pic. Rep. 496; 19 ibid. 479. 934 ASSAULT, WITH INTENT TO COMMIT A- FELONY. Evidence.—Punishment. nursed, put the child into a bag, hung the bag with the child in it on some park palings at the side of a foot-path, and there left it, A. and B. being indicted for an assault, with intent to murder, and with a count for a common assault, Tindal, C.J., told the jury, that [*286] it hardly could be inferred that A. or *B. intended murder for if they did, a very little difference in packing up the bag would have effected it; the jury, therefore, found them guilty of the common assault.(a) If the evidence, however, should prove the felony actually com- pleted, still the jury may find the prisoner guilty of the attempt only, as laid in the indictment—unless the judge, in his discretion, dis- charge the jury from giving’a verdict on this indictment, and order the defendant to be indicted for the felony.(6) If, on the other hand, you prove the assault, but fail in proving the intent, the jury may convict the defendant on the second count, for a common assault, Punishment. Misdemeanor, imprisonment, with or without hard labor, for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace.(c) (1) (a) R. v. March et al., 1 Car. & K. 496. (c) 9G. IV, c. 31, § 26, (b) 14 & 15 Vict., c. 100, § 12. (1) In New York, any assault.and battery upon another by meansof any deadly weapon, or by such other means or force as is likely to produce death, with the intent to kill, maim, ravish, or rob such other person, or in the attempt to commit any burglary, larceny, or other felony, or in resisting the execution of any legal process, is punishable by imprisonment in a state prison for a term not more than ten years. Rev. Sts. of N. Y., vol. 2, p. 851, § 388; 5th ed., 1858, vol. 3, p. 944. In North Carolina, the court may inflict a fine only, upon one convicted of an as- sault and battery, with intent to kill; they are not bound to imprison. State v. Roberts, 1 Hayw. Rep. 176. In Pennsylvania, an assault and battery, with intent to commit a capital offence, as rape, or murder, or an attempt to commit the crime against nature, offences in their nature infamous, would fall within the class of offences described in the fourth section of the act of 5th April, 1790, as offences not capital, for which, by the laws in force before the act to amend the penal laws of that state, burning in the hand, cutting off the ears, placing in the pillory, whipping, or imprisonment for life, was or might be inflicted. Offences of this description might be pun- ished by imprisonment at hard labor for any term not exceeding two years, at the discretion of the court, in pursuance of the fourth section of the act of 5th April, 1790: and by the act of 4th April, 1807, the time is extended to a period not exceeding seven years. The court, in giving the opinion in Scott v. Common- wealth, did not decide upon the proper punishment for an assault and battery, with intent to kill, but simply determined that this offence did not subject the ASSAULT, ON ACCOUNT OF PRESERVING WRECK. 935 Indictment. SECTION XxXVv. ASSAULTING A JUSTICE OF THE PEACE, ETC., ON ACCOUNT OF HIS PRE- SERVING WRECK. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. that at the time of the committing of the offence hereinafter mentioned, to wit, on the —— day of , in the year of our Lord , one C. D., then being one of Her Majesty’s justices of the peace, in and for the county of ——, [ “magistrate, officer, or other person law- Sully authorized,” ] was then engaged in the lawful exercise of his duty as such justice in and concerning the preservation of a certain ship and vessel then wrecked, stranded and cast on shore [‘‘ any vessel in distress,” or “any vessel, goods or effects, wrecked, stranded, or cast on shore, or lying under water”), being then thereunto lawfully authorized; and that A. B., then, well knowing the premises, in and upon the said C. D., so being in the lawful exercise of his said duty, as aforesaid, did unlawfully make an assault, and him, the said C. D., did then strike and. beat [“ strike or wound” ] on account of the exercise of his, the said C. D.’s, said duty as such justice as aforesaid, in and concerning the preservation of the said ship and vessel so wrecked, stranded, and cast ashore as aforesaid: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor, transportation for seven years—or imprisonment, with or without hard labor, for such term as the court shall award.(a) (a) 9G. IV, vu. 81, § 14, party to the punishment pronounced in that case. 6 Serg. & Rawle, 224. It was not usual in Pennsylvania (nor ever, it is believed, exercised before the act for reforming the penal laws). to inflict whipping, the pillory, or imprisonment for life, or other ignominous corporal punishments, for any assault, whatever the in- tention might be, unless committed with very atrocious designs on the person, as with intention to murder, ravish, or commit the unnatural crime; and, therefore, the fourth section of the act of 5th April, 1790, and the act of 4th April, 1807, do not authorize imprisonment at hard labor to be inflicted for an assault with intent to steal from the pocket of another. Rogers v. Com., 5 Sergeant & Rawle, 463. 936. ASSAULTING PEACE OR REVENUE OFFICERS. Indictment. Evidence. Justices, constables, etc., and persons called by them to their aid, in case of a shipwreck within their jurisdiction, have certain [*287] *duties assigned to them by stat. 12 Anne, st. 2, c. 18, § 1; and assaulting and striking or wounding them, on account of their being ‘so engaged, is punishable with transportation or imprison- ment, by stat. 9 G. IV, c. 31, § 24, as above mentioned. To maintain this indictment, the prosecutor must prove— 1. That on the day in question he was a justice of the peace of the county, etc.; it is not necessary to produce the commission—it is suffi- cient to prove that he then acted and usually acts as such. 2. That there was then a vessel in distress—or a vessel, goods or effects, wrecked, stranded or cast ashore, or lying under water—as stated in the indictment; and that he was engaged in his: duty as magistrate, in endeavoring to preserve them. 3. That the defendant struck him, as stated in the indictment. 4, And that the defendant did so, on account of the prosecutor’s so exercising his duty in endeavoring to preserve the ship ér goods. This, of course, can only be proved from the defendant's words or acts, or from other circumstances from which the jury may fairly infer it. SECTION XXVI. ASSAULTING PEACE OFFICERS OR REVENUE OFFICERS.(1) Indictment. — } The jurors of our Lady the Queen, upon their oath, pre- to wit. ) sent, that A. B., on the day of » in the year of our Lord , in and upon one C. D. (the said C. D. being then a peace officer, to wit, a constable, and in the due execution of his duty as such constable, then being, or “‘ the said C. D. being then a revenue officer, to wit, an excise officer, and in the due execution of his duty as such excise officer then being,” or “the said C. D. then acting in aid of one (1) Prosecutions for assaulting constables and other peace officers are by no means uncommon. For a review of the authorities which may be useful in such pre mans the reader is referred post, tit. RusistING OFFIOHR IN DISCHARGE OF mis Dury. ASSAULTING GAMEKEEPERS. 937 Indictment. E. F., a peace or revenue officer, to wit, a —— in the due execution of his duty as such. then being) did make an assault, and him, the said C. D., so being in the execution of his said duty, then did beat. and ill-treat, and other wrongs to the said C. D. then did: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add a count Jor a common. assault,] as anie, p. 282. *Misdemeanor ; imprisonment, with or without hard labor, [**288] for not more than two years, and the court may also fine the offender, and require him to find sureties for keeping the peace.(a) As to costs in cases of assault upon a peace officer, see ante, p. 187. As to assaulting officers engaged in the preventing of smuggling, see stat. 8 & 9 Vict., c. 87, § 66, post, tit. “ Smuggling.” Evidence. To maintain this indictment, the prosecutor must prove — 1. That, at the time of the assault, he was a peace or revenue officer, as stated in the indictment, and was engaged in his duty as such. Or if the indictment be for an assault of one acting in aid of such officer, then he must prove that the person whom he was assisting upon the occasion was an officer, or acting as such, and in the exercise of his duty, and that he, the prosecutor, was acting in his aid. It is not necessary to produce or prove the officer’s appointment.(0) 2. That the defendant assaulted him, whilst thus in the execution of his duty. If the prosecutor fail to prove that he was acting, at the time, in the execution of his duty, the defendant may be convicted on the second count, as for a common assault. SECTION XXVII. ASSAULTING GAMEKEEPERS. Indictment. = The jurors for our Lady the Queen, upon their oath, present, to wit. , that at the time of the committing of the assault hereinafter mentioned, to wit, on the —— day of ,in the year of our Lord* (a) 9G. IV, c. 31, § 25, (b) See ante, p. 125, 938 ASSAULTING GAMEKEEPERS. Indictment.—Evidence. ,in the night time, to wit, at eleven o’clock in the night of the said day, A. B. was found, by one E. F., upon certain [inelosed] land of [or in the occupation of ] one C. D., situate at ——, then and by night, as aforesaid, unlawfully taking and destroying game [or armed with a gun, “gun, net, engine or other. instrument,” for the purpose of then and by night, as aforesaid, unlawfully taking and destroying game], the said E. F. being then the gamekeeper [‘‘ gamekeeper or servant”] of the said C. D., and having then lawful authority to seize and apprehend the said A. B. [‘***And that the said A. B. then escaped from the said land into a certain other close there situate, and the said H. F’, thereupon pur- sued him into the said last-mentioned close, for the purpose of seiz- [*289] ing and apprehending him*]: and *that the said E. F. being then about to seize and apprehend the said A. B., for the offence aforesaid, having then lawful authority so to do as aforesaid, he, the said A. B., with the gun aforesaid [“‘ gun, cross-bow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever” | which he, the said A. B., in both his hands then had and held, did then assault and beat and offer violence towards the said E. F. [‘‘ assault or offer violence” |: against the form of the statute in such case made and pro- - vided, and against the peace of our Lady the Queen, her crown and dignity. [This count may be joined with one on the 9th section of’ stat. 9 G. IV, c. 69, against three or more for night poaching.(a) The words in the above form between the asterisks *** must be omitted, when not necessary. ] Misdemeanor; transportation for seven years—or imprisonment and hard labor, for not more than two years.(b) Evidence. To maintain this indictment, the prosecutor must prove — 1. That the defendant was found, in the night time, upon certain land, open or inclosed, of or in the occupation of C. D., situate as described in the indictment, and that he was then taking or destroying game or rabbits, or was armed with a gun, etc., for the purpose of taking or destroying them as stated. The reader will find the 1st and 9th sections of stat. 9 G. IV, c. 69,(c) which very fully define the offence of uight poaching, and the second section, which shows in what cases the owner or occupier of the close, or his gamekeeper or servant and his assistants, may seize and apprehend the poachers. The evidence amust be such as to bring the case clearly within these sections. (a) R. v. Finacane et al., 5 Car. & P. 551. (b) 9G. IV, c. 69, §2, (c) Ante, p. 245. . ASSAULT TO PREVENT APPREHENSION. 939 Indictment.—Evidence. 2. That the prisoner escaped from that land into another place, and that he was pursued and overtaken by the prosecutor — if such be the fact and it be stated in the indictment. 3. That the prosecutor, on the night in question, was the game- keeper or servant of the owner or occupier of the land in which the prisoner was found, or one of his assistants. 4. The assault as stated; and that the prosecutor, or some of the persons acting with him, were at the time about to seize and appre- hend the prisoner or some of his companions who were found poaching, as above mentioned. *SECTION XXVIII. © [#290] ASSAULT TO PREVENT APPREHENSION. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. i that A. B., on the day of , in the year of our Lord ——, in and upon one C. D. did make an assault, and him, the said C. D., did then beat and ill-treat, with intent, in so doing then and thereby, to resist and prevent [‘“ resist or prevent”] the lawful appre- hension [‘ apprehension or detainer”] of him, the said A. B., and of one B. F., for a certain offence for which they, the said A. B. and E. F., respectively, were then liable to be apprehended [‘‘ apprehended or detained” | by the said C. D., that is to say, for [here state the offence gen- erally]: against the form of the statute in such case made ‘and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add a count for a common assault, as ante, p. 282.) Misdemeanor; imprisonment, with or without hard labor, for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace.(a) Evidence. To maintain this indictment, the prosecutor must prove— 1. That he was about to apprehend the prisoner, or that he had him in custody and was detaining him, as stated in the indictment ; (a) 9 G. IV, c. 31, § 25. See also stat. 14 & authorized to apprehend offenders under 15 Vict., c. 19, § 12, assaults upon porsons that act. 940 RESISTING OFFICER IN DISCHARGE OF HIS’ DOTY. Nature of offence.—What constitutes the offence. and he must show for what offence and under what circumstances he was apprehending or detaining him, in order that it may appear that he was legally justified in doing so. In what. cases an offender may be apprehended without warrant,(a) in what cases with warrant.(6) 2, The assault as stated ; and that it was for the purpose of resist- ing or preventing such apprehension, or detention. If you fail in proving this, still the defendant may be convicted on the second count, for the common assault. (a) See ante, p. 21. (b) Ante, p. 30. RESISTING OFFICER IN DISCHARGE OF HIS DUTY. NATURE OF OFFENCE. The obstructing the execution of lawful process is an offence against public justice, of a very high and presumptuous nature ; and more particularly so, when the obstruction is of an arrest upon criminal process. So, that it has been holden, that the party opposing an arrest upon criminal process becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason. 4 Blk. Com. 128; 2 Hawk. P. C., e. 17, § 1. : WHAT CONSTITUTES THE OFFENCE. The 22d section of the act of Congress, passed on the 30th day of April, 1790, for the punishment of certain crimes, includes every species of process, legal and judicial, whether issued by the court in session, or by a judge or magistrate, acting in that capacity out of court, in the execution of the laws of the United States. U.S. vo. Lukins, 3 Wash. C. C. Rep. 335. On a count in the indictment, for resisting the officer of the United States, it is not necessary that the person resisting should use or threaten violence. The offence of obstructing process consists in refusing to give up possession, or in opposing or obstructing the execu- tion of the writ, by threats or violence, which it is in the power of the person to enforce; and thus preventing the officer from dispossessing the person so acting. U. 8. v. Morrow, Lowry et al., 2 Wash. C. C. Rep. 169. A mere threat to resist the execution of the writ is not an offence under the act of Congress ; but if, when the officer proceeds with the writ to the land, and is about to execute his process, a threat is used by a person forcibly retaining the possession, accompanied by the exercise of force, or having the capacity to employ it, and the officer does not do his duty, the offence is complete. Ibid. The officer is not obliged to risk or expose his person, or to proceed to a personal conflict with the defendant. Ibid. In Alabama, it has been held, that, to constitute the offence of obstructing pro- cess, in a criminal point of view. there must be an active opposition, not merely taking charge of a debtor’s property, keeping it out of view, and refusing, when called on by an officer, to place it within his reach. Crumpton v. Newman, 12 Ala. Rep. 199. [For what has been held to be a resistance to officers in special cases, see R. v. Clark, 3 A. & E. 287; Com. v. Kirby, 2 Cush. 577; Farquhar’s case, 1 City Hall Rec. 150.] ; {An indictment based on the New Hampshire Gen. Stat. ch. 259, § 8, against wilfully obstructing or assaulting an officer in the discharge of his duty, sufficiently designates the party assaulted as ‘then and there being a collector of taxes of said town,” without alleging that he was duly authorized to serve. State v. Roberts, 52 N. H. 492; State v. Cassady, 52 N. H. 500. An indictment for at- tempting to forcibly rescue a prisoner need not state the process on which the prisoner was held in custody, nor the particular circumstances of the case. Com. RESISTING OFFICER IN DISCHARGE OF HIS, DUTY. 941 Indictment—Evidence.. v. Lee, 107 Mass. 207. Actual violence need not be shown in an indictment for resisting officers. U.S. v. Smith, 1 Dill. 212.] [See, also, U. S. v. Tinklepaugh, 3 Blatch. 425; Com. v. McGalsey, 11 Gray, 194; State v. Gilbert, 21 Ind. 474; Heath ». State, 26 Ala. 273; Johnson v. State, 30 Geo. 426; Johnson v. State, 26 Tex. 117.] [For an indictment for an assault upon an officer, see State v. Coffey, 41 Tex. 46. Tearing down an officer’s notice of sale before the expiration of the day of sale. Faulds v. People, 66 Il. 261.) INDICTMENT. An indictment for impeding an officer in the execution of his official duty must show the nature of the official duty, the manner of its execution, and the mode of resistance. State v. Burt, 25 Vermont R. 373. But it is otherwise where the indictment is laid for an assault of an officer in the execution of his office, as at co law, or under a general statute, upon the matter of a breach of the peace. Tbid. . . An indictment for obstructing an officer in the execution of process shduld show that such process was legal; and, if issued from a court of limited jurisdiction, it should be made to appear that the court, in issuing it, acted within the sphere of its authority. Cantrill v. The People, 3 Gilman’s Rep. 356. A general averment that the process was a lawful process, and the person resisted a public officer, authorized to execute the same, in the execution of which he was resisted or opposed, is a sufficient allegation both of the validity of the process and the juris- diction of the officer. Bowers v. The People, 17 Il. 373. In an indictment for resisting an officer, it must be distinctly charged that the person resisted was an officer, and was opposed while acting in such capacity, both of which facts must be proved at the trial. It is not necessary to set out in the indictment, in hee verba, the process under which he was acting. McQuoid ». The People, 3 Gilman’s Rep., p. 76. [For proper destription of a “‘sergeant- at-mace” in England, see R. v. Osmer, 5 East, 304. . Where the first count of an indictment charged that the defendant made an assault upon Adnah Smith, then and there, being sheriff of said county of Addi- son, and in the second count alleged that he hindered and impeded a civil officer under the authority of the state, to wit: Adnah Smith, sheriff of the county of Addison aforesaid, and in both counts Smith was alleged to have been in the exe- cution of his said office ; it was held that this was a sufficient allegation that Smith was sheriff. State v. Hooker, 17 Vermt. 658. r The omission, in an indictment for assaulting an officer in the discharge of his duty, of an allegation that the defendant knew the party assaulted was a constable at the time the assault was committed, is not good cause for arrest of judgment, but may be ground for entering judgment for a simple assault. Commonwealth w. Kirby, 2 Cush. 577. ; An indictment for resisting an officer in serving an execution need not aver the rendition of the judgment upon which the execution issued. State v. Dickerson, 24 Mis. 365. An indictment for an assault upon an officer, who, at the time of the assault, had an execution against the body of the respondent, which he was about to exe- cute, need not allege that the sum due on the execution had been demanded of the respondent, or that he refused to pay it. State v. Hooker, 17 Vermt. 658. An indictment for resisting an officer need not describe the mode of the opposi- tion. That is properly a matter of evidence. EVIDENCE. On the trial of an indictment for an assault and battery, is resisting a jailer, the prosecutor must produce the mittimus, to show that he had a legal right to detain him. The People v. Muldoon, 2 Parker, 13. . . The process must appear on its face to be a lawful process, which might be lawfully executed at the time and place; and it must appear that the officer re- sisted was authorized to execute it, and that the accused obstructed, resisted or opposed the officer in executing, or attempting to execute the same. McQuoid v. ‘The People, 3 Gilman, 76; Bowers.v. The People, 17 Di. 373. ~ In Massachusetts, an averment in an indictment, for riotous assault upon an 942 RESISTING OFFICER IN DISCHARGE OF HIS DUTY. Evidence.—Resistance to officer when justified. officer in the lawful discharge of the duties of his office, that he was in the service of a legal precept, and had A. in his custody as a prisoner, to be examined on a charge. of larceny, is supported by proof that the officer was in the service of a legal precept, and had A. in his custody as a prisoner, to be examined on charge of larceny in another state, and of being a fugitive from justice. Com. v. Tracy et al., 5 Met. Rep. 536. On the trial of an indictment for a riotous assault upon an officer, while serving a legal precept on A., who is charged with larceny in another state, and with being a fugitive from justice, the defendants cannot introduce evidence that B., who claimed the custody of A., as a fugitive slave, had declared, and that the officer knew B. had declared that A. had not committed larceny, and that the charge was made merely for the purpose of getting A. into custody, so that he might the more easily be carried home. Ibid. Where an officer, who has an attachment, valid upon the face of it, serves it against property in which the defendant in the attachment has no attachable interest, and the owner of the property is tried for assault and battery in resisting, the officer, no evidence can be allowed on the part of the person so resisting, which goes to show that the attachment was obtained by connivance between the plaintiff and defendant therein, with intent to get possession of his goods, and defraud him out of the same. State v. Buchanan, 17 Vermt. 573. Where a person is indicted for impeding an officer, allegations in the indictment, in relation to the character_of the person assaulted, need not be proved, being mere descriptions of the person, and the impeding and hindering the person being mere consequences of the assault. State v. Burt, 25 Ver.. 373. Where there are two indictments, one for resisting legal process, and the other for an assault, they cannot be supported for the same offence, and if the same tes- timony will support both charges, the party cannot be found guilty of both. State ». Johnson, 12 Alabama, 840. In the case of all peace officers, justices of the peace, constables, etc., it is suf- ficient to prove that they acted in those characters, without producing their appointments, and that even in a case of murder (Gordon’s case, 1 Leach, 515), and this rule extends to constables and watchmen appointed under local acts. Butler v. Ford, 1 C. & M. 162. RESISTANCH TO OFFICER, WHEN JUSTIFIED. It sees to be clearly established, that if an officer, or person endeavoring to make an arrest or enter a house, had not legal authority for that purpose, or if, in certain cases, he abuse such authority, and do more than he was authorized to do, or if it turn out in the result that he had no right to enter (Cooke v. Birt, 5 Taunt. 765; Rex v. Watts and others, 1 B. & Adol. 166), then the party about to be imprisoned, or whose house is about to be illegally entered, may resist the illegal imprisonment or entry by self-defence, not using any deadly or dangerous weapon, and may escape or be rescued, or even break prison (1 East P. C. 295; 1 Hale, 457, 464, 465, 583, 599), and others may assist him in so doing. Rex v. Osmar, 5 Hast, 304, 308; S. C.,.1 Smith’s R. 555; U.S. v. Gay, 2 Gallison, 359, 361. Where the prosecutor, a policeman, was assaulted by the defendant, and an hour or two afterwards the policeman attempted, without any warrant, to arrest the defendant, when the defendant again violently assaulted and wounded him; it was held that the prisoner could not be convicted of “wounding to prevent his lawful apprehension.” Regina v. Walker, 25 Eng. Law & Eq. Rep. 589. An officer who has a legal warrant to arrest A., who is charged with larceny in another state, and with being a fugitive from justice, does not abuse the process, nor forfeit his protection under such warrant, by holding, at the same time, a power of attorney from one who claims the custody of A. as a fugitive slave, and is proceeding to carry him before the proper tribunal, to obtain a certificate, ac- cording to the law of the United States. Com. v. Tracy, 5 Mete. 536. It should be borne in mind, however, that in all of these cases, whether of arrest for a supposed debt, or apprehension for a supposed crime, it is a general rule that the falsity of the charge, that is, the real injustice of the demand in the one case, or the party’s innocence in the other, will afford no excuse for resisting the process, or the officer employed in enforcing it, when specific and express to take ASSAULTING APPRENTICES OR SERVANTS. 943 Indictment.—Authority of master. SECTION XXIX. ASSAULTING APPRENTICES OR SERVANTS.(1) Indictment. — The jurors for our Lady the Queen upon their oath, to wit. ae that A. B., on the —— day of , in the year of our Lord , in and upon one C. D., his apprentice [apprentice or **servant”], unlawfully and maliciously did [*291] emake an assault, and- him, the said C. D., did then beat and ill-treat, whereby the life of the said C. D. was then endangered: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add, if necessary, another count, stating the assault and battery as above] ‘whereby the health of the said C. D. then was [or is likely to be] per- manently injured.” Misdemeanor; imprisonmen}, with or without hard labor, for not more than three years.(a) Costs of prosecution, as allowed in certain (a) 14 Vict., o 1, §1. a particular party, and resistance, escape, or rescue, is only justified or excused where the process itself, or the conduct of the officer, is illegal, admitting the existence of the debt, or the guilt of the crime; for every man is bound to submit himself to the regular course of justice, and should wait the ultimate decision on the claim or the imputed crime. Rex v. Woolmer and another, 1 Mood Cr. C. 334. As to resistance to officer in defence of personal property unlawfully seized, see ante, tit. ASSAULT AND Barrery. AUTHORITY OF MASTER. (1) If an apprentice be disobedient, he may be moderately corrected by the master, though any unnecessary violence or degradation would be illegal; nor can the authority be delegated. Winstone v. Linn, 1 B. & C. 469; Gylbert v. Flet- cher, Cro. Car. 179; 1 Hagg. 273; 1 Chitty’s Genl. P. 71. [The law between master and apprentice is the:same as that between parent and child. Unnecessary or cruel correction is an assault and battery. People vs Phillips, 1 Wheeler Cr. Cas. 155; Lewis’ Cr. Law, 103, 104, citing Com. v. Hodg- son (Pa. 1847.)] en eth “Corporal chastisement cannot lawfully be inflicted by a master upon his hired servant, whether that servant is employed in husbandry, in manufacturing busi- ness, or in any other manner, except in the case of sailors. This power does not grow out of the contract of hiring, and it is not agreeable to the genius and spirit of the contract. It may safely be confined to apprentices and menial servants, while under age, for then the master is to be considered ag standing in loco parentis.” 2 Kent's Com. 261. If, therefore, the master beat such servant, though moderately, and by way of correction, it will be good ground for the servant’s departure; and the master will be liable to prosecution. Matthews v. Terry, 10 Conn. 255; 1 Chit. Pr. 73-75; Newman v. Bennett, 2 Chit. Rep. 195. Ea 944 NOT PROVIDING APPRENTICES; ETC., WITH NECESSARY FOOD. Indictment. misdemeanors by stat. 7 G. IV, c. 64.(a) Guardians of the union, or guardians or overseers of the parish may be bound over to prosecute.(6) Evidence To maintain this indictment, the prosecutor must prove— 1. The apprenticeship or service. In the case of an apprentice, it may be advisable to give the defendant notice to produce the original indenture, if the prosecutor have not a counterpart, or if there be no admission of the apprenticeship on the part of the defendant. (c) 2. The assault, and its effect, as stated in the indictment; anda medical witness may be necessary to prove that the life of the prose- cutor was endangered by it, or his health permanently injured or likely to be injured by it, as stated. 3. That the ‘assault was unlawful and malicious. This may be proved by proving that it was committed without cause ; or that the correction exceeded greatly the bounds of due moderation, either in the measure of it, or in the instrument with which it was inflicted ;(d) and in general it may be fairly presumed from the nature of the assault and its results, for the defendant will be presumed to have intended that which he actually effected. SECTION XXX. : NOT PROVIDING APPRENTICES OR SERVANTS WITH NECESSARY FOOD, ETC. Indictment. The jurors for our Lady the Queen, upon their oath, present, do wit. § that A. B., on the day of ——,in the year of our [*292] Lord , being the master of one C. D., his apprentice [*‘‘ apprentice or servant”], and then legally liable to provide for the said C. D., as his apprentice as aforesaid, necessary food and clothing [‘‘ food, clothing or lodging”), did then wilfully and without lawful excuse refuse and neglect [‘ refuse or neglect”], to provide the same for him, the said C. D.; *whereby the life of the said C. D. was (a) Ibid. § 2; see ante, p. 187. (c) See ante, p. 218, {b) Ibid. § 6. (d@) See R. v. Crompton, Car, & M. 597. NOT PROVIDING APPRENTICES, ETC., WITH NECESSARY FOOD. 945 Indictment.—Evidence. endangered [or whereby the health of the said C. D. then was, or is likely to be permanently injured*]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. It is very doubtful, from the manner in which the stat. 14 Vict., c. 11, § 1, is drawn, whether the words here between the asterisks * * are necessary. The section defines two offences—‘ Where the master or mistress of any person shall be legally liable to provide for such person, as an apprentice or as a ser- vant, necessary food, clothing, or lodging, and shall wilfully and with- out lawful excuse refuse or neglect to provide the same, or where the “master or mistress of any such person shall unlawfully and maliciously assault such person, whereby the life of such person shall be endan- gered or health of such person shall have been or shall-be likely to be permanently injured, such master or mistress shall be guilty of a mis- “demeanor,” etc. And the doubt is, whether the latter clause, “‘whereby the life,” etc. overrides the statement of both offences, and applies as well to the not providing of food, etc., as to the assault. According to the ordinary construction of acts of Parliament, this latter clause would not apply to both, but to the assault only. Yet in all such cases at common law, before, this statute, it was actually necessary to state the injury the apprentice or servant sustained by the depriva- tion of necessary food, etc., otherwise it would be no offence. We must wait, however, for some decision upon the subject: in the mean time I have included the words in this indictment, for if they really do not form any part of the definition of the offence, they may be rejected as surplusage, and need not be proved.(a) Misdemeanor; imprisonment, with or without hard, labor, for not. more than three years.(b) Costs of prosecution, as allowed in certain misdemeanors by stat. 7 G. IV, c. 64.(c) Guardians of the union, or guardians or overseers of the parish, may be bound over to prose- cute.(d) Evidence. To maintain this indictment, the prosecutor must prove— 1. The apprenticeship or service, as in the last case; from. which will be inferred the legal liability of the defendant to provide [*293] the prosecutor *with all necessary food, clothing or lodging. (a) See ante, pp. 86, 119. (c) Ibid. § 2; see ante, p. 187. “(b) 14 Vict. c. 11, § 1. (d) Ibid. § 6. 60 946 FALSE IMPRISONMENT. Detinition.— What constitutes. 2. The refusal or neglect of the defendant to provide the prose- cutor with the same, as stated in the indictment. = 3. That the prosecutor’s life was thereby endangered by it, or his health permanently injured, or likely to be injured by it, if it be decided that this forms any part of the definition of the offence.(a) ‘ . SECTION XXXI. FALSE IMPRISONMENT. DEFINITION. In Illinois and Arkansas, false imprisonment is defined by statute, “the unlaw- ful violation of the personal liberty of another,” and to consist in confinement or detention without sufficient legal authority. Sts. of Ill., ed. of 1858, p. 382, § 54; Rev. Sts. of Arkansas, c. 51, art. 7,§1. In Georgia, the statute declares false imprisonment to be a violation of the personal liberty of a free white person, and to consist in the confinement or detention of such person, without sufficient legal authority. Hotchkiss’s St. Law of Geo. 710, § 74. The term false imprisonment, though technical, does not appear to convey any sufficiently definite meaning. It means in law, any illegal imprisonment, either without any process whatever, or under color of process, wholly illegal, without regard to any question whether any crime has been committed, or a debt due. But the terms, ‘malicious prosecution,” or “malicious arrest,” always in law supposes ne oe process and proceedings, but that the facts did not warrant their issuing, and which is to be decided by the result; as where the warrant to im- prison a party was perfectly regular and proper, but he was innocent of the supposed crime and ultimately acquitted ; or where there has been a sufficient affidavit to hold to bail, and a valid writ, but when, in fact, no debt was due, and so established on the trial or other termination of the,suit. WHAT CONSTITUTES. To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person: and 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or even by forcibly detaining one in the public streets (Floyd v. The State, 7 Engl. Ark. Rep. 43; Johnson v. Tompkins, 1 Bald- win, 571); for it is a wrong done to the person of a man, for which, besides the private satisfaction given to the individual by action, the law also demands public vengeance, as it is a breach of the peace, a loss which the state sustains by the ‘confinement of one of its members, and an infringement of the good order of society. State v. Rollins, 8 New Hamp. Rep. 550; Long v. Rogers, 17 Ala. 540. And such detention will be unlawful, unless there be some sufficient authority for it, arising either from some process from the courts of justice, or from some war- rant of a legal officer, having power to commit under his hand and seal, and expressing the cause of such commitment; or arising from some other special cause, sanctioned, for the necessity of the thing, either by common law or by (a) Vide supra, the note at the end of the above indictment, FALSE IMPRISONMENT. 947 What constitutes. statute. Crowell v. Gleason, 1 Fairf. Rep. 325. And the detention will be un- lawful, though the warrant or process upon which it is made be regular, in, case they are executed at an unlawful time, as on a Sunday; or in a plate privileged from arrests. 1 Hawk. P. C., ¢. 60, § 7; 4 Bl. Com. 218; 2 Inst. 589. But it has been decided, that the lifting up a person in his chair, and carrying him out of the room in which he was sitting with others, and excluding him from the room, was not a false imprisonment, so as to entitle him to a verdict and full costs, on a count for false imprisonment (Gardner v. Wedd, Easter T. 1825, C. P., on a motion for a new trial from Essex, sed guere); and the merely giving charge of a person to a peace officer, not followed by any actual apprehension of the person, does not amount to animprisonment, though the party, to avoid it, on the next day attended at a police office (Simpson v. Hill, 1 Esp. R. 431; Arrowsmith ». Le Mesurier, 2 New R. 211; Russen v. Lucas and another, 1 Car. & P. 153; 1 R..-M. 26, 8. C.), and if, in consequence of a message from a sheriff’s officer, holding a writ, the defendant execute and send him a bail bond, such submission to the process will not constitute an arrest, in proof of an allegation of arrest, in an action for maliciously holding to bail. Berry ». Adamson, 6 Barn. & Cress. 528; 7 Dowl. & R. 233, 8. C.; Amor ». Blofield, 9 Bing. 91, 8. P. Words are sufficient to constitute an imprisonment, if they impose a restraint upon the person, who is accordingly restrained (Pike v. Hanson, 9 New Hamp. Rep. 491); although the older authorities before Lord Kenyon’s time held that false imprisonment necessarily included a battery. 1 Harrington’s Rep. 143. If, for instance, A. meet B. in the road, and by means of threats stops him, and, in consequence of such conduct on the part of A., B. is not permitted to pass along the public highway, this will be an illegal imprisonment. Bloomer v. The State, 3 Sneed. 66. Where a bailiff, having a writ against a person, met him on horseback, and said to him, “‘ You are my prisoner,” upon which he turned back and submitted, this was held to be a good arrest, though the bailiff never laid hand on him. But if, on the bailiff’s saying those words, he had fled, it had been no arrest, unless the bailiff had laid hold of him. Homer v. Battyn, Buller’s N. P.62. The same doc- trine is held in other cases. Russen v. Lucas & al., 1 C. & P. 153; Chinn v. Morris, 2 C. & P. 361; Pocock v. Moore, Ryan & Moody, 321; Strout v. Gooch, 8 Greenl. 127; Gold v. Bissell, 1 Wend. 210. (See, also, as to what constitutes an imprisonment. Lent’s Case, 4 City Hall Ree. 56; Arrowsmith v. Le Mesurier, 2 N. R. 211; Smith v. State, 7 Humph. 43.] If an officer be guilty of a trespass, those who act by his command, or in his aid, will be trespassers also. When called upon, they aid him at their peril; and they are bound to know whether the officer acts under a legal and valid warrant. Mitchell o. State, 7 Engl. Ark. Rep. 50. If a stranger comes in aid of an officer, in doing a lawful act, as executing legal process, but the officer, by reason of some subsequent improper act, becomes a trespasser, ab initio, the stranger does not thereby become a trespasser. Elder v. Morrison, 10 Wend. 128; Cro. Eliz. 181; Cro. Car. 446. But, when the original act of the officer is unlawful, any stranger who aids him will be a trespasser, though he acts by the officer’s command. Oystead v. Shed, 12 Mass. 506; Mitchell v. State, 7 Engl. Ark, Rep. 50; Vinton v. Weaver, 41 Maine, 430. In New Jersey, when a criminal warrant, issued in one county, is indorsed by a justice of another, according to statute, and the accused is arrested in the county of the justice endorsing the warrant, if the officer take him out of that county before a justice of the county in which the warrant was issued, without first taking him before a justice of the county in which he was arrested, the offi- cer will be guilty of an assault and false imprisonment, although no actual vio- lence was used, and liable to a criminal as well as a civil prosecution. Francisco ov. The State, 4 Zab. 30. : In New York, it is provided by statute (3 N. Y. Rev. Sts., 5th ed., pp. 973, 980 ; §§ 11 and 55), that if any sheriff or other officer, or any person pretending to be an officer, shall, under the pretence or color of any process, or other legal author- ity, arrest any person, or detain him against his will, or seize or levy upon any ‘property, or dispossess any one of any lands or tenements, without due or legal process or other lawful authority therefor, he shall, upon conviction, be adjudged guilty of a misdemeanor, and shall be punished by imprisonment in a county 948 FALSE IMPRISONMENT. What constitutes. —Indictment. Indictinent.(1) The jurors for our Lady the Queen, upon their oath, pre- to wit. sent, that A. B., on the —— day of , in the year of our Lord , in and upon one ©. D. unlawfully did make an assault, and him, the said C. D. did then unlawfully and injuriously, and against the will of the said C. D., and without any legal warrant or authority, or any reasonable or justifiable cause whatsoever, imprison the said C. D. ; against the peace of our Lady the Queen, her crown and dignity. Misdemeanor at common law; fine, imprisonment, or both. jail, not exceeding one year, or by fine, not exceeding two hundred and fifty dol- lars, or by both such.fine and imprisonment. : In Georgia, the statute (Hotchkiss St. Law of Geo. 711, § 75) provides that any person who shall arrest, confine, or detain a’ free white person or citizen, without process, warrant, or legal authority to justify it, shall be punished by fine and imprisonment in the common jail of the county, or either, at the discretion of the court. Tbid., 711, § 75. When the arrest, confinement, or detention of a free white person or citizen, by the warrant, mandate, or process of a magistrate, is manifestly illegal, and shows malice and oppression, the said magistrate shall be removed from office, and such magistrate, and all and every person and persons knowingly and maliciously concerned therein, shall be punished by fine and im- prisonment in the common jail of the county, or imprisonment and labor in the penitentiary, for any time not less than one, nor more than two years, at the dis- cretion of the court. Tbid. § 76. In Massachusetts, the forcibly or secretly confining or imprisoning a person, without lawful authority, and against his will, is punished by imprisonment in the state prison, not more than ten years, or by fine, not exceeding one thousand dollars, and imprisonment in the county jail, not more than two years. Rev. Sts. of Mass. p. 718, § 20. In Texas, the same offence is punished by confinement to hard labor in the peni- tentiary, not exceeding ten years. Hartley’s Dig. of Laws of Texas, 205, art. 511. In Illinois, the statute provides that “any person convicted of false imprison- ment shall be fined in any sum, not exceeding five hundred dollars, or imprison- ment, not exceeding one year, in the county jail. Sts. of IIL, ed. of 1858, p. 382, § 54. In Arkansas, the punishment for false imprisonment is a fine, not less than one hundred, nor exceeding five hundred dollars, and the court may add thereto imprisonment, not exceeding one year. Rey. Sts. of Ark., c. 51, art. 7, §2. {A Justice of the Peace indicted for false imprisonment under color of legal process in Georgia, cannot appear and be heard before the grand jury which has the complaint in charge and which is considering the indictment. Campbell 0. State, 48 Geo. 353. An indictment based upon the statute of Florida, merely charging that defendant “did forcibly confine and imprison within this state against his will one A. B.,” states no offence at the common law, and none under the statute; the want of lawful authority is an essential element of the crime, cn be alleged. Barber v. State, 13 Flor. 675; Waterman »v. State, 13 Flor. 683. (See, also, Slomer v. People, 25 Ill. 70; People v. Ebner, 23 Cal. 158 (not a felony in California. ] [Justification of an arrest of private citizen by a U.S. military officer. Oglesby v. State, 39 Tex. 53.] (1) In an indictment for false imprisonment, it is sufficient to allege that the de- fendant was unlawfully and feloniously imprisoned, without alleging that it was done without legal authority, as that is implied by the allegation made. U. 8. v. Lapoint, 1 Morris, 146. SETTING SPRING GUNS, ETC. 949° Evidence.—Indictment. Evidence.(1) To maintain this indictment, the prosecutor must prove— The imprisonment. The slightest detention of a party, or restraint of his'personal liberty, against his will, is an imprisonment; and if that be done without lawful authority, it is technically termed false imprisonment. False imprisonment is, therefore, a mixed question of law and fact: whether there was a detention of the party, against his will, amounting to an imprisonment, is a question of fact;(a) and whether the authority under which it was effected was lawful, or was such as did not justify the officer or jailer, etc., in the detention, is a question of law, depending upon the circumstances of each particular case. But all the prosecutor has to prove is the imprisonment; for that is presumed to be unlawful, until the contrary is shown. It is for the defendant to justify it, by proving that it was lawful, as an arrest without warrant,(d) or an arrest under warrant,(c) or as an arrest under *civil process.(d)(2) [294] Indictments for false imprisonment seldom occur in prac- tice ; it not being one of those misdemeanors in which the costs of the prosecutors and witnesses are allowed, the injured party usually pre- fers the civil remedy.(e) SECTION XXXII. SETTING SPRING GUNS, ETC. Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. § that A. B., on the —— day of , in the year of our Lord (a) See Cant v. Parsons, 6 Car. & P. 504, (d) See 1 Arch. N. P. 507, (b) See ante, p. 21; 1 Arch. N. P. 512, 613. (e) See Ibid. 504, (c) See ante, p. 30; 1 Arch. N. P. 510. (1) For the evidence necessary to sustain an information against a justice of the peace, constable, and informer, for assaulting and imprisoning a party under pre- tence of having a warrant to arrest such party, issued by such justice, the reader 4g referred to Jones’ case, 1 Robinson, 748. (2) Floyd v. The State, 7 Engl. Ark. Rep. 43; Mitchell v. State, 7 Engl. 50. 950 SETTING SPRING GUNS, ETC. Evidence that poison has been given. —, did set and place [“ set or place or cause to be set or placed” ] a cer- tain spring gun [“ spring gun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm”), with intent that _the same should destroy or inflict grievous bodily harm upon a tres- passer or-other person who should come in contact therewith: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. The statute makes it a misdemeanor to set spring guns, etc., with intent “ or whereby” the same may destroy, etc. If a man actually receive bodily harm from it, it does not seem to be necessary to add another count stating it; but the fact of bodily harm being inflicted will be evidence of the gun, etc., having been set with that intent. | Misdemeanor.(a) Fine or imprisonment, or both. Evidence. To maintain this indictment, the prosecutor must prove— 1. The setting of the spring gun, man-trap, or other engine, as men- tioned in the indictment; and that it was set by the defendant, or by his directions or orders—or, if set by any other person, that the de- fendant continued it on his premises after he came into possession of them.(6) The statute, however, does not prohibit the setting of spring guns, man-traps, etc., in a dwelling-house, from sunset to sunrise, for the protection thereof.(c) Nor does it extend to the setting of any gun, or trap, such as is usually set for destroying vermin.(d) 2. That the gun was so loaded and set, or the man-trap, etc., 80 set, as to be capable of destroying, or of inflicting grievous bodily harm.(e) [*295] 3. The *intent to do grievous bodily harm. This may rea- sonably be implied from the nature of the instrument, the manner in which it was set, or from its having actually inflicted grievous bodily harm upon the prosecutor. (a) 7 &8 G. IV, c. 18, §1. : (@) Ibid, a Sey ; : (€) See ante, p. 266. id. § 4. \ ABORTION. 951 Meaning of.—Nature of offence. SECTION XXXIII. ADMINISTERING DRUGS, FTC., TO PROCURE ABORTION. MEANING OF. Abortion may be defined the premature exclusion of the human feetus after the period of quickening ; which, when procured or produced with a malicious de- sign, or for an unlawful purpose, is a criminal offence. 1 Russell on Cr. 671; 1 Chitt. Gen. Prac. 35; N. Y. Rev. Sts. 550, § 9; ibid. 578, § 21; Statutes of Ohio, ce. 35, p. 252, Burrill’s Law Dict., tit. Abortion, The foetus is technically termed an ovum or embryo till the end of the third month—afterwards, till the end of the sixth month, it.is termed a fatus. If ex- pelled before the end of the sixth week, it is medically termed a miscarriage ; but, if expelled or delivered between the sixth week and the end of the sixth month, it is in obstretrical language termed an abortion. In medical jurisprudence, the motion of the fetus, when felt by the mother, is called quickening. There appears to be at common law a distinction equally well settled, between the condition of the child before and after the mother is quick. “Life,” says Blackstone, ‘‘ begins, in contemplation of law, as soon as an infant is able to stir in the mother’s womb.” 1 Bl. Com. 129. In common understanding a woman is not considered to be quick with child till she has herself felt the child alive and quick within her, which happens with dif- ferent women in different periods of pregnancy, although most usually about the sixteenth or eighteenth week after conception. Rex v. Phillips, 3 Campb. Rep. 74, It was anciently supposed, that the foetus became animated at-the period of quickening ; but this idea is now exploded. Physiology considers the foetus as much a living being immediately after conception as at any other time before de- livery, and its future progress but as the development and increase of those con- stituent principles which it then received. It considers quickening as a mere ad- ventitious event; and looks upon life as entirely consistent with the most profound foetal repose and consequent inaction. Dean’s Med. Jur. 128,129. Long before quickening takes place, motion, the pulsation of the heart, and other signs of vitality, have been distinctly perceived, and, according to approved authority, the foetus enjoys life long before the sensation of quickening is felt by the mother. Indeed, no other doctrine appears to be consonant with reason or physiology, but that which admits the embryo to possess vitality from the very moment of con- ception. eet is admitted by Dr. Paris, a writer of high repute on medical jurispru- dence, that, from the number of established cases, it is possible that the fetus may survive and be reared to maturity, though born at very early periods. Many ancient instances are stated of births even at four months and a half, with con- tinued life even till the age of twenty-four years. And the Parliament of Paris decreed that an infant at five months possessed the capability of living to the ordinary period of human existence ; and it has been asserted that a child, deliv- ered at the age only of five months and eight days may live; or, according to Beck and others, if born at six months after conception.” Tenney, J., in Smith ». State, 48 Maine Rep. 48. NATURE OF OFFENCE. Abortion, a8 a crime, isto be found only in modern treatises and modern statutes. No trace of it is to be found in :he ancient common law writers. Bracton, indeed, uses language which, at first view, might seem to favor a different conclusion. He is treating, however, of the crime ot homicide, and it is perfectly certain, by the unanimous concurrence of all the authorities, that that offence could not be com- mitted unless the child had quickened. : At common law, it was no offence to perform an operation upon a pregnant woman by her consent, for the purpose of procuring an abortion, and thereby 952 ABORTION. Nature of offence. succeed in the intention, unless the woman was ‘quick with child.” The act was criminal only as it affected, injuriously, the unborn child. If before the mother had becoine sensible of its motion in the womb, it was not a crime; if afterwards, when it was considered by the common law that the child had a separate and inde- pendent existence, it was held highly criminal. Com. v. Parker, 9 Metcalf, 263; State v. Cooper, 2 Zabriskie, 52. In Hale and Hawkins, the term “big” or “great” is used as tantamount to “ The jurors for our Lady the Queen, upon their oath, present, to wit. , that A. B., on the day of , in the year of our Lord —, being then big with a [male] child, was then delivered of the said child alive, and which said child then instantly died; and that, after the said child had so died as aforesaid, to wit, on the day and year aforesaid, the said A. B. did endeavor to conceal the birth thereof, by secretly burying [“ secret burying or otherwise disposing of” the dead body of the said child: against the form of the statute in such case made and provided, arid against the peace of our Lady the Queen, her crown and dignity. (Second count.) And the jurors aforesaid, upon their oath aforesaid, do further present that the said A. B., on the day and year aforesaid, being then big with a [male] child, was then de- livered of the said last-mentioned male child, which said last-men- tioned child was, at the time the said A. B. was so delivered of him, dead, and that the said A. B. did then endeavor to conceal the birth of the said last-mentioned child, by secretly burying the dead body of the same: against the form of the statute in such case made and pro- vided, and against the peace of our Lady the Queen, her crown and dignity. If the concealment ‘be by other means than secret burying, state them specially. Misdemeanor ; imprisonment, with or without hard labor, [*298] for not more than two years.(a) If the *mother be tried for the murder of her child and acquitted, the jury may find her guilty of concealing its birth, and then sentence may be passed,, as if «she had been convicted on the above indictment.(b) And the same, if the grand jury throw out the bill for murder, and the mother be tried on the coroner's inquisition, and acquitted.(c) Evidence. To maintain this indictment, it is necessary to prove— 1. That the prisoner was delivered of a child. It is immaterial whether it was born dead, or died afterwards ; in one count here it is (a) 9G. IV, ¢. 81, § 14, (bd) Ibid, (c) R. v, Mayward, R. & Ry. 240. CONCEALING THE BIRTH OF A CHILD. 979 Evidence. stated to have been born alive, and that it died afterwards, and in the other that it was born dead—but this is done merely for the conven- ience of showing that the child was dead at the time of the burying or other disposal of the body. — 2. That she endeavored to conseal the birth, by secret burying or other disposal of the dead body. And if she have done it by an agent, it is just the same as if she did it herself; and she and the agent are both guilty.(a) And where it has been objected, on the authority of Peat’s case,(6) that, as the birth was known to a second person, there could be no concealment, the judges have overruled the objection where- ever such second person appeared to be an accomplice in the conceal- ment. Where a woman, who was delivered of a seven months’ child, threw it down a privy, and it appeared that another ‘woman, charged as an accomplice with her, must have known of the birth, although she denied it—the two women being indicted for the murder of the child, the jury acquitted them, but found the mother guitly of endeavoring to conceal the birth: the judge, however, doubting, as a second person knew of the birth, whether the case was within the statute, reserved the point for the opinion of the judges; and they were unanimously of opinion that the act of throwing the child down the privy was evi-° dence of an endeavor to conceal the birth of the child, and that the conviction was right.(c) So, where a woman, being delivered of a child, which died soon after birth, concurred with her paramour in endeavor- ing to conceal the birth, and by her persuasion (she remaining in bed) he took the body, and buried it in a field, intending to conceal the birth ; it was holden that both were guilty.(@) And where it appeared that a man, previously to the birth, counselled the woman to conceal it, and she did so, it was holden that, as by the 31st section of the statute those who counsel and advise a misdemeanor are to be deemed principal offenders, he and *the woman might be [**299] jointly indicted for the concealment.(e) ; As to the act of concealment: the words of the statute are “‘ by secret burying or otherwise disposing of the dead body.” Ina case tried before Rolfe, B., on the northern circuit, where it appeared that the woman, immediately upon the child’being born, put it into her box in ‘the bedroom, with intent to remove and dispose of it permanently (a) R. v. Douglass & Hall, 7 Car. & P. 614. (@) R. v. Bird & Nash, 2 Car. & K. 817. (b) 1 East P. C. 229. (e) R. v. Douglass & Hall, 7 Car. & P. 644. (c) B. v. Cornwall, B. & Ry. 336. 980 CONCEALING THE BIRTH OF A CHILD. Evidence. afterwards, for the purpose of concealing its birth: his Lordship held that it was not a case within the statute; the words, “otherwise dis- posing of the dead body,” must mean a disposal of the same nature as that preceding it in the same sentence, namely, “secret burying,” and must be such as was intended by the woman to be a fiual disposal of it.(a) (1) " But in a more recent case, where the woman concealed the child between the bed. and the mattress, and it appeared that before her delivery she constantly denied her being with child, and after her delivery persisted in saying that she had not been delivered, but at last confessed to the surgeon that she had—the woman being convicted, and the case reserved for the opinion of the judges, they held that she was properly convicted(d) Where, however, the child was found concealed in a bed among the feathers, but it was not known who placed it there, and it appeared that the mother had sent for a surgeon to attend her in her lying-in, and had prepared clothes for her baby: Park, J., held that these latter facts negatived concealment, and he directed the jury to acquit the prisoner.(c) So, where a woman having gone to a privy for another purpose, the child slipped from her unawares, fell into the soil, and was suffocated : Patteson, J., held that she could not be convicted of concealment, although it was proved also that she had denied the birth of the child.(d@) And where the dead body of the child was found in the privy, lying on the top of the soil just as it would if it had dropped from the mother who had gone there for another purpose—Platt, B., left it to the jury to say whether it had been thrown there by the prisoner for the purpose of concealment, or whether it had. passed from her unawares when she was there for another purpose, in which latter case they ought to acquit her; and she was acquitted.(e) (a) R. v. Mary Alton, York Sp. Ass, 1841. (@) R. v. Turner, 8 Car. & P. 755, (b) R. v. Goldthorpe, Car. & M. 335. (e) R. v. Coxhead, 1 Car. & K. 623 (c) R. v. Higley, 4 Car. & P. 366. (1) The same point was decided in 4 similar way, in Reg. v. Bell, 2M. & R 204 5 and in Reg. v. Jones, ibid. [See, also, R. 0. Snell, 2M. & Ry. 44; Re a. Ach: : ob. 294, CONCEALING DEATH OF BASTARD CHILD. 981 Indictment.—Evidence.—Punishment. CONCEALING DEATH OF BASTARD CHILD. INDICTMENT. In Pennsylvania, it has been held, that where the indictment charges that “the said infant having, on the day and year, etc., died, the defendant did endeavor privately to conceal the death of the said infant :’’ it is a sufficient averment of the death of the infant, It is not necessary to set forth the arts by which the mother endeavored to conceal the death. And, where, on an indictment for attempting to conceal the death of a bastard child, the jury found the defendant “guilty of the concealment in manner and form as she stands indicted,” it was held defective, because it was not understood as a finding that the child whose death was con- cealed was a bastard, which is a material allegation. The verdict ought to have been rendered and entered guilty in manner and form, ete. Boyles v. Com., 2 8. & R. 40. And in an indictment under the act of 1794, the prosecutor must prove the birth of the child, its death, and the endeavor to conceal its birth, and that, if born alive, it would have been a bastard. These are material facts, and must be averred in the indictment, for nothing can be taken by intendment, or by way of recital, to supply the want of certainty in an indictment. Where there is no di- rect averment of the death of the child, nor any notice whatever taken of its death, except the averment that the defendant endeavored to conceal its death, the indictment is defective. It will not be a sufficient averment of its death to allege that the defendant ‘‘did endeavor privately to conceal the death of the said female bastard child.” Under the act of Penn. of 1794, whether the child be born dead or alive would seem to be immaterial. The concealment of the birth and death of a child, which, if born alive, would be a bastard, so that it may not come to light whether it was born dead or alive, and whether it was murdered or not, con- stitutes the offence. Douglas v. Com., 8 Watts, 535. At January sessions, 1794, a@ woman was indicted for the murder of her bastard child, and acquitted of that offence, but found guilty of the concealment of the birth and death. Upon this verdict the court (in Washington county) gave judgment of confinement for five years. But under the act of 1794 the best way 1s to annex to the count for murder (if the circumstances justify such a charge as murder) a count for concealment in the words of the act of Assembly. Lewis Cr. Law, 204, 205. EVIDENCE. In’ Pennsylvania, in order to make the concealment of the birth of a bastard child criminal, the concealment must be such as to bring the case within the mis- chief of the law. Com. v. Clarke, 2 Ashm.105. It has been held that concealment, as the negative of publication, admits only of such proof as other negatives. Pri- vate burying is pointed out as evidence. But as concealment of death may be occasioned by accident, without any design, unless there be a concealment of pregnancy, labor, etc., or some other circumstances of concealment, there being no person present at the birth, the evidence will not be sufficient to convict the mother. Penn. v. M’Kee, Addis. 1. In South Carolina, where it appeared that the accused concealed her bastard child after its death, but there was also some evidence that the child was still- born, she was acquitted. State vw. Love, 1 Bay, 167. In North Carolina, under the statute of 1818, the offence is the concealing the death of a being upon whom murder could have been committed. Ifthe child was still- born, concealment is no offence; but the burden of showing that fact is on the de- fendant. State v. Joiner, 4 Hawks’ Rep. 350. PUNISHMENT. In Maine, the punishment for this offence is imprisonment in the state prison, not more than three years, or by‘fine, not exceeding one hundred dollars, and im- prisonment in the county jail, not more than one year. Rev. Sts. of Maine, c. 160, §11. In Vermont, imprisonment in the state prison, for a term, not exceeding three years, or be fined a sum, not exceeding two hundred dollars. Rev. Sts. of Vt., tit. 28, c. 103, § 9. In Massachusetts and Michigan, by fine, not exceeding 982 CHILD STEALING. Indictment. SECTION XXXVI. CHILD STEALING.) Indictment. — The jurors for our Lady the Queen, upon their oath, [*300] to wit. present, that A. B., on the day of » *in the year of our Lord -——, feloniously and maliciously did by fraud [* by force or fraud”] lead and entice away [*‘ lead or take away, one hundred dollars, or by imprisonment in the county jail, not more than one year. Rev. Sts., ¢. 180, § 6; Rev. Sts. of Mich., tit. 30, c. 158, §8; Comp. L. of Mich. (ed. of 1857), vol. 2, pp. 1541, 1552. In Connecticut, the punishment is by fine, not exceeding three hundred dollars, the being bound to good behavior, and imprisonment in a common jail, not exceeding one year. In Wisconsin, the pun- ishment is imprisonment in the state prison, not more than one year, nor less than six months, or by fine, not exceeding three hundred dollars, nor less than one hundred dollars. Rev. Sts. of Wis., c. 139, § 7. In New York, this offence is a misdemeanor, punishable by imprisonment in a county jail, not exceeding one year. And any woman, convicted a second time of this offence, may be impris- oned, in a state prison, for a term not less than two, nor more than five years. 2 N. Y. Rev. Sts, 779, §§ 4, 5, 22, 28. In New Jersey, the statute declares that the woman so offending, her aiders, abettors, counsellors and procurers, shall be ad- judged to be guilty of a misdemeanor, and, on conviction thereof, shall be pun- ished by fine, not exceeding two hundred dollars, or by imprisonment, at hard labor, not exceeding one year, or both, at the discretion of the court before whom such conviction shall be had. Rev. Sts. of N. J., tit. 8,c. 1,§14. In Pennsylva- nia, it is enaeted, that the mother of the child, upon being convicted, shall suffer imprisonment in the county jail of the county where the fact was committed, or in the jail and penitentiary house of Philadelphia, for any time not exceeding five years, or shall be fined and imprisoned at the discretion of the court, according to the nature of the case; and if the grand jury shall, in the same indictment, charge any woman with the murder of her bastard child, as well as with the of- fence aforesaid, the jury, by whom such woman shall be tried, may either acquit or convict her of both offences, or find her guilty of one, and acquit her of the other, as the case may be. Act of 22d April, 1794; 3 Dal. p. 606; 8 Smith’s Laws, 190; 6th ed. pur. 49, § 17. In Massachusetts and Michigan, it is provided, by statute, that any woman, who shall be indicted for the murder of her infant bastard child, may also be charged, in the same indictment, with concealing the death of the child; and if, on the trial, the jury shall acquit her of the charge of murder, and find her guilty of the other offence, judgment and sentence may be awarded against her for the same. Rev. Sts. of Mass., vc. 180, § 7; Rev. Sts. of Mich., c. 158, § 8; Rev. Sts. of Wis., c. 139, § 8. In Pennsylvania, the statute declares that the concealment of the death of any such child shall not be conclusive evidence to convict the party indicted of the murder of her child, unless the circumstances attending it be such as shall satisfy the mind of the jury that she did wilfully and maliciously destroy and take away the life of such child. 6th ed. pur. 49, § 18. (L) In New York and Mississippi, it is provided, by statute, that every person, who shall maliciously, forcibly or fraudulently, lead, take or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain and conceal such child from its parent, guardian or other person having the lawful charge of such child, shall, upon conviction, be ouuiehed by imprison- ment in a state prison, not exceeding ten years, or by imprisonment in a county CHILD STEALING. 983 “Indictment.—Evidence. or decoy or entice away, or detain” ] one C. D., then a child under the age of ten years, to wit, of the age of years, with intent divers articles, that is to say, [one cloth coat, etc., stating the articles,| of great value, to wit, of the value of , which were then upon and about the person of the said child, then feloniously to steal, take, and carry away : against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. (Second count.) And the jurors, aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, feloniously and maliciously did by fraud lead and entice away the said C. D., then a child under the age of ten years, to wit, of the age of —— years, with intent then and thereby to deprive J. D., the father of the said child [* parent or parents, or other person having the lawful care or charge of such child” of the possession of the said child: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add other counts, if necessary, for detaining the child by fraud, or for taking or’ detaining it by force.] Felony; transportation for seven years; or imprisonment, with or without hard laboy, for not more than two years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall think fit) in addition to the imprisonment.(a) Evidence.(1) To maintain this indictment, the prosecutor must prove— ’ 1. The taking or enticing the child away, as stated in the indict- (a) 9G. IV, c. 31, § 21. jail, not exceeding one year, or by fine, not exceeding five hundred dollars, or by ‘both such fine and imprisonment, New York Rev. Sts., 4th ed., vol. 2, p. 851, 36. § In Maryland, the statute provides that every person, his or her counsellors, aiders or abettors, who shall -be duly convicted of kidnapping and forcibly or fraudulently stealing, taking or carrying away, any white child or children under the age of sixteen years, shall be sentenced to undergo a confinement in the pen- itentiary for a period of time, not less than five years, nor more than twelve years, there to be treated as the law directs. Dorsey’s Laws of Md., vol. 1, p. 711, ¢. 132. See post, tit. KipNaPPine. (1) If they did act deliberately, the legal presumption is, that they intended to confine it against its will. Having inveigled the child into their possession, they are bound to account for the act, and to show that it was for an honest and lawful purpose ; for the act of seizing a person and detaining him is, prima facie, unlaw- ful. and the burden is on the party accused and proved to have taken and | detained him, to satisfy the jury that he had a right so to do, and that the person was not confined against his will. ioe 984 CHILD STEALING.—KIDNAPPING. : Nature of offence. ment. This, as in ordinary cases of larceny, must often be implied from circumstances; particularly where the child is too young to be sworn as a witness. Whether done by force or fraud, may readily be presumed by the jury, if it be stated in both ways in the indictment; for the offence cannot, perhaps, be committed by any other means. 2. That the child was at the time under ten years of age. A vari- ance between the age stated and that proved will not be material, provided it be proved to be under ten years. 3. The intent, as stated in the indictment. This, asin other cases of intent, must in general be proved from the admissions or [801] acts of the prisoner, or from other circumstances *from which the jury may fairly infer it. If the prisoner disposed of any of the clothes, although this might be good evidence of a larceny, yet he is not entitled to be acquitted on that account, both offences being felonies ; but, on the contrary, it is good evidence of the intent, under the first count of the above indictment. And if the taking be proved to have been intentional, proof that J. D. is the father of the child will raise a sufficient presumption of the intent laid in the second count. . Two sets of persons are specially exempted from prosecution for this offence: persons claiming a right to the possession of the child, and getting possession of it, and a person claiming to be father of an ille- gitimate child, taking it out of the possession of the mother, or other . person having charge of it.(a) (a) 9 G. IV, c. 31, § 20. KIDNAPPING. NATURE OF OFFENCE. The forcible abduction or stealing and carrying away of an person, by sending him from his own country into some other, or to parts beyond the seas, whereby he is deprived of the iriencly assistance of the laws to redeem him from such, his captivity, is properly called kidnapping. Hotchkiss’s St. Law of Geo., p. 711, 77. It is an offence of a very serious nature. Its punishment at common law is, however, no more than fine and imprisonment, 3 though, as has been remarked concerning it, the offence is of such primary magnitude, that it might well have been substituted upon the roll of capital’ crimes, in the place of many others which are there to be found. 1 East P. C., c. 9, § 4, p. 480. It is an aggravated species of false imprisonment, and all the ingredients in the definition of the latter are necessarily comprehended ‘in the former. Click v. The State, 3 Texas, 282; Rex v. Grey, 7 Raym. 473; Comb. 10. pi It seems that, in the United States, kidnapping is an offence at common law, in EIDNAPPING. 985 Statutes. all the states where the common law is in force; and in almost all the states by statute. 8 New Hampshire Rep. 550; 2 Yeates, 14; 8 Boston Law Rep. 281. STATUTES. In New York and Mississippi, it is provided by statute, that “Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other, with intent either to cause such other person to be secretly confined or imprisoned in this state against his will: or, to cause such other person to be sent out of this state against his will: or, to cause such person to be sold as a slave, or any way held to service against his will, shall, upon con- viction, be punished by imprisonment in a state prison, not exceeding ten years. Every offence prohibited in the last section may be tried either in the county in which the same may have been committed, or in any county through which any person so kidnapped or confined shall have been taken, while under such con- finement. Upon the trial of any such offence, the consent of the person so kidnapped or confined, thereto, shall not be a defence, unless it appear satisfac- torily to the jury, that such consent was not extorted by threats or by duress. Every person, who shall be convicted of having been an accessory after the fact, to any kidnapping or confinement, herein before prohibited, shall be punished by imprisonment in a state prison, not exceeding six years, or in a county jail, not exceeding one year, or by a fine, not exceeding five hundred dollars, or by both such fine and imprisonment.” 2N. Y. Rev. Sts. (4th ed.), pp. 850, 851; Hutch- inson’s Miss. Code, p. 960, §§ 27 to 31. In New York, the statute further provides, that ‘Every person, who shall sell, or in any manner transfer for any term, the services or labor of any black, mulatto or other person of color, who shall have been forcibly taken, inveigled or kidnapped from this state, to any other state, place or country, shall, upon conviction, be punished by imprisonment in a state prison, not exceeding ten years, or in a county jail, not exceeding one year, or by a fine, not exceeding one thousand dollars, or by both such fine and imprisonment. Rev. Sts. of N. ¥. (4th ed.), p. 851, vol. 2. Every offence prohibited in the last section may be tried in any county in which the person of color so sold, or whose services shall be so transfered, shall have been taken, kidnapped or inveigled, or through which he shall have been carried or brought.” Ibid. There is a statute similar to the foregoing in Massachusetts. The punishment in Massachusetts for a violation of the foregoing provision is the same as in the case of kid- napping generally, for which see post. The Massachusetts statute provides, that “upon the trial of any such offence, the consent thereto of the person so taken, inveigled, kidnapped or confined, shall not be a defence, unless it shall be made satisfactorily to appear to the jury, that such consent was not obtained by fraud, nor extorted by duress or by threats.”” Rev. Sts. of Mass., p. 718, § 21. In Maine, the punishment for kidnapping is imprisonment in the state prison, not more than five years, or by fine, not exceeding one thousand dollars, and im- prisonment in the county jail, not more than one year. Rev. Sts. of Maine, c. 154, § 20. InN oy Hampshire, the punishment is confinement to hard labor, not exceed- ing ten years. Rev. Sts. of N. H., ed. of 1854, c. 227, p. 545, § 15. In Vermont, the punishment is imprisonment in the state prison, not more than ten years, and be fined, not exceeding one thousand dollars. Rev. Sts. of Verm., p. 543, § 27. In Massachusetts, the punishment is imprisonment in the state prison, not more than ten years, or by fine, not exceeding one thousand dollars, and imprisonment in the county jail, not more than two years. Rev. Sts. of Mass., c. 125, § 20. In Ohio, the statute declares that the offender “shall be deemed guilty of a misde- meanor, and shall be confined in the penitentiary, at hard labor, for any space of time, not less than three, nor more than seven years, at the discretion of the court; and shall, moreover; be liable for the costs of prosecution.” Rev. Sts. of Ohio, p. 239, § 44. ; : : In New Jersey, the statute provides that the person 50 offending, “ and his or her procurers, shall be adjudged to be guilty of a high misdemeanor, and, on conviction, shall be punished by fine, not exceeding one thousand dollars, or im- prisonment at hard labor, not exceeding five years, or both.” Rey. Sts. of N. J., p. 275, § 62. 4 986 KIDNAPPING. Statutes.— What will constitute. In Georgia, the punishment is imprisonment and labor in the penitentiary, for any time, not less than four years, nor longer than seven years. Hotch. Stat. Law of Georgia, p. 711, § 77. In Texas, the punishment is imprisonment at hard labor in the penitentiary, not exceeding ten years. Hart. Dig. of Texas, p. 536, a. 1758. In Michigan, the statute provides that ‘every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian or other person having the lawful charge of such child, shall be punished by imprisonment in the state prison, not more than ten years, or by imprisonment in the county jail, not more than one year, or by fine, not ex- ceeding one thousand dollars.” Rev. Sts. of Mich., p. 661, § 30. aes In Georgia, the statute declares, that the person, so offending, shall be indicted for kidnapping, and, on conviction, shall be punished by imprisonment and labor in the penitentiary, for any time not less than four, nor more than seven years. Hotch. St. Law of Geo., p. 711, § 78. In Virginia, the statute provides, that “if any free person seize, take or secrete a child from the person having lawful charge of such child, with intent to extort money or pecuniary benefit, he shall be confined in the penitentiary, not less than one nor more than five years.”’ Code of Va., p. 724, § 14. In Pennsylvania, the statute provides that, if any person shall forcibly take or entice, or attempt to take or entice, a free negro or mulatto out of the state for the purpose of selling, or keeping and detaining him, ‘“‘ every such person or persons, his or their aiders and abettors, shall be deemed guilty of a high misde- meanor, and, on conviction thereof, in any court of quarter sessions of this com- monwealth, having competent jurisdiction, shall be sentenced to pay, at the discretion of the court passing the sentence, any sum, not less than five hundred nor more than two thousand dollars ; one-half whereof shall’be paid to the person or persons who shall prosecute for the same, and the other half to this common- wealth ; and, moreover, shall be sentenced to undergo a punishment, by solitary confinement in the proper penitentiary, at hard labor, for a period not less than five years, nor exceeding twelve years; and, on conviction of the second offence of the kind, the person, so offending, shall be sentenced to pay a like fine, and ‘ undergo a punishment, by solitary continement in the penitentiary, for twenty- one years.” Dunlop’s Laws of Penn., p. 1092,§ 1. And the statute declares that any person, knowingly selling or buying a free negro or mulatto for the fore- going purpose, “shall be deemed guilty of a high misdemeanor, and, on conviction thereof in any court of quarter sessions of this commonwealth, shall be sentenced by such court to pay a fine, of not less than five hundred dollars, nor more than two thousand dollars; one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to this commonwealth ; and, moreover, shall be sentenced, at the discrerion of the court, to undergo a punish- ment by solitary confinement, at hard labor, in the proper penitentiary, for a period not less than five years nor exceeding twelve years.” Ibid. § 2. In Maryland, it is enacted that ‘every person, his or her counsellors, aiders or abettors, who shall be duly convicted of the crime of kidnapping and forcibly and fraudulently carrying, or causing to be carried out of this state, any free person, or any person entitled to freedom at or alter a certain age, period or contingency, or of arresting and imprisoning any free person, or any person entitled to freedom, at or after a certain age, period or contingency, knowing such person to be tree, or entitled to their freedom, as aforesaid, with intent to have such person carried. out of this state, shall be sentenced to undergo a confinement in the said peniten- tiary house for a period of time, not less than ‘two nor more than ten years, to be treated as the law directs.” Dorsey’s Laws of Md., p. 575. ° In Maryland, by act of 1833, v. 224, the county courts may authorize refractory servants, held for a term of years, to be sold out of the state. Ibid. WHAT WILL CONSTITUTE THE OFFENCE. In New Hampshire, in.order to constitute the offence of kidnapping a child under ten years of age, it is not necessary that actual force and violence should be used. Nor is transportation to a foreign country necessary to the c leti State v. Rollins, 8 New Hamp, 550. “ = Pan yeaa ees KIDNAPPING. 987 What will constitute.—Indictment.—Verdict. In Massachussetts, the carrying away of a free black child, five years of age, against her will, from the family of the person by whom she had been formerly owned as a slave, and secreting her, is an offence within the Rev. Sts., c. 125, §§ 20, 21. Com. v. Robinson, Thach. Cr. Cas, 488. ; In New York, it has been held that § 32, of 2 Rev. Sts. 665, which provides for the punishment, as for a felony, of every person who shall sell, or in any way transfer, for any term, the services or labor of any black, mulatto, or other person of color, who shall have been forcibly taken, inveigled or kidnapped from that state to any other state, place or country, does not apply to a sale or transfer made in another state of a black inveigled in the state of New York, because the crime ae was not commitied in the State of New York. People v. Morrill, 2 Park. cr. 590. , : In North Carolinia, the 12th sec., 34th Chap., Rev. Statutes, in regard to the offence of taking and conveying a free negro out of the state with intent to sell him as a slave, includes only cases in which the taking is by violence, and does not extend to cases where the negro is induced to go by persuasion, seduction or deception.. State v. Weaver, Busbee N. Car. Rep. 9. One state of the Union, in time of insurrection and civil war in that state, has no authority to give orders to her troops to pass over the lines and into the terri- tory of another state, to protect herself against insurgents, and to capture her rebel citizens who have recently fled over those lines; and such orders cannot shield her citizens or soldiers from being criminally responsible, in the courts of another state, for their seizing such insurgents, though such citizens or soldiers, when acting under such orders, are subject to martial law in their own state; unless there be a necéssity, or probable cause of necessity, for the defence or pro- tection of the lives and property of the citizens of such other state, or for the defence of the state itself, that the acts directed by such orders should be done. And of this necessity, or probable cause of necessity, the jury, and not the authori- ties of such other state are the ultimate judges. Com. v. Blodgett, 12 Metc. 56. INDICTMENT. The requisites in an indictment would seem to be an allegation of an assault and the carrying away, or the transporting of the party injured, from his own country into another, unlawfully and against his consent. It is not enough to charge the defendant with kidnapping generally; the indictment should allege specifically the facts and circumstances which constitute the offence. Click v. The State, 3 Texas, 282. : ; For form of indictment, in the state of New York, for kidnapping with intent to sell, founded upon § 28 of 2 R. 8. 664, and of indictments for inveigling persons of color and selling them as slaves under § 32, see People v. Merill, 2 Parker Cr. Rep. 590. te Tennessee, it has been held, that an indictment, alleging that the defendant, with force and arms, took a negro slave from the field and possession of the owner, does not charge an indictable offence. The State v. Watkins, 4 Humph. 256. In Indiana, an indictment for kidnapping, under the statute, is sufficient if the offence is described in the language of the statute. The State v. M’Roberts, 4 Blackf. 178. . In Delaware, on an indictment found and tried in Kent county, for aiding and assisting to kidnap and carry away a negro man from that state into the state of Maryland, it was proved that the negro was seized in Kent, and carried through Sussex into Maryland—it was held, that the indictment was well found in Kent county. The State v.Whaley, 2 Harrington’s Rep. 538. Quere—Could not the kid- nappers be indicted in either county? Ibid. VERDICT. Where an indictment averred, that the defendant kidnapped and sold a mulatto boy, ete., and detained him in imprisonment, in order to transport him to a place where slavery was tolerated, and to hold him to slavery during life, and the ver- dict found that the defendant was guilty of selling the boy, with the expectation of his going into slavery—it was held, that the verdict was defective. State w Rollins, 8 New Hamp. Rep. 550. 988 ABDUCTION, FROM MOTIVE OF LUCRE. Indictment. SECTION XXXVII. ABDUCTION OF A GIRL AGAINST HER WILL, FROM THE MOTIVE OF .LUCRE.(1) Indictment. — The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the —— day of ——, in the year of our Lord —, feloniously, and from motives of lucre, did take away and detain [‘ take away or detain] a certain woman named C. D., against her will, with intent her, the said C. D., then to marry [* marry or defile, or to cause her to be married or defiled by any other person” ]: she, the said C. D., at the time she was so taken away and detained by the said A. B. as aforesaid, then having a certain present and absolute legal interest in certain real and personal estate [“ any interest, whether legal or equitable, present or future, absolute, conditional, or contingent,” or being “an heiress presumptive or neat of kin to any one having such interest” ]: against the form of the statute in such case made and provided, and . against the peace of our Lady the Queen, her crown and dignity. (1) In Virginia, the act 8 Hen. VII, c. 2, has been re-enacted. The statute recites “that women, as well maidens as widows and wives, having substances, some in goods movable, and some in lands and tenements, and some being heirs apparent unto their ancestors, for the lucre of such substances, have been often- times taken by misdvers contrary to their will, and afterwards married to such misdoers, or to others by their consent, or defiled :” and enacts “that whatsoever person or persons shall take any woman so against her will, unlawfully, that is to say, maid, widow, or wife, such taking, and the procuring and abetting to the same, and, also, receiving wittingly the same woman, so taken against her will, shall be felony; and that such misdoers, takers and procurers to the same, and receivers, knowing the said offence in form aforesaid, shall be reputed and judged as principal felons; and, upon conviction thereof, shall be sentenced to undergo a confinement in the penitentiary, not less than two, nor more than ten years: Pro- vided always, that this act shall not extend to any person taking any woman, only claiming her, as his ward or bond woman. R. G., c. 106, § 24. In England, it was made a question of considerable oubt, whether persons “receiving wittingly the woman so taken against her will, and knowing the same,” were ousted of clergy by the statute of Elizabeth, when that statute was in exist- ence. 1 Hale, 661; 1 Hast P. C., c. 11, § 2, pp..452, 453. But it was agreed that those who received the offender knowingly were only accessories after the fact, according to the rule of the common law. | 1 Hale. 661; 1 Hawk. P. C., ¢. 41, $9; 3 Inst. 61; St. P. C. 44; 1 East P. C., ¢. 11, § 2, pp. 452, 453. With respect to those who were only privy to the marriage, but in no way parties or consenting to the forcible taking away, it was holden that they were not within the statute, Fulwood’s case, Cro. Car, 488, 489; 1 Hawk. P. C., ¢. 41, § 10. [See, also, for a construction of the English statute, the following authorities: R. v. Brown, 1 Ventr. 248; Burton v. Morris, Hob. 182; Swenden’s case, 5 St. Tr. ' 450, 404, 468; Falwood’s case, Cro. Car. 482, 484, 485, 488, 493. ] ABDUCTION OF GIRL UNDER SIXTEEN. 989 Statutes. [It may be prudent in some cases to add a count stating the nature of the property.] Felony, transportation for life, or not less than seven years—or' imprisonment, with or without hard labor, for not more than four years.(a) Ewidence. -To maintain this indictment, it is necessary to prove— 1. The taking or detaining of C. D., as stated in the indictment. *2. That it was against her will. [*302] 8. That she had at the time that interest in property which is stated in the indictment. And this will raise the presumption that the taking was from motives of lucre, particularly if it be proved that the defendant knew it, or knew that she was entitled to property gen- erally, though not knowing the particulars of it. 4, The intent stated, which may be presumed from the words or acts of the prisoner, or of those acting in concert with him.(6) SECTION XXXVIII. ABDUCTION OF A GIRL UNDER SIXTEEN YEARS OF AGE, STATUTES. The offence of taking away a maid or woman child, unmarried, under the age of sixteen, from the custody of her father, etc., formerly provided for in England, by the 4&5 P.&M.,c. 8, i 2 & 3, was likewise an offence at common law. Hawk. P. C., v. 1, ¢. 41, § 8. It has been held that an illegitimate child is within the protection of the 4 & 5 P. & M. It seems that, in South Carolina and Virginia, the statute (4 & 5 P. & M., ec. 8) against taking away maidens or marrying them without the consent of their parents is in force. State v. O'Bannon, 1 Bail. Rep. 144; Rev. Code of Va., c. 106, §§ 25, 26. In State v. Tidwell (5 Strobh. Rep. 1), one ground for arrest of judg- ment was, that the foregoing statute never had validity in South’ Carolina, because it was enacted by no competent authority, and that if it ever had validity, it had grown obsolete. The Court of Appeals, however, per Withers, J., said: “The conception, that the statute in question has grown obsolete, is equally untenable.” : ; . In England, at present, the unlawful abduction of a girl, under the age of six- teen, from her parents, or persons having the charge of her, is an offence of the degree of misdemeanor, by the 9 Geo. IV, c. 31, § 20, which enacts, “that if any yerson shall unlawfully take, or cause to be taken, any unmarried girl, being _ under the age of sixteen years, out of the possession, and against the will, of her father and mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor, and being convicted thereof, (a) 9 Geo. IV, c. 31, § 19. (6) See ante, pp. 119, 120, 990 ABDUCTION OF GIRL UNDER SIXTEEN. Indictment.—Nature of offence. Indictment. - The jurors for our Lady the Queen, upon their oath, pre- ; sent, that A. B., on the —— day of , in the year of our , unlawfully did take and cause to be taken a certain young to wit. Lord shall be liable to suffer such punishment, by fine or imprisonment, or by both, as the court shall award.” ; In Michigan, the statute provides, that every person, who shall take or entice away any female under the age of sixteen years, from her father, mother, guar- dian, or other person having the legal charge of her person, without their consent, either for the purpose of prostitution, concubinage or marriage, shall be punished by imprisonment in the state prison, not exceeding three years, or by imprison ment in a county jail, not exceeding one year, or by a fine, not exceeding one thousand dollars. Rev. Sts. of Mich., p. 661, § 24. In New York and Mississippi, it is provided by statute, that every person who shall take away any female under the age of fourteen years, from her father, mother, guardian, or other person having the legal charge of her person, without their consent, either for the purpose of prostitution, concubinage or marriage, shall, upon conviction thereof be punished by imprisonment in a state prison, not exceeding three years, or by imprisonment in a county jail, not exceeding one year, or by a fine, not exceeding one thousand dollars, or by both such fine and imprisonment. N. Y. Rey. Sts., 4th ed., vol. 2, p. 850, § 28; Hutchinson’s Miss. Code, p. 959, § 25. : : In New Jersey, the statute provides, that if any person shall unlawfully convey, or take away, any woman child, unmarried, whether legitimate or illegitimate, being within the age of fifteen years, out of, or from the possession, custody or governance, and against the will of the father, mother or guardian of such woman child, though with her own consent, with an intent to seduce, deflower or contract matrimony with her, such offender shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine, not exceeding four hundred dollars, and imprisonment at hard labor, for any term, not exceeding two years, or either of them; and if he deflower such woman child, or, without the consent of her father, mother or guardian, contract matrimony with her, then, and in such case, he shall be deemed guilty of a high misdémeanor, and, on conviction, shall be punished by fine, not exceeding one thousand dollars, and imprisonment at hard labor, for any term, not exceeding five years, or either of them; and further, every such, marriage shall be void. Rev. Sts. of New Jersey, p. 260, § 12. NATURE OF OFFENCE. It appears to be the better opinion, that if a man marry a woman under age, without the consent of her father or guardian, it will not be an indictable offence at common law. 1 East P. C., c. 11, §9, p. 458. Butif children be taken from their parents or guardians, or others intrusted with the care of them, by any sinister means, either by violence, deceit, conspiracy, or any corrupt or improper practices, as by intoxication, for the purpose of marrying ‘them, it appears that such criminal means will render the act an offence at common law, though the parties themselves may be consenting to the marriage. Ibid., p. 459. And see 3 Chit. Crim. L. 718, a precedent of an information for a misdemeanor, in procurin, a marriage with a minor, by false allegations. And seduction may be abonded mae such circumstances of combination and conspiracy as to make it an indictable offence. [For a construction of the English statute, see R. v. Cornforth, 2 Str. 1162; R. v. Sweeting, 1 East P. C., c. 11, § 6, p. 457; Ratcliff’s case, 3 Cro. 39; Hicks ». Gore, 3 Mod. 84; Calthrop v. Axtel, 3 Mod. 169; R. v. Twisleton, 1 Lev. 257; 1 Sid. 387; 2 Keb. 32; R. v. Moor, 2 Lev. 179; R. 0, Boval, 2 Burr. 832; 1 Hawk. PR: Cs c. 41, §§ 9, 10, 11, 14; Roscoe’s Cr. Ev. 264. For a construction of same statute in South Carolina, see State v. Tidwell, 5 Strobh. 1 3 in Pennsylvania, 1 Pa. Law J. 393; 2 Yeates, 114.] ABDUCTION OF GIRL UNDER SIXTEEN, 991 . Indictment.—Evidence. unmarried girl named C. D., out of the possession of J. D., her father, and against the will of the said J. D. [‘‘ouwé of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her”), she the said C. D. being then an unmar- ried girl under the age of sixteen years, to wit, of the age of : against the form of the statute in sach case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor; fine or imprisonment, or both.(a) As to costs, see ante, p. 187. Evidence. To maintain this indictment, it is necessary to prove— 1. The taking as stated in the indictment. In one case, Parke, B., ruled that a mere decoying or enticing a girl to go away voluntarily, though by fraudulent pretences, would not amount to the offence con- templated by the statute.(6) But, in a subsequent case, where it appeared that, the girl actually proposed to the man to elope with him, and he, in pursuance of it, went to the father’s house at night, placed a ladder against a window, and held it whilst she descended, and both of them then eloped: Atcherley, Serg., held this to be a case within this section; and Tindal, C.J., to whom he afterwards mentioned it, was of the *same opinion.(c) [*303] 2. That the girl was then unmarried, and under sixteen years of age. A variance between the age stated and that proved is not material, provided the age proved to be under sixteen. Perhaps it should be ten years at least; for otherwise it might be deemed child stealing,(@) which is felony. 3. That when she was taken, she was in the possession of her father or mother, or of some person having the lawful care or charge of her, as stated in the indictment; and that she was taken against the will of the person in whose possession she is stated to be. And where the consent of the parents was obtained by misrepresentation and frand, the party having at the time an intent to debauch the girl, Gurney, B., held it to be case within the statute.(e) It may be doubted, per- haps, whether the taking such a young girl out of the possession of her schoolmistress, with the consent of the schoolmistress, although against the will of her father and mother, be an offence within this act. (a) 9 Geo. IV, c. 31, § 20. (d) See ante, p. 209. (b) R. v. Meadows, 1 Car. & K. 399. (e) R. v. Hopkins, 1 Car, & M. 264, _ (eR. v. Robins, 1 Car. & K. 456; 8. P., BR. v. Biswell, 11 Shaw’s o. P, 582, 992 ABDUCTION OF UNMARRIED WOMAN. Statutes. ABDUCTION OF UNMARRIED WOMAN. STATUTES. x In New York, the statute provides that any person who shall inveigle, entice or take away any unmarried female of previous chaste character, under the age of twenty-tive years, from her father’s house, or wherever else she may be, for the purpose of prostitution at a house of ill-fame, assignation, or elsewhere, and every person who shall aid or assist in such abduction for such purpose, shall be guilty of a misdemeanor, and shall, upon convicton thereof, be punished by imprisonment in a state prison, not exceeding two years, or by imprisonment in a county jail, not exceeding one year: Provided, that no conviction shall be had under the provi- sions of this act on the testimony of the female so inveigled or enticed away, unsupported by other evidence, nor unless an indictment shall be found within two years after the commission of the offence. N. Y. Rev. Sts., 4th ed., vol. 2d, p. 850, § 27; Laws of N. Y. of 1848, c. 105. In Massachusetts, there is a statute similar to the foregoing. Inthe latter state, it is declared that the offender “shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by confinement at hard labor in the state prison, for a term not exceeding three years, or by imprisonment in the common jail, for a term, not exceeding one year, or by a fine, not exceeding one thousand dollars, or by both such: fine and imprisonment in the common jail, in the discretion of the court.” Supp. to Rev. Sts. of Mass.. 359, §1. “All prosecutions under the provisions of this act shall be commenced within two years from the commission of the offence, and not aftérwards.”? March 25, 1845. Ibid. § 2. In Virginia, it is enacted that, “if any white person take away or detain, against her will, a white female, with intent to marry or defile her, or cause her to be married or defiled by another person, or take from any person, having law- ful charge of her, a female child under twelve years of age, for the purpose of prostitution or concubinage, he shall be confined in the penitentiary not less than three, nor more than ten years. Code of Va., p. 725, §§ 15, 16. {Under the New York statute it is held that the female must have been of actual pure and chaste character for a period immediately previous to the enticing away; she must be personally virtuous and chaste. Under both the New York and the Massachusetts statutes it is held that the abduction must be for the purpose of making the woman a common prostitute, not simply for the purpose of illicit intercourse with the abductor. Carpenter ». People, 8 Barb. 603; Com. v. Cook, 12 Met. 93. In England, a person was convicted for the common law offence of enticing away a virgin under eighteen, for purpose of illicit inter- course with her. R. v. Lord Grey, 3 St. Tr. 519; 1 East P. C., ¢. 11, § 10, p. 460.] COMPELLING A WOMAN TO MARRY A MAN. In the state of New York, the taking any woman against her will, and by force, menace, or duress, compelling her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment in a state prison, not less than ten years. 2 Rev. Sts. p. 663, § 24. The taking any woman, against her will, with intent to compel her by force, menace, or duress, to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment in astate prison, a abe a a ane wu for a pert however, of not less than ten years. id. : e statute is the same in Mississippi. Hutchinson’s Miss. 5 959, 68 23 and 24 pp: chinson’s Miss. Code, p. In Maine and Michigan, it is provided by statute that, “If any person shall PROCURING DEFILEMENT OF GIRL UNDER AGE. 993 Indictment.—Punishment. SECTION XXXIX. PROCURING THE DEFILEMENT OF A GIRL UNDER AGE.(1) Indictment. The jurors for our Lady the Queen, upon their oath, present, to wit. } that A. B., on the —— day of ——, in the year of our Lord , by false pretending and representing unto one C. D., that [here set out the false pretences or representations ; the words in the statute are “false pretences, false, representations, or other fraudulent means”), did procure the said C. D. to have illicit and carnal connection with a cer- tain man named [or to the jurors aforesaid unknown], she, the said C. D., at the time of such procurement, being then a woman [or girl] under the age of, twenty-one years, to wit, of the age of : Whereas, in truth and in fact [megativing the pretences or representations]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [The false pretences or representations, it should seem, must be specially nega- tived, in the same manner as in obtaining money or goods under false pretences.(a) Misdemeanor: imprisonment with or without hard labor for not more than two years.(6) Costs to be allowed as in felony.(c) (a) See post, tit. FALSE PRETENCES. (c) Ibid. §§ 2, 3. (b) 12 & 13 Vict., c. 76, § 1. take any woman unlawfully and against her will, and by force, menace, or duress, compel her to marry him or any other person, or to be defiled, he shall be punished by imprisonment in the state prison for life, or any term of years.” “If any person shall take any woman unlawfully and against her will, with intent to com- pel her by force, menace, or duress, to marry him or any other person, or to be defiled, he shall be punished by imprisonment in the state prison, not more than ten years.” Rev. Sts. of Mich., p. 660, §§ 22, 23; Rev. Sts. of Maine, p. 665, §§ 18, 19. In New J ersey, the statute provides ‘that, “If any person shall unlawfully take any maid, widow, or wife, contrary to her will, and shall marry her himself, or cause or procure her to be married to another, either with or without her con- sent, or shall defile, or cause her to be defiled, such person so offending, his aid- ers, abettors, counsellors, and procurers, and such as wittingly receive such woman, so taken against her will, and knowing the same, shall be deemed guilty of ahigh misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding one thousand dollars, or imprisonment at hard labor, for any term not exceeding twelve years, or both.” Rev. Sts. of N. J., tit. 8, c. 1, § 11. (1) See post, tit. Rarx. 63 994. RAPE, Definition.—Statutes. [*304] * Hvidence. To maintain this indictment, it is necessary to prove— 1. The pretences or representations made by the prisoner to C. D, 2. That, in consequence of these pretences or representations, or other fraudulent means if stated, the defendant procured C. D. to have carnal connection with the man mentioned in the indictment; and that she was then under twenty-one years of age. 3. That the pretences or representations were false, or that the other means stated were fraudulent. See R. v. Mears and Chalk,(a) where the prisoners were indicted for an attempt to commit this offence, and for a conspiracy to commit it; and the count for the conspiracy was holden good. SECTION XL. RAPE. Definition. Rape ‘is the having carnal knowledge of a wowan, by force, and against her will.(b)(1) (a) 20 Law J. 59 m. (b) 1 Hawk., c. 41, § 2. (1) Hotchkiss St. Law of Geo., p. 709, § 59. See the definition of rape in the statutes of the several states. Rape (raptus mulierwm) is a detestable crime both against the individual and against society. [For a historical sketch of the crime and the punishment in ancient times, see 1 Beck’s Med. Jur. p. 129, ef seq.] STATUTES, Unirep Srarres.—‘‘If any person or persons upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay, within the admiralty and and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, shall commit the crime of rape [and other offences which the statute enumerates], every person so offending, his counsellors, aiders or abettors, shall be deemed guilty of felony, and shall, upon conviction thereof, suffer death.” ieee, Soar March 3d, 1825, § 4; 4 Peters’ Stat, 115; Dunlop’s Laws (ed. of » Dp. 723. The act of Congress further provides, that, if any person upon the high seas, or in any of the other places aforesaid, with intent to commit a rape, shall break or enter any vessel, boat, or raft, every person so offending, his counsellors, aiders and abettors, shall be deemed guilty of felony, and shall, on conviction thereof, RAPE, 995 4 Statutes. . be punished by fine, not exceeding one thousand dollars, and by imprisonment and-confinement to hard labor, not exceeding five years, according to the aggra- vation of the offence. Ibid. § 7. Maine, Massacuusrerrs, Micnigan, anp Iowa.—The statutes of these several states provide, that, if any person shall ravish and ca#rnally know any female ot the age of ten or more, bx force and against her will, or shall unlawfully or car- nally know and abuse any female child, under the age of ten years, he shall suffer, in Maine, imprisonment for life (Rev. Sts. of Maine, p. 665, § 17) ; in Massachusetts, the punishment of death (Rev. Sts. of Mass., p. 718, c. 125, § 18); in Michigan and Iowa, imprisonment for life, or any term of years. Rev. Sts. of Mich., p. 660, § 20; code of Iowa, p. 351, § 2581. In Iowa, the statute further provides, that, if any person unlawfully have car- nal knowledge of any female by administering to her any substance, or by any other means producing such stupor or such imbecility of mind or weakness of body as to prevent-effectual resistance, he shall, upon conviction, be punished as pro- vided in the section relating to ravishment. Code of Iowa, p. 351, § 2583. New Yorr,—2 N. Y. Rev. Sts., pt. 4, c. 1, art. 2, §§ 22, 23; 5th ed. N. Y. Sts., vol. 3d, p. 942. . Every person, who shall be convicted of rape, either, 1. By carnally and un- lawfully knowing any female child, under the age of ten years; or, 2. By forcibly ravishing any women of the age of ten years, or upwards, shall be punished by imprisonment in a state prison, not less than ten years. Every person who shall have carnal knowledge of any woman above the age of ten years, without her consent, by administering to her any substance or liquid, which shall produce such stupor, or such imbecflity, of mind or weakness of body, as to prevent effectual resistance, shall upon conviction, be punished by imprisonment in a state prison, not exceeding five years. PennsyLvania.—Every person, duly convicted of the crime of rape, or as being aecessory thereto, before the fact, shall be sentenced to undergo a confinement in the jail or penitentiary house of Philadelphia, for the first offence, for a period not less than two, nor more than twelve years; and for the second offence, for and during the period of his natural life, and shall he kept therein at hard labor, or in solitude; and shall in all things be treated and dealt with as is prescribed by an act, entitled “An Act to Reform the Penal Laws of this State ;” or by the provisions of this act. Act of 22d April, 1794, § 4; 3 Dallas, p. 600; 3 Smith, p. 187; Pur. (6th ed.), p. 904, §4; Act of 23d April, 1829; Pur. (6th ed.), p. 904, 14 : New Jerszy.—That any person who shall have carnal knowledge.of a woman, forcibly and against her will, or who shall aid, abet, counsel, hire, cause or procure any person or persons to commit the said offence, or who, being of the age of fourteen years, shall unlawfully and carnally know and abuse any woman child, under the age of ten years, with or without her consent, shall, on conviction, be adjudged guilty of a high misdemeanor, and be punished by fine, not exceeding one thousand dollars, or imprisonment at hard labor, for any term not exceeding fifteen years, or both. Rev. Sts. of N. J., p_ 259, § 10. Oxnto.—That, if any person shall have carnal knowledge of his daughter or sister, forcibly and against her will, every such person, so offending, shall be deemed guilty of a rape, and, upon conviction thereof, shall be imprisoned in the peniten- tiary, and kept at hard labor, during life. That if any person shall have carnal knowledge of any other woman, or female child, than his daughter or sister, as aforesaid, forcibly and against her will; or if any male person, of the ‘age of seventeen years and upwards, shall carnally know and abuse any female child, under the age of ten years, with her consent, every such person, so offending, shall be deemed guilty of a rape, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than twenty, nor less than three years. : That if any male person, seventeen years old and upwards, shall have carnal knowledge of any woman other than his wife, such woman being insane, he know- ing her to be such, every person so offending shall be deemed guilty of a misde- meanor, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than ten nor less than three years. Rev. Sts. of Ohio, p. 230, §§ 4, 5, 6. , 996 RAPE. Statutes. (The statue of Oregon on this subject is a transcript of the foregoing statute of Ohio. Sts. of Oregon, p. 81, §§ 4, 5, 6.) Marytanp.—Every person, duly convicted of the crime of rape, or as being accessory thereto, before the fact, shall, at the discretion of the court, suffer death by hanging by the neck, or undergo a confinement in the said penitentiary for a period of time not less than one year, nor more than twenty-one years, under the same conditions as are hereinafter prescribed. 1 Dorsey’s Laws of Md. 575. If any person shall carnally know and abuse any woman child, under the age of ten years, every such varnal knowledge shall be deemed felony, and the offender, being convicted thereof, shall, at the discretion of the court, suffer death by hanging by the neck, or undergo a confinement in the penitentary for a period not less than one year, nor more than twenty-one years, tobe dealt with according to law. Ibid. Virginia—If any white person carnally know a female of the age of twelve years or more, against her will, by force, or carnally know a female child under that age, he shall be confined in the penitentiary for not less than ten nor more than twenty years. Code of Va. 725,§ 15. If a free negro commit any offence, mentioned in the fifteenth or sixteenth section of chapter one hundred and ninety- one, or attempt by force or fraud to have carnal knowledge of a white female, he shall be punished, at the discretion of the jury, either with death or by confine- ment in the penitentiary not less than five, nor more than twenty years. Code of Va. 758, § 1. Gea eet shall be punished by an imprisonment at labor in the peniten- tiary, for a term not less than two years, nor longer than twenty years. Hotch- kiss’s Stat. Law of Geo., p. 709, § 60. Vermont.—If any person shall ravish and carnally know any female of the age of eleven years or more, by force and against her will, or shall. unlawfully and carnally know any female child under eleven years of age, with or without her consent, such person shall be punished by imprisonment in the state prison, for a term not exceeding twenty years, and be fined a sum not exceeding two thousand dollars, or either or both of said punishments, in the discretion of the court before which such offence is prosecuted, Rev. Sts. of Verm. p., 548, § 24. Wisconsin.—If any person shall ravish and carnally know any female of the age of ten years or more, by force and against her will, he shall be punished by imprisonment in the state prison, not more than thirty years nor less than ten years ; but if the female shall be proven on the trial to have been, at the time of the offence, a common prostitute, he shall be imprisoned, not more than seven years nor less than one year. Rev. Sts. of Wis., p. 687, § 39; Rev. Sts. of Wis. of 1858, p. 933. If any person shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall be punished by imprisonment in the state prison for life. Ibid. § 40. Trxas—Every person, who shall, by force or violence, have sexual connection with another, contrary to the will of such person, shall be deemed guilty of rape, and, on conviction thereof shall suffer death. Hartley’s Dig. of Laws of Texas, p. 827, art. 2739. Every person, who shall be accessory before the fact to any mur- der, arson, rape, robbery or burglary, on conviction thereof, shall suffer death. Tbid., art. 2740. Every person, who shall be accessory after the fact, to any mur- der, arson, rape, robbery or burglary, shall, on conviction thereof, be fined in any sum not exceeding one thousand dollars, at the discretion of the court, and may es ae une lashes on the bare back, at the discretion of the court. Ibid., art, , In New Hampshire, the punishment for rape, or for carnally abusing any female child under the age of ten years, is solitary imprisonment, not exceeding six months, and confinement to hard labor for life, Rev. Sts. of N. H., ed. of 1854, c. 227, § 6. In Arkansas, rape by a slave was punishable by death previous to the statute of 1842. Dennis v, The State, 5 Ark. 230. : {In what rape eonsists.—A long charge describing the amount of resistance which the woman should use, and the effect of her consent—considered and approved, There is no rule requiring the jury to be satisfied that the woman used all the physical strength of which she was capable. Com. v. McDonald, 110 Mass, 405, That the woman was not a virgin does not affect the crime. Hig- gins v, People, 1 Hun, 307, Any consent of the woman, however reluctant, is RAPE. 997 ; Statutes.—Who may commit. It may be necessary to mention, that a boy, under fourteen years of age, cannot, in contemplation of law, be guilty of a rape, or of an assault with inte .t to commit it;(a) but he may be convicted as for an assault ;(6) or he may be convicted, as being present, aiding and abet- ting another in the commission of the rape.(c)(1) . (a) R. v. Phillips, 8 Car. & P. 736, -(c) R. o. Groombridge, 7 ibid. 582. {b) R. v. Brimilow, 9 ibid. 366. fatal to a conviction. State v. Burgdorf, 53 Mo. 55. The connection must be by force and against the will of the prosecutrix; it must appear that she showed the utmost reluctance and used the utmost resistance, or that her will was over- come by fear of the defendant, and that her terror of his threats was so extreme as to prevent resistance; the jury must be satisfied of these facts. Strong v. People, 24 Mich. 1; Don Moran v. People, 25 Mich. 356. If defendant procured the consent of the woman by fraud used for that purpose, viz., that as a part of his medical treatment of her it was necessary for him to have carnal connection with her, and she believing his representations gave consent, this is not rape, since there was no force. Don Moran v. People, 25 Mich. 356. The words “ with- out her consent” in the Massachusetts statute apply to the case where defendant knows that the woman is insensible and incapable of consenting. Com. v. Burke, 105 Mass. 376.] (Under the North Carolina statute, the least penetration against the woman’s will is sufficient. State v. Hargrave, 65 N. C. 466. See Leoni v. State, 44 Ala. 110.] [When the imbecility of the female has been shown, and that force was used by defendant, if there was nothing to indicate ber consent, then in legal contempla- - tion the act was done against her will. State v. Tarr, 28 Iowa, 397.] [In Ohio, by the statute concerning rape, a female ceases to be a “child” and is a “woman,” at the age of puberty. Blackburn v. State, 22 Ohio St. 102.] [Where the evidence was conflicting as to the consent of the woman, an instruc- tion requested by the defendant “that if defendant procured her consent by promises the jury could not find him guilty,” it was held, should have been given. Clark v. State, 30 Tex. 448. An infant under fourteen cannot be guilty of rape nor of an attempt in North Carolina. State v. Sam, 1 Wins. No. 1, 300. Force is essential and the jury must be clearly instructed on that subject. Cato v. State, 9 Flor. 163. Where defendant had connection with a woman who was nearly idiotic, but no fraud or force was shown, held not to be rape. People v. Cornswell, 13 Mich. 427. To the same ruling, see Reg. v. Fletcher, Law Rep.1 C. C. 39. Rape by acolored man, done while he was a slave. State v. Davidson, 2 Coldw. 184. Forcible carnal connection with a woman intoxicated so as to be insensible, is not rape in New York. People ». Quin, 50 Barb, 128. Connection by fraud without force or an intent to use force, is not rape in New York. Walter v. People, 50 Barb. 144. As to the amount of force necessary, and that emission is not essential, see Walker v. State, 40 Ala. 325.] [‘To constitute rape, or an assault with intent to commit a rape, there must be an intent to use force overcoming the woman’s resistance. The circumstance that upon her outcry the defendant at once relinquisied his effort and fled, should be taken into account by the jury in determining the intent. Taylor v. State, 50 Geo. 72. In order to constitute rape of a woma over ten years old, when she was conscious, had the possession of her natural mental and physical powers, was not overcome by numbers, or terrified by threats, or in such a place or posi- tion that resistance would be useless, it must be made to appear that she did resist to the extent of her ability at the time and under the circumstances. People v. Dohring, 59 N. Y. 374.] (1) PERSONS BY WHOM THE OFFENCE MAY BE COMMITTED. As is stated in the text, by the English common law, w boy, under the age of fourteen years, is presumed to be incapable of committing a rape ; and, therefore, 998 RAPE. Who may commit.—On whom it may be committed. Principals in the second degree. All persons present, aiding, assisting, or encouraging a man to com- mit a rape, may be indicted as principals in the second degree, whether they be men or women.(a) Even a boy under fourteen years of age, who, we have seen,(d) cannot be a principal in the first degree, may be indicted as being présent aiding and abetting another to commit the offence.(c) See as to principals in the second degree generally.(d) (a) 1 Hawk., c. 41, § 10. (c) 1 Hale, 620. (b) Ante, page 305. (@) Ante. he can neither be convicted of this offence, nor of an assault with intent to commit it. For, though in other felonies malitia supplet etatem, yet, as to this particular species of felony, the law supposes an imbecility of body, as well as of mind. But, as this doctrine is founded upon the ground of impotency, rather than the want of discretion, a boy, under fourteen, who aids and assists another person in the-commission of the offence, is not the less a principal in the second degree, if it appear, under all the circumstances, that he had a michievous discretion. 1 Hale, 630; 4 Bl. Com. 212; R. v. Eldershaw, 3 C. & P. 396. In England, upon an indictment for a rape, an infant may be convicted of an assault, under 1 Vict., c. 85, § 11. In New York and Ohio, it has been held that the presumption, that an infant under the age of fourteen years is incapable of commiting or attempting to com- mit the crime of rape, may be rebutted by proof that such person has arrived at the age of puberty. The People v. Randolph, 2 Parker Cr. Rep. 174; Williams v. The State, 14 Ohio Rep. 222. [See, also, Com. v. Sullivan, Add. R. 143; Com. v. Thomas, 1 Va. Cas. 307; Com. v. Green, 2 Pick. 380; State v. Handy, 4 Harring- ton, 566. The proof of the capacity of a boy under 14 must be clear. People v. Randolph, 2 Park. Cr. 174, 213. See subject of “Infants” and notes in Vol. 1.] The husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract ; but he may be likewise guilty, as a principal in the second degree, by assisting another person to commit a rape upon his wife; for though, in mar- riage, the wife has given up her body to her husband, yet he cannot compel her to prostitute herself to another. Lord Audley, Earl of Castlehaven’s case, 1 St. Tr. 387; 1 Hale, 629. é It seems a consul-general is not protected by the laws of nations from a prose cution and indictment for rape. But the state courts have no jurisdiction in such case. The exclusive jurisdiction is vested in the courts of the United States, Com. v. Kosloff, 5 Serg. & Rawle Rep. 545. PERSONS ON WHOM THE OFFENCE MAY BE COMMITTED, It is no excuse for the party committing the offence, that the woman was a com- mon strumpet; for she is still under the protection of the law, and may not be forced. Charles v. State, 6 Engl. Ark. Rep. 389. Neither is it even any justifica- tion, that she was a concubine to the ravisher himself; for a woman may forsake her unlawful course of life, and the law will not presume her incapable of amend- ment. All these circumstances, however, are very material to be left to the jury in favor of the party accused, where the woman’s testimony is not corroborated by other evidence. 1 Hawk., c. 41, §7; 1 East P. C. 445. A rape may be committed on an infant. Stephen v. State, 11 Geo. Rep. 225 In Virginia, it has been held that a white girl, under twelve years of age, and not having attained to age of puberty, is a white woman within the terms of the statute, which makes it felony, punishable with death, for a slave, free negro, or mulatto, to attempt to ravish a white “woman.” Watts’ case, 4 Leigh, 672. RAPE. 999 Indictment. Indictment.(1) — The jurors for our Lady the Queen, upon their oath, pre- to wit. sent, that A. B., on the day of , in the year of our Lord ——, in and upon one C. D. feloniously and violently did make an assault, and her the said C. D., then violently and against her will feloniously did ravish and carnally know; against the form of the sta- tute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. (1) For form of indictment for rape, see The People v. Jackso, 3 Parker, 391. ‘Where the averment was, that the offence of rape was committed upon N. G., a female child instead of, that it was committed on a woman child—that being the language of the statute—it was held that the description in the indictment was good. Com. v. Bennet, 2 Va. Cas. 235. In North Carolina, an indictment upon the statute (1 Rev. Sts., c. 34, § 5), for abusing and carnally knowing a female child under the age of ten years, which charges the rape to be ‘“‘in and upon one M. C.,” is sufficient without describing the infant as a “female child :” nor is the ad- dition of “spinster” to the name of the infant requisite in such an indictment. State v. Terry, 4 Dev. & Batt. 152. Where the indictment charged that the de- fendant, “‘ with force and arms,” ete., ‘“‘in and upon one Mary Ann Taylor, in the peace of the state,” etc., “violently and feloniously did make an assault, and her, the said Mary Ann Taylor, then and there, violently and against her will, feloni- ously did ravish and carnally know,” the court can and must see with certainty that Mary Ann Taylor was a female. State v. Farmer, 4 Ired. 224. , The indictment need not aver that the defendant is fourteen years of age, nor that the prosecutrix is not the wife of the defendant. Com. v. Scannel, 11 Cush. 547. An indictment, which charges that the defendant, by force and against the will of the female, ravished and carnally knew her, need not aver that she was of the age of ten years or more—such allegation only being necessary when the in- dictment does not allege that the act was done against her will. Com. v. Sugland, 4Gray, 7. But if the female be under the age of ten, then the fact should be averred ; because, abusing such a female is made felony by statute, whether she assented to the act or not. State v. Farmer, 4 Ired. 224. It is essential to aver, that the offender did feloniously “‘ravish ” the party ; and the omission of the word ravished will not be supplied by an averment that the offender ‘did carnally know,” etc. 1 Hale, 628, 632; Br., Indict., pl. 7, citing 9 Ed. IV., c. 6; Gouglemann v. The People, 3 Parker Cr. Rep. 15. It has been considered that the words, ‘‘did carnally know,” are not essential on the ground that rapere signifies legally as much as carnaliter cognoscere (2 Inst. 180; and see 2 Hawk. P. C., v. 25, § 56; Staunf. 81; Co. Lit. 137); but they ara at any rate appropriate in describing the nature of the crime, and appear to ba gerierally used. The omission of them would not, therefore, be prudent. 1 East P. C., c. 10, § 10, p. 448; 2 Stark. Crim. Plead. 409, note (p); 3 Chit. Crim. Law, 812. In England, in an indictment for a rape, the words carnaliter cognovit were omitted ; on a case reserved, six judges out of twelve thought it cured by the verdict, because those words are not in the 9 Geo. IV, ¢. 31, but they thought it bad before verdict. Rex v. Warren, M. T. 1832, MSS. Bayley, B.; 8 Burn J., D. &W. 725. As the absence of previous consent is a material ingredient in the offence of rape, it must be averred in the indictment; where it is usually expressed by stating that the fact was done “against the will” of the party. Cro. Cire. Comp. 427; 2 Stark. Crim. Plead. 409; 3 Chit. Criminal Law, 815; State v. Jim., 1 Dev. 142. And in Maine it has been held that the indictment must charge that the of- fence was committed “by force,” or employ words of equivalent import. To allege that it was done “violently” will not be sufficient. State v. Blake, 39 1000 RAPR. \ Indictment. Maine Rep. 322. But, in Pennsylvania, it is not necessary to charge in the indict- ment that the offence was committed forcibly and against the will of the woman. It is sufficient, if it be charged that the defendant feloniously did ravish and carnally know her. Harman v. Com., 12 S. & R. 69. And in Massachusetts, under the existing statute (Rev. Sts., c. 137, § 14; Laws of 1852, c. 37, § 3), it is not neces- sary to allege in the indictment that the offence was committed ‘‘with force of arms,” or “‘feloniously.” Com. v. Scannel, 11 Cush. 547. Where an indictment alleged that the prisoner, in and upon E. F., violently and feloniously did make (omitting ‘‘an assault”), and her, the said E. F., then and there and against her will, violently and feloniously did ravish and carnally know; upon a case reserved after a verdict of guilty, ten of the judges were of opinion that the judgment ought not to be arrested, because of the omission of the words ‘‘an assault.” Reg v. Allen, 9 C. & P. 521. ; , A count for a rape may be joined in the same indictment with one for an assault and battery, with intent to ravish ; but, if the defendant be found guilty general- ly, he can be sentenced only on the count fora rape. Harmon v. Com., 12 Serg. & Rawle, p. 69. In Tennessee, it will be fatal to join a count, which charges a negro with carnal knowledge of a white female child under ten years of age, with counts which charge the commission of a rape upon a white female, as the first offence is entire- ly different from the others. State v. Cherry, 1 Swan, 160. The indictment usually concludes ‘‘ against the form of the statute ;” but, as the offence was anciently, as has been shown, a capital felony, such a conclusion has been thought to be unnecessary. 1 East P. C., v. 10, § 10, p. 448; but see 2 Stark. Crim. Plead. 409, note (q); and State v. Dick, 2 Murphey, 388. The indictment must conclude, as in other cases, “ against the peace,” etc. [Indictment.—As to 1o the necessity of the word “rayvish” in thé indictment, see Christian v. Com., 23 Gratt. 954. The indictment need not aver that the per- son injured was a female, nor that she was over ten years of age; the pronoun “she ” shows the sex. Hill v. State, 3 Heisk. 317; compare Whitney v. State, 35 Ind: 508. An allegation that the woman is over ten years old is unnecessary, and if inserted need not be proved. Mobley v. State, 46 Miss. 501. Charging that the assault was ‘violent and felonious,” and that the ravishing was “ feloni- ous and against the will of” the woman, is sufficient without the word forcibly. State v. Johnson, 67 N. C. 55.] [In Alabama, the indictmént need not aver that the c4rnal knowledge of the woman was ‘“‘against her will.” Leoni v. State, 44 Ala. 110. An indictment is not defective for not expressly charging that the offence was committed on a fe- male, where it gives a woman’s name, and uses the pronouns “she” and “her” 2 aa of the person on whom the rape was done. Taylor v. Com., 20 Gratt. (See, also, Com. v. Murphy, 2 Allen, 163 (there should be an averment that the female was not defendant’s wife); People v. Mills, 17 Cal. 276 (indictment for car- nal knowledge of a child under 10); People v McDonald, 9 Mich. 150 (the word ‘“‘rape” need not be used); O’Connell v. State, 6 Minn. 279 (a sufficient indictment); People v. Ah Yek,-29 Cal. 575 (need not state defendant’s age); O'Meara v. State, 17 Ohio St. 515 (for forcibly knowing a female child, need not state her age); State v. Storkey, 63 N. C. 7 (need not charge that the female was over 10); People v. Tyler, 35 Cal. 558 (charging rape and an assault with intent to commit a rape, does not charge two offences); Girous v. State, 29 Ind. 93 (slight difference in the names held immaterial). ] _ [At common law an indictment for rape must charge that the accused “ did rav- ish ’—the use of the noun “rape” is not sufficient—it need not be alleged that defendant was over 14 years of age, his being under 14, if true, must be set up and proved in defence. Davis v. State, 42 Tex. 226. Where an indictment con- tains one count for rape, and a second for assault with intent, ete., the prosecut- ing attorney can be compelled to elect between them. People v. Satterlee, 5 Hun, 167.] INDICTMENT AGAINST AIDERS AND ABETTORS. The indictment against aiders and abettors may lay the fact to have been done by all, or may charge it as having been done by one and abetted by the rest. [See RAPE. 1001 Evidence.—Penetration.—Emissio seminis. Felony ; transportation for life.(a) Persons present, aiding and abet- ting, are equally guilty ;(6) and are punishable in like manner. As to costs, see ante, p. 186; costs of apprehension, seé ante, p. 189. Upon this indictment, the jury may find the prisoner not guilty of the felony, but guilty of the attempt to commit it; and thereupon he shall have judgment, as if he had been indicted for the attempt, and had been found guilty ;(c) namely, imprisonment, with or without hard labor, for not more than two years, and the court may fine the offender, and make him find sureties for the peace.(d) Evidence. *To maintain this indictment, the prosecutrix must prove— [*305] 1. Penetration. Any, the slightest, penetration—proof of any part of the virile member of the prisoner having been between the labia of the pudendum of the prosecutrix—will be sufficient.(e) In one case, indeed, Gurney, B., said that if the penetration were not sufficient to rupture the hymen, it would not be sufficient to constitute the offence. But this has since been ruled otherwise, and that ruptur- ing of the hymen is not at all necessary to the proof of penetration.(/) Formerly it was necessary to prove emission in the body, also.(1) (a) 4 & 5 Vict., c. 56, § 3. (e) R v. Lines, per Parke, B.,1 Car. & K. (b) R. v Crisham, Car. & M. 187. (f)R. v. Hughes, 9 Car. & P. 752; R. v. (c) 14 & 15 Vict., c. 100, § 9. Jordan et al.,9 ibid. 118; and see R. v. Mc. (@) 9G. IV, c. 31, § 25. \ Rue, 8 Car. & P. 641. R. v. Folkes, R. & M. 354; BR. v. Gray, 7C. & P. 164; R.v. Crisham, 1C. & Mars. 187; all the perpetrators may be indicted jointly as principals. Dennis v. State, 5 Ark. 230.] PENETRATION NECESSARY TO CONSTITUTE THE OFFENCE. It is agreed that there must be penetratio or res in re, in order to constitute the “carnal knowledge,” which is a necessary part of this offence. 1 Hale, 628. [The least penetration is sufficient. It is settled doctrine that the hymen need not be ruptured. R. v. Russen, 1 East P. C., c. 10, § 3, pp. 488, 439; Reg. v. McRue, 8 C. & P. 641; R. v. Jordan, 9 C. & P. 118; R. v. Hughes, 9 C. & P. 752 ; State v. Le Blanc, 3 Brev. (S. C.) 339. The contrary case of R. 1 Gammon, 5 C. & P. 321, is expressly overruled.] a (1) OF THE EMISSIO SEMINIS. Whether or not there must be, at common law. emissio seminis, in order to con- stitute a rape, is a point which has been mnch doubted, and upon which very different opinions have been holden. 12 Rep. 27. aie [The earlier English decisions are conflicting, but it is unnecessary to con- sider the question, for it has generally been settled by statutes. ] The New York Revised Statutes, however, provide that proof of actual penetra- tion into the body shall be sufficient to sustain an indictment for rape, or for the crime against nature. 2 N. Y. Rey. Sts., 5th ed., vol. 3, 1028, pt. 4, c. 2, § 20. 1002 RAPE, Evidence.—Force.— Whether the offence may be committed by fraud. There is a similar provision in the statute of Michigan. Rev. Sts. of Mich., p. 660, § 20. ae Ta south Carolina, in the case of State v. Le Blanc (2 Const. Rep. 351), in 1813, Judge Nott said he had strong doubts whether it was necessary to prove emis- sion, and the court refused to disturb the verdict. So, in Virginia, as early as the year 1812, the general court ie that the opinion of Coke, as expressed in his 3d Institutes, 59, 60, and of Lord Hale (1 H. H. 628), together with those modern decisions in favor of the fact of penetration alone, constituting the crime of rape as well as sodomy, were more rational than the contrary opinions and decisions which require both facts to be proved. _ In Pennsylvania, emission is not deemed essential. Commonwealth v. Sullivan, Addison’s Penn. Rep. 143. PENETRATION PRIMA FACIE EVIDENCE OF EMISSION. Supposing, however, that emission is necessary, it seems that penetration is prima facie evidence of it, unless the contrary appear probable from the circum~- stances. [See R. v. Harmwood, 1 East P. C., c. 10, § 3, p. 440; R. v. Fleming, 2 Leach, 854; R. v. Burrows, R. & Ry. 519.] AS TO THE FORCE. To constitute rape, there must be force. Wyatt v. State,2 Swan, 394. And it ought to appear that there was the utmost reluctance and resistance on the part of the prosecutrix. The People v. Morrison, 1 Parker’s Crim. R. 625; Woodin ». The People, 1 Parker’s Cr. Rep. 464. On a trial for a rape committed by the prisoner upon his daughter, the court instructed the jury, that although the making of no outcry by the girl at the time of the carnal connection, under ordinary circumstances, was strong evidence to discredit the force ; yet, that when the relation between the parties, and the friend- less and ignorant condition of the sufferer accounted for this silence, it ought to have little or no weight. Held, that the instruction was wrong. State v. Cone, 1 Jones N. C. Rep. 18. It is no mitigation whatever of the offence, that the woman at last yielded to the violence of the ravisher, if such her consent were forced by fear of death, or by duress. Wright v. The State, 4 Humph. 194. Nor is it any defence that she consented after the fact. 1 Hawk., c. 41, § 7. é A child, under ten years of age, cannot consent to sexual intercourse in such a manner as to rebut the presumption of force. Stephen v. State, 11 Geo. Rep. 225. In New York, where the prisoner decoyed a female under ten years of age into a building for the purpose of ravishing her, and was there detected while standing within a few feet of her in a state of indecent exposure—it was held, that though there was no evidence of his having actually touched her, yet, that he was prop- erly convicted of an assault, with intent to commit a rape; and that the consent of a female of that age, or even her aiding the prisoner’s attempt, was no defence. Hays v. The People, 1 Hill’s Rep. 351. Whether the ‘same presumption will not exist in forcing one over ten years of age, who is still a child in respect to stature, constitution, and physical and mental developments—quere? Ibid. : WHETHER THE OFFENCE MAY BE COMMITTED BY STEALTH OR FRAUD. A question has several times arisen, whether having carnal knowledge of a married woman, under circumstances which induce her to suppose it is her husband, amounts to a rape. [It is settled in England that such connection, though brought about by defend- ant’s fraud, isnotrape. R. v, Jackson, R. & Ry. 487; R. v. Saunders, 8 C. & P. 265; R. v. Williams, 8 C. & P. 286; R. v. Clark, 20 Ing. Law & Eng. R. 542.] In New York, in the case of the People v. Bartow (1 Wheeler’s Cr. Cas. 378), it was held, that where the defendant had obtained possession of the person of the prosecutrix, by fraud, and had used no force, he could not be convicted of rape. Subsequently, however, Chief Justice Thompson, at a court of oyer and terminer held at Albany, ruled that force was not necessary to the commission of a rape, but that stratagem might supply its place. Note to 1 Wheeler’s Cr. Cas. 381. a “oe seems to have been holden in Connecticut. State 0. Shepard, 7 Conn. p. 54, RAPE. 1008 Evidence.—Woman a witness. But by stat. 9 G. IV, c. 31, § 18 (after assigning the punishment of rape, unnatural offences, carnally knowing and abusing girls under the age of ten, and between ten and twelve), and reciting ‘“‘ whereas upon trials for the crimes of buggery and rape, and of carnally abusing girls under the respective ages hereinbefore mentioned, offenders fre- quently escape by reason of the difficulty of the proof which has been required of the completion of these several crimes ;” for remedy thereof it is enacted “that it shall not be necessary, in any of these cases, to prove the actual emission of-seed, in order to constitute a carnal knowl- edge, but that the carnal knowledge shall be deemed complete, upon proof of penetration only.” So that now, evidence of the penetration alone is sufficient, even although the fact of emission be negatived by the evidence.(a) 2. That it was done by force and against her will. Where a man, by fraud, went to bed to a married woman, and she, believing him to be her husband, allowed him to have connection with her: this was holden not to be a rape ;(5) and the same, where in the act the wife discovered it was not her husband, and made what resistance she could to prevent its completion.(c) But where a man gave a woman liquor, which had the effect of ren- dering her insensible, and he thus took advantage of her situation, and had connection with her during her insensibility: the judges held this to be arape, although the jury found that the prisoner had given her *the liquor for the purpose of exciting her, and [*206] not for the purpose of rendering her insensible and having con- nection with her in that state.(d@) So, where a man had connection with a woman, whilst she was laboring under delirium, which rendered her insensible to his act; it was holden to be rape.(e) Woman a witness. In most cases all this has to be proved by the prosecutrix herself, without any other evidence to corroborate her. Lord Hale says, in reference to this: It is true, rape is a most detestable crime, and there- fore severely punished: but it must be remembered that it is an accu- sation easily made, but difficult to be disproved by the party accused, be he ever so innocent; and, therefore, though the party ravished be (a) R. v. Cox, 5 Car. & P. 297; R. v. Gam- (c) R. v. McWilliams, 8 Car. & P. 286, mon, 5 ibid. 311; R. v. Allen, 9 ibid. 31. (d) R, v, Camplin, 1 Car. & K. 746. \v) B. v. Saunders, 8 Car. & P. 265. (e) R. wv, Chater, 13 Shaw’s J., p. 766. 1004 RAPE, Evidence.—Woman a witness. a competent witness, yet the credibility of her testimony must be left to the jury, upon the circumstances of fact that concur with that testi- mony—if the witness be of good fame—if she presently discovered the offence, and made pursuit after the offender—if she showed circum- stances and signs of the injury, whereof many are of that nature that only women are proper examiners—if the place where the fact was done were remote from inhabitants or passengers—if the offender fled for it—these and the like are concurring circumstances which give greater probability to her evidence. On the other hand, if she be of evil fame, and stand unsupported by other evidence—if she conceal the case for any considerable time after she had an opportunity to complain, except from fear—if the place where the fact is supposed to have been committed were near to persons by whom it was probable she might have been heard, and yet she made no outcry—if she gave wrong descriptions of the place—if she fixed on a place where it was improbable for the man to have access to her, by reason of his being in a different place or company about that time—these and the like circumstances afford a strong, though not conclusive, presumption that her testimony is feigned.(a) (1) (a) 1 Hale, 633-635 ; and see 1 Hawk., c. 41, § 9. (1) It is clear that the party ravished is a competent witness; and, indeed, she is so much considered as a witness of necessity, that where a husband has been charged with having’ assisted another man in ravishing his own wife, the wife has been admitted as a witness against her husband. Rex v. Lord Castlehaven, 1 St. Tri. 387; 1 Hale, 629; Hutt. 116; 1 Str. 633. In England, it is the usual course, in cases of rape, to ask the prosecutrix whether she made any complaint, and, if so, to whom; and if she mentions a person to whom she made complaint, to call such person to prove that fact; but it has been the invariable practice not to permit either the prosecutrix, or the person so called, to state the particulars of the complaint, during the examination in chief. Rex v. Clarke, 2 Stark. N. P. C. 241; 3Stark. Evid. 951; Reg. v. Walker, 2M. & Rob. 212. See The People v. Croucher, 2 Wheeler’s Cr. Cas. 42. In Phillips v. State (9 Humph. Rep. 246), after the examination of the party injured, her husband was examined as a witness for the prosecution, and was permitted to relate to the jury the statement of the circumstances and particulars of the alleged offence made to him by his wife recently after the perpetration thereof. It seems that the wife, in her examination, had stated the particulars ; and the evidence of the husband, proving similar statements to him, shortly after the transaction, was admitted in confirmation of her testimony. The judge remarked, that proof of the particulars of the complaint could not be admitted as original evidence, to prove the truth of the statements, or to establish the charge against the prisoner; but that it was admissible for the purpose of testing the accuracy as well as the veracity of the witness. And for this position, a remark of the judge, in Rex v. Megson (9 C. & P. 420), was relied on. In Johnson v. The State (17 Ohio Rep. 593), it was held that the declarations of the female in such case, made immediately after the offence was committed, might be introduced to sus- RAPE, 1005 Evidence.—Woman a witness. tain her evidence given in court ; but not as substantive testimony to prove the com- mission of the offence. The Court of Appeals of Virginia, in Brogy’s case (10 Gratt. 722), disapproves of the doctrine advanced in these cases, remarking that they “carry the doctrine further than is warranted by the true principle upon which such testimony is excepted from the general rule excluding all evidence of state- aoe not under oath, and made in the absence of the party to be affected by em.” Where, upon a trial for rape, the female, in her examination, declines to give a description of the person who committed the outrage upon her, as he appeared at the time of the outrage, although she swears positively that the prisoner at the bar is such person; it is not competent for the prosecution to introduce a witness to prove the ‘particulars of the description of the person who committed the out- rage, given by the female to the witness, on the morning after the rape was com- mitted. Brogy v. Com., 10 Gratt. 722. ‘Where the party ravished has died before the trial, it is not competent to prove the particulars of a complaint made by her soon after the offence was committed, with a view of showing who the parties were who committed it. Rex v. Megson, 9 C. & P. 420; and see Stephen v. State, 11 Geo. Rep. 225; Pleasant v. The State, 15 Ark. Rep. 624; People v. McGee, 1 Denio, 19. So, where the prosecutrix is absent, it is not competent to prove that she made a complaint soon after the occurrence ; for such evidence is merely confirmatory of et sole the prosecutrix, and no part of the ves geste. Reg. v. Gutteridge, 9C. & P. 471. (Evidence.—The prosecutrix cannot say that ‘“‘defendant attempted to ravish her, but did not accomplish his purpose,”—this is a conclusion of law and she must state the facts. A witness for the state cannot prove declarations of the woman to the effect that certain scratches were nade by the defendant, unless this is offered in corroboration of her testimony after it has been assailed by defendant. Scott v. State, 48 Ala. 420. Proof is admissible that the woman charged the crime on the defendant immediately after its occurrence. Burt v. State, 23 Ohio St. 394.] (That the woman made no outcry though she knew there were persons within hearing, and that she showed no marks of violence, may be proved by the defence. Crockett v. State, 49 Geo. 185.] {And defendant may prove that the woman was in the habit of receiving men at her dwelling and having promiscuous intercourse with them. Woods v. People, 55 N. Y. 515.] (The state may prove that the prosecutrix complained of the deed recently after it was done, and when, where and to whom such complaint was made, but cannot prove what she said as to the particulars of the crime nor the name of the man whom she charged with it. .Thompson v. State, 38 Ind. 39, and see to the same effect, State v. Richards, 33 Iowa, 420; State v. Shuttleworth, 18 Minn. 209 ; Lacy v. State, 45 Ala. 80; but see Burt v. State, 23 Ohio St. 394; Whitney v. State, 35 Ind. 503.) {In order to show that prosecutrix made a complaint, the state may prove that she requested witness to go before a magistrate and make a complaint. Smith v. State, 47 Ala. 540.] [When evidence of the prosecutrix’s previous sexual intercourse with a third person has been given to impeach her, other facts rendering this probable cannot be proved in addition. Strang v. People, 24 Mich. 1.] [Violent conduct of the defendant in presence of the woman immediately after the rape upon her may be proved; statements made by her husband in her pres- ence on the day of the offence may be proved in corroboration of her testimony ; and evidence of her character for chastity must be confined to her general repu- tation in that respect where she is known. Conkey v. People, 1 Abb. App. Dec. 418. fithe main question of the defendant’s guilt or innocence should be decided by the weight of evidence, ‘and all the facts should be submitted to the jury under the charge of the ‘court; the decision should not be rested upon any arbitrary rules as to the nature of the evidence, as whether it is positive or negative, direct or circumstantial. Innis v. State, 42 Geo. 473.] [The mother of the prosecutrix having testified that at a certain time the girl had a private disease, it was competent to ask the witness on her cross-examina- » 1006 RAPE. Evidence.—Impeaching character of prosecutrix. tion whether her daughter had had a private disease at any time prior to the one which she had mentioned. State v. Otey, 7 Kans. 69. The defendant cannot show that the prosecutrix has declared herself pregnant by other men. Com. v. Requa, 105 Mass. 593. The court in its charge having called a voluntary statement made by the defendant to a companion, a ‘‘confession,” the conviction was on that ac- count reversed. Hogan v. State, 46 Miss. 274.) . ater [Evidence of the bad reputation of the prosecutrix for chastity must be limited to the date of the alleged crime; evidence touching her reputation for veracity, to the date of the examination; her bad reputation for chastity may have induced defendant to make the assault under the supposition’ that he would receive no opposition. Pratt v. State, 19 Ohio St. 277.] . (Testimony by the mother of the prosecutrix repeating the statements made to her by the prosecutrix concerning the details of the offence and the manner of. its commission, and the threats of the defendant in case she should complain, was held to be wrongly admitted. Proof that the prosecutrix made immediate com- plaint is competent asa fact; but proof of the details and particulars of such complaint is wholly incompetent. Baccio v. People, 41 N. Y. 265. catia, [See, also, State v. Latten, 29 Conn. 389 (when the female was a child nine years old, her testimony as to the act need not be corroborated); State v. Cross, 12 Iowa, 66 (evidence tending to show consent); State v. Forshner, 43 N. H. 89 (general bad character of the female for chastity); McDermott v. State, 13 Ohio St. 332 (ditto); State v. Peter, 8 Jones, Law, 19 (the long silence of the female in making 2 charge, raises no presumption of law, but is a fact to be considered by the jury); State v. Knapp, 45 N. H. 148 (evidence of the strength of the female and of defendant, of her general chastity, of the fact that she made complaints to her mother, and of defendant’s character); State v. Reed, 39 Vt. 417 (in Vermont, the female, when a witness for the state, may be asked by defendant if she has not been guilty of carnal connection with a designated person at a named time and place, see, also, State v. Johnson, 28 Vt. 512); State v. Jerome, 33 Conn. 265 (various points of evidence for the prosecution and for the defence); Walter v. People, 50 Barb. 144 (very peculiar evidence, i.e., that the female supposed the defendant was performing a medical operation upon her, she being thirty years old, held incredible and not warranting a conviction); State v. Marshall, Phill. Law (N. C.), 49 (failure to disclose the outrage); State v. Hodges, Phill. Law (N. C.), 231 (no form of words necessary to prove a “penetration,” testimony by the female, a widow, that defendant had “full connection’’ with her is sufficient); State v. Murray, 63 N. C. 31 (particular instances of incontinency in the female may be shown in defence); People v. Taylor, 36 Cal. 522 (particular points of evidence). ] (The effect of a delay of the woman in making complaint of the outrage, as a circumstance tending to her discredit, depends upon all the surrounding cireum- stances. The law requires promptness, but the failure to make an immediate outcry may be excused ; a complaint is not required to be made to the first person seen. Higgins v. People, 58 N. Y. 377, see the circumstances of this case. ‘A conviction upon the uncorroborated statement of the woman, who did not divulge the matter until several weeks after the alleged offence was perpetrated, cannot be sustained. 40 Tex. 160. Evidence that the woman afterwards complained of the act is only admissible as confirmatory of her testimony. Mere lapse of time between the act and the complaint, is not the test of its admissibility ; it is only matter to be con- sidered by the jury in determining the weight of her whole evidence. State v. Niles, 47 Vt. 82. For case of special circumstances, see McFarland v. State, 24 Ohio St. 329. On the separate trial of one of two jointly indicted, the defendant not on trial may be a witness for his co-defendant, in New York. People v. Sat- terlee, 5 Hun. 167. The fact of the complaint made by the woman, her state and appearance, the condition of her dress, and marks of violence, may be proved, but not the particulars of the complaint she made, nor her detailed statements made to others. Pefferling v. State, 40 Tex. 486.] AS TO IMPEACHING THH CHARACTER OF THN PROSECUTRIX. The character of the proscutrix, as to general chastity, may be impeached by gen- eral evidence (Rex v. Clarke, 2 Stark, N. P. C. 241; 3Stark. Evid. 951), as by show- ing her general light character, and giving general evidence of her being a street. 1 « RAPE, - 1007 Evidence.—Impeaching character of prosecutrix. walker. Camp v. The State, 3 Geo. Rep. 419. But, in a case where a question was put to a prosecutrix, ‘‘Whether she had not before had connection with other persons ; and whether she had not before had connection with a particular person who was named ;” an objection taken to this question by the counsel for the pros- ecution was allowed by the learned judge; who, also, allowed an objection, made by the counsel for the prosecution, to the admissibility of evidence to prove that the girl had been caught in bed about a year before this charge was preferred, with a young man, who was tendered by the prisoner’s counsel to prove that he had had connection with her: and the question as to the admissibility of such evi- dence being reserved, eight judges, who were present at the discussion, held that both the objections were properly allowed. Rex v. Hodgson, December, 1811, Russ. & Ry. 211. (See, also, Stark. Ev. p. 1269; Greenl. Ey. Vol. 3, § 214; Phil. Ev.] In New York, in The People v. Abbott (19 Wend. Rep. 192), it was held by Cowen, J., that, on a trial for rape, or for an assault, with intent to commit rape, the inquiry might be made of the prosecutrix whether she had had previous con- nection with other men; and that, in such case, she was not privileged from answering. And in alate case in Vermont, it was held that, on a trial.for rape or incest, the prosecutrix might be asked, upon cross-examination, whether she had not had sexual intercourse with other men, the interrogator specifying the names of the persons with whom, and the places where, such connections were had. But, whether she could be compelled to answer such inquiries, was considered doubt- ° ful. State v. Johnson, 28 Vt. Rep. 512, approving; People v. Abbott, 19 Wend. 192. Bennett, J., who delivered a dissenting opinion in this Vermont case, stated, that in the case of Regina v. Cloys, (5 Cox Crown Cases, 146), decided in England, in 1851, the counsel for the prisoner conceded the law to be that he could not go into particular acts; and his honor observes that it could hardly be supposed that this concession would have been made if Rex v. Hodgson and Rex v. Clark had been given up in England. But, in Rex v. Robins (2 Moody & Robinson, 512), it does not appear that any objection was made to the prosecutrix being asked whether she had had connection with other men. In May, 1857, the New York Supreme Court held that, on a trial for rape, the defendant could not prove that the prosecutrix had had sexual intercourse with other men, although she had previously been interrogated as to such intercourse on her cross-examination, and denied it. The People v. Jackson, 3 Parker Cr. Rep. 391. Tad, in Arkansas, it has been held that the woman assaulted cannot be asked as to her criminal connection with any other person, and that her chastity cannot be impeached by evidence of particular acts of unchastity. Pleasant v. The State, 15 Ark. Rep. 624. And see, to the same effect, State v. Jefferson, 6 Iredell, 305. It is settled in England, that you may submit to the jury evidence that the prosecutrix is in fact a common prostitute, in these cases. 1 East Crown Law, 444, 445; Roscoe Crim. Ev. 708. So, also, reputation of general bad character is admissible. 3 And it seems that the prosecutrix, in such case, is not prileged from answering. People v. Abbott 19 Wend. Rep. 192; Treat v. Browning, 4 Conn. R. 408 ; Thomas ». Newton, 1 Mood. & Malk. 48, note b; Southard v. Rexford, 6 Cowen, 254. It was held, in one case, in England, that the woman, in a prosecutioh for rape, is not bound to answer questions to such facts as tend to criminate and disgrace her- self. R. v. Hodgson, R. & R. 211. But it has since been held, that she may be cross-examined as to such matter (R. v. Robins, 2 Mo. & R. 512); or as to her having had connection with the prisoner previously to the alleged rape; and if she deny the facts to which she is cross-examined, the prisoner may produce evi- dence to contradict her (R. v. Aspinall, cited 3 Stark. Ev. 952); for such evidence is not immaterial to the question whether the prosecution has had the particular intercourse with the prisoner against her consent. 43s : In Rex v. Martin (6 Carr. & Payne, 544), before Williams, J ., it was proposed * to show that, before the alleged offence, the prisoner had had intercourse with the prosecutrix by her own consent. The evidence was objected to on the authority of Rex v. Hodgson, and Rex v. Clark. The learned judge said: “T was one of the counsel in Rex v. Hodgson. The question in the present case is, as to previous intercourse with the prisoner; and the question there was as to intercourse with other men. I shall certainly receive the evidence, and I must say that I never 1008 / RAPE. Evidence.—Impeaching character of prosecutrix.—Verdict. could understand the case of Rex v Hodgson. The doctrine, that you may go into evidence of the bad character of the prosecutrix, and yet not cross-examine as to specific facts, I confess does appear to me to be not quite in strict accordance with the general rules of evidence.” : . The magistrate, before whom the complaint was made, cannot be called to prove what the prosecutrix swore to before him, as to her having had previous intercourse with other men, if the inquiry is not made for the purpose of showing a discrepancy in the testimony of the prosecutrix. People v. Abbott, 19 Wend. 192. Where the parts of a child, upon whom an attempt to carnally know her is proven by her to have been made, are shown to be bruised and infected with the venereal disease, proof of sexual intercourse between her and other persons, before or near the time of the commission of the alleged offence, is admissible, as tending to weaken the corroborative force of these circumstances. Nugent v. State, 18 Ala. 521. : = ; Evidence of the bad character of the parents of the prosecutrix is not admis. sible. State v. Anderson, 19 Mis. 241. EVIDENCE OF GOOD CHARACTER OF PROSECUTRIX. On the trial of an indictment for a rape alleged to have been committed on board a vessel, the prisoner attempted to discredit the testimony of the complain- ant: 1. By showing, on her cross-examination, that her story was improbable in itself; 2. By disproving some of the facts to which she testified ; 3. By evidence that her conduct, while on board the vessel and afterwards, was inconsistent with the idea of the offence having been committed; and 4. By calling witnesses to show that the account which she had given of the matter out of court did not cor- respond with her statements under oath; it was held, that this was not an attack upon the complainant’s general character, and, therefore, evidence of her good character was inadmissible in reply. People v. Hulse, 3 Hill, 309. But Cowén, J., dissented, holding, that evidence of the complainant’s contra- dictory statements out of court affected her general character; and, consequently, that evidence of good character was admissible. The question, whether such evidence was admissible when the character of the witness had not been attacked, came before the Supreme Court of Connecticut in ° The State v. DeWolf (8 Conn. Rep. 93), but it was left undecided. Dagget, J., thought the evidence admissible because the witness was deaf and dumb, and he likened it to the case of a witness who was a stranger, passing transiently through the state, where he thought the good character of the witness might be proved by the prosecuting attorney. But the case went off upon other grounds. VERDICT. In New Jersey, upon an indictment, containing two counts—one for rape, and the other for an assault, with intent to commit a rape—the jury may render a general verdict of guilty, the lesser offence being merged in the greater. Cook v. The State, 4 Zab. 843. In Georgia, the defendant may be acquitted of the rape, and found guilty of the attempt only., Stephen v. State, 11 Geo. Rep. 225. In Massachusetts, under the statutes of 1784 (c. 66, § 11) and 1805 (c. 97), where one is indicted for rape, he may be found guilty of an assault with intent to com- mit arape. Com. v. Cooper, 15 Mass. 187; Com. v. Roby, 12 Pick. 496. In Mississippi, the statute (Hutch. Dig. 918, § 21, which provides that no person shall be convicted of an attempt to commit an offence, where it appears that the offence was actually committed, does not apply to the case of rape by a slave upon a white woman. Wash. v. The State, 14 Smedes & Marsh. 120. In New York, where a defendant is tried in a Court of General Sessions, on an indictment for a rape, and an assault, with intent, etc., and the jury convict of an assault and battery merely, judgment cannot be rendered ; since the sessions have not jurisdiction of the offence of rape. People v. Abbott, 19 Wend. 199. Upon an indictment against a slave for rape on a free white female, a verdict, as follows: We, the jury, find the prisoner guilty of an attempt to commit a rape,” was held sufficient; and that it was not necessary to negative the charge of a rape, that being the legal effect of the finding; neither was it necessary to add RAPE, 1009 Evidence.—Impeaching character of prosecutrix. Where the prosecutrix said that, on her way home after the offence was committed, she complained to Mrs. P., and Mrs. P. was called to confirm her, and was asked whether she had made a complaint to her, and was desired to answer “yes” or “no,” without stating what the complaint was, and she said “‘yes;” she was then asked whether the prosecutrix mentioned the name of any particular person, and Cress- well, J., desired her to answer yes or no, without mentioning the name, and she answered “yes;” she was then asked what name was men- tioned, but Cresswell, J., held that that question ought not to be asked.(a) Where the prosecutrix, after giving evidence of the offence, stated that she immediately told her mistress, Mrs. 8., and showed her some blood at the place where the rape *was committed, [*307] also that her linen was bloody, and had been washed by Mrs. C.; 8. and C. being both in court, Pollock, C.B., directed that they should be called as witnesses on the part of the prosecution; and being called they gave a direct contradiction to the story of the prosecutrix as respected the complaint, the blood, and the state of the clothes—and the defendant was accordingly acquitted.(d) Nor is it any defence that the woman is a common strumpet; for she is still under the protection of the law, and cannot be forced.(e) But in the latter case, though in itself no defence, it is most material for the defendant, and it is permitted to him to show the fact, to throw a doubt upon her statement that the connection was had against her will. And the character, therefore, of the prosecutrix for chastity {a) R. v. Osborne, Car. & M. 622, (c) 1 Hawk., c. 41, § 7. (0) R. v. Stroner, 1 Car. & K. 650. the words, ‘‘on a free, white female,” as, that being the issue submitted to the jury, the verdict was co-extensive with it. Stephens v. State, 11 Geo. Rep. 225. Where the prosecutrix testified before the jury, and the defendant was arraigned before them, and proved to be a slave, it was held that the jury might be instructed to find the prosecutrix a white woman and the defendant a negro, State v. Anderson, 19 Mis. 241. So the jury may infer that the prosecutrix is a white woman from her appearance on the stand, and from reference, during the course of the testimony, to her domestic relations—as to ‘her husband,” “brother,” ete. Charles v. State, 6 Eng. Ark. Rep. 389. In Massachusetts, under the statute (Rev. Sts., c. 137, § 11), a person indicted for a rape committed upon his own daughter, may be convicted of incest, where the jury find the criminal connection, but that it was not by force and against the will of the daughter. Com. v. Goodhue, 2 Met. 193. A former conviction, on an indictment for an attempt to commit a rape, is a sufficient bar to an indictment for a rape; the former offence being necessarily included in the latter. State v. Shepard, 7 Conn. 54. 64 1010 ATTEMPT TO COMMIT A RAPE. Nature of offence.—What constitutes.—Who may be guilty. may be impeached by general testimony, but the defendant cannot examine as to particular facts.(a). Where the prisoner’s counsel asked the prosecutrix, whether she had not before had connection with other men, and whether she had not before had connection with a particular person, Wood, B., held that she was not bound to answer the ques- tions, as tending to criminate and disgrace her; it was then proposed to prove that she had been caught in bed with a young man about a year before, and it was proposed to call the young man to prove his having had connection with her; but Wood, B., would not allow it, as it was evidence, not of general character, but of particular facts: and the judges afterwards held the decision to be right upon both points.(6) In R. v. Barker,(c) however, Park J., after consulting with J. Parke, J., allowed the defendant's counsel to ask the -prosecutrix whether, since the alleged rape she had walked the High street at Oxford— Were you not on Friday last walking the High street at’ Oxford, to look out for men ?”—‘‘ Were you not on Friday last walk- ing the High street at Oxford, with a woman reputed to be a common prostitute ?” SECTION XLI. ATTEMPT TO COMMIT A RAPE, NATURE OF OFFENCE. There are many cases where an attempt to commit a rape must, in the real estimate of guilt, be considered nearly as aggravated an offence as if the crime had been completed ; more especially, when brutal force or violence is used to effect the criminal purpose. WHAT CONSTITUTES. To constitute an assault with intent to commit a rape, it is necessary that the facts and circumstances accompanying the transaction should be such as to con- stitute the crime of rape in case the defendant had succeeded, and carried his intention into full effect. Sullivant v. The State, 3 Engl. Ark. Rep. 400. (There must be an intent on the part of defendant to fully accomplish his pur- pose in such manner and by such means that if accomplished it would be a rape ; that is, there must be an intent to use the force, terror, intimidation, and the like, necessary to accomplish the purpose. Field’s Case, 4 Leigh, 648; Charles v. State, 6 Eng. (Ark.) 389; Pleasant v. State, 8 Eng. 360; State v. Boon, 13 Iredell, odd) WHO MAY BE GUILTY. In Eldersham’s case, Vaughan, B., held that a boy under the age of fourteen could not be convicted of an assault, with intent to commit a rape. Gaslee, J., (a) Per Holroyd, J.,in R. v. Clarke, 2 Stark, (d) R. v. Hodgson, R. & Ry, 211. N. PB. C, 241, (c) 38 Car. & P. 389, ATTEMPT TO COMMIT A RAPE. ‘1011 Who may be guilty of.—Indictment. Indictment.(1) — The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the day of , in the year of our Lord ——, unlawfully did make an assault upon one C. D., and her, the said held the same after consulting Lord Abinger, C.B., in Rex v. Grovenbridge, and Patteson, J., made the same ruling in Phillipps’ case. The reverse had been, before either of these cases, decided by the Supreme Court of Massachusetts, in Com. v. Green (2 Pick. 380). Parker, C.J., dissenting. In the last-mentioned case, the court said: ‘A minor of fourteen years of age, or just under, is capable of that kind of force which constitutes an essential ingredient in the crime of rape, and he may make an assault with an intent to commit that crime, although by an artificial rule he is not punishable for the crime itself. -An intention to.do an act does not necessarily imply an ability to do it; as a man who is emasculated may use force with intent to ravish, although possibly, if a certain effect should be now, as it was formerly, held essential to the crime, he could not be convicted of arape. Females might be in as much danger from precocious boys as from men, if such boys are to escape, with impunity, from felonious assaults, as well as from the felony itself. See State v. Handy, 4 Harrington, 566.” : Very recently, in the New York Oyer and Terminer, the rulling of the English cases was adopted, the court observing that the reasons assigned in the prevail- ing opinion in the Massachusetts case were not sufficient, against the dissent of the Chief Justice, to overcome the force of the English cases, and the principal upon which they are based. The People v. Randolph, 2 Parker’s Cr. Rep. 213. We have, however, seen, ante, in discussing the subject of rape, that this pre- sumption against the physical capacity of a person under fourteen may, in New York and Ohio, be rebutted by proof. The People v. Randolph, 2 Parker’s Cr. Rep. 174; Williams v. The State, 14 Ohio Rep. 222. [Mere verbal objection by the woman, unaccompanied by any outcry or actual resistance, is not sufficient to raise an indecent assault to the grade of an assault with intent to commit a rape. Reynolds v. People, 41 How. Pr. 179.] {An assault on a woman with a desire to have connection, but not with a design to force her if necessary against her will, is not an assault with intent to commit a rape, itis simply an aggravated assault. Outlaw v. State, 35 Tex. 481. See, . also, Robertson v. State, 31 Tex. 36; Preisker v. People, 47 Ill. 382.] (See, also, Com. v. Merrill, 14 Gray: 415; Smith v. State, 12 Ohio St. 464; State v. Wells, 31 Conn. 210; State v. Johnson, 1 Vroom, 185 (in New Jersey, on an indictment for rape, a conviction may be had for an assault, and in Illinois, Prindeville v. People, 42 Ill. 217); Rhodes v. State, 1 Coldw. 351; People v. Quin, 50 Barb. 128; Carter v. State, 35 Geo. 263 ; State v. Warner, 25 Iowa, 200 ; Hull v. State, 22 Wisc. 580.] [Under Texas Statute (Pasch. Dig. § 2184) charging that defendant unlawfully and forcibly broke into a dwelling house by night, ‘‘ with intent then and there to commit the crime of rape,’ does not sufficiently state the offence. State v. Williams, 41 Tex. 98. The word “feloniously” must be inserted in the indict- ment. State v. Scott, 72 N.C. 461 Charging assault with intent, etc., and also . charging battery is not bad for duplicity. Com. v. Thompson, 116 Mass. 346 ; see, also, People v. Bowen, 49 Cal. 654; Jacques v. People, 66 Ill. 84.] (1) Where one is indicted for an attempt to commit a rape, it is sufficient to allege matter enough to bring the case within the meaning of the statute. Williams v. State, Wright, 42; Camp. v. The State, 3 Kelly, 417. There is no clause in the statute of Ohio, in relation to an assault, with intent to commit a rape, which it is necessary to negative in an indictment for such offence. Williams v. State, Wright Rep. 42. In Arkansas, the indictment must charge the offence to have been feloniously committed, and must contain the technical word, “‘ravished,”’ and state that it was attempted to be done forcibly and against the will of the female. Sullivant ». State, 3 Eng. 400. And in Tennessee, an indictment, which charges that the ’ 1012 ATTEMPT TO COMMIT A RAPE. Indictment.—Evidence. C. D., did then beat and ill-treat, with intent her, the said C. D., then violently and against her will, feloniously to ravish and carnally to know: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Add a count for a common assault, as ante, p. 282. Hvidence.(1) To maintain this indictment, the prosecutrix must prove— 1. An attempt at penetration, but not successful—or prove a struggle with the prisoner, showing from his acts or expressions that his intent defendant made the assault with intent feloniously to ravish, is not sufficient. It ought to charge that the assault was made feloniously, using the word feloniously especially with reference to the assault, instead of the intent to ravish. Williams v. State, 8 Humph. 585. But, in Pennsylvania, an assault and battery, with intent to commit a rape, being a misdemeanor only, the omission of the word feloniously does not vitiate an indictment for such an offence. Stout v. Com., 11 Serg. & Rawle. Rep. 177. In North Carolina, under the act of 1828, it is necessary to allege that the assault was made with an intent to commit arape. State v. Martin, 3 Dev. 329. But an- indictment, charging that an assault was made with an “intention” to ravish, etc., instead of “intent,” is good under the statute of North Carolina of 1811. State ». Tom, 2 Jones N. C. Rep. 414. In Georgia, in Camp. v. The State (3 Kelly, 417), the statement of the offence in the indictment was, that the defendant, with force and arms, in the county aforesaid, in and upon one Cynthia Emeline Davis, a white female, in the peace of God and said state, then and there being, did make an assault, and her, the said Cynthia Emeline Davis, did then and there beat, wound and ill-treat, with intent, her, the said Cynthia Emeline Davis, forcibly and against her will, then and there, carnally to know and feloniously to ravish, and other wrongs,” etc. It was held, that the indictment was good. 3 It is not necessary to allege, in an indictment for an assault with intent to com- mit rape, what was the age of the person‘assaulted. Bowles v. State, 7 Ohio, 243. (1) An assault, with intent to commit a rape, may be proved without the testi- mony of the person assaulted. From the circumstances, as proved by persons who heard the cries of the woman, and witnessed the transaction from a distance, the jury may infer the intent. The People v. Bates, 2 Parker Cr. Rep, 27, per Walworth, J. Upon a trial for an assault with intent to commit a rape, the prosecutrix swore that, about eleven o’clock of the night of June 12, 1847, she awoke, and, upon ex- tending her hand, she felt some person over her in the act of committing a rape, and that when she touched him he sprang from the bed, etc.; it was held that this testimony was objectionable, on the ground that it was a conclusion of law, and not a simple statement of the facts of the case, which was the proper matter to submit to the jury, whose duty it was to draw conclusions, and not the witness. Sullivant v. State, 3 Eng. 400. In relation to the principles of circumstantial evidence, on the trial of an indict- ment for an assault with intent to commit a rape, see Bill v. The State, 5 Humph. 155. Where there is evidence conducing to show that a prisoner charged with an assault, with intent to commit a rape, was at the time in a greatly debilitated con- dition from a previous debauch, it is a circumstance, however light, to be consid- ered by the jury in ascertaining whether he was physically capable of committing the offence. Nugent v. State, 18 Ala. 521. Proof of previous acts of the defendant may be given jin evidence to show a ATTEMPT TO COMMIT A RAPE. 1013, Evidence. was to have connection with her. Where, upon an indictment for an assault, with intent to commit a rape, the evidence was, that the de- fendant, a medical man, being about to administer an injection to the prosecutrix, desired her to place her head on the bed and her feet on the floor, he then raised her clothes and administered the injection, and desired her to remain still, but she found then that he was about to have connection with her, and had penetrated her person a little, when she immediately arose and ran down stairs, and he quitted the house : Coleman, J., held, that if this had been committed with force, the offence of rape would have been committed; but as that was not the case, the defendant could not be convicted of an assault, with in- tent to commit a rape, although what he did was sufficient to convict him on a count for a common assault.(a) 2. The intent with which the assault was committed will be *sufficiently indicated by the words or acts of the defend- [*309] ant; the attempt must be made with furce and violence against ‘the will of the prosecutrix, as in rape.(6) If you prove the assault, but fail in proving the intent, the party may still be convicted on the sec- ond count, as for a common assault. Where, upon an indictment against a schoolmaster, for an assault, with intent to commit a rape upon one of his female scholars, with a second count for .@ common as- sault, it appeared from the evidence that he did not actually attempt to commit a rape, nor, perhaps, intend it, but he had taken most inde- cent liberties with the person of the girl, and without her consent, although she did not actually offer resistance: the judges were of opinion that the evidence was fully. sufficient to support the count for the common assault, although not that for the assault with intent to commit a rape.(c) (a) R. v. Stanton, 1 Car. & K. 415. (b) Ante, p. 305. (c) R. v. Nichol, R. & Ry. 180. guilty intent in committing the act charged in the indictment. ‘Williams ». State, 8 Humph. 585. Proof of reputation, that the woman alleged to have been assaulted was of ill- fame, with respect to chastity, is competent to impeach her credibility as a wit- ness in the case, as well as to show what was the intent of the accused. Camp. 2. State, 3 Kelly, 417. ; ht wy Proof of a rape will sustain an indictment for an attempt to commit a rape. State v. Shepard, 7 Conn. 54. Com. v. Cooper (15 Mass. Rep. 187), where, upon an indictment for rape, the jury were at first unable to agree, the court charged them, that there would be no inconsistency, in those of the jury who believed the crime to have been actually committed, to find the prisoner guilty of an assault, with an intent to commit the crime; and a verdict of guilty of an assault, with intent to commit a rape, was accordingly rendered. But see 2.N. Y. Rev. Sts., pt. 4, ¢. 1, tit. 7, § 30, contra, 1014 ATTEMPT TO COMMIT A RAPE. Punishment. Punishment. Misdemeanor; imprisonment, with or without hard labor, for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace.(a). As to costs, see ante, p. 187.(1) Upon this indictment the defendant may be convicted, although the evidence prove that the offence of rape was actually completed ; unless the court discharge the jury, and order the defendant to be indicted for the felony.(d) (a) 9G. IV, c. 31, § 20; see ante, p, 285. (b) 14 & 15 Vict., c. 100, § 12; ante, p. 95. (1) In Massachusetts, the statute provides that, if any person shall assault any female with intent to commit the crime of rape, he shall be deemed.a felonious assaulter, and shall be punished by imprisonment in the state prison for any term of years, or for life, or by fine, not: exceeding one thousand dollars, and imprisonment in the county jail, not more than three years. Rev. Sts. of Mass., p- 718, § 19. In the state of New York, the same offence is punished by impris- onment in a state prison, for a term not exceeding five years, or in a county jail, not exceeding one year, or by a fine, not exceeding five hundred. dollars, or by both such fine and imprisonment. Rey. Sts. of N. Y., p. 852; ibid., 5th ed., vol. 3, p. 945, § 41. In Ohio, the statute declares that every person so offending shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than seven nor less than three years. Rev. Sts. of Ohio, p. 271,§17. In Georgia, this offence is punished by an imprisonment at labor in the penitentiary, for a term not less: than one year, nor longer than five years. Hotchkiss’s Stat Law of Geo., p. 709, § 61. In Vermont, the statute declares that the offender shall be punished by imprisonment in the state prison, not exceeding ten years, and be fined, not exceeding one thousand dollars, or either or both of said punishments, in the discretion of said court. Sec. 2 of No. 7 of 1849. Rev. Sts. of Vt., p. 543, § 25. In Wisconsin, the punishment is by imprisonment in the state prison, not more than ten years nor less than one year. Rey. Sts. of Wis., p. 687,§ 41. And in Jowa, by imprisonment in the penitentiary, not exceeding twenty years. Code of Iowa, p. 352, § 2592. In Texas, the statute provides that the offender shall be find at the discretion of the court, and be imprisoned for a term not less than one nor more than five years, at the discretion of the court. Hartley’s Dig. of Laws of Texas, p. 827, art. 2742. And the statute of Texas further declares, that when committed by a slave or free person of color, on any free white female, it shall be deemed a capital offence, triable in the district courts and punishable with death. Ibid., p. 777, art. 2539. In Oregon, the statute declares that every person so offending shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the penitentiary and kept at hard labor, not more than seven nor less than three years. Rev. Sts. of Oregon, p. 84. In Maine, the statute provides that if any person, with intent to commit a rape, shall assault any female of the age of ten years or more, he shall be punished by imprison- ment in the state prison, not more than ten years, or by fine, not exceeding five hundred dollars, and imprisonment in the county jail, not more than one year. If any person, with intent to commit a rape, shall assault a female under the age of ten years, he shall be punished by imprisonment in the state prison, not more than twenty years. Rev. Sts. of Maine, p. 666, §§ 27, 28. SODOMY. 1015 What constitutes.—Who may commit.—Indictment. SECTION XLII ‘ SODOMY. WHAT CONSTITUTES. This vice is said to have been brought into England from Italy by the Lom- bards. Burn’s Just., tit. Buggery. . The offence consists in a carnal knowledge committed against the order of nature, by man with man; or in the same unnatural manner with woman; or by ae - ane in any manner with a beast. 1 Hale, 669; Com. v. Thomas, 1 Virg. as. 307. To constitute this offence, the act must be in that part where sodomy is usually committed. The act in a child’s mouth does not constitute that offence. Rex. v. Jacobs, East T., 1817; Russ & Ry. 331. An unnatural connection with an animal of the fowl kind is not sodomy ; a fowl not coming under the term “beast ;” and it was agreed clearly not to be sodomy, when the fowl was so small that its pri- vate parts would not admit those of a man, and were torn away in the attempt. Rex v. Mulreaty, Hil. T., 1812, MS. Bayley, J. : [See Estes v. Carter, 10 Iowa, 200; State v. Campbell, 29 Tex. 44. Is not an offence under the law of Texas. Frazier v. State, 39 Tex. 390. For evidence to corroborate an accomplice, see 111 Mass. 411.] ft WHO MAY COMMIT. Those who were present, aiding and abetting in this offence, are all principals (1 Hale, 670; 3 Inst. 59; Fost. 422, 423); but if the party on whom the offence is committed be within the age of discretion, namely, under fourteen, it is not fel- ony in him, but only in the agent. 1 Hale, 670; 3 Inst. 59; 1 East P. C., c. 14, §2. There may be accessories before and after in this offce, as the statute makes it felony generally. 1 Hale, 670; Fost. 422, 423. Indictment. — The jurors for our Lady the Queen, upon their oath, pre- to wit. sent, that A. B., on the day of , in the year of our Lord , in and upon one C. D., feloniously did make an assault, and then feloniously, wickedly, and against the order of nature had a venereal affair with the said C. D., and then feloniously did carnally know the said C. D., and then feloniously, wickedly, and against the order of nature, with the said C. D., did commit and perpetrate the abominable crime of buggery ; against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.(1) . (1) In Maryland, the conclusion contra formam statuti is not improper in an in- dictment for sodomy, as the judgment may be either at common law, or under the act of Assembly. Davis v. The State, 3H. & J. Rep. 154. 1016 SODOMY. Evidence.—Punishment. Hvidence.(1) The only evidence required is, proof of penetration.(2) A man may be guilty of the offence with a woman, and there has been an [*310] instance of *a man indicted and tried for having committed this offence upon his own wife, althongh she resisted as much as she could.(é) If committed with a boy under fourteen years of age, whether as agent,(c) or pathic,(d) the adult alone can be. convicted. Where, upon an indictment of this kind, it appeared that the prisoner forced open the mouth of a boy of seven years of age, put in his pri- vate parts, and in that situation proceeded to a completion of his lust ; the judges held that it did not amount to the crime of sodomy.(e) Either party, if consenting, is an accomplice; and if he appear as a witness, his testimony must be confirmed.(/) All persons present, aiding and abetting, are principals in the sec- ond degree, and punishable in the same manner as the actors.(g) Punishment.(2) Felony; death.(h) Upon this indictment the jury may find the prisoner not guilty of the felony, but guilty of an attempt to commit it; and thereupon he (a) See stat. 9 G. IV, c. 81, § 18; ante, p. 305. (*) Per Patteson, J., in R, v, Jellyman, (b) R. v. Jellyman, 8 Car. & P. 604. supra. (c) R. v. Allen, 2 Car. & K. 869. (g) 1 Hale, 670. (d) 1 Hale, 670. (hk) 9 G.IV, c. 81, § 15. (e) R. v. Jacobs, R. & Ry. 331. (1) That which has been before stated, with regard to the evidence and manner of proof in cases of rape, ought especially to be observed upon a trial for this still more heinous offence. When strictly and impartially proved, the offence well merits strict and impartial punishment ; but it is from its nature so easily charged, and the negative so difficult to be proved, that the accusation ought clearly to be made out. The evidence should be plain and satisfactory, in proportion as the erime is detestable. 4 Bla. Com. 215. i. A party consenting to the commission of an offence of this kind, whether man or woman, is an accomplice, and requires confirmation. On the trial of an indict- ment for an unnatural offence by a man upon his own wife, she swore that she resisted as much as she could. Patteson, J., said: ‘There was a case of this kind which I had the misfortune to try, and it there appeared that the wife con- sented. If that had been so here, the prisoner must have been acquitted; for, although consent or non-consent is not material to the offence, yet as the wife, if she consented, would be an accomplice, she would require confirmation ; and so it would be with a party consenting to an offence of this kind, whether man or wo- man.” Reg. v. Jellyman, 8 C. & P. 604. . (2) In Massachusetts, the statute provides that every person, who shall commit the abominable and detestable crime against nature, either with mankind or with any beast, shall be punished by imprisonment in the state prison, not more than twenty years. Rey. Sts. 741, c. 130, § 14. In New York, the punishment is by ATTEMPT TO COMMIT SODOMY. 1017 Indictment. shall have judgment, as if he had been indicted for the attempt to commit the felony, and was found guilty;(2) namely imprisonment, with or without hard labor, for not more than two years; and the court may fine the offender, and require him to find sureties for the peace.(6) SECTION XLIII. ATTEMPT TO COMMIT sopoMy.(1) Indictment. — The jurors for our lady the Queen, upon their oath, present to wit. that A. B., on the —— day of ——, in the year of our Lord , unlawfully did make an assault upon one C. D., and him the said C. D. did then beat and ill-treat, with intent then feloniously, (a) 14 Vict., c. 100, § 9. (b) 9G. IV, c. 31, § 25. imprisonment in a state prison, for a term not more than ten years. 2 Rey. Sts. 689, c. 1, pt. 4, tit. 5, § 20; Act of 10th Dec. 1828. In Michigan, the punishment is by imprisonment in the state prison, not more than fifteen years. Rev. Sts. of Mich., p. 682, § 16. In Pennsylvania, the statute provides, that “every person convicted of sodomy or buggery, or as accessory thereto before the fact, shall be sentenced to undergo a similar confinement at labor [in the penitentiary], for the first offence, for a period not less than one, nor more than five years, and for the second offence, not exceeding ten years, under the same conditions as are herein- before expressed.” Act of 23d April, 1829; Pamph. 341; 6th ed. Pur. 864; McKinney, 722. In Georgia, the statute declares that ‘the punishment of sodo- my shall be imprisonment at labor, in the penitentiary, for and during the natural life of the person convicted of this detestable crime.” Hotchkiss Sts., p. 709. In Virginia, the statute declares that the person so offending shall be confined in the penitentiary, not less than one, nor more than five years. Code of Va. (ed. of 1849), c. 196, § 12. In New Jersey, it is provided that this offence shall be ad- judged a high crime and misdemeanor, and be punished by fine, not exceeding one thousand dollars, or imprisonment at hard labor, for any term not exceeding twenty-one years, or both. Rev. Sts. New Jersey, p. 259, § 9. In Maryland, the language of the statute is, ‘that every person duly convicted of the crime of . sodomy shall be sentenced to undergo a similar confinement [in the penitentiary], for a period not less than one year, nor more than ten years, under the same con- ditions as are hereinafter directed.” 1 Dorsey, 575. In Wisconsin, the punish- ment for this offence is by imprisonment in the state prison, not more than five years, nor less than one yeas. Rev. Sts. of Wis., p. 709, § 15; ed. of 1858, p. 975. (1) In Maryland, under the statute of 1793, c. 57, an assault, with an intent to commit sodomy, is made punishable. Davis v. State, 3 Harris & Johnson, 154, And, in Georgia, the statute provides, that ‘‘an attempt to commit sodomy or bestiality shall be punished by imprisonment and labor in the penitentiary, for a term, not less than two years, nor more than four years.” Motch. St. Law of Georgia, pp. 709, 710, §§ 62, 63, 64, 65, 66. 1018 BESTIALITY. Indictment. wickedly, and against the order of nature to have a venereal affair with the said C. D., and then feloniously carnally to know the said C. D., and then feloniously, wickedly, and against the order of nature, with the said C. D., to commit and perpetrate the abominable crime of buggery: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor; imprisonment, with or without hard labor for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace.(a) As to costs, see ante, p. 187. Upon this indictment the defendant may be convicted, although the evidence prove the felony; unless the court discharge the jury, and order the defendant to be tried for the felony.(é) Ewidence. The evidence in this case is merely of an attempt to penetrate. Or if resistance were made, then evidence must be given of the [311] *struggle, and of words or acts of the prisoner from which his intent to commit the offence may be implied. : SECTION XLIV. BESTIALITY Indictment. —_—— ; The jurors for our Lady the Queen, upon their oath, pre- to wit. \ sent, that A. B., on the —— day of ——, in the year of our Lord ~~, feloniously, wickedly, and against the order of nature, had a venereal affair with a certain [cow], and then feloniously did carnal- ly know the said cow, and then feloniously, wickedly, and against the order of nature with the said cow did commit and perpetrate the abominable crime of buggery: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. (a) 9 G. IV, ¢. 81, § 25 ; see ante, p, 285. (b) 14 & 16 Vict., c, 100, § 12; ante, p. 95. CARNALLY KNOWING GIRL UNDER TEN. 1019 Indictment. Felony; death.(a) Upon this indictment, the jury may find the prisoner not guilty of the felony, but guilty of an attempt to commit it; and thereupon he shall have judgment, as if he had been indicted for the attempt to commit the felony and was found guilty ;(t) namely, imprisonment, with or without hard labor, for not more than two years, and the court may fine the offender, and require him to find sureties for the peace.(c) Hwidence. The only evidence required is, evidence of penetration.(d) And where the prisoner, after penetration, was interrupted, and withdrew from the animal (a ewe) before emission: Parke, J., held that the of- fence in law had been completed by penetration alone.(e) The offence may be committed with “any animal.”(/) Where, in the indictment, it was called a “bitch,” it was holden sufficient, although the female of foxes and of some other animals are so called, as well as the female dog.(g) SECTION XLV. CARNALLY KNOWING A GIRL UNDER TEN YEARS OF AGE. Indictment.(1) — The jurors for our Lady the Queen, upon their oath, present, to wit. § that A. B., on the —— day of ——,in the year of our (a) 9 Geo. IV, c. 31, § 15. (e).R. ¥, Cozens, 6 Car, & P. 851. (b) 14 & 15 Vict., c. 100, § 9. (f)9G.1V, 6 81, § 15. (c) 9G. 1V, c. 31, § 25. (g) R. v. Allen, 1 Car, & K. 495. (d) See 9 G. IV, c. 31, § 18; ante, p. 805. Tennessee, the indictment in one count charged a rape on Tabitha Webb, aa as day, and in another count charged the defendant with having carnal knowledge of the same person, on the satne day, she being under ten years of age; and it was held that the charge was intended to be but one offence. Wright ». The State, 4 Humph. 194. In Missouri, where an indictment for an assault upon a child under ten years of age charged the assault to have been made “ with intent feloniously to ravish and feloniously to carnally know,” it was held that the indictment was good, as the words ‘to ravish,” might be regarded as mere eae anes and rejected, and they could be referred to the different kinds of rape under the statute. McComas v. State, 11 Missouri, 116. See ante, tits. Rarn and ATTEMPT TO COMMIT Rar, ’ 1020 CARNALLY KNOWING GIRL UNDER TEN. Evidence. [*312] Lord. , feloniously, did unlawfully and *carnally know and abuse a certain girl named C.D., she, the said C. D., being then under then years of age, to wit, of the age of —— years; against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony ;(a) transportation for life.(®) Ewidence.(1) To maintain this indictment, it is necessary to prove— 1. Penetration, as in rape.(c) A boy under fourteen years of age cannot be convicted of this offence ; in this respect the law is the same (a) 9 G. IV, ¢. 31, § 17. (c) See stat. 9 G. IV, c. 31, § 18; ante, p. 305, (b)4.& 5 Vict., c. 56, § 3. and see R. vw, Lines, there mentioned. (1) Clear and distinct evidence ought to be given that the child is under ten years of age. See R. v. Wedge, 5 C. & P. 298; R. v. Day, 9 C. & P. 782.) : Upon prosecutions for this offence, it is an important consideration how far the child, upon whom the injury has been committed, is a competent witness. In former times, the competency appears to have been made to depend upon the age of the child ; and when the rule prevailed that no children could be admitted as witnesses under the age of nine years, and very few under ten (Rex ». Travers, 1 Str. 700), the testimony of the injured child must have been for the most part excluded. It appears to have been allowed that the fact, of the child’s having complained of the injury recently after it was received, is confirmatory evidence; but where the child is not fit to be sworn, it is clear that any account which it may have given to others ought not to be received. 1 Phil.on Evid.6. Thus, on an indict- ment for a rape on a child of five years of age, where the child was not examined, but an account of what she had told her mother, about three weeks after the transaction, was given in evidence by the mother, and the jury convicted the prisoner principally, as was supposed, on that evidence, the judges, on a case re- served for their opinion, thought the evidence clearly inadmissible, and the pris- oner was accordingly pardoned. Rex v. Tucker, 1808 ; 1 Phil. on Evid. 6. There is a great difference between consent and submission, especially in the case of a girl of tender years, when in the power of a strong man, and mere sub- mission, in such a case, by no means shows such a consent as will justify in point of law. Upon an indictment for attempting to abuse a child under the age of ten, containing a count for a common assault, no proof was given of the child being under ten years of age, but it appeared that the prisoner made an attempt on her, without any violence on his part, or actual resistance on hers, and it was contended that, as she offered no resistance, it must be taken that she consented, and that, therefore, the prisoner must be acquitted. Coleridge, J.: “There is a difference between consent and submission ; every consent involves a submission ; but it by no means follows that a mere submission involves consent. It would be too uch to say, that an adult submitting quietly to an outrage of this descrip- tion was not consenting; on the other hand, the mere submission of a child, when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such a consent as will justify the prisoner in point of law. You will, therefore, say whether the submission of the prosecutrix was voluntar on her part, or the result of fear under the circumstances in which she was placed. If you are of the latter opinion, you will find the prisoner guilty on the second count of the indictment.” Reg. v. Day, 9 C. & P. 722, Coleridge, J. [In Mississippi, carnal intercourse, or an attempt to have carnal intercourse with CARNALLY KNOWING GIRL BETWEEN TEN AND TWELVE. 1021 Indictment. as in the case of rape.(a) It is no excuse that the girl consented. If you fail in proving the offence, the jury may convict the defendant of an attempt to commit it,(b) if the evidence warrant it. 2. That the girl, at the time of the committing of the offence, was under ten years of age. A variance in the age, between the statement in the indictment and the proof, will not be material provided the age be proved to be under ten. As to the competency of the girl to give evidence, see ante. SECTION XLVI. CARNALLY KNOWING A GIRL, BETWEEN THE AGES OF TEN AND TWELVE. Indictment.(1) The jurors for our Lady the Queen, upon their oath, pre- sent, that A. B., on the —— day of , in the year of our to wit. (a) See ante, p. 305. (b) 14 & 15 Vict., c. 100, § 9; ante, p. 94. a girl of ten years or under, is made rape, or an attempt to commit a rape, as the case may be, by statute although the child consented,—such a child is incapable of legal consent. Williams v. State, 47 Miss. 609. ] {Under the Wisconsin R. 8. ch. 164, § 39, the carnal knowledge of a female child under ten, is rape ;—an indictment charging rape on such a child is not open to the objection that the girl was incapable of exercising any will. Fizell v. State, 25 Wisc. 364. On an indictment based upon this statute for unlawfully knowing a female child under ten years, the fact of penetration may be found by the jury from circumstances without direct proof. Brauer v. State, 25 Wisc. 413. By the Ohio statute, a female ceases to be a “child” and is a “woman,” at the age of puberty. Blackburn v. State, 22 Ohio St. 102.] (See, also, People v. Mills, 17 Cal. 276 (indictment) ; People v. McDonald, 9 Mich. 150 (in Michigan the crime is rape although the female is under ten, for she can- not legally consent); State v. Cross, 12 Iowa, 66 (ditto); Smith v. State, 12 Ohio St. 466 (in Ohio the crime is not rape); State v. Gray, 8 Jones, Law, 170 (in North Carolina to constitute the offence of carnally knowing a child under ten, proof of emission is essential) ; Reg. v. Beale, Law Rep. 1 C. C. 10 (it is an offence to attempt to carnally know a girl under ten, though she consents); O’Meara v. State, 17 Ohio St. 515; Moore v. State, 17 Ohio St. 521 (while it is presumed that a child under ten is incapable of consenting, yet it may be shown that she had sufficient knowledge of the nature of the act, or as much knowledge as girls over ten generally have. ] . ee [Under Maine Rev. Stat. ch. 118, § 17, an indictment for carnal knowledge of a child, need only set forth the offence in the words of the statute. State v. Black, 63 Me. 210. The carnal knowledge of a girl under ten with or without consent is rape in Texas, and the averments as to force and want of consent are surplusage, and need not be proved, if made. Davis v. State, 42 Texas, 226.] (1) Where an indictment in the first count charged the prisoner with having assaulted E. R., “an infant above the age of ten, and under the age of twelve 1022 CARNALLY KNOWING GIRL BETWEEN TEN AND TWELVE. Evidence. Lord ——, unlawfully did carnally know and abuse a certain girl named C. D., she, the said C. D., then being above the age of ten years and under the age of twelve years, to wit, of the age of years: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [You may add a count for a common assault, as ante, p. 282.] Misdemeanor ; imprisonment, with or without hard labor, for such time as the court shall award.(a) Upon this indictment, the defendant may be convicted of an attempt to commit the offence ;(6) in which case he will be punishable [#313] with fine or *imprisonment, or both, as for a misdemeanor at common law; and the court may sentence him to hard labor during the whole or any part of the imprisonment.(c) Kwidence.(1) To maintain this indictment, it is necessary to prove— 1. Penetration, as in rape.(d) If this be not proved, the jury may convict the defendant of an attempt to commit the offence,(e) if the facts proved will warrant it; for which the defendant may now be sentenced to hard labor as well as imprisonment.(f) Where it ap- (a) 9G. IV, c.31,§17. As to costs, see ante, (d) See stat. 9 G. IV, c. 31, §18; ante, p. 305, p. 187. and the case of R. v. Lines, there mentioned. (b) 14 & 15 Vict., c. 100, § 9; ante, p. 94, (e) 14 & 15 Vict., c. 100,§ 9; ante, p. 124; R. (c) Ibid. § 29; ante, p. 184. v, Martin, 9 Car. & P, 213. (f) 14 & 15 Vict., c. 100, § 29. years,” with intent to carnally know and abuse her, and, in the second count, charged that the prisoner unlawfully did put and place the private parts of him against the private parts of the said E. R., and did thereby then and there unlaw- fully attempt and endeavor to carnally know and abuse the said E. R., it was held that the second count was bad, because it did not aver that the said E. R. was between the ages of ten and twelve, and that the word “said” did not help ‘it, as it did not incorporate the description of E. R., contained in the first count ; but that if the second count had contained the words, “the said E. R. then and there being above the age of ten years, and under the age of twelve years,” it would have been sufficient. Reg. v. Martin, 9 C. & P. 215, Patteson, J. See ante, RaPE and AtTrempr to commit RaApn. (1) Where, on an indictment containing a count for an assault, with intent to commit a rape, and a count for a common assault, the first count was abandoned, there having been so much delay in the disclosure of the transaction that it could not be contended that the child had not consented 3 but as she was between the ages of ten and twelve, it was proposed to go upon the second count only, as it was a misdemeanor to carnally know and abuse achild between those ages, and an imposition of hands for the purpose of committing that misdemeanor was con- tended to be an assault; it was held that the prisoner must be acquitted, for, to support a charge of assault, it must be proved that there was such an assault as could not be justified if an action were brought, and leave and licence pleaded. Reg. v. Mefedith, 8 C. & P. 589, Lord Abinger, C.B. INDECENT ASSAULT. 1023 Indictment. peared that the defendant effected his purpose by force and against the will of the girl, and it was objected that the offence was rape, and that the defendant could not, therefore, be convicted on this indict- ment as for a misdemeanor, Rolfe, R., Refused.to stop the case, and allowed it to go to the jury, who found the defendant guilty; and to a question from the judge, the jury answered that they were of opinion that the prisoner did effect his purpose by force and against the child’s will: the case being reserved for the opinion of the judges, they held that the conviction was right.(a) By a late statute,(o) this point is now put beyond doubt; for it is enacted that, if, upon an indictment for a misdemeanor, the evidence prove a felony, the defendant shall not on that account be acquitted, unless the court think fit to discharge the jury from giving a verdict, and order the defendant to be indicted for the felony. 2, That the girl at the time was above the age of ten years, and under the age of twelve. If it appear that she was above the age of twelve, the man, of course, must be acquitted. But if it appear that she was under the age of ten, still the defendant, it should seem, may be convicted, unless the court discharge the jury, and order him to be indicted for the felony, as above mentioned. A variance between the age stated and that proved, in other respects, will be immaterial. SECTION XLVII. INDECENT ASSAULT. Indictment. —) The jurors for our Lady the Queen, upon their oath, present, to wit. that A. B., on the —— day of , in the year of our Lord , did unlawfully and indecently *assault a certain [*314] [girl] named C. D., and did then [here state what he did], and did then otherwise ill-treat the said C. D., and other wrongs to the said C. D. then did: against the form of the statute in such case made (a) B. v. Neale, 1 Car. & K. 691; 1 Den. 36. (b) 14 & 15 Vict., v. 100, § 12, 1024 INDECENT ASSAULT. Evidence. and provided, and against the peace of our Lady the Queen, her crown and dignity. (Add a count for a common assault, as ante, p. 282.) Misdemeanor; fine or imprisonment or both; and, by stat. 14 & 15 Vict., c. 100, § 29, hard labor during the whole or any part of the imprisonment.. Formerly a count for a common assault was sufficient ; but if it be intended that the defendant should be sentenced to hard labor, it must now appear on the face of the count that it was an “in- decent assault,” to bring it within the above statute. _Hvidence, To maintain this indictment, it must be proved that the defendant took the indecent freedoms with the person of C. D., mentioned in the indictment, or so much of them a8 amounts to an indictable offence. The taking of any indecent freedoms with the person of another, female or male, not amounting to rape, etc, or an attempt to commit it, against the consent of such other person, or to which he or she sub-. mits merely, but does not consent, is in law an assault; and evidence of it will maintain an indictment for a common assault. The only reason why the form of a special count is above given is, to bring the case within the stat. 14 & 15 Vict., c. 100, § 29, which assigns hard labor in addition to imprisonment, as the punishment for an “ indecent assault.”(a2) Where, upon an indictment against a schoolmaster, for an assault, with intent to commit a rape upon one of his female schol- ars, with a second count for a common assault, it appeared from the evidence that he did not actually attempt to commit a rape, hor per- haps intend it, but he had taken most indecent liberties with the per- son of the girl, and without her consent, although she did not actually offer resistance: the judges were of opinion that the evidence was fully sufficient to sustain the count for the common assault, although not the count for the assault, with intent to commit a rape.(d) So, where a girl went to a quack-doctor to be cured of some com- plaint, and he, pretending that he could not otherwise judge of her illfiess, than by seeing her naked, pulled off her clothes: being indicted for this specially, and also upon a count for a common assault, the jury being of opinion that the defendant did not really think that his see- ing the girl naked would assist him in judging of her illness, found him guilty; and the judges held the conviction good upon the (a) See ante, p. 184, (6) R. v, Nichol, R. & R. 130. INDECENT ASSAULT. 1025 Evidence. count for a *common assault.(a) So, where a girl of fourteen [*315] years of age was placed by her parent under the care of the defendant, a medical man, in consequence of illness arising from sup- pressed menstruation ; he accordingly gave her medicines, and on her coming to his house, and informing him that she was no better, he said “then I must try further means with you,” and he thereupon took, hold of. her, laid her down in the surgery, took up her clothes, and had connection with her, to which she made no resistance, believing, as she swore, that she was submitting to medical treatment for the ail- ment under which she labored: the defendant being indicted for an assault at the quarter sessions for Dover, the Recorder told the jury that the girl being of an age to consent, if she consented knowing the nature‘of what the defendant was doing to her, it could not be deemed an assault, but if they were satisfied that she was ignorant of the nature of the defendant's act; and bona fide believed that he was, as he represented, treating her medically with a view to her cure, it was’ an assault; and the jury convicted him: this case being brought before the criminal appeal court, the judges held that the Recorder had put the case very properly to the jury, and that the conviction was : right.(d) But where a man was indicted for carnally knowing a girl between the ages of ten and twelve, and in other counts for an assault to do so, and for a common assault: and the evidence only proved an attempt to have carnal knowledge, which hurt the girl, but which appeared to have been done perfectly with her consent: the judges held that the defendant could not be convicted for the assault with intent, etc., or for the common assault, it being done with the girl’s consent; but that he might be indicted for a misdemeanor in attempting to commit the offence.(c) So, where three boys, each under the age of fourteen years, had connection with a girl nine years old, with her assent, and as from their ages they could not be indicted for the felony, they were indicted for an assault—the jury found them guilty, saying, at the same time, that the girl was an assenting party, but that from her tender years she did not know, what she was about: but the case being referred to the criminal appeal court, the judges held, that as the j jury had actually found that the girl consented, the conviction was wrong.(d) However, a girl’s merely submitting to such an act is not to be deemed (a) R. v. Rosenski, MS. and Ry. & M. 19. (c) R. v. Martin, 9 Car. & P. 213. (b) R. v. Case, 19 Law J. 174m. id) R. v. Read et al., 2 Car. & K. 957. 65 1026 INDECENT ASSAULT, Evidence. conclusive of her consent to it, as it might in the case of a woman or adult girl, but the jury will have to judge, from the facts of the case, ‘whether she consented willingly, or merely submitted to it from fear, and if the latter, the defendant may be convicted.(e)(1) (e) R. v. Day, 9 Car. &.P. 722, per Coleridge, J. (1) See ante, tits. AssavLT AND Battery: Rary and ATTEMPT TO CoMMIT A Raps. ays prieeraiernrst peer bl Uae nahh See ee Pistivanrnt nett paeleracrten tte Pinpasesvetty cathe rigserere a sy inert biikal? : jeer nesetrtnit ages nite ee Wt Ltaret pati seth Pear aesty eh Ayre ete Sedan oe init ecaert taste suas if dba ltt Teale eC t or ei eetigae Treacle Beye phbahyaret 2? 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