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CRIMINAL PROCEDURE;

OR,

COMMENTARIES

ON THE LAW OF

PLEADING AND EVIDENCE

AND

THE PRACTICE

IN

CRIMINAL CASES.

By JOEL PRENTISS BISHOP.
wai

Turrp Epition,

ENLARGED AND REWRITTEN.

VOL. I.

BOSTON:
LITTLE, BROWN, AND COMPANY.
1880.
S146

Entered according to Act of Congress, in the year 1866, by
JoEL PRENTISS BISHOP,

In the Clerk’s Office of the District Court of the District of Massachusetts.

Entered according to Act of Congress, in the year 1872, by
Jor, PRENTISS BIsHOP,

In the Office of the Librarian of Congress, at Washington.

Entered according to Act of Congress, in the year 1880, by
Jor, PRENTISS BISHOP,

In the Office of the Librarian of Congress, at Washington.

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1619
Boa
| 2&0

UNIVERSITY PRESS:
JOHN WILSON AND SON, CAMBRIDGE.
PREFACE

TO THE THIRD EDITION.

THis is a new book. Bearing the same name as an old
one, it is numbered the third edition to avoid confusion of
reference; and the order and section-numbers of the sec-
ond edition are for the like reason retained, as far as they
could be without serious detriment. Let me explain.

Proceeding, in the making of this series of books, in the
manner stated in the “ Introduction” which follows this
preface, I found, after “Criminal Procedure” was originally
written, that I had scarcely reduced the mass of my col-
lected materials. In preparing the second edition, I exam-
ined all again, used what I could in writing on the plan
then pursued, discarded altogether what it seemed possible
to spare, and ended by finding the unused and not-dis-
carded mass appalling for its bulk. Coming to this third
edition, and having resolved that the time for condensation
had arrived, I discovered that there was no means by which
it could be carried so far as to admit all my material, ex-
cept by rewriting. So I resolved to rewrite. And the
reader need not be told that the labor of rewriting, in a
manner so condensed, was far greater than that of the
original composition.

The old book in its second edition, the collected mass
just described, and the cases published since the second
edition was issued, furnished the principal memoranda for
the writing of this new book. I also consulted afresh,
iv PREFACE TO THE THIRD EDITION.

‘

as occasion suggested, all the other books relating to the
subject.

Some topics, omitted from the prior editions, are intro-
duced into this, and all the old topics are more fully and, I
trust, more clearly treated.

How much has been added the reader will see from the
following statement. The second edition contained 6,056
cited cases. This third has 16,129; an addition of five
new cases to every three old ones. The additions, it is
perceived, number 10,073. These added cases are more,
by nearly a thousand, than all that are cited in any three-
volume book, English or American, relating to the criminal
law ; even though professing to cover the entire field em-
braced by my five volumes of “ Criminal Law,” “ Criminal
Procedure,” and “Statutory Crimes,” and professing to
have all the cases in existence. Nor do these two volumes,
thus covering two-fifths only of the field, contain in all
greatly less than twice as many cases as any such three-
volume book.

Other explanations appear in the following “ Introduc-
tion,” except as to a single question. It may be doubtful
whether the advantages to the reader of having in italics,
in the “ Index of Cases,” those to be found referred to in
some other text-book, as in the sixth edition of “ Criminal
Law,” are not overbalanced by inconveniences obvious to
one using this “Index” when so printed. Not having
absolutely decided this question, I could not follow the
plan in the present edition without too much retarding its
issue ; so great would have been the labor of preparing for
the printers, in this way, a list of cases so heavy. The
book has been too long out of print. To the waiting
reader I can only present the great improvements made in
it, in part apology for the delay.

J. P. B.

CAMBRIDGE, May, 1880.
INTRODUCTION

EXPLAINING HOW AND WHY THE BOOKS OF THIS SERIES ARE
WRITTEN.

Ir is due alike to the author and his readers that explanations which
would have been premature at an early period of these labors should, -
now that results have in some-degree ripened, be made. And
herein must be included the prior work on “ Marriage and Divorce,”
which appeared in one volume in December, 1852. Later works have
not been long enough before the public.

Let me adopt a style which, if it seems familiar and a little like
autobiography, will render the explanations the clearer.

“ Marriage and Divorce” was originally meant to be my only effort
at'law writing. But, while preparing it, views new to me, yet doubt-
less common with more thoughtful persons, regarding law and legal
works, the relations of our profession to the state, and the causes
which make a people great and prosperous or the reverse, opened to
my understanding, by reason whereof I abandoned legal practice,
“retired,” as the religionists say, “from the world;” and, silent as to
what could not then be properly explained, gave all my time and
strength to labors apparently of the present merely, yet whose real
goal and only incentive were in the future. To proceed in a some-
what orderly manner, —

Nature of the Common Law and how developed.—It has been
said and repeated in every age, by every learned person whom men
have regarded as a real light in our jurisprudence, that the common
law consists, not of collected cases, but of legal principles. Persons
ignorant of it have denied this, but their denials have never been
accepted by the intelligent as the voice either of knowledge or of wis-
dom. Even from the bench, weak judges have sometimes denied this
truth; yet the strong who came after them have confirmed it, by over-
ruling such of their decisions as were found contrary to just legal doc-
trine. And as new questions have arisen, and strong men have been
vi INTRODUCTION.

admitted to preside in our courts, the body of acknowledged doctrine
which we call the law has continued its growing, has submitted to prun-
ings of what was ill-shapen, and has been gradually brought toward,
and nearer and nearer to, the perfection which in human affairs it
is impossible ever fully to attain. But, though such is the ordinary,
actual method of improvement, another, not much resorted to in the
past, and even despised by some, while still it has always been practi
cally more efficient than all others combined, is through —

Text Books.— Those here meant are not the ordinary ones, com-
pounded of piracies, of the results of raids through the reports by
boys, and of a little labor by an ostensible and perhaps eminent author.
But they are the productions of men who, with their own brains, not
by proxy or by theft, have explored each subject on which they have
written, through all its foundations, and upward through every part
of its superstructure; have seen with their own understandings how
part corresponds with part, and how some parts which had been sup-
posed to belong to it are destroyed by others which certainly do; and,
comparing each with the others and all with the rest of the law, have
been able to state and have stated, from a comprehensive view impos-
sible to any judge on the bench, how the true law of the. subject
actually is, and why it is thus. Concerning this class of books profes-
sional opinions are divided. There are gentlemen of excellent under-
standing who deem it a wickedness and a folly for an author to think
or say any thing not before uttered by some judge, and especially a
hideous sin to point out a mistake which a court may have made.
They merely permit an author to “humbly suggest” whether or not
a thing may be so and so, on condition that he will withhold all con-
vincing reasons. As an illustration of this, I remember that, soon
after “ Marriage and Divorce” was published, an excellent legal gen-
tleman came to me in great wrath, declaring that I had done him a
flagrant wrong. He had before the courts a case wherein it was im-
portant for him to maintain a particular doctrine. I had laid down
the contrary as the true law, and had added my reasons. The first,
he said, was permissible ; since the judges would pay no regard to an
author’s mere opinion. But to add reasons which he could not answer
was an outrage. There is another class of legal gentlemen who, from
no fault of their own, but from their minds not having been cast in
the legal mould, deem that all utterances of judges are law, yet that
nothing else is, unless written in a statute or the constitution. So,
according to them, the English queen’s appointees to the bench have
a, quasi legislative power over our States, and the judges of each State
have the like power over the rest 3 we are all in bondage to their blun-
ders, and an author who, seeing what they did nat discern, endeavors
INTRODUCTION. vil

to set them right, forfeits thereby the good will of the profession. It
has been known that judges, exceptional in kindness, have come to
the relief of the erring author by publishing from the bench his views
as their own, and cast over him their protecting mantle by withhold-
ing all mention of his name or works; deeming, perhaps wisely, that
he will be compelled to refer to their decisions in future editions,
wherefore the views will be attributed to them, and his errings will be
forgotten. But what is here noteworthy is, that, according to these
gentlemen, this kindly act from an official person, forbidden by the
constitution to exercise legislative power, has made law to-day and
forever of what was not law yesterday, and not in his own State alone,
but in every State and country where our system of jurisprudence
prevails. On the other hand, there are, in every grade of our profes-
sion, men, official and non-official, who look upon the law as a system.
of truth open to the investigation and exposition of all persons alike;
and who greet with gladness, and treat with just consideration, the
labors therein of any man who brings order out of chaos, explains
where judicial opinion has erred and where it has not, supplements
with sound reasons the sound opinions of judges who have reasoned
incorrectly, and builds up a well-proportioned edifice from fragments
which lay scattered and in disorder.

My own Books. — Endeavoring to execute what the latter approve,
I wrote “Marriage and Divorce.” Sufficient space was occupied
therein to make the expositions as full as seemed important. I had
never occasion to enlarge them much; the expansion into two volumes
was by adding new topics. Proceeding thence to this Criminal-law
Series, I was by the magnitude of the subject compelled either to pro-
duce works too large to be merchantable, or to adopt a greatly
abridged form of exposition. And the latter was deemed permissible;
because the subject had been more cultivated, and it was better under-
stood, than the other. The first volume of “Criminal Law” was pub-
lished in advance of the rest; and, observing its effect on the average
reader, I became satisfied that it was condensed too much for present
purposes. The essential views were there; but there were few super-
fluous words, and there was no room for repetitions. I had examined
the subject more deeply and carefully, and had traced it more com-
pletely to its sources, than any other author, certainly since Hawkins,
had done; and, as a necessary consequence, those who had read other
books upon it, or had gained their ideas in any other superficial way,
were apt to think my truths were errors when differing from the
errors they had imbibed. The reasons, which could be stated but
once to the several questions within them, stood unavoidably, there-
fore, sometimes remote from the doctrine they would support; and, if
vili INTRODUCTION.

such doctrine chanced to be one on which a reader had mistaken
ideas, I could hardly blame him when, instead of investigating the
topic, he leaped to the conclusion that I was wrong. In this way, the
errors of other writers (for it was not within my plan to point them out,
except occasionally, but not often, in some old author of the honored
few) operated not unfrequently to my discredit. Seeing this, I took
the only backward step I was ever conscious of taking in my life of
authorship. In preparing the second edition of that volume, not only
did I introduce the matter newly accumulated, but likewise expanded
it more than a hundred pages besides, by repetitions, amplifications,
and other devices, whereby a perverse reader would be left without
excuse should he mistake or misstate its teachings. The other vol-
umes of the series were prepared in the same way with this second
edition. That the step backward and the following up of the prece-
dent it created were necessary I never doubted, nor do I. now; not
only from the reasons just given, but from others more weighty, with
which there is no need to burden the reader. It was the only way to
float, freely and well, the work onward to its destiny. But with equal
confidence I began a change with the sixth edition of “Criminal
Law;” being now able to rely on the knowledge of multitudes of
readers that I state for law only what the most thorough examination
will confirm as such, and criminal-law learning having in some degree
increased in our profession. I contracted the forms of expression
and omitted repetitions so as to have room for augmentation by a
great amount of new material. And in this third edition of “ Crimi-
nal Procedure,” I have carried still further what was thus begun, as
may be learned more particularly from the Preface. A second edition
of “Statutory Crimes” will follow, condensed and augmented in a
like manner.

Collecting the Material.—In preparing these books, the first labor,
preceding the writing even of a sentence, or planning. the order of the
topics, has been to take into my hands every volume of reports, and,
by personal examinations, with the added help of digests, to find as
far as possible, in each volume, every case relating to my subject.
Such of the cases as it seemed prudent to dispense with were dis-
missed. Of the rest, I preserved notes, embracing the points decided,
the statement of facts when necessary, and always any observations of
the judges which seemed to merit special attention. In like manner,
I resorted td and preserved notes of every thing else, whereof the pre-
liminary reading appeared desirable. But practically the principal
matter of this sort consisted of adjudged cases.

Piracies and “Helpers.” —I am now approaching a wide distinction
between the methods pursued in the preparation of these works and
INTRODUCTION. ix

those of the majority of legal text-books. As, at places, the ocean
flows far landward in enormous bays, and, at others, immense capes
crowd it back, so is it, observers have often said, where civilization
presses upon the primeval barbarism of mankind. Men yield in one
particular to civilization, and in another the old barbarism reigns over
them. It is thus with our law and our text-books. The former
almost keeps step with the average civilization-of the people where it
prevails. The latter are, to a great extent, even at this day, in pri-
meval barbarism, Piracy is largely the staple of their construction.
And largely the opinion prevails in the profession that this method is
honorable, and many are they who deem it the only proper plan.
“On what work,” inquired an estimable legal gentleman of me while
“Criminal Law” was in preparation, “do you found your book?” I
explained that it was to be original. “ But,” he continued, “I am
inquiring on what author you propose to found it.” I explained again
that it was not to be a new edition of any book of another, but my
own production. “ Well,” he said, “every legal author, you should
know, founds his book on some preceding one. On what author do
you found yours?” “On Bishop,” I replied. That ended me with
him! The look of contempt he gave me may be imagined, it cannot
be described. Years ago he left us for the land where, it is said,
“thieves do not break thtough nor steal;” yet how the good man
has been able thus long to endure an enforced abstinence from stolen
fruit no messenger has returned to inform us. In early boyhood
occurred an incident which has given shape to my own thought on
this subject. My parents took me to hear the story of a returned mis-
sionary to a very heathen country. He told us how the chiefs col-
lected revenue for the maintenance of the government ; namely, when
a chief learned that a poor man had raised a pig for his family’s sus-
tenance, he levied personally on the pig, and ate it himself. While the
wrong impressed me deeply, it did not occur to me how much better
this government was than none; but, in later years, I have deemed,
with the rest of the profession, that the text-books which our “chiefs”
have constructed through piracy are vastly better than none, especially
when supplemented by valuable labors of their'own. My friend of
the “found ”-ing school would consult no others; and, as he was a
gentleman in large practice, it was better for his clients that he should
be thus instructed than not at all. This method is sometimes super-
seded or supplemented by another, which is not an invasidn of a prior
author’s rights, or otherwise dishonorable, provided a due avowal of
it is made to the reader. It is for a man presumably competent to
employ less-instructed persons to do parts of the work while he does
or superintends the rest. But, from reasons which will appear as we
proceed, I rejected entirely this method, equally with the other.
x INTRODUCTION.

Acquiring Knowledge before imparting it.— The opinion, common
in our profession, that one can teach law which he has not learned, or,
if the knowledge of it is important, that it can be acquired by proxy, is,
it has seemed to me, correct only when restricted to authors of superior
ability and fame. Therefore it has not entered into the preparation
of these works. And this explains why, before beginning to write, I
personally examined my subject, in all its parts, in the original sources.
Were I not restrained by the plan of this introduction, which is simply
to state my own methods,. combating no ideas of others, I should
deny that what is not in a dish can, by any person, be poured there-
from. And I should contend that putting a thing into dish A does
not add to the contents of dish B. To illustrate: should one of our
Universities resolve to have a chair in Chinese, and dump a cartload
of Chinese books into the chambers of its eminent Greek professor,
telling him to play the pirate with them, this would not transform him
into an accomplished Chinese scholar, fitted to fill the new chair. Or,
should it be resolved that the language ought to be acquired in China,
at the expense of ten years’ or a hundred and twenty months’ study,
to send there the Greek professor for one month, with a hundred and
nineteen young gentlemen “ assistants,” would leave for him much to
learn. Though his Chinese might become the standard in America,
studied by throngs, and praised for its high qualities, that of a man
not too eminent to spend the ten years in China personally would be
more highly prized there.

Distinctions. —I should consider myself competent to say what a
case decides, on examining the case itself, and no more. In like man-
ner, one who can state the point of the first case in a volume can do
the same of the second. Ora hundred men may digest each his hun-
dred cases, and the whole may be arranged into the sort of book called
a Digest. It would be lacking in harmony and finish, still there would
be no serious objections to the book. As the digest-maker views the
cases, each one is a complete subject. But a single sentence in one is
not. So a single case on the criminal law is no. complete part of the
subject of this law, as viewed by the author of a treatise or commen-
tary. The decision may be wrong in whole or in part. Or, being
right, it may be one step, and no more, in a course of reasoning
whereby a doctrine, perhaps not hitherto announced, is to be estab-
lished. Or it may qualify something in a manner not to be discerned
until the something itself is manifest. Or it may operate in a variety
of other ways, and its full effect be perceptible only when the whole
system of law passes in review before the mind. Again, one part of an
entire subject qualifies and limits another part. Hence, and for other
reasons also, I have nut felt competent to write on one topic within

/
INTRODUCTION. xi

my subject until I had seen and pondered upon the law of all the other
topics, as appearing in its original sources. Moreover, —

Preparations additional to Reading and Note-taking. — However
far the reading and note-taking are carried, they alone constitute no
adequate preparation to begin the writing upon the plan now being
explained. With and supplementing them must go reflection to a
degree and depth which will keep the preparing mind in constant
‘mastery of the situation. Any person who should undertake to write
without the latter, or one without legal aptitudes who should attempt
it with both, would be able to do little with his accumulated mass,
except to set down dicta and adjudged points. He would have to
abandon the work, or produce one essentially valueless, or resort to
piracy. And if he had entered upon it from my recommendation of
the plan, he would deem himself qualified to pronounce me, with
unerring certainty, a fraud.

Something of the Writing. — In these preparations consists much of
what I deem to be peculiar in the plan thus spoken of as mine. But,
let it be distinctly understood, I do not say that it is not the plan
also of some other authors. I do not know. It is not the way in
which the majority of our text-books are made. And by internal evi-
dence I know, that, neither on any subject upon which I have written,
nor on any other with which I am specially familiar, is there any book,
good or bad, written after this method. This I say in explanation,
not in disparagement of other works. For while I deem that every
legal subject should have its text-books written in this way, and know
that herein would be my ample excuse for intruding mine on the pro-
fession if there were no other, J agree with the general opinion that
books otherwise prepared may be useful. And I have given pledges
for the sincerity of this belief in “ First Book of the Law,” which did
not admit of being written on any such plan; and in “ Contracts,”
wherein the leading doctrines of its subject are stated too briefly to
give room for all the exhaustive searchings into the minute which
this plan requires. These preparations are a prefix to the act of writ-
ing. The act itself is, so far as I know, conducted by me in the same
manner as by others whose works are not produced by proxy or
piracy. The preparations are not a substitute for any needful thing
afterward. I examine other books while writing, and look again and
again into the adjudged, cases, whenever and to whatever extent my
work may thereby be made better. And— .

Giving Credit to Books. — While thus resorting for help to every
book from which appears even a possibility of it, and accepting it
wherever found, I invariably give credit to the book, by references or
quotation marks or both, as the case may require, in my text or notes,
xii INTRODUCTION.

at the exact place where the help comes. And I do this fully, and
without reserve. Never, for example, do I take an idea from an
author’s text and refer for it to his authorities; I refer to the author.
In considering the order of arrangement, I have in no instance looked
to see how another had divided the subject; so there was nothing of
this sort to acknowledge. Only in one way am I apprehensive of
having done other authors wrong; and that is, in referring to the
pirate’s work, instead of the original producer’s. This I could not
always avoid. Besides these references in acknowledgment, I have
made the like tothe books of other authors whenever, for any reason,
there appeared a probability that they might be helpful to any reader.
And, in a few instances, not often, I have introduced:.a reference
meant to be purely complimentary. Reflection has not confirmed the
propriety of this course. And from the sixth edition of “Criminal
Law,” and this third of “Criminal Procedure,” I erased the greater
part of these. While I should gladly lavish compliments on multi-
tudes of people, I do not feel justified in putting them into a book
written for another purpose, and compelling those who care nothing
for them to buy them.

Referring to Adjudged Cases. — There is a difference between
examining all the cases and referring to all. The plan I am describ-
ing requires the former, not also the latter. Without the former, the
qualification to write is incomplete. One cannot reject what he does
not see. And selecting implies an examination of what is not taken.
But I should only proclaim my own incapacity if I pretended to hav-
ing examined absolutely every case. Nothing short of an actual reading
of every page of every law report and every trial, on whatever appar-
ent subject, —a feat impossible to any author, — would justify a pre-
tension of this sort. I did the best I practically could to find all.
And I do not think many were omitted. But, as already explained,
in the original looking I rejected some. And as I have written I have
altogether rejected others. Still others have been, from edition to
edition, postponed for future consideration. Most of the ten thou-
sand cases added to this third edition of “Criminal Procedure” —
a larger number than the whole to which any other author, Eng-
lish or American, had referred on all the branches of the criminal
law combined — are of the latter sort. When we consider how numer-
ous are the independent jurisdictions in this country, and how each
reader seeks first the cases most authoritative in his own locality, it is
plain that a good American text-book must contain references to cases
in an abundance which to an English practitioner would appear ridicu-
lous. Besides, the full references enable a reader to make a minute
and thorough examination of each particular topic having a special
INTRODUCTION. xiii

interest for him. How full mine are he can see for himself; first, by
comparing them with those in other books on the like subjects; sec-
ondly, by looking into my books for cases found in such books of
reports as he has at hand. Having never tried the latter sort of com-
parison, I can only guess how many he will thus discover to be want-
ing. Other reasons also will occur to the reader, justifying a pretty
full citation of the cases. And that the majority of professional
opinions requires it may be inferred from the fact, that those books
whose main strength consists of representations in the preface, made
with a view to what will sell, almost uniformly profess to have all the
cages, or so nearly all as to render the enunciation equally false. We
may assume that their projectors know what is public opinion, or they
would not risk, for an uncertainty, the certainty which will follow
should the eyes of the profession open to the fraud.

References impossible. — There are legal propositions, necessary to
be stated, and not less certain than the rest, for which no refer-
ences to authority can be given, because none exist. It, has been
decided that there can be no agent without a principal; but not, it is
believed, that there cannot be two days without an intervening night.
Yet the latter proposition is just as true in the law as the former.
Were there a decision otherwise, it would be without authority, be-
cause contrary to a law of nature. Legal truths of this sort exist in
numbers without limit. And they qualify the adjudged points in cases.
There are likewise other forms of qualifying truth, for which an au-
thor cannot refer to authorities. His only method is, therefore, to
refer to such authorities as exist, and leave the rest to the good sense
of the reader. This method fails to.be satisfactory only with gentle-
men who deem that nothing is law which a judge has not said.

Stating the Law as it is.— The main endeavor, connected with the
writing, has been to state the law, not as some judge or author may
have done heretofore erroneously, or as my own private opinion might
deem it ought to be, but as, on a consideration of all the elements
which determine the question, it is found to be in fact. Of course,
I cannot here enumerate these elements. A doctrine absolutely cer-
tain I.enunciate in the absolute way, even though learned persons
may have erred therein. But I never deal thus with what affords fair
room for argument on both sides. In consequence of this, some
praise and others disparage my works, according to their differing
ideas of what should be, for saying squarely what the law is, with no
hesitancy or doubt. Others praise or blame them for not doing this,
‘But our legal literature yet lingers too far back in the barbarisms of
the past for it to be generally understood, that, like a painting from
nature, a law book should represent the hues which the author finds.
xiv INTRODUCTION.

A competent writer will discover much to be absolutely clear which
the courts have muddled. Therefore the plan of these works is to
paint it clear. But to draw strong and absolute lines where the light
in fact flickers and is uncertain——to paint the water-lily red and the
sunshine black — could not be within the plan of any book not writ-
ten to die when the full light of civilization pervades this department
of our literature.

Codifying, and improving the Law by Text Books, compared. —
These expositions, which would be made more full if there were space,
are in a sense introductory to my main purpose. A free jurispru-
dence, as far as possible untrammelled even by statutes of the ordinary
sort, is, if we may judge from the past, the breath of a nation march-
ing upward in greatness, in power, and in usefulness; a codification
of the entire laws! is the destroyer of its breath, and the attendant
on its decline and death. Such was Rome before and after her
great codification. England, without this sort of Code, has stretched
herself through all the sunshine, across the morning and evening
twilights, and far over the night, encircling the globe. Two things
are prophesied of her: first, that she, like Rome, will obtain 4
Code; secondly, that, like Rome, she will decline. The Code and
the decline have equally, by some, been predicted for us. The
philosophy of the matter is, that, in the state as in all other things,
the intellect which controls, must, to ensure success, have received.
@ proper anterior cultivation. And, for statesmanship, law, which
deals with what is nearest like that wherewith the statesman has
to deal, is just as essential as a mercantile marine is toa navy. No .
collection of ecclesiastics, however pure, learned, or exalted, has ever
been able to govern a state well. Essential among every body of
rulers are men whose training has been legal. But a quiddling over
codes and phrases, even under the name of administering the law,
does not constitute any proper legal training. To be efficient, it
must comprehend that sort of examination of the fundamentals of
jurisprudence which the common law invites, or it may be after the
methods practised by the Roman jurists prior to the advent of the
codes. Now, not to enlarge on this, such is the view which has given
form to my life and earthly destiny. I have seen, as have others, that
we were drifting toward codification. The arguments for it are cap-
tivating ; no siren ever sang so sweetly of rest as do the advocates of
codification of the repose which the law will find therein. And no one
.thinks to inquire what sort of codes our politicians will produce, while

" Tam not speaking of partial codifica- are not exclusive of the common law.
tions, in the nature of Revised Statutes, Whatever may be said of them, they are
which prevail in some of our States, and not within the contemplation of my text
INTRODUCTION. xv

the literature of the law is yet in its barbaric period. If men would
think, they would see that a code from our politicians would nearly
put an end to the high and pure reasonings which the common law
invites and often compels, and quadruple and transmute to mere
quiddlings the disputations in our courts. Yet the apparently un-
scientific condition of the law, as casually viewed in the reports, and
as unexplained in the text-books of the barbarous periods, the immense
multiplication of reported decisions, and of treatises which fail to
bring order out of chaos or lead the judges to harmony of opinion,
are arguments for codification supposed never to have been answered.
But, as I long ago believed, and claim now to have demonstrated,
text-books written on the plan above detailed by competent men —
not “ eminent” men, for no man of eminence has the time, and no one
beginning while too young for eminence can find leisure to chase and
catch this bauble if he desires— may simplify the law, even to the
understandings of uneducated persons, more than codes can do; di-
minish litigation, while codes would increase it; produce uniformity
of opinion and decision in the courts, rendering the results of agitat-
ing a legal question reasonably certain; and augment, not diminish,
the usefulness of legal studies as an educator, and especially as a
preparative for participation in public affairs. The reader will not
expect me further to show this in the present brief space, but only to
tell him where the demonstration canebe found. Let him, then, care-
fully examine the books on marriage and divorce, and the decisions
of our courts, as they were before the present author wrote. He will
learn that there has never been a legal subject upon which our tribu-
nals have been in so much confusion and conflict. He will see that my
book consisted, in large part, of a clearing up of questions of difficulty ;
not by the author’s pausing and telling what he was doing, but by leav-
ing plain what was before obscure, and making smooth the ways which
before were rough. Let him then follow down the decisions of our
courts to the present time. He will find that, as often as the views of
the book were seen and understood, they were adopted by the courts;
and that, not only is this the rule, but to it there is no exception. If,
oftener than may be expected when civilization shall have made its
proportionate progress among things legal, the part performed by these
views has been that of the pig in the heathen land above spoken of, still
the fact remains the same; and still he will find abundant evidences of
‘an improved civilization in all this path. The result disclosed will
be, that, to-day, the law of our courts on marriage and divorce is more
harmonious than on any other topic. Most, and perhaps all, of the few
differences remaining would have been avoided, had the book been
looked into. A like progress will be manifest to him who examines
xvi INTRODUCTION.

in the same way the criminal law. But, as these books have not been
so long before the public, and, the subject being larger, have not so
exclusively occupied the attention of the courts, the results have as
yet travelled less far. And herein is the reason why the plan and its
purposes could not be disclosed at an early period. The undertaking
would have been deemed fit only for eminence and consummate abili-
ties. I could not have explained that it was otherwise, and my utter-
ances would have recoiled to my injury. But the demonstration
being now complete, the case is different. My lack of ability I
acknowledge, and ask commiseration for my feebleness. To me, the
sunset already begins to appear. Should the orb of earthly day not
for a while drop into western seas, or should his beams linger on the
clouds, still the darkness is not far away. My hope is, that strong
men, seeing what a weak one has done, will take up this plan of
thorough work, and bring order out of confusion, and harmony out of
discord, throughout the entire law. Lither this or codification will,
sooner or later, come. And I cannot see how any one, of clear vision,
who loves his country, can hesitate between the two.

Accumulations of Decisions. — When able books, written on this
plan, appear in all the.departments of our common law, and the courts
administer it in its own true spirit as transmitted from the forefathers,
no one will complain of the multiplicity of decisions, however vast the
inundation. The principles, which constitute the law, will not be
thereby swept away. No one, constructing a water-wheel, ever sat
down and mourned because of the number of running streams and
mill-sites, complicating the principles of hydraulics. Nor is any
accumulation of cases, however vast, an impediment to the making
of the books for which Iam arguing. Should they. become so great
as to preclude an examination of all, one may still write as good a
‘book as he could if only those examined existed. And the difficulty
of deriving the principles from the cases, instead of being increased
by numbers,,is thereby diminished.
cd

CONTENTS OF VOLUME I.

BOOK I.

PRELIMINARY VIEWS.

CHAPTER SECTION
I. JupictaL PROCEDURE IN GENERAL . ....... I1-Il1

II. CrrmmmnaL PrRocEDURE CONSIDERED HISTORICALLY AND
AS TO ITS PRESENT CONDITION . .. . ..- + . 12-27
s

TII. OnpER AND CHOICE OF PROCEEDINGS IN A CRIMINAL
Cause 2 ee ew ee we we we ee ew ee 28-4
§ 28-29. Introduction.
80-34. What before the Indictment, &c.

85-40. Thence to Guilty or Not Guilty.
41-44. From Guilty to Execution of Sentence.

BOOK II.

SOME LEADING PRINCIPLES OF CRIMINAL PROCEDURE
EXPLAINED,

IV. Taz Orrencet To BE PROSECUTED IN THE COUNTY OR
DistRICT WHERE COMMITTED. . .... .. + 45-67
§ 45-48. Introduction.

49-63. As to Crimes against the States.
64-67. As to Crimes against United States.

V. CHance oF VENUE ... .. +. + « «© « « « 68-76
VOL. II. 6
XVili CONTENTS OF VOLUME I.

CHAPTER SEcTION
VI. Tue INDICTMENT TO ALLEGE WHATEVER IS IN LAW
ESSENTIAL TO THE PUNISHMENT TO BE INFLICTED 77-88
§ 77, 78. Introduction.
79, 80. How the Doctrine stands in Reason.
81-&. How in the Adjudged Law.
86-88. How confirmed by Constitutional Provisions.
VII. No PuNISHMENT PERMISSIBLE EXCEPT AFTER Com-
PLIANCE WITH THE Law’s Forms .... . 89-94
VIII. ConstiITuTIONAL GUARANTIES RESPECTING THE AL-
LEGATION « &% = ©» # *» & ww & «© « « «© » 95-119

IX. Every Ricut or an ACCUSED PERSON TO BE MADE
AVAILABLE TO Him. . .. . . «. «© « « « 118-116

X. Tae Docrrine or THE WAIVER OF Rieguts . . . 117-126
XI. Tue Proors sHOULD COVER ALL THE ACCUSATION 127-129

XII. THe Severat Metuops or Prostecution Dts-
TINGUISHED. . . . « « 6 «© © «© « « « « 129 a-154

§ 1294. Introduction.
180-135. By Indictment. *
186-140. By Presentment.
141-147. By Information.
148-154. By Complaint before Magistrate.

. BOOK II.

THINGS PREPARATORY AND AUXILIARY TO THE INDICT-
MENT OR INFORMATION AND TRIAL.

XII Tue Arrest . . 1 1 ww ee ww ww ew 6 155-2248

§ 155. Introduction.
156-163. Manner of Arrest, and Rights of the Parties.
164-172. Arrest without Warrant, by Unofficial Persons.
173-184. Same, by the Officers of the Law.
185,186. Private Persons assisting Officer.
187-193. The Arrest under Warrant.
194-205. Breaking of Doors.
: 206-207 a. Manner and Time, Persons exempt, &e.
208,209. Under Search-warrants.
210-212. Seizing of Goods in other Arrests.
213-218. Disposal of Arrested Person and Goods.
219-224 b. Fugitives from Justice.
CONTENTS OF VOLUME I.

CHAPTER
XIV. Tae Prevtiminary PROCEEDINGS BEFORE THE

xix

Srcorion

MAGISTRATE. «ww ew ww ww ww ee 225-239

XV. SEARCH-WARRANTS. . . . 1 1 1 ew ew we

240-246

XVI. THe Doctrine anp Metnops or Bart. . . .247-264n

§ 247. Introduction.
248-250. Nature of Bail, &c.
251-263 a. When and before whom Bail given.
264-264e. The Forms of Bail.
264 f-264n. Charging, Discharging, &c.

XVII. THe Presence or THE Prisoner in Court

XVIII. Toe Prosecuting CounseL or THE GovERN-
MENT’ \ oa randae ae lig! am aao We) Se ee Yes De

XIX. CounsEL ror THE DeFENDANT . . .. 2...

§ 295. Introduction.
296-302. Right to have Counsel.
803-306. Appointment and Compensation.
807, 308. Proceeding without Counsel.
809-318. Duty of Counsel.

XX. Tae COURD ea ow re ee SS

BOOK Iv.
THE INDICTMENT AND ITS INCIDENTS.

XXI. In GeneRAL OF THE INDICTMENT. . ....

XXII. Toe Laneuace or THE INDICTMENT AND THE
EXACTITUDE AND PURITY REQUIRED

XXIII. Toe ALLEGATION AND PROOF OF THE PLACE
OF THE OFFENCE . . «© 2 + «+ «© «© «©

XXIV. THe ALLEGATION AND PROOF OF THE TIME OF
THE OFFENCE . .. 2. + + «© «© «© © ©

XXV. Reretirions oF Time AND Puace IN THE In-
DICTMENT . . 6 «© «© © © © © © eo

XXVI. AscERTAINING AND DESCRIBING’ THE PARTICU-
TAR: CRIME 66) cee. oe ee te

265-277

278-294
295-313

314-317

818-339

840-359

360-885

386-406

407-414

415-420
XX CONTENTS OF VOLUME I.

CHAPTER
XXVII. Toe ARRaNncinc oF THE INDICTMENT IN
COUNTS gaa See cS ae as a Ue RO
XXVIII. Dupriciry .. . 2. 1 1 ew ee ee ee
XXIX. Jorinper or OFFENCES. . . + + s+ © =

XXX. Comprettingc aN ELECTION BY THE PROSECU-
TOR OF A Count OR TRANSACTION TO WHICH
THE EVIDENCE OR VERDICT WILL BE RE-
STRICTED 59 a wi aS © 4% ee & & es

XXXI. Tue Jornper or DEFENDANTS . .....
XXXII. SurpLusaGeE. . .... 6 6 «© © ww

§ 477. Introduction.
478-481. Nature of Surplusage and when harmless.
482-484. When it vitiates the Indictment.

Snorron

421-431
432-443
444-453

454-462
463-476
477-484

XXXII. Variance .... 4 ee 6 ee we 4840-488 €

§ 4844. Introduction.
485-487. Avoided by rejecting Allegation.
488-488 e. How where not rejected.

XXXIV. Repuenancy ......... 80684
XXXYV. NECESSITY AS AFFECTING THE ALLEGATION .
XXXVI. AveRMEeNTS NEEDLESS AND MERELY FORMAL.

XXXVII. Toe Suspsrantrat REQuisites oF THE INDICT-

MENT «© «§ * © # # * 8 # 8 He ww

§ 505. Introduction.
606-516 a. Elements of Charge of the Offence.
517-531. Information to Defendant how to defend.
582-537. To Court as to Course of Trial.
588-542. To Court as to Sentence.
643,544. To Defendant against Second Prosecution.

XXXVIIL Metuops or THE SusstanTiaAL ALLEGATIONS

§ 545. Introduction.

546-553. Difference of Allegation where Thing known
and unknown.

554-558. Difference where Matter direct and where
incidental.

659-563. Different Forms of setting out Written or
Spoken Words. |

564, 565. How, when the Words were in a Foreign
Language.

566-584. Identifying Matter.

585-592. Disjunctive and.Conjunctive Allegations.

489-492
493-498
499-504

505-544

545-592
CONTENTS OF VOLUME I.

CHAPTER
XXXIX. MetrHops spectat To INDICTMENTS ON STATUTES

§ 593. Introduction.-

594-601. How to distinguish whether on Statute or
not.

602-607. Conclusion of “ Against Form of Statute.”

608-622. Rule of following Words of Statute.

623-630. Exception of expanding Allegation beyond
Words.

631-642. What the Indictment must negative and
how.

XL. A SuprrementaL Setting Our or THE Par-
TICULARS. . . . « . -

xxi

SEcTION

593-642

643-646

XLI. Tue Conciupine Part or THE InpIcTMENT . 647-652 4

XLIL Tue Carrion anp COMMENCEMENT . .. . - 653-668
§ 658, 654. Introduction.
655-659. Under the English Bates:
660-668. Under the American.
XLII. Toe Name anp AppDITION oF THE DEFENDANT
AND THIRD Persons .-. .. .. . . « 669-6896
§ 669,670. Introduction.
671-675 a. Addition and whether required.
676-682. Naming Defendants and Third Persons.
683~689 b. Further of the Name in Pleading.
XLIV. THe InpoRsEMENT OF THE PRosEcUTOR’s NAME
ON THE INDICTMENT. . . . . «s+ « «© « 690-694
XLV. InpoRSEMENT BY. THE GRAND JURY... 695-701
XLVI. InpoRSEMENT BY THE PROSECUTING OFFICER 702-704
XLVII. Derrcts in THe INDICTMENT CURED BY AMEND-
MENT AND BY ACQUIESCENCE .... . . 705-711

BOOK V.

OTHER FORMS OF ACCUSATION AND PROCEDURE.

XLVIIL Tse InrorMaTION BEFORE THE HIGHER .CouRTS
AND ITS INCIDENTS . . « « 2 © © e ©

712-715
xxii CONTENTS OF VOLUME I.

CHAPTER SEcTIoN
XLIX. Toe Compiarnt or INFORMATION BEFORE AN IN-
FERIOR MaGIsTRATE AND 1T8 INcIDENTS. . . 716-727
BOOK VI.

THE DEFENDANT’S PLEA AND THE OTHER PROCEEDINGS
BETWEEN INDICTMENT AND TRIAL.

L. Toe ARRAIGNMENT. . . 1. 1 1 1 ee es « 728-7330
LI. Tae Names anp Import oF THE PrincrpaL PLEas 734-743
LIl. How rae Piras are FramMep AND PuEapeD. . 744-757
LUI. Tae Morion ro QuasH THE INDICTMENT .. . 758-774
LIV. Taz Demurrer. . . . . 1 1 ee we we es 6775-786
LY. Some or THE PLEAS AND THEIR MetHops . . . 787-804

§ 787. Introduction.
788-790. Oral Pleas.
791-793. Abatement, especially for Misnomer.
794. Plea to Jurisdiction.
7944-801. Guilty and Not Guilty.
802-804. Nolo Contendere.

LVI. Tue Preas anp Metuops In THE DEFENCE OF
ForMER JEOPARDY ....... .. . 805-831

§ 805-807. Introduction.
808-817. Pleas of Autrefois Convict and Autrefois Acquit.
818-831. Methods where these Pleas not available.

LVI. Tue Pura or Parpon ....... . . . 832-848

BOOK VIL
THE GRAND JURY AND ITS DOINGS.

LVIII. In Genera or THE GRAND JuRY AND HOW OR-
GANIZED « 6 6 ee 6 ee ww we we 5 849-860.
CONTENTS OF VOLUME I. Xxili

CHAPTER SEcTION
LIX. Toe PrRooEEDINGS BEFORE THE GRAND Jury . . 861-8708

LX. METHODS FOR TAKING ADVANTAGE OF ERRORS IN
THE GRAND JuURY’s ORGANIZATION AND Doines 871-889

§ 871. Introduction.
872-874. General Doctrines.
875-881. By Challenge.
882. By Motion to quash.
883-885. By Plea in Abatement.
886. Raising the Question at the Trial.
887-889. After Verdict.

BOOK VIII.
THE TRIAL BY PETIT JURY.

LXI. Tue Rieat or Jury Trman ....... .- 890-894

LX. Tue Perit Jurors aND THEIR QUALIFICATIONS . 895-930

§ 895, 896. Introduction.
897-899. Number and Unanimity.
900-930. Qualifications.

LXIUI. Impanettine tHe Petit Jury AND CHALLENGING
THE JURORS AND THE PANEL. .... . . 931-945

LXIV. Oxsszctine TO JURORS AFTER THEY ARE Sworn . 946-9496

LXV. Tue PREPARATIONS FOR THE TRIaL ww. «2950-959 fF

§ 950. Introduction.
950 a-950 d. Time and Order.
951-951 c. Continuances.
951d-951f. Effect of Delays.
952-959. Arrangements within Court Room.
959 a-959 f, Other Preparations.

LXVI. Toe Tran. «we ee ee tw we «959 G-982 4

§ 959 g. Introduction.
960-966 d. The Order, with some Particulars.
967-978. The Openings to Jury.
974-975 b. Summings up by Counsel.
976-982 a. Charge of Judge to Jury.
xxiv CONTENTS OF VOLUME I.

CHAPTER SECTION
LXVII. Tue Respective Provinces or Court AND
JURY «2 1 ew we ew ww ww ww + 9826-989 5

§ 9825. Introduction.
983-988. As to Questions of Law.
989-989 b. As to Questions of Fact.

LXVIII. Toe Jury puring THE TRIAL AND TO THE
BRINGING IN OF THE VERDICT ... .:.- 990-1000

LXIX. Toe Verpict anp its RENDITION. . . . . 1001-1016

LXX. Toe TRIAL WHERE THERE ARE MORE DEFEND-
ANTS THAN ONE ...... =. © « 1017-1041

§ 1017. Introduction.
1018-1026. Severance for, and Separate Trial.
1027-1040. The Joint Trial.
1041. How when the Charge is Several.

LXXI. WHERE THERE ARE MORE INDICTMENTS: THAN
ONES ap cae ee de a Se ee a ee, tp 1 ORD R105

BOOK Ix.
THE EVIDENCE.

LXXU. Generat Rutes. .......4..

§ 1046, 1047. Introduction.
1048-1051. Burden of Proof.
1052-1055, Covering Whole Issue.
1056-1060. Corpus Delicti.
1061-1068. Alibi.
1069-1072. Other Evidence in Rebuttal.
1078-1079. Circumstantial Evidence.
1080-1087. Best Evidence and Res Geste.
1088-1090. Statutory Changes:

- 1046-1090

LXXUL Tae Weicut or EvIDENCE AND THE Doc-
TRINE OF ReasonaBLe Dovust . . . . . 1091-1095

LXXIV. Presumrtions as Evipence. . . .. . . 1096-1101
CONTENTS OF VOLUME I. XXV

CHAPTER SrcTion
LXXYV. Some Spectan Presumptions ... . . 1102-1131
§ 1102. Introduction.
1103-1106. Of Innocence.
1107. From Motive.
1108-1111. Expressed Feelings and Purposes.
1112-1119. Character of Defendant.
1120-1129. His Commission of another Crime.
1130, 1181. Official Conduct and Duty.

LXXVI. Documentary Evipence . .... . . 1189-1134

LXXVII. Tue Comrerency or Dirrerent CLASSES OF
WITNESSES AND HOW THEIR TESTIMONY
IS TO BE REGARDED . ... . . . . 1135-1187

§ 1185. Introduction.
1186-1150. In General and Disqualifications.
1161-1155. Husband and Wife.
1156-1172. Accomplices and Approvers.
1173-1176. Informers and the like.
1177-1180. Experts and others as to Opinions.
1181-1187. Defendants testifying for themselves,

LXXVIII. Tae Exciupine or Witnesses rrom Court
DURING THE DELIVERY OF EVIDENCE . . 1188-1193

LXXIX. Toe Testimony or WITNESSES DECEASED
OR OTHERWISE ABSENT . .... .- . 1194-1206

LXXX. Dyine DecLtarations ..... .. . 1207-1216
LXXXI. Exrrasupicran Conressions. . . . . . 1217-1246
LXXXII. Conpuct anp ExrrasupiciaL Apmissions . 1247-1254
LXXXII. Jupiciat Conressions anp ApmIssions . . 1255-1262

BOOK X.

THE ORDINARY PROCEEDINGS AFTER VERDICT.

LXXXIV. THrover wHat Meruops are APPLICATIONS
FOR A REHEARING. . . . . « « « « 1268-1271

LXXXV. On wuat Principtzes New TRIALS ARE
GRANTED . 1. 6 2 6 6 © © oe © ew he) 61272-1281
XXvi CONTENTS OF VOLUME I.

CHAPTER SECTION

LXXXVI. Toe Arrest or JUDGMENT. . . . © ~ 1282-1288

LXXXVIJ. Toe Sentence . ..... . s « « 1289-1384

§ 1289, 1290. Introduction.
1291-1299. In General.
1800-1309. Fine and its Incidents.
1810-1312. Corporal Punishment and its Incidents.
1818-1821. Costs.
1822-1324. Pregnancy of the Female Prisoner.
1825-1334. More Counts than One.

LXXXVIII. THe Execution or tHE SENTENCE. . . 13835-1339

LXXXIX. Tue Recorp........ =. =. . 1340-1360

§ 1340. Introduction.
1341-1346. How made up.
1847-1360. Particular Questions.

XC. Toe Writ or Error. ..... . . 1861-1374
XCI. Tae Writ or CertionaRr . ... . . 1875-1881

BOOK XI.
SOME MISCELLANEOUS PROCEEDINGS.

XCII. Taz Prisoner EscareD OR OTHERWISE ;
UNLAWFULLY AT Large. ... . . 1382-1386

XCIIL Tue Notte Prosequr..... . . 1387-1396 .

XCIV. Some FURTHER PROCEEDINGS BRIEFLY STATED 1397-1417

§ 1897. Introduction.
1898-1400. Records Mutilated or Lost.
1401. Petition of Review.
1402, 1408. Mandamus.
1404, 1405. Prohibition.
1406-1411, Habeas Corpus.
1412-1417. Equity Jurisdiction.
CRIMINAL PROCEDURE.
CRIMINAL PROCEDURE.

 

BOOK L

PRELIMINARY VIEWS.

CHAPTER I.
JUDICIAL PROCEDURE IN GENERAL.

§ 1. Procedure. — Rights and duties are distinguishable from
the means whereby they are enforced. Together they constitute
the law; the latter, the law of Judicial Procedure. It pertains
equally to the civil and criminal departments, but these volumes
treat only of Criminal Procedure.

§ 2. Meaning of “Procedure."—- The term Procedure is of sig-
nification so broad that it is not often employed in, our books asa
term of art. It includes whatever is meant by the three techni-
cal words, Pleading, Evidence, and Practice, and perhaps noth-
ing more.

Pleading. — Pleading, in law phrase, signifies, not, as in one of
its popular meanings, the address of an advocate to the judge or
jury or the act of making it, but the science and course of allega-
tion whereby a party in court presents his demand, or defence
against the demand of the other party, to be made matter of
record therein ; and the word * pleadings,” in the plural form, sig-

_nifies the allegations themselves. Sometimes the plural form is
restricted to denote, in the language of Mr. Gould,! “ only those
allegations or altercations which are subsequent to the count or
declaration.” .

Evidence. — The term Evidence sometimes indicates the testi-
mony ina particular cause; but it also signifies those rules of

1 Gould Pl. 13.
VOL. I. 1 1
§ 4 PRELIMINARY VIEWS. [BOOK I.

law whereby we determine what testimony is to be admitted and
what rejected, and the weight to be given it. In this sense the
word is employed on the title-page of these volumes.

Practice. — Practice, as used in the law, means those legal rules
which direct the course of proceeding to bring parties into court,
and the course of the court after they are brought in.

§ 3. Further, of the Three Terms. — The words Pleading, Evi-
dence, Practice, as thus defined, considerably overlie one another
in meaning. Indeed, Practice, in its fullest sense, comprehends
almost every thing embraced in the three combined. So it is
sometimes used, but generally we restrict its meaning within
narrower limits. Not easily can one draw around it exact lines.
In the arrangement of the matter of the present volumes, we
shall not attempt to keep any one of these words within precise
bounds ; the principal aim being to make the work convenient of
consultation, and practically adapted to professional wants.

§ 4. Judicial Procedure, down to the Record, explained. — Return-
ing to the word Procedure, as embracing the combined sense of
the other three, let us suppose that a man deems another to owe
him money, payment of which is withheld. Having resolved to
compel payment, his steps are two: first, to put on the record
of the country the fact that the money is owing; secondly, to
set in motion the power of the country to force the delinquent to
pay it. Now, the record of the country, wherein this sort of re-
membrance is preserved, is made and kept by the clerk of the
proper court, under direction of the judge. But as a person other
than the complainant is interested in this record, the judge will
not direct the clerk to make it until this other person, called in
legal phrase the defendant in the suit, has notice of what is
going on, and the opportunity to come before the judge — or, in
the more exact language of the law, come into court —and
object. If, after notice, the defendant chooses not to come in,
the judge directs a record to be made in accordance with the
claim of the plaintiff, as in legal phrase the person is called who
asks for the record. If the defendant does come in and oppose,
then the two parties, after having respectively stated in writing,
and handed to the clerk, what they severally claim to be the
facts in the case, produce their testimony ; when the judge, either
ascertaining himself by an examination of the testimony what
the facts are, or submitting the testimony to a jury who ren-

2
CHAP. I.] JUDICIAL PROCEDURE IN GENERAL. § 7

der a verdict finding the facts, pronounces the decision of the
law upon the whole matter, and causes the clerk to enter
such a record as will properly perpetuate this finding and de-
cision.

§ 5. Record effectual. — To render the record serviceable to the
party, —

Execution. — The judge, by a specific direction, or commonly
by a general order applicable to all cases in the like situation,
requires the clerk to issue the proper order in writing to the
proper officer of the court, to carry into effect what the record
demands. ‘This order is known as an execution; but there are
differing sorts of execution, bearing corresponding names, to meet
the justice of differing cases. And, —

Force of the Country.—In making service of the execution,
the officer carries with him, not only his own physical force to
compel performance, but the right also to call out, should need
require, the whole civil and military power of the country.

§ 6. Law — Right and Remedy.— The judge, in determining
the right, as thus described, was guided by the law. So equally
was the law his guide in the procedure. Still, —

Discretion. — In judicial procedure there are many things which,
in their nature, cannot be subjected to exact rule; necessarily,
therefore, left to the discretion of the presiding judge. But the
discretion itself is to be regulated as far as possible by rule,! and
rule and discretion often blend, in proportions varying with the
differing cases. Therefore a writer on Procedure must distin-
guish between rule and discretion; yet to do this is frequently
difficult because of the blending, and because of the indistinct
lines by which in the decisions the one is separated from the
other. Again, —

§ 7. Usage. — While in the other department of the law many
things come from usage, the rules of procedure are chiefly from
this source.2. The movements of the courts are, when possible, in
the ancient ruts. And —

Necessity. — Necessity ——to which even written constitutions
must yield, while it bears down the statutory and unwritten
laws ? — operates widely in the department of procedure.* For

! 1 Bishop Mar. Women, § 676. 3 Crim. Law, I. § 54, 846-355, 824.
2 And see United States v. Stevenson, 4 Post, § 493 et seq.
1 Abb. U.S. 495.
‘ 3
§ 10 PRELIMINARY VIEWS. [BOOK 1.

example, what necessity says must lie in the breast of the judge
presiding — that is, must be decided on his discretion, not being
reducible to rule!—cannot be deemed matter of strict law.
There is also a quasi necessity, not absolute, the operation whereof
is wide. Moreover, —

Convenience.— The consideration of convenience comes in;
and, though falling short even of this quasi necessity, still blends
its force with it, often controlling the form and course of the
proceeding. Also, —

§ 8. Statutory Regulations.—In some of the States, the pro-
cedure is much regulated by statutes. Yet regulations of this
sort are not generally held to repeal the common-law rules,
though sometimes they do; but, in most cases, the common-law
or statutory form may be adopted, at the election of him who
takes the particular step. And where this choice is not permit-
ted, still the practitioner ought to know what the common-law
rule is, both as an aid to the interpretation of the statutes and
for other reasons.

§ 9. Rules of Court.— From the foregoing views it follows,
that, in the absence of statutory direction, the collective judges
of every judicial tribunal may, to a considerable extent, regulate
its practice by general rules determined beforehand and reduced
to writing. This power has been acknowledged in all ages of the
common law, but precisely what are its limits is sometimes matter
of doubt. Each individual judge is bound by the rules thus
established, provided they are such as the court was legally com-
petent to make, in the same manner as he is by an act of the
legislature ; that is, he cannot disregard the rule, and exercise a
discretion contrary to it in a particular case. To the like extent
are the collective judges also bound while the rule starids, though
they can alter or abolish it at pleasure. Statutes, both in Eng-
land and in this country, have likewise conferred on the judges
more or less power of regulating the practice of their respective
tribunals by these general rules.?

§ 10. Combined Discretion and Rule. — We see, therefore, that,
as governing the procedure, we have, on the one hand, the estab-

1 1 Bishop Mar. Women, § 676. v. Loring, 17 Ohio, 409. 1 Bishop Mar. &
2 And see Thompson v. Hatch, 3 Pick. Div. § 80-86, where the subject is more
612; Rathbone v. Rathbone, 4 Pick. 89; fully discussed.
Hanson v. McCue, 48 Cal. 178; Cochran

4
CHAP. I.] JUDICIAL PROCEDURE IN GENERAL. § 11

lished legal doctrine, immovable by any power of the judges;
and, on the other hand, what lies in the mere discretion of the
judge presiding in the particular case. These are at the outer
bounds; and, between them, we have a mass of things spread
along in ever-varying gradation, each possessing an admixture of
the fixed and the changeable differing in proportions from all the
rest. And neither our books of practice nor the adjudications
inform us, with exactness, or much in detail, what are the things
at the extremes, and what and how proportioned are those be-
tween. Yet the practitioner is less embarrassed than on this
statement he would seem to be; because his good sense, his gen-
eral understanding of the law as he has read it in the books, and
the results of his observations from day to day in the routine of
his duties, will ordinarily point out to him the course, in the ab-
sence of other and specific direction.

§ 11. Further, of the Terms of Art. — Besides the words Plead-
ing, Evidence, Practice, there are other terms of art; such as
Plea, Count, Declaration, Indictment, Demurrer, Oyer, Surplus-
age, Presumption, and sd on. But it is better to explain those
which pertain to Criminal Procedure as we go on, and the rest
do not concern us in these volumes.

5
§ 14 PRELIMINARY VIEWS. [BooxK I.

CHAPTER II.

CRIMINAL PROCEDURE CONSIDERED HISTORICALLY AND AS TO
ITS PRESENT CONDITION.

§ 12. JSudicial Procedure not stable. — From the elucidations of
the last chapter, the reader may well judge, that all judicial pro-
cedure is of a nature fluctuating from age to age, and as adminis-
tered by different judges in the same age, more than the law
which concerns the right itself. It lies more in the discretion
of the particular tribunal — more in what cannot be brought to
any absolute standard of measurement, — more in what depends
on ever-varying public sentiment, — more in what may be best in
the particular, in distinction from general rule — than the other
department. It is often legislated upon, yet hardly can we say
that its greatest changes come from legislation.

§ 18. How fluctuates in Criminal Law. — The opinion, prevail-
ing to a considerable extent in the legal profession, that, in the
criminal law, the procedure is more stable than in the civil de-
partment, is the direct reverse of the real fact. True, the forms
of the indictment remain much as they were a century ago,! even
in States in which legislation has provided rules to be followed at
the option of the pleader instead of those of the common law. But
in the practice of the courts beyond, — not meaning now to speak
of the rules of evidence, — almost all in criminal causes among
us is afloat. And he who reads intelligently the reports of crimi-
nal causes in England will observe the same thing there as here.

§ 14. Why the Uncertainty. — The reason of the present uncer-
tainty in the law of criminal procedure lies partly in its —

History — Counsel.— Anciently the English tribunals refused
to men indicted for treason and felony what is now regarded as
an essential right, the benefit of counsel at their trials before the
petit juries in matters of fact,—a rule which did not extend to
misdemeanors.” Counsel were sometimes permitted to argue to

1 See, however, post, § 24. 2 Post, § 206-298,
CHAP. II. | CRIMINAL PROCEDURE. § 15

the court special points of law, deemed by the judges difficult,
but this was all. Not even were the arguing counsel ordinarily
suffered to have a copy of the indictment, nor was the prisoner.
And it is not unreasonable that the voice of authority, from
judges who could establish rules so contrary to natural justice,
should not in other respects be accepted by their successors, in
more enlightened periods, as absolutely binding.

The Judges as Counsel. — They claimed, indeed, to be themselves
the counsel of the accused ; and truly they did, as counsel, raise
before themselves, as judges, some very nice points of law, which,
as judges, they sustained, letting prisoners go free in consequence
of those points, when other sounder reasons should the sooner
have dictated the discharge. To illustrate : —

§ 15. Rosewell’s Case. —In the year 1684, a Presbyterian
preacher by the name of Thomas Rosewell was indicted for the
high treason of compassing the death of the king, the overt act
being a sermon which he preached at a conventicle. Called upon
to defend himself without the aid of counsel,—no, with the
judge for his counsel, — he stood confused and confounded before
a tribunal thirsting for his blood. When the petit jurors came
up to be sworn, the judge, his counsel, informed him that he might
challenge peremptorily a certain number without cause, before
they were sworn, as they came severally to the book. The first
one was hurried through the oath before the preacher could col-
lect his thoughts, —the counsel on the bench not interposing.
When he told the judge he had meant to challenge him, the fol-
lowing was the reply : —

‘‘ Lord Chief Justice. That you cannot do now he is sworn.

‘* Rosewell. I was surprised, my lord; I did not know it.

“I. C.J. Icannot help it, Mr. Rosewell, you must mind your business.
We cannot unswear him again. Go on.”

And on the officers of the court did go, and swore another
juror before Mr. Rosewell could summon his mind to challenge
him. But he besought the judge to grant him the indulgence
of challenging then, as he was surprised into omitting the chal-
lenge at the proper time. This request was likewise refused, for
the sage reason, that “‘ we cannot make a new law for you.” A
little further on, this Lord Chief Justice and counsel for the pris-
oner told the defendant: ‘Pray, now, mind the thing you are

7
§ 16 PRELIMINARY VIEWS. [BooK 1.

about. You are looking about you for some private mark, or
hint to be given you by somebody, and so lose your time of
challenging. You must challenge them as they come to the book
to be sworn, and before they are sworn.” This admonition
proved effectual, and the divine challenged all the jurors who
were afterward brought before the temporal power to try him,
as far as the law allowed and his wishes prompted.

§ 16. Continued. — The first witness produced against him was
a female treason-hunter, who, by false pretences, had got admit-
ted into the conventicle to hear the sermon, and who testified to
some damaging things said therein, to the utter astonishment of
the defendant. So when his turn to examine her came, he sought
to draw from her, as in natural justice and by legal rule he might,
the language and ideas employed in connection with, and prior
and subsequent to, the words which she said he uttered as trea-
sonable. He asked her: —

‘¢ Upon what occasion came in the words about the two wicked kings ?

‘¢ Smith [the witness]. In preaching, you brought it in by other proofs.

““L. C. J. [and counsel for the prisoner, speaking in the hearing of the
jury]. Why, man, there can be no occasion for speaking of those words.
You spoke them without any occasion at all. Nobody can tell what occasion
you had to speak them.

“ Rosewell. But, my lord, I suppose there may be some coherence in my
discourse. I would know how they were brought in.

‘“L. C.J. Who can tell the occasion? Do you ask me what reason‘any
man has to speak treason? I tell you there is none at all to be given for it.”

A little further on, the prisoner, following up the thread of his
cross-examination, pressed still more closely this witness, swift-
footed against him, but slow and unwilling to say any thing in his
favor, with the following question: “How came in that about
Jeroboam?” But swift witnesses must not be cross-examined
too closely by prisoners against whom they testify, when the
judges, their counsel, mean they shall be convicted. So the
Lord Chief Justice —the prisoner’s counsel, remember — inter-
rupts the current, thus: —

‘How can she tell how you bring in treason?

‘ Rosewell. My lord —

“L. C.J. Nay, pray, sir, hear me a little. You shall have all the liberty
to defend yourself that the law can allow of. We are accountable to the law
upon our oaths to do justice, and are as much accountable to heaven for our

8
CHAP. 11.] CRIMINAL PROCEDURE. § 18

actions as you or any prisoner that comes to this bar is to the law for your
actions. But do you ask what reason you spoke treason for? JI tell you, no
reason can be given for it.’”?!

§.17. Continued — Flaw in Indictment. — These passages are
quoted simply as specimens of what occurred, not only through-
out this trial, but often in the administration of the criminal
law against those whom the judge deemed it important the jury
should’ find guilty. And we need not add, that Mr. Rosewell
was convicted, in spite of testimony in his defence sufficient to
acquit in any circumstances such as occur in modern times. But
though Mr. Rosewell could find no spot in that tribunal where
the weary-winged truth, bearing the facts, might set her foot, he
could find a spot, in even the mind of this Lord Chief Justice,
sufficiently callous with false technical law to enable him to make
fast in it the anchor of safety and escape. When he was called
up to receive the sentence of death, in response to the usual
question why it should not be passed against him, he told the
court, there was a flaw in the indictment. Assuming the words,
alleged in it as spoken by him, to be sufficient in law to consti-
tute the crime of treason, they, though fully set out in the in-
dictment, were not introduced in due form of legal etiquette to
their place on the judgment seat! In vain the Attorney-Gen-
eral and the Solicitor-General objected to the objection. The
judge said there was weight in it, and counsel must be assigned
the prisoner to argue it before the court.

‘¢ Att.-Gen. All this, my lord, is only in delay.

“Z.C. J. Mr. Attorney, De vita hominis nulla est cunctatio longa. I think
we ought to assign him counsel, and the rest of my brothers are of that opinion
too.”

§ 18. Continued — Copy of Indictment. — The counsel, assigned
to argue the prisoner’s point of law, applied to the court fora
copy of the indictment; or, at least, for so much of it as would
show them what they were to argue about. But the request
was denied. Said the Lord Chief Justice : —

“‘ Look ye, if you speak to me privately, as to my own particular opinion, it
is hard for me to say that there is any express resolution of the law in the
matter, but: the practice has been always to deny a copy of the indictment.
And therefore, if you ask me, as a judge, to have a copy of the indictment de-
livered to you in a case of high treason, I must answer you: ‘ Show me any

1 Rosewell’s Case, 10 Howell St. Tr. 147 et seq.
9
PRELIMINARY VIEWS. [BOOK I.

§ 20
precedent where it was done; for there are abundance of cases in the law which
seem hard in themselves, but the law is so because the practice has been so,
and we cannot alter the practice of the law without an act of Parliament.’ I
think it is a hard case, that a man should have counsel to defend himself for a
twopenny trespass, and his witnesses examined upon oath; but, if he steal,
commit murder or felony, nay, high treason, where life, estate, honor, and all,
are concerned, he shall neither have counsel, nor his witnesses examined upon
oath. But yet you know, as well as I, that the practice of the law is so; and
the practice is the law. .. . It is hard, I confess, and so are many other
things in the law; but I am wonderfully tender of making precedents; and
therefore, if it has not been practised, I do not see how we can doit... .
As far forth as I could do, being in the case of life, I would indulge you; but,
I tell you, I am loath to be the author of precedents in cases of this nature,
one way or other.”

§ 19. Continued. —So the counsel made their argument with-
out the copy, as best they could; and the judges deemed the
indictment to be wanting in proper introductory averments,
though what was meant was perfectly plain to common apprehen-
sion, and the treasonable words were, and purported to be, ex-
actly given. Therefore they recommended to the Crown a pardon,
which in due form the convicted preacher brought into court,
pleaded, and received his discharge. Being a scholar, he objected
to the Latin of the indictment; but the Latin of the pardon
passed well with him. Thus was his life saved.1

§ 20. Continued — Sacheverell's Case. — The Lord Chief Justice,
who presided at the trial of Rosewell, was Jeffreys, —a name

now held in universal execration.?

1 Rosewell’s Case, 10 Howell St. Tr.
147, 155, 165, 166, 260, 267, 268.

2 There are two classes of men con-
cerning whom we can learn nothing
certainly, either from contemporaneous
history or from subsequent historical re-
search. The one class are those who
were special favorites in their day; the
other, those who have been special ob-
jects of detestation. Woolrych, in his
Life of Jeffreys, p. 145, gives the follow-
ing reason for the course pursued upon
the motion of Rosewell in arrest of judg-
ment: “ Rosewell made a very admirable
defence; and, happily for him, there was
present a baronet, Sir John ‘Talbot, who,
though not friendly to dissenters, highly
appreciated what he had said, and thought
the verdict wrong. From the trial he
posted away to the king, and declared

10

But let us see whether

that he had seen the life of a person, who
appeared to be a gentleman and a scholar,
in danger upon such evidence as he would
not hang his dog on; and, ‘Sir,’ says he,
‘if your Majesty suffers this man to die,
we are none of us safe in our houses.’
This address had a full influence upon
the royal ear; and, whilst it was oper-
ating, in came Jeffreys overjoyed, and
vaunting of the signal service which he
and the Surrey jury had done; when, to
his utter confusion, the monarch replied,
under a strong feeling of sympathy, that
the prisoner must not die, and that he,
Jeffreys, must find out some way to bring
him off.” This statement may, for aught
I know, be true. Lord Campbell, in his
Lives of the Chancellors (for Jeffreys
was afterward Lord Chancellor), says,
Jeffreys was anxious for the acquittal of
CHAP. II.] CRIMINAL PROCEDURE. § 20

Jeffreys, if we assume his conduct to have been infamous, does
justly stand in condemnation above all others. Passing down
through a series of years to a period supposed to be more en-
lightened, — namely, to 1710, — we find the whole House of
Commons moving an impeachment before the House of Lords
against Henry Sacheverell, D.D., a clergyman of the estab-
lished church, for the misdemeanor of publishing two sermons
offensive to one of the political parties. There were four articles
of the impeachment: the third charged the defendant with having,
in these sermons, insinuated that the Church of England was in
danger; whereas, four years before, the whole Parliament had
solemnly voted her to be out of danger, and, on address of the
Parliament, the queen had issued a proclamation declaring such
to be the fact in her case. The other articles were of a like sort.
Had the trial been before the Court of Queen’s Bench, and had
a Jeffreys presided, the prisoner would have been allowed coun-
sel; for, in this case, the offence was not treason or felony, but
misdemeanor. And so the Lords, sitting to try him, permitted
him to be defended by counsel. They, however, convicted him ;
and he, the pure churchman, who feared for the church, as Rose-
well the dissenter had feared for the souls of men, moved, as
Rosewell moved, in arrest of judgment. In Rosewell’s Case, the
words had been duly set out in the indictment. In Sacheverell’s
Case, the impeachment gave no words, neither gave the substance
of any words, but only said the defendant had insinuated, and
the like. The Lords asked the reverend judges present to lend
their advice, “ Whether, by the law of England, and constant
practice in all prosecutions by indictment or information for
crimes afid misdemeanors by writing or speaking, the particular
words supposed to be criminal must not be expressly specified in
such indictment or information?” The judges answered, with
one voice, that they must. Thereupon, “It is resolved by the
Lords spiritual and temporal in Parliament assembled, that, by
the law and usage of Parliament, in prosecutions by impeach-
ments for high crimes and misdemeanors by writing or speaking,
the particular words supposed to be criminal are not necessary to
be expressly specified in such impeachments.” }

Rosewell! But, be this as it may, the 1 Sacheverell’s Case, 15 Howell St.
account of the trial, as I have given it, Tr. 1, 87, 466, 467, 471, 473.
illustrates the point of my text.

11
§ 28 PRELIMINARY VIEWS. [Book I.

§ 21. Sacheverell's Case, continued. — Therefore Sacheverell was
condemned without any proper charge, to which a defence could
be offered, having been made against him. Popular wrath, in
the whole House of Commons, was more intolerable than judi-
cial wrath had shown itself to be, even at an earlier period, in
Jeffreys and his associates. Sacheverell, pursued by the Com-
mons, fared worse than Rosewell, pursued before the Court of
King’s Bench by the Attorney-General and the Solicitor-General
of the Crown, —a fact admonishing the people of the United
States to beware how they take down the barriers which the
wisdom of the common law erected, during the struggles of lib-
erty with despotism, between the accusation of the offence and
the sentence of the court against the criminal. As in peace we
should prepare for war, so while liberty is in repose we should
make ready for the day of her conflict.

§ 22. Adhering to Precedent.— The reader has observed with
what tenacity Jeffreys, in Rosewell’s Case, adhered to the estab-
lished practice, and how fearful he was of making a precedent.
Nor is his type of mind uncommon even among judges of emi-
nent learning, at the present day, as well as formerly. Yet
plainly no tribunal in our country would now follow the practice
to which he clung, as to counsel and a copy of the indictment,
even if subsequent legislation had not, as it has, ordered otherwise.
Still the judges differ in the intensity of their reverence for forms
and for justice. The conflict has been great between such old
forms as are oppressive, and the demands of justice, made upon
particular judges, in particular cases. Hence the result, that the
practice of our day is less settled in criminal causes than in civil.

§ 28. Effect of Unjust Precedent. — When unjust rules of pro-
cedure have pressed heavily upon prisoners, merciful judges,
in consideration of the hardship, have listened more attentively
to nice and technical objections urged in their favor than other-
wise they would have done. And, in consequence, —

Subtle Rules of Pleading. — Some rules have grown up, partic-
ularly of pleading, and as respects the indictment, too subtle to
accord with the more enlightened judgment of the present day.
Most of them have, in the majority of our States, been abolished
by legislation; a few, not so abolished, have been discarded by
the judges, without waiting for the hand of legislation to lop
them off; and now, little of this sort, beyond a too close adherence

12
CHAP. II.] CRIMINAL PROCEDURE. § 25

to old technical words and forms of expression, remains to con-
demn. Indeed, the tendency now appears to be rather toward
too loose a practice, and too indefinite a form of the allegation.
For, though the unthinking multitude —crying to-day for this
reform and to-morrow for that, pursuing with hot blood one
class of offenders to-day, another to-morrow — may seek almost
the entire removal of the obstruction of a formal trial and con-
viction between the offence committed and the punishment fol-
lowing, the wiser see, that what serves to impede sometimes the
rapidity of the course of justice, in other instances is the protec-
tion of innocence in its hour of peril and of anguish. As ob-
served by Blackstone, —

Uses of Delays and Forms. — “ Delays and little inconveniences
in the forms of justice are the price that all free nations must
pay for their liberty in more substantial matters.”1 “If it be
said,” observed a learned American judge, “that by the result
of this opinion the defendant may escape from the charge of a
serious offence, of which, if guilty, he is justly obnoxious to a
heavy punishment, the answer is, that the safety of the com-
munity consists in a steadfast adherence to rule and principle,
especially in criminal cases, even if, at times, a guilty individual
should thereby escape.” 2

§ 24, Discarding Technicalities. — Some very strong expressions
have been made by American judges to the effect that we, of
this country, disregard the technicalities of the English common
law in our pleadings in criminal causes. But actual observation
establishes, that, except as statutes have modified the rules, our
courts do follow substantially the common law of England upon
this as upon other subjects.

§ 25. Common-Law Rules too loose.— There are points on which
even the English common law of criminal pleading is not suffi-
ciently favorable to defendants. These, or some of them, will in
their proper places .be noted. Such defects demand legislative
amendment, perhaps also judicial, as much as a too great nicety,
or a too close adherence to technical rule. It is now the fashion
to say much concerning the one sort of defect, nothing of the
other. Let us be just, not casting down without also building up.

14 Bl. Com. 350. 3 See Harriman v. The State, 2 Greene,
° Ewing, C. J.,in The State v. Jones, Iowa, 270, 279; McKinney v. People, 2
6 Halst. 289, 291. Gilman, 540; ante, § 13.

18
§ 27 PRELIMINARY VIEWS. _ [BOOK 1.

§ 26. The Prosecuting Officer. — In all the States, and in the tri-
bunals of the United States, criminal prosecutions are carried on
by an officer chosen for the purpose. He has great power: he
.can practically, in almost every case, prevent the grand jury from
finding an indictment; for he is their adviser, and he draws it.
And, after it is found, he can refuse to pursue the accused.
This officer ought, therefore, to possess that element of a great
lawyer, integrity in the highest degree. He ought also to pos-
sess the amplest learning, and exactitude of mental habit. A
man of this sort need never permit an offender to escape by
reason of a defect in the indictment, though the judges should
hold him to exact rule. And if the government or the people,
as the one or the other has the appointing or electing power, sees
fit to confer the office, as is sometimes done, on one whose sole
qualification is that he can bawl loudly and long before his
countrymen met to determine what candidates shall be put in
nomination for office, surely they ought not to complain when
criminals escape through his blunders or his slothfulness in duty.
That is no just ground for removing any bar which liberty has put
up to protect her children.

§ 27. The Evidence. — The law of evidence is necessarily fluc-
tuating to some degree ; and, in a few things, the discretion of the
presiding judge controls the admission or rejection of testimony,

and especially its order.
14
CHAP. Ill.] ORDER AND CHOICE OF PROCEEDINGS. § 30

CHAPTER III.

ORDER AND CHOICE OF PROCEEDINGS IN A CRIMINAL CAUSE.

§ 28-29. Introduction.
80-34. What before the Indictment, &c.
85-40. Thence to Guilty or Not Guilty.
41-44. From Guilty to Execution of Sentence.

§ 28. Purpose of this Chapter.— This chapter will present, in
-brief outline, the successive steps in a criminal cause. Thereby
the reader will be the better prepared to comprehend the fuller
explanations in chapters further on; and the author, in arrang-
- ing those chapters, will not be required to follow the exact
order of the proceedings in instances in which it would be in-
convenient.

§ 28a. Choice of Steps. — The reader will see, that, in various
circumstances, there are two or more differing steps permissible
to the prosecuting power, between which an election may be had.
Not always is the choice important ; but sometimes upon it will
depend the practical success or failure of the whole proceeding,
and in other instances the difference in point of convenience
will be considerable. In like manner, the defendant has some-
times an election of methods.

§ 29. How the Chapter divided.— We shall consider, I. The
Steps which precede the Indictment, Complaint, or Information ;
II. What follows, down to the Finding upon the Facts; III.
From the Finding of Guilty to the Complete Execution of the
Sentence.

I. The Steps which precede the Indictment, Complaint, or Infor-
mation.
§ 30. The Arrest : —
Necessary. — To convict and punish an offender, possession
must be obtained of his person. Hence, —

First Step. —In general, when a crime has been committed,
15
§ 32 PRELIMINARY VIEWS. [BOOK I.

and suspicion rests on a particular person, the first thing done is
to arrest him. In some circumstances, a warrant will be re-
quired ; in others, not! It is practically better to obtain a war-
rant though not necessary, when convenient, and there is no
increased danger of escape. But, —

§ 81. Trial or Examination by Magistrate — Indictment.— In all
cases, a magistrate who has jurisdiction to try and punish the
offender, or to bind him over to answer before the grand jury,
may, while he is'at large, receive the complaint against him, and
so far consider it as to issue a warrant for his arrest.2 Or, in most
of the States, the arrest may be postponed until the grand jury
has indicted him, and then it will be made on a bench warrant
issued by the court.2 Generally the power which prosecutes will,
for various reasons, choose the former course. It secures the
person of the wrong-doer at once; it expedites the business by
giving that notice which may prevent a successful application for
delay when the cause, after indictment found, comes on for trial ;#
and it secures the attendance of the witnesses.> Indeed, there are
so many reasons in favor of this course, that, in some of the
States, it is made necessary by statutes. Still, where statutes do
not forbid, there are circumstances in which it is obviously better
to save the trouble and expense of a preliminary warrant and
arrest, and proceed at once before the grand jury.®

§ 82. Hearing before Magistrate :?—

Necessary, when.——If the arrest is made before indictment
found, whether on a warrant or not, the arrested person must,
at the proper time, be taken before a magistrate or police or
other court having jurisdiction of the matter.

Keeping the Prisoner.— While he is in custody, and not before
the magistrate or court, the officer is not obliged to keep a man-
ual possession of him, but may put him in the proper place of
confinement, either with or without a mittimus as the case may
require.

What the Magistrate to do. — The magistrate, aided by witnesses,
will examine into the circumstances of the case. The offence
may appear to be a petty one, within his jurisdiction finally to

1 Post, § 155 et seq. * Post, § 951 a.

2 Post, § 177, 179. And see the chapter 5 Post, § 84, 284 b,
beginning post, § 225. § Post, § 289 a.

8 Post, § 8694. 7 See post, § 225 et seq.

16
CHAP. III.] ORDER AND CHOICE OF PROCEEDINGS. § 35

dispose of, or nothing criminal may have been done. In either
of these alternatives, it is perceived, the case will go no further;
unless the defendant, being convicted, takes it further by appeal.
If an offence triable only by a higher court is disclosed, the
offender, should it be bailable, is ordered to recognize with sure-
ties for his appearance before such court; and, if he fails to fur-
nish the sureties, he is committed to jail. Likewise he is thus
committed where the offence, being of great enormity, is not
bailable.

§ 33. Who instigate the Proceedings. — Generally, in this coun-
try, these preliminary steps are taken at the instigation of some
police officer, or constable, or private person, and not by the
State’s Attorney ; that is, this is generally the course in actual
practice, though they may be taken under the supervision of the
State’s Attorney, and sometimes are. And —

Circumspection by Magistrate.— Where, as in many instances,
there is a choice of accusation, — that is, where the prisoner may
fairly be accused of one crime or another, or of more crimes than
one growing out of the transaction, —it is plainly the duty of
the committing magistrate to see that the accusation and com-
mitment thereon are broad enough to cover the whole; leaving it
to the grand jury or prosecuting officer to elect between the sev-
eral methods. Still, if the commitment is on narrower ground, the
result is not to let the prisoner go clear as to any thing further.

§ 34. The Witnesses. The committing magistrate, having the
witnesses for the prosecution before him, will take their recog-
nizances to appear and testify before the upper court. Sometimes
the purposes of justice require that these recognizances should
be with sureties, and occasionally the unpleasant result follows
that a witness cannot obtain sureties, and he is detained in
prison.!

II. What follows, down to the Finding upon the Facts.

§ 35. The Court and its Constituent Parts. — In those cases which
are not finally disposed of by the examining magistrate, the
accused person is, it is perceived, required to answer before the
proper court. Now, for some purposes, the judge, sitting judici-
ally for the transaction of business, is the court. Still he acts,

1 Post, § 234 d.
VOL. 1. 2 17
‘

§ 38 PRELIMINARY VIEWS. [BooK I.

not only by himself directly, but by his officers; such as the
clerk of the court, the sheriff and his deputies, the attorneys at
law, the grand jury, the petit jury, and the like. And for various
purposes these together are said to constitute the court. The
case of one accused before a court is, in most of our States, first
examined, not by the judge, or by the judge and petit jury sit-
ting publicly, but by the grand jury in private. Yet sometimes
the judge, knowing that a particular class of crimes, or some par-
ticular case, is to be investigated by the grand jury, first instructs
them in open court as to the law and their duty relating thereto.
Indeed it is the general practice, on the coming in of the grand
jury to enter upon a term of service, to give them some instruc-
tions, descending more or less into particulars, concerning their
duty. Anda prisoner has various rights, such as to challenge
the grand jury, or a particular juror, and the like, to be consid-
ered in chapters further on.

§ 36. Indictment or Information. — When, as in the majority of
our States in most cases, the first step in court against the sus-
pected person is to be taken by the grand jury, this body presents
to the tribunal a written accusation of his crime; which pre-
sentment, after being returned into court, and made a part of its
record, is called an indictment. But in some of the States there
is ordinarily no grand jury; and the prosecuting officer draws
out the accusation and lays it before the court, under the name
of an information. When also the accusation is by indictment, it
is usually, in practice, drawn by this officer. Such is the general
course; but there are exceptional variations, which will be ex-
plained in their proper places.

§ 37. The Arraignment. — When the indictment has been duly
found, the prisoner is arrested if not already in custody, and it is
read over to him in open court, and he is required to plead to it.
This is called the arraignment.

§ 38. Steps, and Election of them, by Defendant. — The prisoner
may now perhaps elect between various steps. There may, for
example, be ground for a plea i in abatement. But, if there is, it
does not necessarily follow that it is for his interest to make the
plea. Suppose he is indicted by the wrong name, the plea must
show his true name; by which name, if it succeeds, he will gen-
erally be indicted over again. If the grand jury is still in ses-
sion, the prosecuting officer, instead of dallying with this plea,

18
CHAP. IIl.] ORDER AND CHOICE OF PROCEEDINGS. § 40

should he think it well taken, will prepare a fresh copy of the
indictment, wherein the name will be corrected; and, without
hearing fresh evidence, unless to the question of the name, they
will find it a true bill, to be substituted in place of the old one.
Or the grand jury may be present in open court at the arraign-
ment; and then, if a prisoner, instead of pleading guilty or not
guilty, presents a plea in abatement to the name, or asks time to
prepare one, the correction can at once be made, with their con-
sent, on the original instrument found, and this will end the
objection. But when the grand jury has been dismissed, after
their full term of service is ended, and there can be no fresh in-
dictment except by another grand jury, something may be gained
by causing it to be abated. Perhaps a second grand jury will
refuse to find a bill. Or, on the other hand, they may find one
which will not be so easily answered as this, or which will sub-
ject the prisoner to a heavier punishment. If delay is caused, it
may work for the good of the prisoner, or work against him.
Many considerations, not necessary here to be enumerated, will
influence the discretion of the judicious practitioner in cases of
this sort.

§ 39. Continued —-Indictment defective. — If, on examining the
indictment, he finds it to be defective in its main allegations, he
will have a choice of steps. He may move to quash it. He may
demur. He may do neither; but, where no statute in his State
has altered the common-law practice, avail himself of the objec-
tion, if convicted, on motion in arrest of judgment. Generally,
not always, he will choose the method last named; or, he may
even withhold the objection until after final sentence, and then
bring a writ of error.1 Yet, in some of the States, statutes re-
quire this objection to be presented at an early stage or not at
all. s

§ 40. The Trial. — When the cause comes before the petit jury,
it may be a question how, out of several methods which present
themselves, the prosecution or defence shall be conducted. The
prosecuting officer, if faithful to his duty, will, on his side, select
the method which he deems best calculated to bring out the real
facts, whether they lead to a conviction or acquittal. It is even
more to the detriment of the State, whose interests he represents,

1 Crim. Law, I. § 1022.
19
§ 438 PRELIMINARY VIEWS. [BOOK I.

that an innocent man should be convicted, than that a guilty one
should escape. But on the side of the defendant, the considera-
tions are different. A lawyer may justly strive to procure an ac-
quittal, whether his client is in fact guilty or not; because a guilty
man is entitled to be convicted according to law, or, in default
thereof, to be acquitted. Hence it is not wrong for his counsel
to choose, out of various methods of defence, the one which will
prove effectual. And there is often a wide range for selection.

III. From the Finding of Guilty to the Complete Execution of
the Sentence.

§ 41. Setting aside the Verdict.— When a verdict of guilty has
been rendered, it is not necessarily to stand. If it can be over-
turned, —as, on a motion for a new trial, or on exceptions toa higher
court, — in most circumstances, this should be done. Yet in pecul-
iar circumstances, it may be better to forego even this conclusion.
If, for example, the form of the verdict or the indictment is
such that the prisoner can be sentenced only for a small part of
his real crime, or for a part only of what was meant to be charged
against him, his interest may be best served by accepting that.
And there are various other circumstances bringing a case within
this principle.

§ 42, Arresting Judgment. — At any time before sentence, where
the rules of the common law are not changed by statute, the de-
fendant may move to arrest the judgment for any defect in the
indictment or other part of the record. Yet this step will not
always be wise; as, if the prisoner is sure to be indicted over
again, and almost certainly convicted, — and if the second con-
viction will probably be for a heavier crime than was the first, —
it is better to accept a sentence for the smaller offence than to
fly for relief only to be convicted of a heavier.

§ 43. The Sentence. — When the sentence is to be passed, the
practitioner should carefully consider, whether, on the one hand,
to bring forward any thing in mitigation of it, or, on the other
hand, any facts in aggravation! And, —

Writ of Error.—If the sentence is erroneous, or if any other
error is apparent on the record, a writ of error may become

necessary.
1 Crim. Law, I. § 948-950.

20
CHAP. Ill.] ORDER AND CHOICE OF PROCEEDINGS. § 44

§ 44. Conclusion. — The details will appear as we proceed; all
leading to the conclusion, that he who would conduct a prosecu-
tion or defence well, must first become familiar with the whole
science of the criminal law and with the entire practice. No one

can succeed by a mere stuffing for each separate occasion.
‘ 21
§ 47 SOME LEADING PRINCIPLES. [Book II.

BOOK I.

SOME LEADING PRINCIPLES OF CRIMINAL PROCED-
URE EXPLAINED,

CHAPTER IV.

THE OFFENCE TO BE PROSECUTED IN THE COUNTY OBR DIS-
TRICT WHERE COMMITTED.!

§ 45-48. Introduction.
49-63. As to Crimes against the States.
64-67. As to Crimes against United States.

§ 45. Introductory Explanation. — Though the principles brought
to view in the series of chapters constituting the present Book
are of high importance, some of them of the very highest, it is
not meant that various other important principles, to be eluci-
dated further on, are not also leading. The group here given,
while they are leading, severally extend through the entire sys-
tem of Criminal Procedure, and they are of a sort to be best
considered separately, and as introductory to the rest.

§ 46. Country distinguished from County, &c.—In the volumes
on the “ Criminal Law,” ? the local limits of the United States
and of the several States were considered, together with their re-
spective jurisdictions over crimes, and the jurisdiction as between
the United States and foreign nations. We are now — assuming
the courts of the particular sovereignty to have authority to pro-
ceed in the case — to inquire in what local division of its territory
the proceeding is to be instituted.

§ 47. Possible and Actual distinguished — Legislative Power. —
Plainly it is competent for the governing power of any country
to determine where the perpetrator of a crime, over which it has
jurisdiction, shall be tried. But, with us, the common-law rules

1 As to the allegation and proof of the Dodge v. People, 4 Neb. 220; Lewis’s
place, see post, § 860 et seq. Appeal, 17 Smith, Pa. 153; Gut v. The

2 Crim. Law, I. § 99-188. State, 9 Wal. 36.
8 The State v. Gordon, 60 Misso. 888 ;

22
CHAP. Iv.] THE COUNTY

govern where no other provision has been made.

OR DISTRICT. § 49

In some small

degree, they have been changed by legislation and the constitu-
tions of the respective States and of the United States.

§ 48. How the Chapter divided. — We shall inquire as to, I.
Crimes against the Several States; II. Crimes against the United

States.

I. As to Crimes against the Several States.

§ 49. County — General Rule. — By the common law, crimes are
local, to be prosecuted in the county of their commission ;} only
in such county can the grand jury inquire of them.2. Even, —

County divided.— Where a county is divided, a criminal act
done before the division is to be prosecuted in the particular new

county in which is the place of the offence.

against the State; the trial, in

1 Coon v. The State, 18 Sm. & M.
246; Sullivant v. The State, 3 Eng. 400;
Harker v. The State, 8 Blackf. 540; Rex
v. Spiller, Style, 108, 3 Salk. 77; Rex v.
Jones, 6 Car. & P. 187; Bouche’s Case,
Cro. Eliz. 200; People v. Honeyman, 3
Denio, 121; The State v. Nixon, 18 Vt.
70; The State v. Godfrey, 3 Fairf. 361;
The State v. Patterson, 1 Murph. 443;
Commonwealth v. Call, 21 Pick. 509;
Rex v. Hicks, 12’ Mod. 30, 31; Dowdale’s
Case, 6 Co. 465; Barns v. Hughs, 1 Lev.
249; Commonwealth v. Kunzmann, 5
Wright, Pa. 429.

2 4 BL. Com. 308; 1 Stark. Crim. Pl.
2d ed.1; Hughes v. The State, 35 Ala.
361.

8 The State v. Jones, 3 Halst. 307, 4
Halst. 357, 872; The State v. Jackson, 39
Maine, 291; Murrah v. The State, 51
Missis. 675; The State v. Donaldson, 3
Heisk. 48. And see Ex parte Hall, 47
Ala. 675; Hall v. The State, 51 Ala. 9;
Stat. Crimes, § 144, 175. Form of the
Allegation. —If a new county is made
from a part of an old one, may the indict-
ment — which must be in the new county
for what had been done therein —allege
that the act was committed in the new
county? According to an Arkansas de-
cision, yes. McElroy v. The State, 13
Ark. 708. Contra, in New Jersey, the
court observing: “It is seen, that, at the
time mentioned, there was no such place

The offence is
the new county.8

as that at which the offence is alleged to
have been committed.” The State v.
Jones, supra. A form approved in
Georgia was, that, as stated by Mc-
Donald, J., “the offence was committed
in that portion of the county of Baker
which is now the county of Dougherty.”
Jordan v. The State, 22 Ga. 545, 555. In
Arkansas, a statute declared the citizens
living on the east fork of Illinois Bayou,
in Van Buren County, to be citizens of
the county of Pope, with the rights and
privileges thereof ; and this was held not
to effect the transfer of any part of the
territory of Van Buren County to Pope
County ; therefore, upon the trial of an
indictment, alleging the offence to have
been committed in Pope County, proof.
that it was committed on the east fork of
Illinois Bayou, in Van Buren County,
would not sustain the allegation. Holmes
v. The State, 20 Ark. 168. And see The
State v. Stokely, 16 Minn. 282; The
State v. Fish, 4 Ire. 219. Some special
Changes. — After Maine was separated
from Massachusetts and formed into a
new State, it was held in the former that,
if an indictment for an offence committed
before the separation did not charge it
to have been committed against the peace
of Massachusetts, the omission would be
fatal. Said the court: “ Whoever com-
mits an offence, indictable either by
statute or at common law, is guilty of a

23
§ 50 SOME LEADING PRINCIPLES. [Book IL.

§ 50. Constitutional Restrictions. — Some of our State consti-
tutions provide, that, as expressed in Massachusetts, “in crim-
inal prosecutions, the verification of facts in the vicinity where
they happen is one of the greatest securities of the life, liberty,
and property of the citizen” ;1 or, more pointedly in some of
the other States, that the trial shall be in the county where the
offence was committed.” s

Waivea. — This provision, like other constitutional guarantees
for the protection of defendants, may be waived by them ;? as, —

Change of Venue.—If a defendant applies to the court for a
change of venue,* he waives the constitutional right to be tried
in the county where he is indicted. <A statute, therefore, allow-
ing the change, is not void as conflicting with this constitutional
provision.® But such change can be made only with his consent.®

Blow in one County and Death in Another.— Whether, in a case
of homicide, if the blow is in one jurisdiction, and death follows
in another, the crime has been perpetrated in either, — or, if in
either, in which,—is a question whereon judicial opinion has
been somewhat divided.’ In Massachusetts, a statute authoriz-
ing prosecution in the county of the death has been held not to

violate this constitutional provision.’

breach of the peace of that government
which exercises jurisdiction, for the time
being, over the place where such offence
is committed.” Damon’s Case, 6 Greenl.
148, 152. An act of Congress having
provided that nine of the western coun-
ties of Arkansas, and the part of the In-
dian country lying within the judicial
district of this State, should constitute a
new judicial district, to be styled the
western district of Arkansas, and the
residue of the State should remain a judi-
cial district to be styled the eastern dis-
trict of Arkansas ; and having established
terms of the district court within the
western district, and conferred thereon
circuit court jurisdiction; it was held,
McLean, J., dissenting, not to take away
the jurisdiction of the circuit court for
the eastern district to try an indictment
pending at the time of the passing of the
act, for a murder committed in the Indian
country. United States v. Dawson, 15
How. U. S. 467.
1 Mass. Const. part 1, art. 18.

24

Let us see further : —

2 Wheeler v. The State, 24 Wis. 52;
Mayes v. The State, 3 Heisk. 480; Alex-
ander v. The State, 3 Heisk. 475; Craig
v. The State, 3 Heisk. 227; Dougan v.
The State, 30 Ark. 41.

3 Crim. Law, I. § 995-1007; post, § 117-
126; The State v. Potter, 16 Kan. 80.

4 Post, § 68 et seq.

5 Dula v. The State, 8 Yerg. 511;
Perteet v. People, 70 Ill. 171.

6 The State v. Denton, 6 Coldw. 539;
Wheeler v. The State, 24 Wis. 52. See
also Dougan v. The State, 30 Ark. 41;
post, § 112.

7 Crim. Law, I. § 112-116, and note to
§ 115; post, § 51; The State v. Bowen, 16
Kan. 475; The State v. Gessert, 21 Minn.
369.

8 Commonwealth v. Parker, 2 Pick.
550. And see Tippins v. The State, 14
Ga. 422; Steerman v. The State, 10
Misso. 5083; The State v. Pauley, 12
Wis. 537 ; Commonwealth v. Costley, 118
Mass. 1; post, § 52.
CHAP. Iv.] THE COUNTY OR DISTRICT.

§ 51

§ 51. Continued — Evidence and Crime distinguished. — There is
a difference between a thing done and the evidence of it. There-
fore witnesses may come from another county to testify to what
transpired there, when tending to prove the criminal act in the
county of the trial as charged.1 Overlooking this distinction,
the courts are said to have anciently doubted, whether, if a blow
were inflicted in one county, and death from it followed in an-
other, the offence could be prosecuted in either? “The diffi-
culty,” says Starkie,? “was frequently avoided by carrying the
dead body back into the county where the blow was struck, and
there the jury might inquire both of the stroke and of the death.”
But —

The True Doctrine. — The true view appears to be, that the blow
is murder or not according as it produces death within a year and
a day or not;*# and, therefore, in all cases an indictment lies in the
county where the blow was given.» Hence, —

Stroke on Sea, Death on Land.— We may hesitate to concur
with what has been held in the United States courts, that, where
the stroke is on the ocean, and the injured person expires on land,
there is no “murder committed on the high seas,” within the act

of Congress.®

1 See Respublica v. Malin, 1 Dall. 33;
The State x. Wisdom, 8 Port. 511; United
States v. Britton, 2 Mason, 464; Com-
monwealth v. Parmenter, 5 Pick. 279;
Bland v. People, 8 Scam. 364; Reg. v.
Bleasdale, 2 Car. & K. 765; 1 Stark.
Crim. Pl. 2d ed. 21-23.

2 “ Though the more common opinion
was, that he might be indicted where the
stroke was given.” 1 Hale P. C. 426;
1 East P. C. 361, and see p. 363, 365 et
seq.; 3 Inst. 48; 1 Hawk. P. C. 6th ed.
e. 31, § 18.

3 1 Stark. Crim. Pl. 2d ed. 3, 4, note.
And see Benson v. Offley, 2 Show. 510;
8. c. nom. Bauson v. Offley, 3 Salk. 38.

4 Commonwealth v. Roby, 12 Pick.
496, 505, 506; Burns v. People, 1 Parker
C. C. 182, 185; People v. Gill, 6 Cal. 637 ;
The State v. Gessert, 21 Minn. 869; The
State v. Bowen, 16 Kan. 475. “The giv-
ing of the blows which caused the death
‘constitutes the felony.” Patteson, J.,
in Rex v. Hargrave, 56 Car. & P. 170;
Crim. Law, I. § 113-116.

5 Riley v. The State, 9 Humph. 646,

as to which case, see The State v. Pauley,
12 Wis. 537 ; post, § 52; Rex v. Burdett,
4 B. & Ald. 95, 173.

6 United States v. Magill, 1 Wash. C.
C. 463; s.c. nom. United States ».
McGill, 4 Dall. 426; United States v.
Armstrong, 2 Curt. C. C.446. There is
apparent common-law authority for this
doctrine. Lord Coke says: “If a man
be stricken upon the high sea, and dieth
of the same stroke upon the land, this
cannot be inquired of by the common
law ; because no visne can come from the
place where the stroke was given (though
it were within the sea pertaining to the
realm of England, and within the liege-
ance of the king), because it is not within
any of the counties of the realm. Neither
can the admiral hear and determine this
murder ; because, though the stroke was
within his jurisdiction, yet the death was
infra corpus comitatus, whereof he cannot
inquire: neither is it within the statute
of 28 Hen. 8, because the murder was not
committed on the sea. But, by the act
of 18 Rich. 2, the constable and marshal

25
§ 52 SOME LEADING PRINCIPLES. [Book 1.

Between Different Countries and States. — How this question is
as between different countries and States was discussed in “ Crim-
inal Law.”

§ 52. Blow and Death, continued — English Statute as Common
Law. —In the absence of any legislation or constitutional pro-

vision with us, if the death is within the State, the English
statute, 2 & 3 Edw. 6, c. 24, § 2, which is common law in our
States,? applies. It provides, ‘ that, where any person or persons
hereafter shall be feloniously stricken or poisoned in one county,
and die of the same stroke or poisoning in another county, that
then an indictment thereof, founden by jurors of the county where
the death shall happen, &c., shall be as good and effectual in the
law as if the stroke or poisoning had been committed and done
in the same county where the party shall die, or where such in-
dictment shall be so founden.” 8

American Legislation. — This statute, moreover, has been sub-
stantially re-enacted in some of the States;* as, we have seen,® in
Massachusetts. In other States, the provision is, that the indict-
ment shall be in the county where the offence is committed, —
generally, and by the better view, construed to be the county of
the blow.® In interpreting these statutes, regard should be had
to the rule, that a new provision without negative words does not
abrogate any prior law to which it is not repugnant,’ but both

may hear and determine the same. And
before the making of the statute of 2 &
3 Edw. 6, if a man had been feloniously
stricken or poisoned in one county, and
after had died in another county, no
sufficient indictment could thereof have
been taken in either of the said counties ;
because, by the law of the realm, the
jurors of one county could not inquire of
that which was done in any other county.”
8 Inst. 48. See Rex v. Farrel, 1 W. Bl.
469; Riggs v. The State, 26 Missis. 51;
Steele v. Thacher, 1 Ware, 91.

1 Commonwealth v. Linton, 2 Va. Cas.
205; The State v. Dunkley, 3 Ire. 116;
Crim. Law, I. § 110-123, 148. And see
§ 145-188.

2 The State v. Moore, 6 Fost. N. H.
448; Riley v. The State, 9 Humph.
646.

32 Hawk. P. C. Curw. ed. p. 802;
Bauson v. Offley, 3 Salk. 88; 1 Stark.
Crim. Pl. 2d ed. 5, 6. Statutes of this

26

class are to be liberally construed. Stat.
Crimes, § 198. This seems to have prac-
tically abolished the common-law rule for
those cases to which it is applicable ; but
query whether it really has. Stat. Crimes,
§ 154-164.

4 Stoughton v. The State, 18 Sm. &
M. 255; The State v. Toomer, Cheves,
106; Nash v. The State, 2 Greene, Iowa,
286. In some of the States the provision
is, that the indictment may be in either
county.

5 Ante, § 50.

§ Riley v. The State, 9 Humph. 646;
The State v. Gessert, 21 Minn. 369; The
State v. Bowen, 16 Kan. 475.

7 Stat. Crimes, § 154 et seq. “In
general,” says Starkie, “ wherea statute
creating a new felony directs that the
offender may be tried in the county in
which he is apprehended, but contains
no negative words, he may be tried in
that county in which the offence was
CHAP. IV.] THE COUNTY OR DISTRICT. § 53

may stand together, —a rule which seems to have been sometimes
overlooked in these cases,

§ 53. Personal Presence. — The law deems that a crime is com-
mitted in the place where the criminal act takes effect. Hence,
in many circumstances, one becomes liable to punishment in a
particular jurisdiction while his personal presence is elsewhere.
Even, in this way, he may commit an offence against a State or
country upon whose soil he never set his foot, as explained in
“Criminal Law.”? And, within the scope of this chapter, for
example, —

In Homicide. —If a man stands upon shore within a county,
and by discharging firearms kills another upon the high seas with-
out the county, he is triable for the murder by the admiralty,
which has jurisdiction over the locality where the ball took effect,
and not over the place where he stood to perpetrate the crime.®
And one who poisons another by the help of an innocent agent*
is guilty of the murder in the county where the poisoning took
place. So—

Crimes by Letter — (Libel — Threatening Letters — Forgery —
False Pretences —Solicitation).— A person who puts forth a libel,®
or a threatening letter,’ or a letter enclosing a forged instrument
to defraud the one to whom it is addressed,® or a letter making
a false pretence to a person who thereupon parts with his goods
in the county where he receives it,® or soliciting one to commt
a crime,” may be indicted in the county to which it is sent,
though he does not go there himself And —

committed.” 1 Stark. Crim. Pl. 2d ed. 8 People v. Rathbun, 21 Wend. 509.

12, citing 1 Hale P. C. 694; 3 Inst. 87.

1 See a previous note to this section.

2 Crim. Law, I. § 110, 111; Common-
wealth v. Corlies, 8 Brews. 575; Com-
monwealth v. Smith, 11 Allen, 243.

3 Rex v. Coombes, 1 Leach, 4th ed.
388, 1 East P. C. 867; 1 Stark. Crim. Pl.
2d ed. 22, 23.

4 Crim. Law, I. § 810, 651.

5 Anonymous, J. Kel. 53; 1 Stark.
Crim. Pl. 2d ed. 23.

6 Commonwealth v. Blanding, 3 Pick.
804.

7 People v. Griffin, 2 Barb. 427; Rex
v. Girdwood, 1 Leach, 4th ed. 142, 2 East
P. C. 1120; Esser’s Case, 2 East P. C.
1125.

And see McGuire v. The State, 37 Ala. 161.

9 Reg. v. Jones, 1 Den. C. C. 551,
Temp. & M. 270, 1 Eng. L. & Eq. 533;
Norris v. The State, 25 Ohio State, 217.
And see Adams v. People, 1 Comst. 173 ;
People v. Adams, 8 Denio, 190; Reg. v.
Leech, Dears. 642, 7 Cox C. C. 100, 36
Eng. L. & Eq. 589; Reg. v. Cooke, 1 Fost.
& F. 64.

10 Griffin v. The State, 26 Ga. 493.

11 Enticing Slave.— During slavery,
one who enticed away another’s slave was
held to be guilty in the county where the
slave quit service, whether personally in
such county near enough to aid him or
not. Mooney »v. The State, 8 Ala. 328, to
which the earlier case of The State v.

27
[Book II.

§ 55 SOME LEADING PRINCIPLES.

Neglects — (Bankruptcy —-Repair of Way).— One who crimi-
nally neglects to do any act, as to surrender to a fiat in bank-
ruptcy,! or repair a highway,? is answerable for the neglect in the
county where the act ought to have been done, and in no other.
From the doctrine of this section it follows that, —

§ 54. Part of Crime in one County, Part in Another. — Where
a crime is constituted by a series of acts, and a part of them
are in one county and a part in another, by the rules of the
common law there can be no prosecution in either, unless so
much is done in the one as will constitute a complete offence.t
Thus, —

Abduction — Ousting Clergy. — Under the English statute, 3

Hen. 7, c. 2, against the forcible abduction and marriage of an
heiress, two acts were necessary to constitute the felony: first, a
forcible abduction ; secondly, a marriage; and so, if the heiress
was taken by force from one county, and the constraint ceased
before she reached a second county in which she was married,
there could be no indictment in either; though, if the constraint
continued, the offence would be complete in the latter county.®
And, “‘ where clergy is ousted on circumstances of aggravation,
such. circumstances must all be proved to have happened within
the county in which the offender is tried.” §
. §.55. In Misdemeanor as in Felony. —Some writers have fallen
into the mistake, that the doctrine of the last section applies in
its full extent to felonies only, not so strictly to misdemeanors ; 7
but, on principle, there can be no difference, and the adjudica-
tions show none.’ Their error has arisen from a misapprehension
of a correct proposition; namely, that, —

How in Misprision of Felony.— Since every felony includes a

Wisdom, 8 Port. 511, seems to be op-
posed.

1 Reg. v. Milner, 2 Car. & K. 310.

2 Rex v. Clifton, 6 T. R. 498, 502, in
-which -it was held, overruling Rex v.
Weston, 4 Bur. 2607, that, if a parish,
bound to repair a highway, is situated in
two counties, an indictment for the non-
repair of the part of the way lying in the
one county, against the inhabitants only
of the part of the parish within that
county, is bad: it should be against the
whole parish. And see Rex v. Great
Broughton, 5 Bur. 2700.

28

3 Archb. New Crim. Proced. 74.

4 Danby’s Case, 1 Hale P. C. 652; 1
Stark. Crim. Pl. 2d ed. 2; Rex v. Bur-
dett, 4B. & Ald. 95, 172.

5 1 Stark. Crim. Pl. 2d ed. 2; 1 East
P. C. 453; Fulwood’s Case, Cro. Car.
488, 1 Hale P. C. 660; Stat. Crimes, § 616
et seq.

6 2 East P. C. 778.

7 1 Stark. Crim. Pl. 2d ed. 26; 1 Chit.
Crim. Law, 196.

8 Rex v. Burdett, 4B. & Ald. 95, 186,
cited 5 D. & R. 616; Pearson v. McGow-
ran, 3 B. & C. 700,5 D. & R. 616.
CHAP. IV.] THE COUNTY OR DISTRICT. § 57

misprision of it, which is misdemeanor,! if one does in two coun-
ties what amounts to a completed felony, but not a felony in
either, he may in either be prosecuted for the full misprision2
For, as we have seen,’ a misprision is a neglect, either to prevent
a felony while being committed, or to disclose it afterward to the
authorities ; so that, when a man commits a felony, he commits
also a full misprision of it in every county in which he does any
part of it, or omits to make disclosure of what he has done.

§ 56. Statutory Change.—In England, at present, a statute
provides, that, where any felony or misdemeanor “shall be begun
in one county and completed in another,” the trial may be in
either ;* and there is a like provision in some of our States.
But —

Implied by Statute — (Statutory Offence). —- The provision need
not be express, it may be implied; as, if a statute creates an
offence which, in terms, must consist of acts both within and
without the State, an indictment under it will lie in the county
wherein, within the State, the domestic part of the transaction
occurs ;® for otherwise the statute would be inoperative.? Obvi-
ously, too, a legislative provision, bringing into being a new
offence entirely within the State, may be in such words as to re-
quire the application of the same principle; and thus, by a nec-
essary implication, to authorize proceedings in a county in which
a part only of the guilt was incurred.

§ 57. How much in County of Indictment.— Even under the
common-law rule, no more need be done within the county than
is strictly necessary ® to the crime. What is parcel of it or not at
the election ” of the prosecutor, or is mere evidence, need not be
taken into the account.“ For example, —

Attempt. — One who, as a step toward the commission of a lar-
ceny, takes the impression of a warehouse key for the purpose of

! Crim. Law, I § 717. 7 Stat. Crimes, § 187.
21 Hale P. C. 662, 653. 8 And see Pope v. Davis, 2 Taunt.
8 Crim. Law, I. § 717, 720. 252; Scott v. Brest, 2 T. R. 288, 241;

4 7 Geo. 4, c. 64,§ 12; Reg. v. Leech, Scurry v. Freeman, 2 B. & P. 881; The
Dears. 642, 36 Eng. L. & Eq. 689; Rex State v. Hudson, 3 Zab. 206.
v. Jones, 1 Russ. Crimes, 5th Eng. ed. 5. ® Crim. Law, I. § 649, 650.
5 The State v. Hollenbeck, 86 Iowa, 10 Crim. Law, I. § 791.
112; Commonwealth v. Costley, 118 11 Ante, § 51.
Mazz. 1. 12 And see Skiff v. People, 2 Parker,
6 1 Stark. Crim. Pl. 2d ed.9; 1 Hale C. C. 189, 147.
P. C. 706; 3 Inst. 80. ‘
29
§ 58 SOME LEADING PRINCIPLES. [BOOK II.

having a false one made, commits, in the county where he does
this act, an indictable attempt; then, should he have the key
made in another county, he is still punishable in the former.
Again, to solicit a person to commit an offence is, as we have
seen,” an indictable attempt. The indictment must evidently be
in the county where the soliciting is done; or, at least, it must
be if the other takes no step, though the ultimate offence were to
be in another county.2 But, —

Substantive Misdemeanor. — If the person solicited proceeds to
the other county and there executes the thing, the other may
then, if it were a misdemeanor, be held as a joint principal,
guilty, not merely of the attempt, but of the substantive crime;
the solicitation may be shown, not as constituting a part of the
criminal act, but as evidence of the intent which travelled with
it into the new locality and dwelt there when done;‘ and thus
that becomes an offence in the second county, which, in another
aspect, was a less offence in the first. Hence,—

Rule in Misdemeanor — (Libel).— The rule in misdemeanors is,
that all who participate in them, whether present or absent, are
indictable in the county in which they are committed. Thus,
says Starkie:® “If A procure B to publish a libel, A is liable to
be indicted’ in. every county in which B publishes that libel.®
So if A abroad procure false vouchers to be delivered in Middle-
sex, which he has fabricated for the purpose of fraud, he is indict-
able in Middlesex.” 9

§ 58. In Felony — Accessory before. — Ordinary legal reasoning
would render this rule applicable equally in felony. But we have
seen,” that, owing probably to the blunder of some early judge, a
person procuring a felony to be committed in his absence is, under
the name of accessory before the fact, distinguished from the actual
doer in a way not recognized in misdemeanor; the consequence of
which perhaps ought to be, that he who excites to a felony an-
other who does it, should be indictable in the same manner, as to

! Griffin v. The State, 26 Ga. 493, 502. 8 1 Stark. Crim. Pl. 2d ed. 28,
2 Crim. Law, I. § 767. 7 Rex v. Johnson, 7 East, 65.
3 See Reg. v. Daniell, 6 Mod. 99, 101. 8 See also Rex v. Girdwood, 1 Leach,
And see Griffin v. The State, 26 Ga. 498, 4th ed. 142, 2 East P. C. 1120,
4 Ante, § 58. 9 Rex v. Brisac, 4 East, 164. And see
5 1 Stark. Crim, Pl. 2d ed. 28; Com- Crim. Law, I. § 110.
monwealth v. Gillespie, 7S. & R. 469, 20 Crim. Law, I. § 678, 682, 685.
478; Rex v. Brisac, 4 East, 164.

30
CHAP. IV.] THE COUNTY OR DISTRICT. § 59

locality, with him who entices to a misdemeanor another who
does not do it; namely, in the county where the inciting is done.
But this question is left in doubt by the old authorities,? and is so
also on principle. It is often difficult to say on principle, when
an error, established, should lead to a second error. To remove
this embarrassment, statute 2 & 3 Edw. 6, c. 24, which, we have
seen,® is common law in this country, provides, § 4, “‘ that, where
any murder or felony hereafter shall be committed and done in
one county, and another person or more shall be accessory or
accessories in any manner of wise to any such murder or felony
in any other county, that then an indictment found or taken
against such accessory and accessories upon the circumstance of
such matter, &c., in the county where such offences of accessory,
&e., shall be committed or done, shall be as good and effectual in
the law as if the said principal offence had been committed or
done. within the same county where the same indictment against
such accessory shall be found.” 4

Accessory after — (High Seas and Land). — This statute extends
also, we perceive, to the accessory after the fact ; and clearly, as
to him, the rule it prescribes is the same which is deducible from

- the ordinary doctrines of the common law.> But, in respect to
such accessory after, it is the doctrine of the English courts, that,
where the principal offence is on the high seas, within the ad-
miralty, and beyond the common-law furisdiction, the crime of
receiving the principal offender on land, and within the body of
a county, cannot be taken cognizance of by the common-law
tribunal.®

§ 59. Further Applications of Doctrines : —

Choice of Counties. — As resulting from the foregoing doctrines,
not unfrequently an offender may be indicted in one or another
of two or more counties at the election of the prosecuting power.
The peculiar nature of an offence sometimes helps this result ; as, —

1 Ante, § 57. 8 Admiralty Case, 13 Co. 61. The

2 2 Hawk. P. C. Curw. ed. p. 454 and
note 2. And see Rex v. Easterby, 2
Leach, 4th ed. 947, Russ. & Ry. 87; Ad-
miralty Case, 13 Co. 51.

3 Ante, § 52.

4 2 Hawk. P. C. Curw. ed. p. 455, § 50;
1 Stark. Crim. Pl. 2d ed. 5-7; The State
v. Moore, 6 Fost. N. H. 448.

5 Crim. Law, I. § 692.

reason assigned is, “that the common
law cannot take cognizance of the origi-
nal offence, because that is done out of
the jurisdiction of the common law; and,
by consequence, where the common law
cannot punish the principal the same
shall not punish any one as accessory to
such principal.” p. 58.

81
[Book II.

§ 60 SOME LEADING PRINCIPLES.

In Larceny. — While larceny is committed only where there is
a taking and carrying away of the goods by trespass ! with a con-
curring and simultaneous intent to steal,? still if, after one has
done what amounts to a complete theft, he continues carrying
away the stolen things, each step he takes with them may be
treated as a new trespass, and, the intent to steal not being
abandoned, a fresh larceny; the consequence of which is, that
he may be indicted either in the county where he first took the
goods, or in any other into which, the intent to steal continuing,
he carries them. And it is immaterial whether he takes them to
the other county immediately, or a long time after the original
taking ;* yet the transfer must be felonious, or there must be
some felonious trespass in the new locality, it not being sufficient
where the prisoner, having the goods about him, goes there with
an officer who has arrested him for the theft.6 Hence, —

§ 60. Simple and Compound Larcenies, distinguished — Robbery.—
If the larceny in the first county is compound, — as, if it is com-
mitted in the course of a robbery, — the conviction in the second
county can be only for the simple larceny, not including its
aggravations ; because the aggravations took place only in the
first county. And, on the same principle, —

Thing changed —Name of it.—If the stolen thing was so
changed in form before it reached the second county as to be
known by a different ndme,—for example, if, where stolen, it

1 Crim. Law, IT. § 799.
2 Crim. Law, II. § 801.

cable to slave-stealing. The State v.
Groves, Busbee, 191. Change of Stat-

8 Rex v. Thompson, 2 Russ. Crimes,
8d Eng. ed. 116; The State v. Douglas,
17 Maine, 198; Tippins v. The State, 14
Ga. 422; Anonymous, 1 Crawf. & Dix
C. C. 192; Crow v. The State, 18 Ala.
541 ; Commonwealth v. Cousins, 2 Leigh,
708; The State v. Whaley, 2 Harring.
Del. 538; Commonwealth v. Rand, 7
Met. 475; Commonwealth v. Simpson, 9
Met. 1388; The State v. Bryant, 9 Rich.
118; People v. Smith, 4 Parker C. C.
255; People v. Garcia, 25 Cal. 531, 538;
Reg. v. Rogers, Law Rep. 1 C. C. 186, 11
Cox C. C. 88; Aaron v. The State, 39
Ala, 684; Cox v. The State, 48 Texas,
101. In some of our States, this is
specially provided by statute. The State
v. Brown, 8 Nev. 208. The North Car-
olina court held this doctrine not appli-

82

ute. — On the principle we are consider-
ing, if, between the original theft and
the finding of the indictment, the stat-
ute relating to larceny has been su-
perseded by a new one, the thief, who
retains possession of the goods, may be
proceeded against under the’ new stat-
ute. The State v. Somerville, 21 Maine,
14.

4 Rex v. Parkin, 1 Moody, 46.

5 Rex v. Simmonds, 1 Moody, 408.

§ Haskins v. People, 16 N. Y. 844, 348;
2 Russ. Crimes, 8d Eng. ed. 118; Rex v.
Thomas, 2 East P. C. 605, 2 Leach, 4th
ed. 634; 1 Hale P. C. 507, 508, 586; 2
Ib. 163. And see Rex v. Millar, 7 Car. &
P. 665; The State v. Groves, Busbee,
191; Reg. v. Newland, 2 Cox C. C. 283.
CHAP. Iv.] THE COUNTY OR DISTRICT.

§ 61
‘was a “ brass furnace,” but the thief broke it into fragments in
the first county, and carried them into the second, — the indict-
ment, to be adequate in the second, must describe the thing by
the name it bears there; as, in the illustration, “ certain pieces of
brass,” instead of a “ brass furnace.” 1 Likewise, —

Joint or Several. —If four persons commit a joint larceny in
one county, and there divide the goods, and then bring them in
separate parcels to another county, they cannot in the latter
be held jointly, but each is there guilty of a several larceny of
his separate parcel ;? while, on the other hand, if they commit in
the latter county a sufficient joint trespass, with intent to steal,
whether the goods were brought to it severally or jointly, they
may be held jointly.’

Under Statute or Common Law. — Of course, it is not material 4
in the application of these principles, whether the larceny is by
statute or at the common law.é

§ 60a. Other Offences than Larceny.— The doctrine of the
election of counties, as in larceny, does not apply to other
offences to which the reason of it does not extend. Thus, —

Receiving Stolen Goods—— False Pretences. — If a man receives
stolen goods in one county,® or obtains them there by false pre-
tences,’ then carries them into another county, he is not indictable
in the latter. Yet —

§ 61. By Letter through Mail — (Duel — Libel — Forgery —
Bribery). —It has been held—a doctrine not firmly estab-

1 Rex v. Halloway, 1 Car. & P. 127.
And see Rex v. McAleece, 1 Crawf. &
Dix C. C. 154; Anonymous, 1 Crawf.
& Dix C. C. 192; Rex v. Edwards, Russ.
& Ry. 497. Where the indictment was
for stealing “ two turkeys,” and the proof
showed that they were killed before be-
ing taken into the second county, the
charge was held not to be sustained ;
because, the court said, the words “two
turkeys” implied live ones, and the in-
dictment “ought to have been for steal-
ing two dead turkeys.” Rex v. Halloway,
1 Car. & P. 128.

2 Rex v. Barnett, 2 Russ. Crimes, 3d
Eng. ed.117. See Rex v. Dann, 1 Moody,
424: Rex v. Smith, 1 Muody, 289.

3 Rex v. County, 2 Russ. Crimes, 8d

Eng. ed. 118; ‘Commonwealth v. Dewitt,
VOL. I. 8

10 Mass. 154. See Rex v. McDonagh,
Car. Crim. Law, 3d ed. 24.

4 Stat. Crimes, § 137.

5 Commonwealth v. Simpson, 9 Met.
188; Commonwealth v. Rand, 7 Met.
475; Crow v. The State, 18 Ala. 541.
And see The State v. Whaley, 2 Harring.
Del. 588; Rex v. Thomas, 2 East P. C.
605, 2 Leach, 4th ed. 634, Rex v. Millar,
7 Car. & P. 665, may well be put as hav-
ing turned on a question of evidence ;
and whether the reporter is right in his
note, query.

® Roach v. The State, 5 Coldw. 39,
And see People v. Stakem, 40 Cal. 599;
Wills v. People, 8 Parker C. C. 478.

7 Reg. v. Stanbury, Leigh & C. 128, 9
Cox C. C. 94.

33
§ 62 : SOME LEADING PRINCIPLES. [BOOK IL.

lished, but perhaps sufficiently so— that a man who deposits
in the post-office a letter provoking a challenge to fight.a duel,!
or containing a libel? or a forgery? or an offer to bribe,‘ is in-
dictable in the county in which he deposits it; while, as we
have seen, he is so also in the county to which it is sent. The
principle is, that the deposit of the letter is a sufficient publication
to constitute an offence, either substantive or as an attempt.”
So, —

Embezzlement. — Under various circumstances, the act of em-
bezzlement may be deemed to have been committed in any one
of several different counties, at the election of the prosecuting
power. And, —

Conspiracy. — Though a conspiracy is an unlawful combination
of wills,® and it is indictable only in a county where such concord
occurred ; 1 yet, as in point of law the conspirators renew the con-
spiracy with every act done by any one of them in carrying out
the plan, they may be indicted either in the county in which they
first entered into the unlawful combination, or in any other county
in which, in pursuance of it, any overt act is performed.!

§ 62. Further of Statutory Changes :—

English Statutes of Common Law with us. — Besides the English
statute of 2 & 8 Edw. 6, c. 24, which, we have seen, is common
law here,” there are others sufficiently early in date to be so also.
But they are either of a nature local to the mother country, or
otherwise of no practical common-law importance with us.4

1 Rex v. Williams, 2 Camp. 506. And
see Rex v. Burdett, 4 B. & Ald. 95, 127.

2 Rex v. Burdett, 3 B. & Ald. 717, 4
B. & Ald. 95.

3 Perkin’s Case, 2 Lewin, 150.

4 United States v. Worrall, 2 Dall. 384,
888.

5 And see Rex v. Johnson, 7 East, 65,
8 Smith, 94; Rex v. Watson, 1 Camp.
215; Rex v. Williams, 2 Camp. 506.

6 Ante, § 53.

7 And see Crim. Law, I. § 204, 727;
II. § 926, 927.

8 Rex v. Taylor, 2 Leach, 4th ed. 974,
Russ. & Ry. 63, 3 B. & P. 596; Rex v,
Hobson, 1 East P. C. Add. xxiv., 2 Leach,
4th ed. 974; Reg. v. Murdock, 8 Eng. L.
& Eq. 577; 1 Stark. Crim, Pl. 2d ed, 25,

26.
34

§ Crim. Law, I. § 482, 592.

10 Reg. v. Best, 1 Salk. 174.

1 Commonwealth v. Gillespie, 7 8S. &
R. 469, 478; People v. Mather, 4 Wend.
229, 259; Rex v. Brisac, 4 East, 164;
Rex v. Bowes, cited 4 East, 171; Com-
monwealth v. Corlies, 3 Brews. 575.

12 Ante, § 52, 58.

18 See 1 Stark. Crim. Pl. 2d ed. 9-20.

M4 County of Arrest — Polygamy. —
The statute 1 Jac. 1, c. 11, against poly-
gamy, provided, in § 1, that the offender
under it might be tried in any county
where he should be apprehended. 1
Stark. Crim. Pl. 2d ed. 11. But I pre-
sume it is superseded in all the States
by more recent legislation. Under it,
the English courts decided, that, where
the person is taken into custody on a
CHAP. IVv.] THE COUNTY OR DISTRICT. § 64

§ 63. On Vessel navigating River. — It is provided in New York,
that, “when any offence shall have been committed within this
State, on board of any vessel navigating any river, lake, or canal,
an indictment for the same may be found in any county through
which, or any part of which, such vessel may be navigated in the
course of the same voyage or trip, or in the county where such
voyage or trip shall terminate.”! There are similar provisions
in other States.2- In Missouri, this kind of enactment has been
held to be constitutional.’ A like statute exists also in England.‘

Borders of Counties. — Other statutes in our States permit of-
fences committed within a defined distance from county lines to
be prosecuted in either county. The Minnesota court held, that
this does not conflict with the provision of the State constitution
whereby the trial of offences is to be in the county or district
where committed. The indictment, where the offence was in an
adjoining county, alleges, according 1o the fact, that it was com-
mitted in such county, within the statutory distance, which it
states, of the dividing line between that county and the county
of the indictment.§

II. As to Crimes against the United States.

§ 64. Constitutional Provisions. — The body of the Constitution
of the United States has a provision, not extending to the States,
that “the trial of all crimes, except in cases of impeachment, shall
be by jury; and such trial shall be held in the State where the

charge of larceny, he may be detained 2 Nash v. The State, 2 Greene, Iowa,

for polygamy, and such detaining will
be an apprehension authorizing an in-
dictment in the same court for the po-
lygamy. Rex v. Gordon, Russ. & Ry.
48. See further, as to this provision,
and the form of indictment upon it,
in England and this country, Reg. v.
Whiley, 2 Moody, 186, 1 Car. & K. 150;
Collins v. People, 4 Thomp. & C. 77,1
Hun, 610; The State v. Griswold, 53
Misso. 181; King v. People, 6 Hun, 297.
And see Reg. v. Smythies, 1 Den. C. C.
498, 2 Car. & K. 878; Mitchell v. The

State, 19 Ind. 881; Newcome v. The-

State, 27 Ind. 10; Stat. Crimes, § 112.

1 As to the construction of which, see
People v. Hulse, 3 Hill, N. ¥. 809; Man-
ley v. People, 3 Seld. 295.

286; Steerman v. The State, 10 Misso.
503; The State v. Timmens, 4 Minn. 325,

3 Steerman v. The State, 10 Misso.
508. And see Wood v. Steamboat Fleet-
wood, 27 Misso. 159. But see Craig v.
The State, 3 Heisk. 227.

4 Stat. 7 Geo. 4, c. 64, § 13; Reg. v.
Sharpe, Dears. 415; s.c. nom. Reg. »v.
Sharp, 24 Law J. n.s. M. C. 40, 29 Eng.
'L. & Eq. 682; Reg. v. Pierce, 6 Cox C.C.
117.

5 The State v. Robinson, 14 Minn. 447,
453. Contra, in Arkansas, Dougan v. The
State, 80 Ark. 41; also, in Tennessee, as
to offences within five miles of the State
line, Craig v. The State, 3 Heisk. 227.

6 The State v. Robinson, supra; Peo-
ple v. Davis, 66 N. Y. 95.

385
§ 65 SOME LEADING PRINCIPLES. [Book 1.
said crimes shall have been committed ; but, when not committed
within any State, the trial shall be at such place or places as the
Congress may by law have directed.”1 And an amendment
adds: “In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law.” ?

§ 65. Statutes and their Meaning. — Statutes have been enacted
carrying into effect these provisions ; and they are not precisely
the same in words in the Revised Statutes as in their earlier
forms, though nearly so. Before the Constitution was adopted
it was declared, that, “in cases punishable with death, the trial
shall be had in the county where the offence was committed ; or,
where that cannot be done without great inconvenience, twelve
petit jurors at least shall be summoned from thence.” ® This stat-
ute was held not to be repealed by the Constitution ;+ while yet
it may have been in some slight degree modified by subsequent
legislation.’ The courts deemed themselves to comply with it
when they summoned the jurors from the county in which the
offence was committed, without resorting to the difficult and
doubtful expedient of ordering a special term to be held in
that county.6 The Revised Statutes contain more general pro-
visions for the summoning of jurors;7 and, as to the county,
the provision is simply, that “the trial of offences punishable
with death shall be had in the county where the offence was com-
mitted where that can be done without great inconvenience.” 8
As to offences “committed upon the high seas or elsewhere, out of
the limits of any State or district,” the old and new provisions are
substantially alike ; the former being, that the trial “shall be in
the district where the offender is apprehended, or into which he
may be first brought” ;® the latter, that it “shall be in the district

1 Const. U. S. art. 3, § 2, cl. 3.

2 Const. U. S. Amendm. art. 6;

United States v. Britton, 2 Mason, 464.
3 10U.S. Stats. at Large, p. 88, act of

8 See the several cases before cited.

7 R.S. of U. S. § 802 et seq.

8 Ib. § 729,

940.58. Stats. at Large, p. 118, act

Sept. 24, 1789, c. 20, § 29; United States
v. Burr, 1 Burr’s Trial, Philad. ed. 362;
United States v. Cornell, 2 Mason, 91, 96;
United States v. Wilson, Bald. 78, 117.

4 United States v. Burr, 1 Burr’s Trial,
Philad. ed. 352, 853.

5 United States v. Cornell, 2 Mason,
91, 96. ;

. 86

of 1825, c. 65, § 14. See, for the inter-
pretation of this provision, United States
v. Arwo, 19 Wal. 486; post, § 66. And
see The Octavia, 1 Gallis. 488; United
States v. Thompson, 1 Sumner, 168; ob-
servations of Nelson, J., in Craig v. The
State, 8 Heisk. 227, 280, 231.
CHAP. IV.] THE COUNTY OR DISTRICT. § 67

. where the offender is found, or into which he is first brought.” 1
The Revised Statutes further provide, that, “when any offence
against the United States is begun in one judicial district and
completed in another, it shall be deemed to have been committed
in either, and may be dealt with, inquired of, tried, determined,
and punished in either district, in the same manner as if it had
been actually and wholly committed therein.” ?

$66. Crimes within State’ Limits. — It results, that, in all cases
where a crime against the United States has been committed
within the local limits of a State, the trial must be in the State
and judicial district of its commission, the latter having been
previously ascertained by law. To such a case, the provision
for the trial to be in the district into which the offender is first
brought is not applicable. By being brought within the district
is meant, brought into custody, and not merely conveyed thither
by the ship in which the offender first arrives.®

§67. How the Place determined.— The United States courts
do not take judicial cognizance of the locality of places, as being
within or without a State; as, where a verdict found that the
offence was committed at a place named, not adding in what
State, it was set aside, Nelson, J., observing: “ The boundary of
a State, when a material fact in the determination of the extent of
the jurisdiction of a court, is not a simple question of law. The
description of a boundary may be a matter of construction, which
belongs to the court; but the application of the evidence in the
ascertainment of it as thus described and interpreted, with a view
to its location and settlement, belongs to the jury.” ®

1&8. S. of U.S. § 780. 484; United States v. Bird, 1 Sprague,
2 Ib. § 781. 299.
3 United States v. Maxon, 5 Blatch. 5 United States v. Bird, supra ; United
860. States v. Arwo, 19 Wal. 486.
4 United States v. Jackalow, 1 Black, 6 United States v. Jackalow, 1 Black,
> 484, 487.

37
[Book I.

§ 68 SOME LEADING PRINCIPLES.

CHAPTER V.
CHANGE OF VENUE.

§ 68. How definea.— A change of venue is where, by order of
court, a cause is removed from the county in which the indict-
ment was found to an adjoining one for trial.1

English Doctrine. — Said Lord Mansfield: “The law is clear
and uniform as far back as it can be traced. Where the court
has jurisdiction of the matter, if from any cause it cannot be
tried in the place, it shall be tried as near as may be. . .. Where
an impartial trial cannot be had in the proper county, it shall be

tried in the next.” 2

American. — In most of our States, not in all, the change of
venue is in proper circumstances permitted; generally by statutes
which differ more or less in their terms.®

1 T should add “and the further pro-
ceedings,” but—Meaning of “ Trial”—
the word “trial” includes, in meaning,
such further proceedings, and is not
limited to what is done before the jury.
Reg. v. Castro, Law Rep. 9 Q. B. 350;
The State v. Shepherd, 8 Ire. 195.

2 Rex v. Cowle, 2 Bur. 834, 859. To
the like effect, see 1 Stark. Crim. Pl. 2d
ed. 80; 1 Chit. Crim. Law, 201; Rex ov.
Hunt, 3 B. & Ald. 444, 2 Chit. 180; Reg.
v. Wilts, 6 Mod. 307; Rexv. Nottingham,
4 East, 208; Rex v. Clendon, 2 Stra. 911;
Rex v. Holden, 5 B. & Ad. 347, 354, 855,
2 Nev. & M. 167; Reg. v. Palmer, 5 Ellis
& B. 1024, 34 Eng. L. & Eq. 290.

3 Some of the cases from the States
in which this proceeding is allowed are
the following :—

Alabama. — The State v. Ware, 10 Ala.
814; Innerarity v. Hitchcock, 8 Stew. &
P.9; The State v. Brookshire, 2 Ala. 303;
Hall v. The State, 15 Ala. 431; Ex parte
Remson, 28 Ala. 25; Harrall v. The State,
26 Ala. 62; Brister v. The State, 26 Ala.

38

107; Ex parte Rivers, 40 Ala. 712; Ex
parte Chase, 43 Ala. 303; Ex parte
Bryan, 44 Ala. 402; Murphy v. The
State, 45 Ala. 32; Williams v. The State,
48 Ala. 85; Taylor v. The State, 48 Ala.
180; Ex parte Dennis, 48 Ala. 304;
Kelly v. The State, 52 Ala. 361.

Arkansas. — Edwards v. The State, 25
Ark, 444; The State v. Jones, 29 Ark.
127 ; The State v. Flynn, 31 Ark. 35.

California. — People v. Stillman, 7 Cal.
117; Smith ». The Judge, 17 Cal. 547;
People v. Sexton, 24 Cal. 78; People ».
Congleton, 44 Cal. 92; People v. Cotta,
49 Cal. 166 ; People v. Perdue, 49 Cal. 425.

Delaware. — The State v. Burris, 4
Harring. Del. 582.

Florida.— Ammons v. The State, 9
Fla. 580.

Georgia. — Wheeler v. The State, 42
Ga. 306; Hunter v. The State, 43 Ga.
483 ; Brinkley v. The State, 54 Ga. 371.

Illinois. — People v. Scates, 8 Scam.
851 ; Clark v. People, 1 Scam. 117 ; Maton
v. People, 15 Ill. 686; Brennan v. People,
CHAP. V. | CHANGE OF VENUE. § 69

§ 69. How at Common Law in our States. — Effect of Statutes. —
In reason, the English common law on this subject should be
deemed a part of ours. And the fact that there are States in
which this proceeding is unknown should not be accepted as
adverse to this view. Thus, the Vermont court has denied
the right to change the venue; but this was because, said Red-
field, C. J., “‘as the statute provides, in general terms, for the
trial of criminal cases in the county where the offence is charged
to have been committed, we do not perceive how any court could
order a trial in such cases in any other county.”! And in, at

15 Ill. 511; Gardner v. People, 3 Scam.
83; Perteet v. People, 65 Ill. 230; Raf-
ferty v. People, 66 Ill. 118; Bryant v.
Ballance, 66 Ill. 188; Perteet v. People,
70 Ill. 171.

Indiana. — Findley v. The State, 5
Blackf. 576; In re Taylor, 4 Ind. 479;
Pulling. v. The State, 16 Ind. 458; Golds-
by v. The State, 18 Ind. 147; Vail v.
McKernan, 21 Ind. 421; Anderson v. The
State, 28 Ind. 22; Hurt v. The State, 26
Ind. 106; Galloway v. The State, 29 Ind.
442; Bailey v. The State, 89 Ind. 438;
Mershon v. The State, 44 Ind. 598; Van-

. derkarr v. The State, 51 Ind. 91; Manly
v. The State, 52 Ind. 215; Bissot v. The
State, 53 Ind. 408.

Iowa. — McCauley v. United States,
Morris, 486; Sharp v. The State, 2 Iowa,
454; Miller v. The State, 4 Iowa, 505;
The State v. Mooney, 10 Iowa, 506; The
State v. Ross, 21 Iowa, 467; Decatur v.
Maxwell, 26 Iowa, 398; The State v.
Hutchinson, 27 Iowa, 212; The State v.
Gibson, 29 Iowa, 295.

Kansas. — Shawnee v. Wabaunsee, 4
Kan. 312; Emporia v. Volmer, 12 Kan.
622; In re Peyton, 12 Kan. 398; The
State v. Bohan, 15 Kan. 407; The State
v. Potter, 16 Kan. 80.

Maryland. — Cromwell v. The State,
12 Gill & J. 257; Stewart v. The State, 1
Md. 129; The State v. Shillinger, 6 Md.
449; Raab v. The State, 7 Md. 483;
Davis v. The State, 39 Md. 355.

Minnesota. — The State v. Gut, 138
Minn, 341; The State v. Miller, 15 Minn.
844.

‘Mississippi. — Jenkins v. The State,
30 Missis. 408; Stewart v. The State, 60
Missis. 587.

Missouri. — Porter v. The State, 5
Misso. 588; Fanny v. The State, 6 Misso.
122; The State v. Phillips, 24 Misso. 475;
The State v. O’Rourke, 55 Misso. 440;
The State v. Lack, 58 Misso. 501.

Nebraska. — Preuit v. People, 5 Neb.
877.

Nevada. — The State v. Lawry, 4 Nev.
161.

New York. — People v. Harris, 4 Denio,
150; People v. Webb, 1 Hill, N. ¥. 179;
People v. Vermilyea, 7 Cow. 108; People
v. Sammis, 6 Thomp. & C. 828, 3 Hun,
560.

North Carolina. — Findley v. Erwin,
2 Murph. 244; The State v. Poll, 1
Hawks, 442; The State rv. Shepherd, 8
Ire. 195; The State v. Hall, 73 N. C. 184.

Ohio. — Brown v. The State, 18 Ohio
State, 496; The State v» McGehan, 27
Ohio State, 280.

Tennessee. — Moses v. The State, 11
Humph. 232; Logston v. The State, 3
Heisk. 414.

Texas. — Cotton v. The State, 32
Texas, 614; Barnes v. The State, 36
Texas, 639; Walker v. The State, 42
Texas, 860; Anschicks v. The State, 45
Texas, 148; Early v. The State, 1 Texas
Ap. 248; Buie v. The State, 1 Texas Ap.
452.

Virginia. — Commonwealth v. Rolls, 2
Va. Cas. 68; Commonwealth v. Bedinger,
1 Va. Cas. 125; Commonwealth v. Wildy,
2 Va. Cas. 69; Vance v. Commonwealth,
2 Va. Cas. 162,

Wisconsin. — The State v. Saxton, 14
Wis. 123; The State v. Rowan, 35 Wis.
308; Martin v. The State, 35 Wis. 294.

1 The State v. Howard, 31 Vt. 414,

416.
39
[Book I.

§ 70 SOME LEADING PRINCIPLES.

least, most of the States in which the change is permitted there
are statutes expressly authorizing it... Hence the question as to
the common law is not practically of much importance.

§ 70. For what Causes — (English Doctrine). — This change of
venue, being allowed of necessity,? is, in England, strictly lim-
ited to cases in which without it there cannot be a fair trial ;3
the authority is exercised with great caution, and only in ex-
treme cases.* But Chitty observes, that ‘‘an indictment against
a county for not repairing a bridge will be thus removed, because

1 Gordon v. The State, 3 Iowa, 410;
The State v. Barrett, 8 Iowa, 536 ; Bishop
v. The State, 30 Ala. 84; Moses v. The
State, 11 Humph. 232; and many other
cases, including those cited to the last
section. In a New York case, in 1827,
there were apparent intimations that the
doctrine of change of venue did not pre-
vail, but that something analogous did.
Said Savage, C. J.: “Changing the
venue, speaking technically, is out of the
question. The course in criminal prose-
cutions, where a clear case is made out,
is, to order a suggestion upon the record,
that a fair and impartial trial cannot be
had in the county where the offence is
laid. A venire is then awarded to the
sheriff of another county, and the cause
tried there; the indictment remaining
unaltered as to the venue.” And Wood-
worth, J., observed: “ ‘There is no doubt
of our power, upon a proper. case, to send
a criminal cause down for trial to a
county other than that in which the
venue was laid. Crimes, however, are
essentially local. Hence, the venue, as
such, cannot be changed. The place of
trial must be altered by suggestion, and
on clear proof that the cause cannot be
tried in the county where the offence is
laid, with safety to the rights of the de-
fendant.” People v. Vermilyea, 7 Cow.
108, 187, 189. This, however, does not
differ materially from the English prac-
tice ; and, though in exact language the
term change of venue may not seem
appropriate, yet it is the term generally
employed. The analogy between what
was thus laid down in New York, and
what is done in England, appears from
the following, extracted from the report
of a case in the Court of King’s Bench:

40

“This was an indictment for the non-
repair of a road lying within the county
of the city of Chester, returned by cer-
tiorari into this court ; and on a former
day a rule had been obtained, on motion
of Mr. Erskine for the prosecutor, for
leave to enter a suggestion on the record,
that a fair and impartial trial could not
be had in that county; and praying the
court to award a trial in the county of
Salop, that being the next English county,
where the king’s writ of venire runs.”
Rex v. St. Mary, 7 T. R. 785. I infer
that the above New York case was de-
cided under the common law of the State;
for so the matter seems to have been re-
garded both by the counsel and the court.
But since then, a statute has expressly
authorized the venue to be changed in
“special cases.” Said the court: “The
statute has not introduced a new rule.”
People v. Harris, 4 Denio, 150. See also
People v. Webb, 1 Hill, N. Y. 179, where
it appears that the right to change the
venue comes both from the common law
and the Revised Statutes.

2 Ante, § 68.

* Reg. v. Patent Eurika, &c. Co., 18
Law T. wn. s. 865; Rex v. Hunt, 3 B. &
Ald. 444, 2 Chig. 180.

4 Rex v. Holden, 5 B. & Ad. 347, 2
Nev. & M. 167, ante, § 68, note; Rex ».
Harris, 3 Bur. 1830, 1 W. Bl. 878. Ina
case of felony, the court refused to allow
the defendant to enter a suggestion for
changing the venue on the ground of
prejudice prevailing in the county. Rex
v. Penpraze, 1 Nev. & M. 312; 8. c. nom.
Rex v. Penprase, 4 B. & Ad. 573. See
also Attorney-General v. Smith, 2 Price,

.
CHAP. V.] CHANGE OF VENUE. § 71

the jury by whom it would be tried would form part of the
defendants.” 1 On an indictment for a conspiracy to destroy foxes
and other noxious animals, it was held to be no reason for
changing the venue that the gentry of the county were addicted
to fox-hunting.?

§ 71. For what Causes, with us. — In our States, as in England,
the leading doctrine is, that the venue will be changed only
when otherwise a fair trial cannot be obtained.2 Thus, —

Convenience. — It will not be changed for the mere convenience
of the witnesses and parties.*

Adverse Combination. — In a California case, where one hun-
dred citizens of the county had united in employing counsel to
prosecute the prisoner, this was held to entitle him to a change
of venue.6 But in a later case this decision was deemed to have
gone quite far; the case “‘appears,” said the court, “to have
been decided without an examination of the law as it is now set-
tled, and we should not be justified in applying it as authority in
any case falling short of it in any degree.” Therefore “the
fact,” it was held, “that thirty or forty persons, upon being
solicited, have contributed: small sums to defray the cost of em-
ploying a lawyer to assist the prosecuting attorney, does not
show the existence of such an excitement or prejudice in the
whole county upon the subject as would preclude the possibility
or probability of procuring an impartial jury without difficulty,
or would in any manner interfere with the impartial administra-
tion of the laws.” ®

Facts and not Opinion.— The mere belief of the party or wit-

nesses that a fair trial cannot

11 Chit. Crim. Law, 201, referring to
Rex v. Cumberland, 6 T. R. 194, And
see Rex v. St. Mary, 7 T. R. 735.

2 Rex v. King, 2 Chit. 217.

3 People v. Sammis, 6 Thomp. & C.
828, 3 Hun, 560; Wheeler v. The State,
42 Ga. 806; Hunter v. The State, 43 Ga.
483; Brinkley v. The State, 54 Ga. 371;
The State v. Gut, 13 Minn. 341; The
State v. Miller, 15 Minn. 344; Martin v.
The State, 35 Wis. 294.

4 People v. Harris, 4 Denio, 150. See
People v. Baker, 3 Parker C. C. 181;
Reg. v. Cavendish, 2 Cox C. C. 175.

5 People v. Lee, 5 Cal. 858. In South

be had in the county of the

Carolina, an affidavit of one indicted for
a capital offence, stating that he believed
he could not obtain an impartial trial
because a subscription for his arrest had
been raised in the district, was held not
to be sufficient ground for a change of
venue. The State v. Williams, 2 McCord,
388. Said Colcock, J.: “ The fact stated
was not of such a character as to produce
any improper bias on the minds of those
who were subscribers, and the subscrip-
tion was confined to a very few.”

6 People v. Graham, 21 Cal. 261, 265,
opinion by Norton, J.

41
§ 72 [BOOK II.

SOME LEADING PRINCIPLES.

indictment will not suffice; facts and circumstances must ap-
pear, establishing this conclusion to the satisfaction of the court.1
Yet it is not necessary that an unsuccessful attempt should actu-
ally have been made to obtain an impartial jury.?

Prejudice or Disqualification of Judge. — It has been held, that, if
before the judge was elevated to the bench he had been of counsel
for the prisoner in the matter of the indictment, this will be good
cause for a change of venue.? In some of our States there are
special provisions of statute relating to the judge; and, either
by force of them or otherwise, his partiality or prejudice is a
good cause for a change of venue ;* so, a fortiori, is his pecu-
niary interest in the event of the prosecution. In some of our
States, to justify the change on the ground of the prejudice of
the judge, facts and reasons must be shown, as in other cases ;&
in other States, a simple affidavit is cause in law, and the court
has by statute no discretion to refuse the change.’ But, —

§ 72. Discretionary — Peremptory.—In Illinois (and it is the
saine in some other States), the statute,” says the court, “ pro-
viding the mode of changing the venue, is peremptory, that
the court shall award a change when the application is made in
the mode and for the causes set out in the statute.”® In most of
our States, however, the application is addressed to the judicial
discretion, and the matter is not deemed one pertaining to strict
right.®

1 People v. Bodine, 7 Hill, N. Y. 147;
People v. Long Island Railroad, 4 Parker
C. C. 602; The State v. Windsor, 5 Har-

State, 51 Ind. 91. Contra, in California,
People v. Williams, 24 Cal. 81; People
v. Shuler, 28 Cal. 490. See post, § 314.

ring. Del. 512; The State v. Burris, 4
Harring. Del. 582; Wormeley v. Com-
monwealth, 10 Grat. 658; People v.
Graham, 21 Cal. 261; The State »v.
Bohan, 15 Kan. 407; The State v. Sax-
ton, 14 Wis. 123.

2 People v. Long Island Railroad,
supra. Still it is not error to postpone
the question of a change of venue in a
murder case, until an attempt is made to
impanel a jury. People v. Plummer, 9
Cal. 298. And see Moses v. The State,
11 Humph. 282; Wormeley v. Common-
wealth, 10 Grat. 658.

3 The State v. Gates, 20 Misso. 400.

4 Ex parte Curtis, 3 Minn. 274; Ley-
ner v. The State, 8 Ind, 490; In re Pey-
ton, 12 Kan. 898; Vanderkarr v. The

42

5 Jim v. The State, 3 Misso. 147.

6 Emporia v. Volmer, 12 Kan. 622.

7 Manly v. The State, 52 Ind. 215;
Mershon v. The State, 44 Ind. 598;
Goldsby v. The State, 18 Ind. 147.

8 Clark v. People, 1 Scam. 117; 8. P.
Barrows v. People, 11 Ill. 121; Brennan
v. People, 15 Ill. 511; Perteet v. People,
65 Ill. 280; Rafferty ». People, 66 Ill.
118; Edwards v. The State, 25 Ark. 444.
It is different in the recorder’s court for
the city of Chicago. Maton v. People, 15
Til. 586.

® Hubbard v. The State, 7 Ind. 160;
Griffith v. The State, 12 Ind. 548; Hall
v. The State, 8 Ind. 4839; Weeks v.
The State, 31 Missis. 490; Mask v. The
State, 32 Missis. 405; Anderson v. The
CHAP. V.] CHANGE OF VENUE. § 73

Reviewing the Discretion. — The discretion — which, of course, is
everywhere to be deemed judicial, and not merely personal in the
individual judge 1—is in some States subject to revision by the

superior tribunal ;? in others, it is not.3
One Change, or more.—In some of the States, the venue, by
statute, can be changed but once;4 in others, there is no such

limitation.6

§ 73. Points of Practice. — Various questions of practice, de-
pending partly on the terms of the statutes and partly on
common-law principles, have been decided; and some of the
decisions are stated in the note.®

State, 28 Ind. 22; People v. Congleton,
44 Cal. 92; People v. Perdue, 49 Cal.
425; The State v. O’Rourke, 55 Misso.
440.

1 Walker v. The State, 42 Texas, 360;
The State v Ross, 21 Iowa, 467 ; Mershon
v. The State, 44 Ind. 598.

2 People v. Lee, 5 Cal. 853; People v.
Stillman, 7 Cal. 117; Murphy v. The
State, 45 Ala. 32 (as to which, see Ala-
bama cases in next note). Still the Su-
perior Court will not reverse the action
of the court below, except in cases of
clear abuse of the discretion, or palpable
error. Ellick v. The State, 1 Swan, Tenn.
325 ; People v. Fisher, 6 Cal. 154; Gordon
v. The State, 3 Iowa, 410; The State v.
Barrett, 8 Iowa, 5386. And see The State
v. Nash, 7 Iowa, 347 ; Major v. The State,
4 Sneed, 597. 4

3 McCorkle v. The State, 14 Ind. 39;
Ex parte Banks, 28 Ala. 28; The State
v. Ware, 10 Ala. 814; Kelly v. The State,
62 Ala. 361; Spence v. The State, 8
Blackf. 281; Fleming v. The State, 11
Ind. 234; Maton v. People, 15 Ill. 536;
Findley v. The State, 5 Blackf. 576;
‘Sumner v. The State, 5 Blackf. 579;
The State v. Brookshire, 2 Ala. 303;
The State v. Mooney, 10 Iowa, 506; The
State v. Arnold, 12 Iowa, 479; The State
v. Ostrander, 18 Iowa, 4385; Cotton v.
The State, 32 Texas, 614; Barnes v. The
State, 36 Texas, 639.

4 Aikin v. The State, 35 Ala. 3899.
And see Innerarity v. Hitchcock, 3 Stew.
& P. 9.

5 The State v. Minski, 7 Iowa, 8386;
Decatur v. Maxwell, 26 Iowa, 398.

6 Original Papers — Transcript. —
In the absence of express statutory pro-
vision, and by direction of some of the
statutes, not the original papers, but
transcripts of them, are to be sent to the
new county ; and the trial is to be on the
latter. The transcript is to contain
also the essential parts of the record.
Browning v. The State, 80 Missis. 656;
Jones v. The State, 11 Ind. 357; Pricev.
The State, 8 Gill, 295; The State v. Gib-
son, 29 Iowa, 295; Brister v. The State
26 Ala. 107; Williams v. The State, 48
Ala. 85; Pulling v. The State, 16 Ind.
458; Hurt v. The State, 26 Ind. 106;
Bailey v. The State, 39 Ind. 438; John-
son v. The State, 11 Ind. 481; Bishop v.
The State, 30 Ala. 34; Harrall v. The
State, 26 Ala. 52; Ruby v. The State, 7
Misso. 206. But, in some of the States,
the original indictment is transmitted.
Sharp v. The State, 2 Iowa, 454; Am-
mons v. The State, 9 Fla. 580. In Ohio,
it is within the election of the prisoner
to have the original indictment sent to
the new county. Shoemaker v. The State,
12 Ohio, 43. In Tennessee, the jurisdic-
tion of the court to which a criminal has
been transferred by change of venue is
not ousted by a failure to enter on the
minutes of the court at the first term a
transcript of the record of the case.
Calhoun v. The State, 4 Humph. 477.
See also, as to the record and the tran-
script thereof, Ellick v. The State, 1
Swan, Tenn. 325; Adams v. The State,
1 Swan, Tenn. 466. See also, regarding
the transcript of the indictment and
record, Pleasant v. The State, 15 Ark.

48
§ 74 [Book 11.

SOME LEADING PRINCIPLES.

On Application of which Party — Affidavits. — The defendant is
usually the applicant for the change. But, in some States or
forms of the law, it may be equally ordered on application of the
representative of the government ;! in others, not.2 Notice must
be given; and both parties have the right to be heard, present-
ing their testimony, which is usually by affidavits,’ but it may be
oral.

Consent. — There is authority for saying, that the change may
be by mutual consent.6 But, —

Order of Court.— In these cases and in all others, an order of
the court must be made, upon which alone the change takes
place. It is then valid, though no sufficient cause for it has been
shown.’ ,

Changing back.— After the venue has been changed, it may
with the prisoner’s consent be changed back to the original
county ; for, said Stone, J., “ the right to have his trial adjourned
to a county free from prejudice against the accused is a privilege
secured to the prisoner, which he may waive, either before or

after the order changing the venue has been entered.’’8
§ 74, The Arraignment.—If the prisoner has been arraigned

624; Sharp v. The State, 2 Iowa, 454;
Harrall v. The State, 26 Ala. 52; The
State v. Hicklin, 5 Pike, 190; The State
v. Greenwood, 5 Port. 474; Ward v. The
State, 28 Ala. 53; Stone v. Robinson, 4
Eng. 469, 477; Stringer v. Jacobs, 4 Eng.
497; Green v. The State, 19 Ark. 178;
Major v. The State, 2 Sneed, 11; Brown
v. The State, 13 Ark. 96; Bishop v. The
State, 80 Ala. 34; Bramlett v. The State,
31 Ala. 876; Vance v. Commonwealth, 2
Va. Cas. 162; The State v. Lamon, 3
Hawks, 175; Doty v. The State, 6 Blackf.
529; Doty v. The State, 7 Blackf. 427;
Aaron v. The State, 37 Ala. 106; Scott v.
The State, 87 Ala. 117; Logston v. The
State, 3 Heisk. 414.

Presumed Regularity.— When the
transmitting court is a superior one of
general jurisdiction, the tribunal to
which the cause is removed will pre-
sume all things to have been regularly
done in the former. The State v. Wil-
liams, 3 Stew. 454, 468; Porter v. The
State, 5 Misso. 638.

Recording.— Under the former In-
diana statute, the indictment need not

44

have been recorded in the county where
it was found. Beauchamp v. The State,
6 Blackf. 299. But by a later statute
the recording there was made necessary.
Reed v. The State, 8 Ind. 200.

1 People v. Webb, 1 Hill, N. Y. 179;
People v. Baker, 3 Parker C. C. 181.

2 Ex parte Rivers, 40 Ala. 712.

3 Ex parte Chase, 43 Ala. 303; The
State v. Barfield, 8 Ire. 8344; The State »v.
Nash, 7 Iowa, 347; The State v. Floyd,
15 Misso. 349; People v. Baker, 1 Cal.
403; The State v. Worrell, 25 Misso. 205,
207; Shifflet vu. Commonwealth, 14 Grat.
652; Golden v. The State, 13 Misso. 417;
Reed v. The State, 11 Misso. 879; The
State v. Byrne, 24 Misso. 151; People v.
McCauley, 1 Cal. 879.

4 Mask v. The State, 82 Missis. 405.

5 People v. Scates, 3 Scam. 3651.

6 Manly v. The State, 7 Md. 185; Ex
parte Remson, 28 Ala. 25.

7 People v. Sexton, 24 Cal. 78; Me-
Cauley v. United States, Morris, 486;
The State v. Potter, 16 Kan. 80. Contra,
The State v. Rowan, 35 Wis. 803.

8 Paris v. The State, 86 Ala. 282,
CHAP. V.] CHANGE OF VENUE. § 75

and has pleaded to the indictment before the venue is changed,
there is no need of a second arraignment and plea in the second
county.1 Yet if in the second county he is arraigned and pleads
again, this cannot be assigned for error. It has been said to be
a safe and judicious practice to require the plea of not guilty to
be given in before the change of venue is awarded.”

When the Change. — The change is not necessarily to be made
at the first term of the court.2 But it must be before the com-
mencement of the trial; in other words, before the panel of
twelve jurors is fully completed and sworn.’

The Prosecuting Officer. —The Iowa court has held, that the
prosecuting attorney of the original county is authorized, by vir-
tue of his office, to follow the cause into the new county, and
conduct the trial there. ‘His jurisdiction is coextensive with
that of the case, and should follow it to its final conclusion.” 5

Officer to execute Sentence. —— According to a North Carolina
decision, the sentence, in a capital case, must be executed by the
sheriff of the county in which the trial took place, and not of the
county in which the indictment was found.®

§ 75. Joint Defendants. — The venue may be changed as to one
of several joint defendants without being so as to the rest.’ And
such change will operate as a severance in the trial. No jurisdic-
tion over the others is acquired in the new county, and they should
be tried where indicted,® on the original papers, which remain
there,!° while the trial in the new county is on copies.1 Still, in
Illinois, the venue in a cause having been changed on application
of one of several defendants without the consent of the others,
and then this one having been tried in the new county, and the
indictment having been sent back, and the others held to answer
where it was found, this proceeding was adjudged to be regu-
lar.2 When there is an application on behalf of the State for a
change of venue, and enough is shown to render the change

l Vance v. Commonwealth, 2 Va. Cas. 6 The State v. Twiggs, Winston, No.

162; Price v. The State, 8 Gill, 296; I. 142.

Davis v. The State, 39 Md. 355. 7 The State v. Martin, 2 Ire. 101.
2 Gardner v. People, 8 Scam. 88. 8 Brown v.The State, 18 Ohio State,496.
3 Bramlett v. The State, 31 Ala. 376. ® The State v. Wetherford, 25 Misso.
4 Price v. The State, supra; Peoplev. 489.

Cotta, 49 Cal. 166. 10 As to this, in other cases, see ante,
5 The State v. Carothers, 1 Greene, § 78, note.

Towa, 464. 1 John v. The State, 2 Ala. 290.

42 Hunter v. People, 1 Scam. 453,
45
§ 76 SOME LEADING PRINCIPLES. [BOoK I.

necessary as to one of several defendants, the court will usually
send all to the new county, though they are entitled to separate
trials. So, at least, it appears from a case before a single New
York judge.!

§ 76. Constitutional. —It was held in Alabama, that the section
of the code which requires defendants, after a change of venue,
to be tried on a certified copy of the indictment, neither impairs
the right of a trial by jury, nor violates any other principle of the
bill of rights.2. In Minnesota, the constitution provides, that,
“in all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial by an impartial jury of the county
or district wherein the crime shall have been committed, which
county or district shall.have been previously ascertained by
law, and to be informed of the nature and cause of the accu-
sation, to be confronted with the witnesses against him, to have
compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel in his defence.” And it was ad-
judged that, where more counties than one constituted a judicial
district, in one of which the district court was located, and a crime
was committed in this county, then a statute authorized the court
to sit in another county in the district, and there an indictment
was found by a grand jury taken from the whole district, a don-
viction upon it was not in violation of this constitutional provision.
Neither was it in violation of the United States Constitution,
which forbids the States to pass ex post facto laws.2 The latter
point was on error sustained by the Supreme Court of the United
States ; the former, was not within its jurisdiction.t As already
seen,° defendants may waive their rights under this sort of pro-
vision, and they do waive them when they apply for a change of
venue.

1 People v. Baker, 3 Parker C. C.181. 4 Gut v. The State, 9 Wal. 35.

2 Bramlett v. The State, 81 Ala. 376. 5 Ante, § 50,
3 The State v. Gut, 18 Minn. 341.

46
CHAP. VI.] INDICTMENT BROAD AS PUNISHMENT. § 80

CHAPTER VI.
‘ ‘ THE INDICTMENT TO ALLEGE WHATEVER IS IN LAW ESSENTIAL
TO THE PUNISHMENT TO BE INFLICTED.

§ 77, 78. Introduction.
79, 80. How the Doctrine stands in Reason.
81-85. How in the Adjudged Law.
86-88. How confirmed by Constitutional Provisions.

§ 77. Doctrine fundamental.— The doctrine of this, chapter is
fundamental. Originating in natural reason and abiding in
abstract justice, it has been adopted into the common law and
confirmed by our written constitutions. And it cannot be over-
turned, even though constitutions should be, — cannot be annulled
by any changes in legal procedure, — so long as any regard for
individual rights remains.

§ 78. How the Chapter divided. — We shall consider I. How
the-Doctrine stands in Reason; II. How the Doctrine stands in
the Adjudged Law; III. How confirmed by. Constitutional Pro-
visions. :

I. How the Doctrine stands in Reason.

§ 79. Accusation essential. —It is an axiomatic truth, univer-
sally accepted, that there can be no punishment without an accu-
sation of crime. If a man is imprisoned, or his life is taken, with
no charge first made against him, all deem it an incorrect use of
language to say, he is punished. He is spoken of as suffering
arbitrary imprisonment, or as having been murdered, or by some
other words of this general class; no writer or speaker, however
careless in expression, would describe his sufferings by the word
punishment. Therefore, in reason, an accusation must precede
the punishment.

§ 80. How Broad the Accusation. — But what accusation? If
a man is charged with acts to which the law attaches the penalty
47
§ 82 SOME LEADING PRINCIPLES. [Book IL.

of imprisonment, and then he is hung for them, he is not pun-
ished, he is murdered. It is no more just to take his life on an
accusation of something which is legally punishable by imprison-
ment only, than to do it without any accusation. When, there-
fore, one stands before a court charged with particular acts, and
the law has attached to them a specified punishment, or has made
them in no degree punishable, the court cannot, without over-
turning fundamental justice, inflict on him a punishment not
legally appropriated to them. And it makes no difference that
he is in fact guilty of more than is charged, or that more is
proved. Though the acts charged may iba a part of a larger
crime, still, if the remaining part is not charged, to visit him
with the punishment ordained for the larger is to punish him with-
out an accusation. This doctrine, it should be borne in mind, is
fundamental ; not subject to be modified by judicial, by legisla-
tive, or even properly by constitutional power.

t

II. How the Doctrine stands in the Adjudged Law.

§ 81. How defined. — The doctrine of the courts is identical
with that of reason; namely, that the indictment must contain
an allegation of every fact which is legally essential to the pun-
ishment to be inflicted.

Extent and how proved.— This doctrine pervades the entire
adjudged law of criminal procedure. It is made apparent to our
understandings, not by a single case only, but by all the cases.
Wherever we move in this department of our jurisprudence, we
come in contact with it. Wecan no more escape from it than
from the atmosphere which surrounds us. There would be no
end to the illustrations which might be given; such as, —

§ 82. In Assault. — An assault being punishable in a particular
way, if a statute is passed increasing the punishment when a
specified circumstance attends it, the greater punishment cannot
be awarded by the court unless the indictment charges the aggra-
vating part.2 Again, —

1 Hobbs v. The State, 44 Texas, 853, teth, 2 Leach, 4th ed. 702, 1 East P. C.
854; The State v. Startup, 10 Vroom, 420; Browning v. The State, 2 Texas
428, 432. Ap. 47; Nelson v. The State, 2 Texas

2 Vol. IL. § 56, 63, 82; 1 Russ. Crimes, Ap. 297,
8d Eng. ed. 767, referring to Rex v. Mon-

48
CHAP. VI.] INDICTMENT BROAD AS PUNISHMENT. § 84

§ 83. In Burglary. — Burglary is a felony; it was anciently
punished with death, but it was entitled to the benefit of clergy.
Thereupon various statutes regulating the punishment were
enacted ; then, we read in Russell on Crimes, “the 7 & 8.Geo.
4, c. 29, made it a capital offence in England, and the 9 Geo. 4,
ce. 55, in Ireland. But the 1 Vict. c. 86, repeals so much of the
7 & 8 Geo. 4, c. 29, and 9 Geo. 4, c. 55, ‘as relates to the punish-
ment of any person convicted of burglary’; and by § 2 enacts,
that ‘whosoever shall burglariously break and enter into any
dwelling-house, and shall assault with intent to murder any per-
son being therein, or shall stab, cut, wound, beat, or strike. any
such person, shall be guilty of felony, and being convicted thereof
shall suffer death.’ By § 8, ‘whosoever shall be convicted of the
crime of burglary shall be liable, at the discretion of the court, to
be transported beyond the seas for the term of the natural life of
such offender, or for any term not less than ten years, or to be
imprisoned for any term not exceeding three years.’” Here, the
reader perceives, is a statute which concerns, as itself states,
merely the “punishment” of burglary. To regulate that, it
divides the offence into two degrees; the lower degree consisting
of common burglary, or burglary as it was known before the
statute; and the higher, or capital, degree consisting of this
same common burglary aggravated by certain acts or a certain
intent. We read on: “In an indictment on § 2 [for the aggra-
vated or first degree of burglary], it is necessary to allege the
person who was struck; and, if the proof do not support the
allegation, the prisoner must be acquitted of the offence in § 2,
but may be convicted of a simple burglary. An indictment
charged a burglary, and striking D. James, but it appeared that the
person. struck was Jones and not James, and it was held that the.
indictment must allege both the burglary and the striking, and
the proof must correspond with the indictment; and, therefore, the
prisoner could not be convicted of an offence within § 2, but he
was convicted of a simple, burglary.” 4

§ 84... Conclusion as to Common-law Doctrine. —It is needless to
go through with the alphabet of crimes in this way. The reader
will find in the following pages of these volumes numerous illus-
trations. The result is, that, in all cases, without one exception,

1 1 Russ./Crimes, 8d Eng. ed. 841, 842, 288. Tothelike effect, see People v. Van-
referring to Reg. v. Parfitt, 8 Car. & P. Gaasbeck, 9 Abb. Pr. n. 8. 828. ‘

VOL. I. 4 49
§ 86 SOME LEADING PRINCIPLES. [Book 11.

the common law requires each and every individual thing which
itself or a statute has made an element in the wrong upon which
the punishment is based, to be alleged in the indictment. The
court, in adjudging the punishment,—or the jury, in assess-
ing it, as is done in some of our States, — can take into its
consideration nothing except what is specifically charged in the
indictment.!

§ 85. Punishment discretionary — Aggravation or Mitigation. —
The reader should distinguish between the foregoing doctrine,
and the doctrine stated elsewhere,” that, within the law’s limits,
where the punishment is discretionary, the judge,:pronouncing
sentence, may suffer his discretion to be influenced by matter
shown in aggravation or mitigation, not covered by the allega-
tions of the indictment. Where the law permits the heaviest
punishment, on a scale laid down, to be inflicted, and has merely
committed to the judge the authority to interpose its mercy and
inflict a lighter, no rights are violated though the indictment is
silent as to mitigating circumstances. The aggravating ones,
when pressed on the consideration of the judge, cannot swell the
‘penalty above what the law has provided for the defendant’s acts
simply as alleged, and they are interposed merely to check the
judicial discretion in the exercise of the permitted mercy. This
is an entirely different thing from punishing one for what is not
charged against him.®

III. How confirmed by Constitutional Provisions.

§ 86. In General. — As already observed,‘ the right of the ac-
cused person to have every element of his supposed crime — in
other words, every individual thing which the law has specified
as constituting any part of the foundation for its punishment —
set down in allegation in the indictment is secured in this country
by constitutional guaranties. These guaranties are in various
forms ; as, —

Bill of Attainder.— The Constitution of the United States for-

1 And see Lacy v. The State, 15 Wis. 2 Crim. Law, I. § 948, 949,
18; Koster v. People, 8 Mich. 481; The ® And see Brightwell v. The State,
State v. Farr, 12 Rich. 24; United States 41 Ga. 482, 483.
v. Fisher, 5 McLean, 23; Rex v. Marshall, 4 Ante, § 77.
1 Moody, 158; post, § 688-542, 571, 578— 5 The State v. Startup, 10 Vroom, 423,
580; IL. § 48, 177, 569, 572, 588, 985. 432.

50
CHAP. VI.] INDICTMENT BROAD AS PUNISHMENT. § 88

bids any “bill of attainder” to be passed either by Congress or
by the legislature of any State! It is interpreted to include what
in the English law is meant by a bill of pains and penalties, as
well as by a bill of attainder. And the meaning is, that by no
special legislative act shall a punishment be inflicted on any per-
son for any offence, without a conviction in the ordinary course
of judicial proceedings.2 Now, if, under the authority of a gen-
eral statute, a court should sentence one to be punished in excess
of what the law provides for such acts as the indictment specifies,
this indeed would not be a bill of attainder, therefore would not
directly violate this inhibition. But it would violate the same
natural right which this provision of the Constitution was intro-
duced to protect. It would be a bill of attainder in essence, not
in form,—a judicial bill of attainder, even more odious in its
nature than the particular thing which this provision of the Con-
stitution forbids.

§ 87. Jury Trial. — The Constitution of the United States pro-
vides, as to crimes against the general government, that the “ trial
shall be by jury” ;® and there are like provisions in probably all
the State constitutions, as to crimes against the States* How
much is meant by this it may not be easy exactly to define ; but
it means something beyond mere outward form. Less than twelve
men, for example, do not constitute a jury. And, though the
question has probably not been decided, in just principle, to con-
stitute a jury trial, there must be a person to be tried, a jury, a
judge to preside, and an accusation. Without the last, the rest
is meaningless. And, as we have seen, an accusation is nothing
unless, in some way, it specifies the wrong, and the whole wrong,
for which the punishment is to be inflicted. Not necessarily in
minute detail, yet, in some way, it must.be equally broad with
the punishment which it is to support. But if this were not so,
still —

§ 88. Nature and Cause of Accusation. — The United States Con-
stitution provides, as to crimes against the general government,®
that, “in all criminal prosecutions, the accused shall enjoy the
right . ... to be informed of the nature and cause of the accu-

1 Const. U. S. art. 1, § 9, 10. 4 Post, § 891, 892.

2 Story Const. § 1844, 5 Post, § 897.

8 Const. U.S. art. 8, § 2; Amendm. 6 Twitchell v. Commonwealth, 7 Wal.
art. 6. 321.

51
§ 88 SOME LEADING PRINCIPLES. [Book I.

sation’ ;1 and, we have seen,? the Constitution of Minnesota con-
tains the like clause, as to crimes against the State. More or less
nearly in these words, are provisions in the constitutions of other
States. But the “nature and cause” of an accusation are not
stated where there is no mention of the full act or series of acts
for which the punishment is to be inflicted. Again, —

Grand Jury. — We have provisions, in most of the States, en-
titling prisoners to be tried for at least the higher crimes, only
ou indictment found by a grand jury. Where the trial is on in-
formation, the result, as to this point, is the same. There can
be neither indictment nor information except in writing ; which,
to justify the whole punishment, must specify the whole crime.
More on the subject of this chapter will appear in the chapter
after the next.

1 Const. U. S. Amendm. art. 6. 2 Ante, § 76.
52
CHAP. VIL.] COMPLIANCE WITH FORMS. § 91

CHAPTER VII.
No PUNISHMENT PERMISSIBLE EXCEPT AFTER COMPLIANCE WITH
THE LAW’S FORMS.

§ 89. General Doctrine. — The law casts its protection over all

persons alike. That one has committed crime does not diminish
-his rights. An innocent man is subject to arrest, trial, and pun-
ishment, when an accusation in due form is made against him ;
to the same extent, and no greater, is the guilty man. And if
both are convicted, the law will punish both; if acquitted, both
will go free. Hence, before any person can be made to suffer for
a crime, he must be caught and held in the exact meshes which
the law has provided ; or, in other words, he must be proceeded
against, step by step, according to the rules of procedure which
the law has ordained. It is of no avail to proceed against him
according to other and better rules; the law’s rules must be
pursued, or the law’s penalty cannot be imposed upon him for his
crime. Thus, —

§ 90. Infamy — Judgment on Conviction — (Witness). — Guilt
does not produce the infamy which, in some crimes, disqualifies
to be a witness. It comes only from the judgment of the court,
following a conviction. If one is erroneously convicted and
adjudged guilty, still he is infamous until the conviction is re-
versed.!. On the other hand, if a man acknowledges himself to
be guilty, yet the law’s processes have not been carried on against
him to a judgment on conviction, still he may testify as a witness
in a cause, the same as though he was in fact innocent, — the
acknowledgment of guilt being, of course, matter open to obser-
vation to the jury. And in all respects, the reader perceives,
the effect of the judgment, or of the absence of it, is the same,
whether it relates to a man who is really innocent or really guilty.

Again, —
§ 91. Breaking Prison. — If, the law’s process being on a man,
1 Crim. Law, I. § 975. 2 2 Russ. Crimes, 8d Eng. ed. 956.

58
§ 94 SOME LEADING PRINCIPLES. [Book I.

he is in due form imprisoned, the crime of prison-breach is com-
mitted when he breaks from prison, being innocent, the same as
though he were guilty. On the other hand, however guilty a
man might be, if he was committed on a mittimus not conforming
to the law, and there was no legal ground to hold him indepen-
dently of the mittimus, a breaking of prison by him would not be
acrime.! Here also we see that the law treats the innocent and
the guilty alike. Moreover, —

§ 92. Error in Proceedings. — A court, inquiring after the regu-
larity of proceedings, never asks whether or not the defendant is
guilty. A guilty man, when the proceedings are irregular, has
the same right to escape from the grasp of the law as an innocent
one ; on the other hand, an innocent man has no rights in this
respect which a guilty has not.

§ 98. The Result. — The result is, that one accused before a
court has the same right to protest against the proceedings as to
protest his innocence. And counsel who appear on his behalf
have the same right, and are under the same obligation, to do the
one as the other. Let us reflect, that our earthly laws do not,
and should not, punish all sin. It is for Him who has made the
soul, and who knows its inner movings, its weakness, its strength,
its temptations, and its power or feebleness to resist temptation, to.
do this. Human laws are meant merely to conserve the outward
order of society. And a part of this order, not less essential than
any other part, consists in pursuing the exact methods which the
law has laid down in bringing criminals to justice. He who min-
isters to this order, however accused or in fact guilty of crime, is,
though his ministration is in the form of objecting step by step to
every effort to bring him to justice contrary to order, a fellow-
worker, standing side by side, with the faithful officers of the law.

§ 94. Duty of Counsel for Defence. — It is the duty, therefore, of
those lawyers who conduct defences in criminal causes, to render
themselves familiar with the law of the procedure. And there is
nothing more truly honorable, pertaining to-our profession, than
urging, perhaps against an incompetent prosecuting officer, such
as the government has no just right to employ, those defences
which the rules of criminal procedure furnish, even though the
result should be to set at large a wretch guilty of all manner of
crimes.

! Crim. Law, II. § 1074; 1 Russ. Crimes, 8d Eng. ed. 427, 428.
54
CHAP, VIII. ] CONSTITUTIONAL GUARANTIES. § 97

CHAPTER VIII.
CONSTITUTIONAL GUARANTIES RESPECTING THE ALLEGATION.

§ 95. Course of Discussion. — In the few closing sections of the
chapter before the last,! we considered some of the constitutional
guaranties whereof prisoners may avail themselves, in respect of
the allegation. And, in the last chapter, we saw the propriety
of bringing forward the objections. We shall here resume the
subject thus begun in the chapter before the last.

§ 96. Consent as dispensing with Allegation. — ‘‘ This court,” said
a learned New York judge, “ cannot acquire jurisdiction to try an
offence by consent, nor can its jurisdiction over an offence be
changed by consent, so as to embrace any other than that pre-
sented by the grand jury, where the action of that body is requi-
site.’ Therefore where, on demurrer to an indictment for the
larceny of a dog and a collar, the counsel had stipulated that it
should be treated as alleging the dog to be tame and as being
silent about the collar, this stipulation was held to be void; be-
cause otherwise, it was observed, ‘ the defendant would not be
tried upon the presentment of the grand jury, but rather upon the
consent of the counsel.” ?

§ 97. Amendments. — It is difficult to resist the conviction, that
this view is sound in law; and that, for the like reason, if a
statute should authorize a material amendment to be made in an
indictment for an offence which by the Constitution was punish-
able only by indictment, the statutory direction would be a nul-

‘lity? Yet— :

Name amended. — Consistently with this view, a mere formal
amendment in the name of the person injured, — as, in changing
it from James Marshall to James Cicero Marshall, — or even, it

1 Ante, § 86-88. 3 Startup v. The State, 10 Vroom,

2 People v. Campbell, 4 Parker C. C. 428, 482; Calvin v. The State, 25 Texas,
886, 887, Russell, J. And see post, § 816, 789; post, § 711.
708; Newcomb v. The State, 37 Missis. 4 Haywood v. The State, 47 Missis.
883; The State v. Jones, 18 Texas, 874. 1. See post, § 101.
55
§ 984 SOME LEADING PRINCIPLES. [Book 11.

has been held, in adding his name where the offence is otherwise
set out,! but plainly not in every case,? may be lawfully author-
ized. In like manner, a provision, that, if one indicted by a
wrong name does not disclose his true one before pleading, the
cause shall proceed under the name in the indictment, — if he
puts forth another name before pleading, such name shall be
entered on the minutes of the court and the cause shall go
on under it,—does not violate constitutional rights.? Like-
wise, —

§ 98. Continued. — A Texas statute, which authorized the amend-
ment of indictments as to name in cases of misnomer, was held to
apply to an indictment pending at the time it was passed ; nor
was it, in such application, an ez post facto law. “ It is quite too
plain to admit of question,” said Wheeler, J., “that the name
by which the party was indicted could have nothing to do with
the question of his guilt, the character of the offence, the meas-
ure or degree of criminality or punishment attached to it, or
with the evidence which should be sufficient to warrant a con-
viction.” 4

§ 98a. The Original Indictment : —

Coming now to the inquiry as to what, in the original indict-
ment, are the forms with which it is not competent for legislation
to dispense, we have the following : —

Doctrine defined. — Under every sort of constitution known
among us, an indictment which does not substantially set down,
at least in general terms, all the elements of the offence — every
thing which the law has made essential to the punishment it im-
poses —is void. And, besides this, under most of our constitu-
tions, the allegation must descend far enough into the particulars,
and be sufficiently certain in its frame of words, to give the
defendant reasonable notice of what is meant. Yet, on the other
hand, none of our constitutions forbid the abolishing of the com-

1 Rough v. Commonwealth, 28 Smith, 4 The State v. Manning, 14 Texas,
Pa. 496. And see Turpin v. The State, 402.
19 Ohio State, 540. 5 Consult, among other cases, such as
2 McLaughlin v. The State, 45 Ind. are referred to in the following sections,
338. See post, § 711. , The State v. Startup, 10 Vroom, 428,

3 The State v. Schricker, 29 Misso. 432; McLaughlin v. The State, 45 Ind.
265; People v. Kelly, 6 Cal. 210. And 8838; The State v. Corson, 59 Maine, 187;
see Dukes v. The State, 11 Ind. 557; Landringham v. The State, 49 Ind. 186;
Commonwealth v. Holley, 3 Gray, 468. post, § 101.

56
CHAP. VIIL.] CONSTITUTIONAL GUARANTIES. § 101

mon-law forms, if other adequate forms are provided in their
stead.1

Let us now see more minutely what has been held.

§ 99. Proceed by Indictment. — As already observed,? there is a
provision in the United States Constitution requiring prosecutions
for crimes to be by indictment. And though it governs only the
tribunals of the United States,’ there are corresponding provisions
in the constitutions of many of the States. While its effect is not
to prohibit all legislative changes in the form of the indictment,*
it does impose on legislation some restraint.6 Thus, —

§ 100. Unlicensed Selling of Liquors. — Where a statute made
punishable any person who should be “concerned in selling
spirituous, vinous, or other intoxicating liquors in quantities less
than one quart, without first having obtained a license therefor,”
the neglect to procure the license was deemed to be a part of the
offence. And an added clause in the statute, that the indictment
need not negative the license, was adjudged, therefore, void; the
effect of this constitutional guaranty being, that it must contain
an allegation of every material fact entering into the offence.®

§ 101. Fully, Substantially, and Formally. — The Constitution of
Massachusetts provides, “‘ that no subject shall be held to answer
for any crime or offence until the same is fully and plainly, sub-
stantially and formally, described to him.” Said the court:
“© This does in no respect change the rules of the common law.”7
The meaning of which appears to be, that an indictment good at
the common law is good notwithstanding this constitutional pro-
vision. And in another case it was said, that this provision has
“recognized and enforced, and extended to every mode in which
a citizen can be called to answer to any charge of crime,” the
common-law rule by which “no one shall be held to answer to

1 The State v. Corson, supra; The
State v. Learned, 47 Maine, 426; Morton
v. People, 47 Ill. 468; Newcomb v. The
State, 37 Missis. 883; Rowan v. The
State, 80 Wis. 129; The State v. O’-
Flaherty, 7 Nev. 153, 157; The State v.
Thompson, 12 Nev. 140; post, § 99.

2 Ante, § 88.

8 Twitchell v. Commonwealth, 7 Wal.
$21; Jane v. Commonwealth, 3 Met. Ky.
18, 22.

4 The State v. Mullen, 14 La. An. 570;
The State v. Learned, 47 Maine, 426.

5 Ante,§ 88.

6 Hewitt v. The State, 25 Texas, 722 ;
The State v. Wilburn, 25 Texas, 738;
The State v. Horan, 25 Texas Supp. 271.
Those who are familiar with this branch
of the criminal law will not need to be
told, that there are other States in which
this sort of statute is accepted as good.

7 Commonwealth v. Davis, 11 Pick.
482, 488, opinion by Shaw, C. J.
§ 102 SOME LEADING PRINCIPLES. [BOOK IL.

an indictment or information, unless the crime with which it is
intended to charge him is expressed with reasonable precision,
directness, and fulness, that he may be fully prepared to meet,
and, if he can, to answer and repel it.” } The construction seems,
therefore, to be, that one of the principal common-law rules re-
specting the frame of the indictment is placed beyond the legis-
lative power of repeal, as to substance, but not asto form. Thus,
as to form,—

Short Allegation of Second Offence — (Amendment). — Where a
statute provided a heavier punishment for’a second offence than
for the first, and prescribed a short allegation for the first in an
indictment for the second; adding, ‘and such allegation ....
may be amended without terms, and as a matter of right”; this
was held not to violate the Constitution.2 So likewise, —

Variance. — A statute may authorize the court to disregard any
variance between a written instrument produced in evidence and
the recital of it in the indictment, “ provided that the identity of
the instrument is evident, and the purport thereof is sufficiently
described to prevent all prejudice to the defendant” ; for it takes
away ‘‘a purely technical objection,” not prejudicing substantial
rights. As to substance, —

§ 102. Murder in two Degrees.—In a large part of our States,
murder is divided by statutes into two degrees; it being in the
first degree when certain specified aggravations attend the kill-
ing, and in the second when they do not, and death being the
penalty for the first degree and imprisonment for the second.
And the statutes contain words once and sometimes still inter-
preted as providing, that any form of allegation which would
have been adequate at the common law shall be sufficient in an
indictment for murder in the first degree, between which and an
indictment for murder in the second degree there need be no dis-
tinction. Now, the proposition that the indictment for murder
in the first degree need not charge the aggravating facts which
subject the offender to death instead of imprisonment is a mon-
strosity in jurisprudence. And the legislature might just as well
authorize the courts to take away the life of a man with no charge

1 Commonwealth v. Phillips, 16 Pick. * Commonwealth v, Holley, 8 Gray,
211, 213. And see Commonwealth v. 4658.
Wood, 4 Gray, 11; Commonwealth v. 5 Commonwealth v. Hall, 97 Mass. 570.
Lang, 10 Gray, 11. See People v. Mariposa Co. 81 Cal. 196.

58
CHAP. VIIL.] CONSTITUTIONAL GUARANTIES, § 102

whatever against him, as with a charge which omits the part
 whereon this higher penalty of death rests. Surely the particu-
lar thing which, and which alone, justifies the officers of the
law in the hanging, should, quite as much as any, be charged
against one who is to be hung. At first, the courts gave effect to
the statutes without having their attention called to the constitu-
tional difficulty. At last, their attention being directed to it,
some of them inconsiderately rushed to the conclusion, that the
words ‘malice aforethought,” which, by all judicial opinions
from the earliest times to the present, merely distinguish murder
from manslaughter, and which, if omitted from the common-law
indictment, leave the offence only manslaughter, do really mean
a great deal more, and cover the new aggravations! If they
did, then there could be no common-law murder except what is
now murder in the first degree. The new meaning of the term
“malice aforethought ” would reduce to manslaughter all murder
in the second degree. The demonstration is complete, and from
it no judge ever attempted to escape. Other courts, looking
carefully into the question, have seen this; and held the doctrine ©
which gives a new meaning to the words “malice aforethought ”
at one breath, and adheres to the old meaning at the next, both
in one case and as applied to the same indictment and the
same allegation in it, to be, as it is, absurd; either refusing to
interpret the statute in the unconstitutional manner, or pro-
nouncing this provision to be void.1 The reason why the other
courts did not come to the same conclusion is simply, that the
judges did not look to the bottom of the question. No judge
ever examined the argument to understand it, without yielding to
its force. And it appears to be admitted, that, suppose an indict-
ment really to set out only so much of an offence as constitutes
murder in the second degree, the punishment whereof is impris-
onment, the prisoner cannot lawfully be convicted of murder in
the first degree, the punishment whereof is death, even though
the statute so directs.2 The erroneous opinion, in those States in
which it has been arrived at, ought to be overruled; for the
familiar reason, always deemed adequate in other cases, that the

1 See this whole question discussed, Maine, 408; The State v. Duvall, 26 Wis.
Vol. IL. § 661-589. 415, Andsee Commonwealth v. Gardner,
2 Green v. Commonwealth, 12 Allen, 11 Gray, 488, 445; Didieu v. People, 4
165, 170, 171; The State v. Verrill, 64 Parker C. C. 698.
59
§ 104 SOME LEADING PRINCIPLES. [Book II.

judicial mind did not comprehend and pass upon the real argu-
ment. And there is another ample reason, sometimes overlooked ;
namely, that a written constitution is superior to a judicial de-
cision, the same as to a statute. Again, —

§ 103. Keeping Liquors with Intent.— A statute in Maine made
it punishable to keep intoxicating liquors with the intent to sell
them contrary to law. It then declared, that a form of complaint
which it set out should, “be deemed sufficient.” Thereupon,
one being charged, in the exact words of the form, with having
in his possession intoxicating liquors “intended for sale,” not
saying it was he who intended to sell them, this was held to come
short of the requirements of the constitution, which is in the same
terms with that of Massachusetts; for, consistently with this alle-
gation, the forbidden intent might have been in some other man’s
mind, not the defendant’s. Said. Kent, J.: “It is not matter of
form but matter of substance that is in question. No matter,
that is essential to be set forth to show that an offence has been
committed, can be mere matter of form.” !

§ 104. Name, &e.— Similar to the provision in Massachusetts
and Maine is that in Mississippi; namely, “In all criminal prose-
cutions, the accused shall have the right to demand the nature
and cause of the accusation against him.” And the court deemed,
that, as expressed by Yerger, J., it “‘was intended to secure to
the accused such a specific designation of the offence laid to his
charge as would enable him to make every preparation for his
trial necessary to his full and complete defence.” Therefore,
when the act “to suppress trade and barter with slaves” de-
clared it unnecessary to set out in the indictment the name of
the slave, or his owner, or the kind or quantity of the produce
bought or sold, it was held to be, in this respect, unconstitu-
tional; and an indictment drawn according to its directions, in-
sufficient2 But—

Homicide. — The indictment for a felonious homicide may by
statute be rendered sufficient, though it omits to point out the
means, manner, and circumstances of the killing. Still, —

1 The State v, Learned, 47 Maine, 426, And see Norris v. The State, 33 Missis.

429, 434, 873. Ante, § 97,98; McLaughlin v. The
2 Murphy v. The State, 24 Missis. 590, State, 45 Ind. 338.
594. This decision was reaffirmed in 8 Newcomb v. The State, 87 Missis.

Murphy v. The State, 28 Missis. 637. 883. Sce post, § 105, 110.
60
CHAP. -VIII.] CONSTITUTIONAL GUARANTIES. § 108

§ 105. Continued. —In the same terms with the Mississippi
constitution is the Pennsylvania; and, under it, Strong, J., said:
“An indictment must exhibit the ‘nature and cause of the accu-
sation,’ — that is, must set out the crime laid to the charge of the
aecused ; but the mode in which the crime was committed, the
instrument with which the murder was effected, whether it was
held in the right hand or the left, whether the wound was in-
flicted upon the head or the body, are entirely apart from the
nature and cause of the accusation.” Therefore an indictment
for a felonious homicide, framed pursuant to a statute similar to
the Mississippi one, was held in like manner to be good.!

§ 106. Continued. — The like has been held in Alabama ;? as,
also, in some of the other States.2 And —

Venue. — Perhaps the omission of the allegation of venue may
be authorized.*

§ 107. Dealer in Intoxicating Liquors.— The same form of the
constitutional provision exists also in Vermont. Here a statute
regulating the sale of intoxicating liquors declared the allegation
to be sufficient, “‘ that the respondent became a dealer in intoxi-
eating liquors without having license therefor, contrary to the
form of the statute in such case made and provided.” And a
complaint drawn in these terms was held by the court to be
good.6

§ 108. Continued. — The reader will here feel compelled to
part company with the court. For if, notwithstanding.this pro-
vision, the legislature can make good a criminal accusation in
which the defendant is not even informed with how many crimes
he is charged, or with any one circumstance attending any one of
them, but only that he “became” an unlicensed “dealer in in-
toxicating liquors,” where each specific sale is a crime; or, to
take another turn in the quicksand, that he “became” a mur-
derer, where the killing of each man is a crime, and the State is
to prove as many men killed as it can; or, to take in the sand
one more turn and sink, that he “ became” a criminal, leaving

1 Cathcart v. Commonwealth, 1 3 Wolf v. The State, 19 Ohio State,
Wright, Pa. 108, 114. 248; Rowan v. The State, 80 Wis. 129.

2 Noles v. The State, 24 Ala. 672, 698; 4 See cases in paragraph before the
reaffirmed, Thompson v. The State, 265 last; post, § 385.
Ala. 41. And see Green v. The State, 41 5 The State v. Comstock, 27 Vt. 553,
Ala. 419; Wickham v. The State, 7 555. See further, concerning this pro-
Coldw. 525. . vision, Fink v. Milwaukee, 17 Wis. 26.

61
§ 111 SOME LEADING PRINCIPLES. [Book II.

the prosecuting power to show at the trial wherein; then, in-
deed, the constitutional provision is a cable of sand, which can
hold at anchor no legislative keel.

§ 109. How in Principle. — It has been well observed, that the
object of this constitutional provision is the protection of the in-
nocent. The guilty man is in no way within its contemplation.}
Hence the innocent person, who knows that he has committed no
crime, and who does not know of what he is accused except as he
reads the accusation in the indictment, is to be considered, and
he alone, in the interpretation. Now, —

§ 110. Continuea.— The common-law rules respecting the in-
dictment are such as the wisdom of the past has prescribed for
the accomplishment of the following two objects: first, to in-
form the accused of the nature and cause of the accusation; and,
secondly, to facilitate the trial by drawing in advance the outer
lines within which the evidence must be confined. But the
latter of these two objects requires no greater particularity in the
charge than the former. When, therefore, the Constitution of a
State points out the former object, and declares that the * nature
and cause” of the accusation shall be set down in every indict-
ment, it directs the tribunals to adhere to the common-law rules;
provided, let us bear in mind, there is to be no impeachment of
the wisdom of the past. But it is the view of all the judges who -
have spoken on the subject, that, to some extent, the wisdom of
the past may, in this matter, be departed from; in other words,
that this constitutional provision does not prevent the legislature
from authorizing some departures from common-law forms. If
this is so, then the courts are permitted to give effect to a statute
changing the common-law rules, when they clearly see that the
common-law adjudications are wrong in principle, and the new
form does not violate true legal principle. But, —

§ 111. Continued. — If, under this constitutional provision, the
courts are to travel in one direction away from what the past has
ordained when contrary to legal principle, they are also, under
the like command of principle, to travel equally away from the
past in the other direction. For, as already observed,? in some
particulars, and with respect to some offences, the common-law
forms of the indictment are not sufficiently favorable to defend-

1 Norris v. The State, 88 Missis. 378, 876. 2 Ante, § 25.
62
CHAP. VIII.] CONSTITUTIONAL GUARANTIES. § 1f2

ants, to accord with just legal doctrine. If the judges see this to
be so in a case before them, they should, in obedience to this con-
stitutional provision, require greater minuteness in the indictment
than the common law prescribes. Yet undoubtedly, where the
Constitution merely requires an indictment, not saying more, it
will always be sufficient if in the common-law form.

§ 112. waiving the Protection. — As accused persons may waive
constitutional rights,! they may doubtless, under some circum-
stances, waive the protection of this provision.2 They cannot do
this when its effect would be the giving of a jurisdiction to a
court. And it seems even to have been deemed that generally
they cannot waive it by a mere neglect to take advantage of it at
an early stage of the proceedings.*

1 Crim. Law, I. § 996-1006 ; post, § 117 8 Ante, § 96; post, § 123. See ante,

et seq. § 50.
2 And see Cochrane v. The State, 6 4 Newcomb v. The State, 37 Missis.
Md. 400. 888. And see Commonwealth v. Walton,

11 Allen, 238. See post, § 117 et seq.
63
$115 SOME LEADING PRINCIPLES. [BooK 11.

CHAPTER IX.

EVERY RIGHT OF AN ACCUSED PERSON TO BE MADE AVAILABLE
TO HIM.

§ 113. The Doctrine. — A right of which the possessor cannot
avail himself is. practically no right. Hence every person before
a court must be suffered, in some way, to take advantage of every
right which he is admitted to have. Thus, —

Statutes changing the Procedure — must be so construed as not
to leave a prisoner remediless with respect of any acknowledged
tight. Though a right not secured by the Constitution may be
taken away, even this construction should be avoided unless its
terms are direct. To illustrate : —

§114. Motion to quash.—In the absence of modifying statutes,
it-is within the discretion of the court to quash, or not, a defective
indictment on motion ;1 and an appellate court will not revise this
discretion. Upon this, a statute was passed in Massachusetts, pro-
viding that any objection to an indictment for a formal defect ap-
parent on its face must be taken by demurrer or motion to quash;
and the effect of this was held to be to change the practice, and
allow the discretion to be reviewed. “The Declaration of Rights,”
said Gray, J., “ requires that no subject shall be held to answer for
any crime or offence until the same is fully and plainly, substan-
tially and formally, described to him ; and we cannot infer that
the legislature, by this statute, which is entitled ‘ An Act to pro-
mote Public Justice in Criminal Cases,’ intended to oblige the
accused either to leave the question whether this requirement of
the Constitution has been complied with to the sudden and final
determination of a single judge in the course of the trial, or else
to waive his right of jury trial” by demurring.2 Again, —

§115. Remedies changeable — Not divest Vested Rights. — It is

1 Post, § 761. 11 Allen, 238. And see post, § 767;
2 Commonwealth v. McGovern, 10 Commonwealth v. Doyle, 110 Mass. 108.
Allen, 193; Commonwealth v. Walton,

64
CHAP. IX.] EVERY RIGHT AVAILABLE. $ 116

a doctrine extending through every department of the law, that
rights when vested in individuals are unchangeable, while the
remedies by which those rights are enforced may be varied from
time to time at the pleasure of the legislature.1_ Now, within this
principle, the absolute rights of prisoners, especially the constitu-
tional ones, in respect of their defence, cannot be taken away.
But they can be modified as to time, place, and manner of their
enforcement, — only the substance of them must be preserved.?

§ 116. Conclusion. — Other illustrations will appear in various
connections in the following pages. The doctrine is of the
highest importance, and it pervades the entire law of criminal
procedure.

1 Stat. Crimes, § 176-179.

2 And see Commonwealth v. Walton, 11 Allen, 238,
VOL. I. 6 65
§ 119 SOME LEADING PRINCIPLES. [Book II.

CHAPTER X.
THE DOCTRINE OF THE WAIVER OF RIGHTS.

§ 117. In General. — Waiver is analogous to estoppel, or a
species of it.1 The principle is, that one should not object to
what has been done with his consent. And the consent may be
as well implied as express. In the criminal law, this doctrine of
waiver is in some degree modified by antagonistic principles ;
but, in general terms, and as applied to the subject of these
volumes, —

§118. Doctrine defined. —If the defendant has consented to
any step in the proceedings, or if it has been taken at his request,
or he did not object to it at the proper time when he might, he
cannot afterward complain of it, however contrary it was to his
constitutional,” statutory, or common-law rights.

§ 119. Doctrine a Necessity. — In judicial proceedings, this doc-
trine of waiver is-a necessity ; for, without it, they would rarely
be carried on with success. The mind cannot always be drawn
taut like a bow about to send out its arrow ; and, if every step in
a cause were equally open to objection after verdict and sentence
as before, a shrewd lawyer might almost always so manage that a
judgment against his client could be overthrown. Even by lying
by and watching, if he did nothing to mislead, he would find some-
thing amiss, to note and bring forward after the time to correct
the error had passed. If the pleadings were right and no im-
proper evidence had been admitted, some question to a witness

1 See Bishop Con. § 127, 655.

2 Ante, § 112; Ferguson v. Landram,
5 Bush, 280.

8 Looper v. Bell, 1 Head, 373; Con-
nors v. People, 50 N. Y. 240; The State
v. Larger, 45 Misso. 510; Clark v. The
State, 4 Ind. 268; The State v. Watrous,
18 Iowa, 489; Lynch v. The State, 15
Wis. 88; Croy v. The State, 32 Ind. 884;

66

The State v. Polson, 29 Iowa, 183; Ned
v. The State, 33 Missis. 364; The State
v. Calvin, R. M. Charl. 142; Burtine v.
The State, 18 Ga. 684; Home Ins. Co. v.
Security Ins. Co., 23 Wis. 171; The State
v. Tuller, 84 Conn. 280; Ayrs v. The
State, 5 Coldw. 26; The State v. Waters,
62 Misso. 196.
CHAP. X.] WAIVER OF RIGHTS. § 121

would appear in an objectionable form, or the judge would have
dropped some word not entirely square with the books, or omitted
some explanation of law to the jury. Still, —

§ 120. How qualified. —In criminal causes, the power of an
accused person to waive his rights is in some degree limited;
as, —

Judge counselling Prisoner. — Anciently, in England, as we have
seen,! persons on trial for treason or felony were not allowed
counsel in their defence before the jury; and it was deemed to
be a part of the duty of the judges to act’ as counsel for them.?
The consequence of which was, that, as the law does not suffer a
party to be prejudiced by an act of the court,’ if one through the
advice or oversight of the judge omitted to make an available
objection, or consented to relinquish a right, this was deemed
error of law of which he could take advantage. In this way, the
tule would become established that a particular right could not
be waived ; and, when afterward counsel were allowed prisoners,
and the judges ceased to advise them, it might not be obvious
whether or not the rule denying waiver would cease also in these
altered circumstances, in obedience to the maxim, Cessante ratione
legis, cessat ipsa lex. Some tribunals would decide a particular
question of this sort in one way, some in another; the ancient and
the modern law would be in conflict; the modern cases would
not harmonize with one another; chaos would pervade the law
of the subject ; such, indeed, we find the fact to be at the present
time in our own country. Again, —

$121. Prejudice with Jury.—If we apply to the case the rule
that the law ceases with its reason, there may still be reasons
which in some circumstances will support the old doctrine, in
others not. In a trial before a jury, if the prisoner is asked
to waive a right for their convenience, it may be a great preju-
dice to tell him in their hearing that he can if he chooses,
and then hold him to the consequences of his choice; because,
though he might wish to have the benefit of the right, he
might not deem it politic to offend the men in whose hands lay
his liberty or life, by refusing. Some courts subject prisoners,
at least under some circumstances, to this kind of hardship ;

1 Ante, § 14; post, § 296-298. 8 Broom Leg. Max. 2d ed. 86.
2 Foster, 231, 282; 2 Hawk. P. C. ¢. 4 Crim. Law, I. § 273, 275, 805.

39, $1, 2.
67
§ 124 [BooK II.

SOME LEADING PRINCIPLES.
others do not; or, at least, the decisions under this head are not
uniform.?

§ 122. Course of the Discussion. — Such is the general doctrine
of waiver as to the procedure. Numerous illustrations of it will
appear, in other connections, throughout these volumes. A few
details, giving a more exact form to the doctrine and its excep-
tions, will be helpful here ; thus, —

§ 123. Waiver in Pleading. — By the law, or by general rule of
court,? the leading dilatory defences are required to be made
within a certain time, or at a certain stage of the cause; an
omission of which, or the taking of an advanced step without
making the defence, is a waiver of the objection, which cannot be
brought forward afterward.? But—

Jurisdiction. — Neither in this way, nor in any other, can the
court be given a jurisdiction which on other principles it would
not be competent to exercise. On this principle, —

No Offence charged. —If the complaint or indictment charges

no offence, there can be no waiver of the objection to it.

Even

where a statute requires the objection to be taken at an early
stage or not at all, a conviction on-a complaint or indictment

thus defective cannot be sustained.5

Still, —

§ 124. Amendments. — This rule does not preclude all amend-
ments which, if not made, would leave the record so defective

that no judgment could be maintained upon it.$

Thus, —

Withdrawing Pleas. —In Mississippi it was held, that amend-
ments in the course of the pleadings, such as the withdrawal of

1 See, for example, post, § 998.

2 Ante, § 9.

8 Hastings v. Bolton, 1 Allen, 529;
Rex v. Johnson, 1 Stra. 261; Wilmot v.
Tyler, 1 Ld. Raym. 671, 1 Salk. 68;
Watts v. White, 13 Cal. 821; Ex parte
Winston, 52 Ala. 419; Pool v. Minge, 50
Ala. 100; Teal v. The State, 22 Ga. 75;
The State v. Stewart, 7 W. Va. 781;
Flynn v. Stoughton, 5 Barb. 115; Com-
monwealth v. Darcey, 12 Allen, 589; Ex
parte Hall, 47 Ala. 675; The State v.
Drogmond, 55 Misso. 87; Henslie v. The
State, 3 Heisk. 202; Rex v. Warren,
1 Sid. 247, 1 Keb. 885; Commonwealth v.
Dedham, 16 Mass. 141; Commonwealth
v. Jackson, 1 Grant, Pa. 262; The State
v. Caulfield, 23 La. An. 148; Miller vu.

68

Commonwealth, 1 Bibb, 404; People v.
Smith, 1 Parker C. C. 329; Stevens v.
Joyal, 48 Vt. 291.

* Ante, § 96, 112; Eberly v. Moore, 24
How. U. S. 147,158; Oakley v. Aspinwall,
3 Comst. 547; Chambers v. Clearwater,
1 Abb. Ap. 341; Commonwealth v. Me-
Cready, 2 Met. Ky. 876; Schenley »v.
Commonwealth, 12 Casey, Pa. 29; Peo-
ple v. McKay, 18 Johns. 212. See The
State v. Kinney, 41 Iowa, 424; Scott v
Kelly, 22 Wal. 57; Branner v. Chapman,
11 Kan. 118.

5 Commonwealth v. Doyle, 110 Mass.
108. Compare with Conner v. The State,
25° Ga. 515; The State v. Coover, 49
Misso. 482.

6 Ante, § 97, 98; post, § 708, 711.
CHAP. X.] WAIVER OF RIGHTS.

§ 125

one plea and substituting another, are, in cases of misdemeanor,
allowable at the discretion of the court.1 And Handy, J., said:
“ The rule in the courts of this country is to allow amendments
of pleadings in cases of misdemeanor; though, in England, they
were only allowed in cases of felony.” ? Probably a not inaccu-
rate expression of the American doctrine would be, that the judge
may permit a pleading to be withdrawn, and another put in its
place, whenever this would not violate any positive rule of law
or of established practice ; but that such a discretion will rarely,
if ever, be exercised in aid of an attempt to rely upon a mere
dilatory or formal defence. The application of this doctrine will
depend upon considerations connected with the particular local
law of the State in which the question arises.?

§ 125. Record imperfect.— Within a doctrine already stated,*
where a waiver by the defendant leaves the record destitute of
an essential part, he may afterward take advantage of the defect
in it, notwithstanding the waiver. Thus, —

Issue. — It is held in Wisconsin, that the court cannot supply
an issue after verdict, where there has been neither arraignment
nor plea, though thg defendant consented to go to trial. But,—

Agreements in General— (Decision in Another Cause).—In many
circumstances, not all, a defendant may bind himself by his agree-
ment in a criminal cause ;® as, ‘‘ where a great number of people
are indicted for a riot, they may move that the prosecutor should

1 Post, § 747, 798, 801.

2 Rocco v. The State, 87 Missis. 357,
866, referring to Barge v. Commonwealth,
8 Pa. 262; Foster v. Commonwealth, 8
Watts & S.77; Commonwealth v. God-
dard, 18 Mass. 455, 456.

8 Amending Pleas at Common Law.
— At the common law, there may be
amendments in the pleas, as well as in
the order in which they are introduced,
to be allowed at any proper time while
the pleadings are, as expressed in the
English practice, in paper, and before
they are enrolled. This doctrine applies
as well in criminal cases as in civil; and
it is unlike the doctrine discussed in a
previous chapter, concerning amendments
to the indictment. ‘Thus, Misnomer. —
Where a defendant, indicted for murder,
pleaded «= misnomer, and the attorney-
general replied, he was allowed afterward

to amend his plea; ‘‘ because the plead-
ing was not perfected nor entered upon
record. ... And the court held, that,
before judgment, while things were in
Jieri and in agitation, they had a power
over all proceedings.” Rex v. Knowles,
1 Salk. 47, And see Bonfield v. Milner,
2 Bur. 1098, 1099; Commonwealth »v.
Scott, 10 Grat. 749.

4 Ante, § 123.

5 Douglass v. The State, 3 Wis. 820;
Anderson v. The State, 3 Pinney, 367.
See Fernandez v. The State, 7 Ala. 511.

6 The State v. Jones, 18 Texas, 874;
The State v. Mansfield, 41 Misso. 470;
Bell v. The State, 44 Ala. 393; Jackson
v. Commonwealth, 19 Grat. 656; Rosen-
baum v. The State, 38 Ala. 354; Wilson
v. The State, 42 Missis. 639; Nomaque
v. People, Breese, 109; Williams v. The
State, 12 Ohio State, 622.

69
§ 126 SOME LEADING PRINCIPLES. [BooK II.

name three or four of them, and try it only against them, the rest
entering into a rule, if they are found guilty, to plead guilty too ;
and this has often been done to prevent charges.” 1 Thus, too, —
, §126. Copy of Indictment — List of Witnesses — Of Jurors, &c.
— Any such right, given to the defendant by statute or other-
wise, as to have a copy of the indictment, or a list of the jurors or
the witnesses against him, at a particular time or before trial,
being a provision for his mere convenience, may be waived either
directly, or indirectly by omitting to apply for the thing.2 And
if, for example, an incomplete copy of the indictment is furnished
him, and he does not object before trial, he cannot make the
objection afterward.’ In like manner, —

Time of Sentence. — Where a statute requires the sentence to
be postponed a given time after verdict, the defendant may waive
the delay and consent to its immediate rendition.‘

1 Anonymous, Holt, 635, 8 Salk. 317; State v. Axiom, 28 La.. An. 621; Record
s.c. nom. Reg..v. Middlemore, 6 Mod. v. The State, 86 Texas, 521; The State
212. v. Fuller, 14 La. An. 667; Dawson »v.

2 Driskill v. The State, 45 Ala. 21; The State, 29 Ark. 116; Reg. v. Frost, 2
Miller v. The State, 45 Ala. 24; The Moody, 140, 9 Car. & P. 162.

State v. Johnson, Walk. Missis. 392; 3 Commonwealth v. Betton, 5 Cush.
Loper v. The State, 3 How. Missis. 429; 427. ;
Ray v. The State, 1 Greene, Iowa, 816; * People v. Robinson, 46 Cal. 94,

The State v. Vester, 23 La. An. 620; The
70
CHAP. XI. ] PROOFS SHOULD COVER ALL. § 129

CHAPTER XI.
THE PROOFS SHOULD COVER ALL THE ACCUSATION.

§ 127. General Doctrine. — As the allegation against a defend-
ant must embrace every particular essential to the punishment
sought to be inflicted,! so likewise must the proofs be equally
broad.? For example, —

Two Criminal Acts. — If a crime consists of two distinct acts,
and the indictment charges, as it ought, the two, it is not sus-
tained by proof of only one of them. But, if it is constituted
by either one of two distinct acts, the proof of one will suffice.t
And, — :

Simply the Crime.,— Jn all cases, it is simply required that the
proof sustain so much of the allegation as constitutes the crime
to be punished. It need not cover more, though alleged.6 But
if more than is charged is proved, no harm will ordinarily * come
from the surplus evidence.”

§ 128. Inadequate Proofs.—If the proofs. are inadequate to
cover every part of the case, the court will, as matter of law,
order the prisoner’s acquittal.

§ 129. Evidence and Proof distinguished. — Not always need the
witnesses testify directly to each several element of the crime ;
because, though all must be proved, there are other methods of
proof. Sometimes the attendant facts are shown and the jury

infers the particulars from them ; sometimes the law raises the.

1 Ante, § 77 et seq. 5 Rex v. Hunt, supra; Commonwealth
2 Thrig v. The State, 40 Ind. 422; v. Woodward, 102 Mass. 155; United
Moore v. The State, 88 Ga. 225; Bell v. States v. Vickery, 1 Har. & J. 427; The

The State, 46 Ind. 453. State v. Bangor, 30 Maine, 841.
3 The State v. McConkey, 20 Iowa, 6 See Crim. Law, I. § 804-815.
574. 7 Crim. Law, I. § 791; People v.
4 Commonwealth v. Finnegan, 109 Rouse, 2 Mich. N. P. 209.
Mass. 863; Rex v. Hunt, 2 Camp. 588; 8 Commonwealth v. Merrill, 14 Gray,
The State v. Givens, 6 Ala. 747; Crim. 415; The State v. Daubert, 42 Misso.
Law, I. § 799. 242,

71

may
§ 129 SOME LEADING PRINCIPLES. [Book II.

presumption, that, one thing being established, another must be
true also ; and sometimes the proof is by record.
Particulars of Doctrine. — But the details of this doctrine will be

found interspersed with the other expositions in various parts of

these volumes.
72
CHAP. XII.] METHODS OF PROSECUTION. § 131

CHAPTER XII.

THE SEVERAL METHODS OF PROSECUTION DISTINGUISHED.

§ 1294. Introduction.
130-135. By Indictment.
186-140. By Presentment.
141-147. By Information.
148-154. By Complaint before Magistrate.

§ 129 a. How the Chapter divided. — There are four methods
of prosecution, to be stated and distinguished in this chapter,
as follows: I. By Indictment; IJ. By Presentment; III. By
Information ; IV. By Complaint before a Magistrate.

I. By Indictment.

§ 130. Leading Method. — From the earliest times in England,
and in most of our States from the earliest settlements, the lead-
ing method of prosecution has been and still is by indictment.

§ 131. How defined. — An indictment is a written accusation
on oath by at least twelve of a grand jury, against a person named
therein, of a crime which it defines, to be carried into court and
there made of record.

Bill. — When the writing is drawn up in form, but not yet
signed by the grand jury or their foreman, it is called a bill; the
words “ A true bill,” indorsed on it and then signed, transmute
it into an indictment.}

Presentment distinguished. — Hawkins says: ‘‘ When such accu-
sation is found by a grand jury, without any bill brought before

1 Hawkins puts it, in a form more ac- committed, returned to inquire of all
curate in England when he wrote than offences in general in the county, deter-
in this country now, thus: “An indict- minable by the court into which they are
ment is an accusation, at the suit of the returned, and finding bill brought be-
king, by the oaths of twelve men of the fore them to be true.” Hawk. P. C. b. 2,
same county wherein the offence was c. 25,§1; Rex v. Brown, 1 Salk. 876.

73
§ 183 SOME LEADING PRINCIPLES. [BOOK II.
them, and afterwards reduced to a formed indictment, it is called
a presentment. And, —

Inquisition. — “ When it is found by jurors returned to inquire
of that particular offence only which is indicted, it is properly
called an inquisition.”! The inquisition is believed not to be
known in our States; nor, as we shall presently see, is the pre-
sentment much known.

§ 132. ola Form. — Chitty gives us the following general form

of an indictment : —

‘‘ Essex, to wit. The jurors for our lord the king upon their oath present,
that C. D., late of the parish of West Ham, in the county of Essex, laborer,
on the thirty-first day of December, in the sixth year of the reign of our Sov-
ereign Lord George the Fourth, by the grace of God, of the United Kingdom
of Great Britain and Ireland king, defender of the faith, with force and arms,
at the parish of West Ham aforesaid, in the county of Essex aforesaid, did,
&c. [setting forth the particular offence ; and, at the commencement of every
fresh sentence, stating, ‘and the jurors aforesaid, on their oath aforesaid, do
further present, that,’ &c.;? and concluding, if it be for an offence at common
law, injurious to a particular individual, as well as to the community, as fol-
lows]: to the great scandal, infamy, disgrace, and damage of the said A. B.,
to the evil and pernicious example of all others, in contempt of our said lord
the king and his laws, and against the peace of our said lord the king, his
crown, and dignity.’’&

We shall see, further on, that, in this form, there is much
which might be omitted.
§ 183. More Modern. — The following is suggestive of what,
with us, would be generally deemed appropriate and sufficient: —
“ The State of ————.

oe

 

county.

‘¢ At a court of , holden at , in and for said county, the ju-
rors of said State on their oath present, that Richard Martin, of, &c., laborer,
on the thirty-first day of December, in the year of our Lord one thousand eight

1 Hawk. P. C. ut sup.

2 Counts distinguished. — Chitty ob-
serves, that this statement is proper, and
does not necessarily indicate anew count;
referring to Rex v. Haynes, 4M. &S. 214,
221. In this case the court held, that
these words alone did not constitute what
went after them a new count; there be-
ing, in what went before, no such com-
plete allegations and no such conclusion
as are essential ina finished count. ‘The
whole forms,” said Le Blane, J., “ but one

T4

count containing two introductions to one
grievance only.” Still I cannot but think,
that, though this of course is the law, and
very many forms to be found in the books
are so likewise, it is the neater way to use
these words, whose proper office it is to
introduce a new count, only for this their
legitimate purpose. The counts will be
explained further on in the text. Post,
§ 421 et seq.
31 Chit. Crim. Law, 176.
CHAP. XIL.] METHODS OF PROSECUTION. § 187

hundred and sixty-five, at , in said county of , did, &c. [‘ to the
common nuisance,’ &c., in some special cases, ] against the peace of said State,
and contrary to the form of the statute. in such case made and provided.”

 

 

Second Count. — If a further count is to be added, the pleader,
beginning a new paragraph, will say : —

‘‘And the jurors aforesaid, on their oath aforesaid, do further present,
that,”’ &.

§ 184. As to the Offence.— There can be no general form for
setting out the offence. Each offence has its particular forms.

§ 185. What the Indictment must show. — The indictment must
show on its face that it has been found by competent authority,
in accordance with the requirements of law; and that a person
mentioned therein has done, within the jurisdiction of the indict-
ors, such and such particular acts, at a specific time ; which acts,
so done, constitute what the court can see, as a question of law,
to be a crime justifying the punishment sought to be inflicted.
How specific the allegations must be is a mixed question of pro-
fessional skill and science, not to be taught in a single paragraph,
but requiring many paragraphs; and to be learned by study, by
observation, and by practice.

II. By Presentment. ‘

§ 186. In General.— The distinction between a presentment
and the American indictment, which, in practice, is drawn by the
prosecuting officer under the direction of the grand jury,! is very
thin.

How defined._-_We have seen Hawkins’s definition? And
Chitty says,* the presentment “differs only from an indictment
in being taken in the first instance by the grand jury, of some
offence within their own knowledge, and into which it is their
duty to inquire.” 4

§ 137. Whether must be Indictment on the Presentment. — Chitty
proceeds: “ After the presentment has been delivered into court
by the grand inquest, an indictment is framed upon it by the
officer of the court; for it is regarded merely as instructions for

1 Post, § 861. ment, A; 2 Inst. 789; Com. Dig. In-
2 Ante, § 181. dictment, B; Burn Just. Presentment;
3 1 Chit. Crim. Law, 162. Collins v. The State, 13 Fla. 651, 663.

44 Bl. Com. 301; Bac. Abr. Indict-
75
§ 138 [Book II.

SOME LEADING PRINCIPLES.

an indictment, to which the party accused must answer.”! But
it is difficult to see that, in our States, where the indictment is
in English instead of Latin as formerly in England, and written
on paper instead of parchment, as then and still there, any for-
mality of writing out an indictment upon the instructions of the
presentment is important. When parchment and Latin were
required, and the grand jury presented an offence on paper and
in English, of course the English had to be rendered into Latin,
and parchment substituted for paper, before the accused person
could be arraigned. While the law stood thus, Coke’s observa-
tion was pertinent, that ‘every indictment is a presentment, but
every presentment is not an indictment” ;? yet now, with us, a
presentment, when full, is in substance an indictment.

General Presentment. — Sometimes our grand juries make a sort
of general presentment of evils and evil things, for the purpose of
calling the attention of the public, or of the officers of the law, to
them; not intending thereby even to furnish instructions for any
specific indictments. Noone could be proceeded against on such
a presentment.

§ 138. Virginia Practice. —In States wherein the grand jury
sometimes make a specific presentment, the proceedings are better
understood by the local profession than they can be by another
who writes a general treatise. There appear to be no two of
these States in which usage is precisely alike. In Virginia, it
seems to be the course of things (the author wishes to be under-
stood as not speaking positively on any such question of local prac-
tice) for the prosecuting officer, on the presentment being brought
in, to draw an information upon it, and for the prisoner to be
tried on it, in connection with the presentment ;*.though there
may be a trial on the presentment without any information.!

14 Bl. Com. 801; Burn Just. Present- 3 Leigh, 748; Myers v. Commonwealth,

ment; Bac. Abr. Indictment ; Com. Dig.
Indictment, B; 2 Inst. 739; Cro. C. C.
82; Dick. Just. Presentment.

2 2 Inst. 739.

8 Bishop v. Commonwealth, 18 Grat.
785; Commonwealth v. Jones, 2 Grat.
655.

* Commonwealth v. Towles, 5 Leigh,
748; Commonwealth v. Maddox, 2 Va.
Cas. 19. See also, as to the presentment
in Virginia, Commonwealth v. Collins,
2 Leigh, 666; Word v. Commonwealth,

76

2 Va. Cas. 160. There appears to have
grown up in Virginia, under legislative
and judicial sanction, « practice which
gives to the presentment an effect greater
than it has in England, and different. In
some cases of misdemeanor, a summons
may issue and the party be tried on the
presentment, without indictment, and
without information filed. Or the pre-
sentment may be made the basis of an
information to be tendered by the prose-
cuting officer, when the trial will be had
CHAP. XIL] METHODS OF PROSECUTION.

§ 140

Tennessee Practice. — In Tennessee, “ the practice,” said Turley,
J., “has not been to frame a bill of indictment upon the present-
ment [as in England] ; but to put the prisoner upon trial on the
presentment, which is in form an indictment; except that, in-
stead of being signed by the attorney-general and foreman of the
grand jury, it is signed by the grand jurors individually ; and this
practice has been recognized by our courts.” !

§ 139. Georgia Practice. —In Georgia, an indictment founded
on the presentment of a grand jury need not be sent to them for
their action upon it. This was understood to be the English

‘practice, which the court followed.2 Therefore, —

Statute of Limitations. — If, in Georgia, the grand jury find a
presentment within the period prescribed by the statute of limi-
tations for prosecuting the offence, yet the indictment is not
drawn and filed till the statute has fully run, the prosecution is
commenced in season, and the defendant may be convicted.?

§ 140. Proceedings on Presentment waived. — It was said, in one
of the United States circuit courts, to be the American practice
to take no notice of presentments on which the prosecuting officer
does not institute proceedings. And where there is a present-
ment, and then this officer draws a bill of indictment which the

on the information; and, though the pre-
sentment is too informal to sustain the
prosecution directly, it may sustain the
information, and the information sustain
the prosecution. See Commonwealth v.
Christian, 7 Grat. 631.

1 Garret v. The State, 9 Yerg. 389,
390; s. Pp. Smith v. The State, 1 Humph.
896. In another Tennessee case, the dif-
ference between an indictment and a pre-
sentment was stated, in connection with
some other points, by the same learned
judge, as follows: “ We hold that twelve
good and lawful men constitute a legal
grand inquest, and that indictments found

‘by them are good though there be a thir-
teenth man acting with them who is not
of record a member of that body; but
that it is not so with presentments; and
this because bills of indictment are
founded upon proof; presentments, 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. And see The State
v. Love, 4 Humph. 255; Glenn v. The
State, 1 Swan, Tenn. 19.

2 Nunn v. The State, 1 Kelly, 243.

8 Brock v. The State, 22 Ga. 98. Me-
Donald, J., said: “ The presentment is
the indictment. Ifthe offence is charged
by the grand jury in the presentment, the
indictment is then found; for the duty
of that, and all other grand juries, is at
an-end on that accusation, unless it is
quashed, or a nolle prosequi be entered.
The charge is complete, and it is suffi-
cient, so far as the grand inquest is con-
cerned, to put the accused on his trial
before the jury.” p.100. See also, as
to the presentment in Georgia, Hatcher
v. The State, 23 Ga. 807; Ivey v. The
State, 23 Ga. 576; Ex parte Chauvin,
T. U. P. Charl. 14.

TT
§ 141 [BOOK II.

SOME LEADING PRINCIPLES.

grand jury find a true bill, and at a subsequent term there is a
nol. pros. to the indictment, the prosecution seems to be at an
end.

II. By Information.

§ 141. Civil and Criminal. — The information pertains to various
civil and quasi civil proceedings,? as well as to those which are
strictly criminal.

Criminal Information defined. — A criminal information is an ac-
cusation in the nature of an indictment, from which it differs
only in being presented by a competent public officer on his oath
of office, instead of a grand jury on their oath.3

At Common Law and in what Cases. — This proceeding by crimi-
nal information comes from the common law without the aid of
statutes ;* and it is allowable in a great variety of cases, the rule
appearing to be that it is a concurrent remedy with the indict-
mént for all misdemeanors except misprision of treason, which is
a misdemeanor,® but not permissible in any felony. And in mis-
demeanors there are practical reasons why it cannot be availed of

in some cases in which an indictment can be.’

! United States v. Hill, 1 Brock. 156;
And see further, as to presentments, The
State v. Mitchell, 1 Bay, 267; The State
v. Cain, 1 Hawks, 852; Rex v. Winter, 13
East, 258; Collins v. The State, 13 Fla.
651; Overshiner v. Commonwealth, 2 B.
Monr. 344.

21 Tidd Pr. 8th ed. 649; Reg. v.
Hughes, Law Rep. 1 P.C.81; Reg vu.
Blagden, 10 Mod. 296; United States v.
Lyman, 1 Mason, 482; Ward v. Tyler,
1 Nott & McC. 22; Commonwealth »v,
Hite, 6 Leigh, 588; The State v. Garcia,
88 Texas, 543.

3 2 Hawk. P.C. c. 26, § 4; Wilkes v.
Rex, 4 Bro. P. C. 860; Bac. Abr. “ In-
formation”; post, § 712-715. See Com-
monwealth v. Messenger, 4 Mass. 462;
Cole Inf. 1. ,

4 Prynn’s Case, 5 Mod. 459; 3. o.
nom. Rex v. Berchet, 1 Show. 106.

5 2 Hawk. P. C. c. 26, § 8. But query
as to this exception. In Rex v. Cowper,
Skin. 637, an information was sustained
for an attempt to commit a statutory
treason.

6 Cole Inf. 9; 2 Hawk. P. C. p. 356 et

78

seq.; Bac. Abr. ‘ Information”; Archb.
Crim. Pl. & Ev. 18th ed. 95; 2 Hawk.
P. C. c. 26, § 1-3; Rex v. Berchet, and
Prynn’s Case, supra; Troy’s Case, 1 Mod.
5; Commonwealth v. Waterborough, 5
Mass. 257, 259; Commonwealth v. Bar-
rett, 9 Leigh, 665.

7 These reasons are such as the fol-
lowing. In England, when the appli-
cation is by a private person (see post,
§ 148), the court will not always grant
it, though an indictment would lie. Crim.
Law, I. § 246, 256, 266, 688; Ex parte
Crawshay, 8 Cox C. C. 356; Rex wv.
Peach, 1 Bur. 548; Reg. v. Marshall,
4 Ellis & B. 475; Rex v. Smithson, 4 B.
& Ad. 861, 1 Nev. & M.775; Anonymous,
Lofft, 155 ; Rex v. Morgan, 1 Doug. 814.
But this sort of information is not known
—or not generally —in the American
practice. Post, § 148, 144. Our prose-
cuting officers will grant informations
more freely than the English attorney-
generals, and more freely in some States
than in others (see post, § 144), yet their
discretion will present more or less prac-
tical obstacles.

*
CHAP. XII. ] METHODS OF PROSECUTION. § 148

§ 142. By Attorney or Solicitor General. — The right to make
the information is, by the English law as it stood when our fore-
fathers imported it to this country, in the attorney-general, who
acts upon his own official discretion without the interference of
the court; or, if the office of attorney-general is vacant, it is in
like manner in the solicitor-general.2 The court will not even
give leave to this officer to file the information; for the right is
his without leave.® ‘ But,” says Cole, “although the attorney-
general may, if he think fit, exhibit a criminal information ez officio
for any misdemeanor whatever; yet, in practice, he seldom does
so, except when directed by the House of Lords, or the House of
Commons, or the Lords of the Treasury; or the Commissioners
of some public department, for example, the Excise, Customs,
Stamps and Taxes, War Office, Admiralty, &c.; or where the
case is of a very serious nature.” 4

§ 148. By Master of Crown Office—- Private Prompting — Stat.
Will. & M.— Also, at the common law, “the king’s coroner and
attorney in the Court of King’s Bench, usually called the master
of the crown office,” may file a criminal information.6 He does
it only on the prompting of some private prosecutor; or, as
Blackstone expresses it, ‘at the relation of some private person
or common informer” ;® but the form of the information makes
no mention of this, or of the prompting.’ In early times, this
officer proceeded, says Lord Mansfield, “upon any application,
as a matter of course.”& The consequence of which was, that
_ the process was sometimes perverted to private ends; and, to

remedy the evil, it was in 1692 provided by statute 4 & 5 Will. &
M. c. 18, that informations should not be filed by this officer, ex-
cept by leave of court, and on the prosecutor’s giving security to
the party proceeded against for costs.? It may be doubtful how
far this statute is common law in this country ;” but, it seems,
we have no such officer, so that the law of England respecting

1 Rex v. Philipps, 8 Bur. 1564; Rex 8 Rex v. Robinson, 1 W. BI. 541, 542;

v. Plymouth, 4 Bur. 2089. Rex v. Jolliffe, 4 T. R. 285, 290.
2 Wilkes v. Rex, 4 Bro. P. C. 360; ® See Rex v. Brooke, 2 T. R. 190.

Rex v. Wilkes, 4 Bur. 2527, 2553, 2577. 10 Kilty mentions it among the statutes
3 Rex v. Plymouth, 4 Bur. 2089. found applicable in Maryland, Kilty Rep.
4 Cole Inf. 9, 10. Stats. 180. Parsons, J., says it is not in
5 4 Bl. Com. 308. force in Alabama, The State v. Moore,
6 Tb. 19 Ala. 514, 620. See Commonwealth v.
7 Cole Inf. 269 et seq. Varner, 2 Va. Cas. 62; Commonwealth

v. Ayres, 6 Grat. 668.
79
[Book I.

§ 145 SOME LEADING PRINCIPLES.

this kind of criminal informations cannot be of practical force
with us. Hence, —

§ 144. How in our States. — In our States, the criminal informa-
tion should be deemed to be such, and such only, as, in England,
is presented by the attorney or the solicitor general. This part
of the English common law has plainly become common law with
us. And as, with us, the powers which in England are exercised
by the attorney-general and the solicitor-general are largely dis-
tributed among our district attorneys, whose office does not exist
in England, the latter officers would seem to be entitled, under
our common law, to prosecute by information, as a right adher-
ing to their office, and without leave of court. And such is the
doctrine extensively if not universally acted upon in our States ;
though, in some of them, it is more or less aided by statutes. In
most of our States, the information is not much used; but, in a
few of them, particularly of late, it has become the common,
though not the exclusive, method of prosecution.2 In Connecti-
cut, from an early period, all criminal prosecutions are carried on
by it, presented either by the attorney for the State or by a single
grand juror, except where the punishment is death or imprison-
ment for life.2 But, —

§ 145. Constitutional Obstructions. — Where the attempt is made,
as in some States it is, to employ the information in felonies and
capital cases,* a question of constitutional right arises. The
fourteenth amendment of the Constitution of the United States,
adopted in 1868, provides, that no State shall “deprive any per-
son of life, liberty, or property without due process of law”;
and there is a like provision in the constitutions of some of the
States. Now, —

“Due Process” — “ Law of the Land.” — This provision is similar
to one in the 29th chapter of Magna Charta, which, in full, is as
follows: “No freeman shall be taken or imprisoned, or be dis-
seised of his freehold, or liberties, or free customs, or be out-

1 Respublica v. Griffiths, 2 Dall. 112;
The State v. Ross, 14 La. An. 864; Cronk-
hite v. The State, 11 Ind. 307; Snodgrass
v. The State, 13 Ind. 292; Whitney v.
The State, 10 Ind. 404; McJunkins v.
The State, 10 Ind, 140; Washburn ».
People, 10 Mich. 872; Commonwealth
v. Waterborough, 5 Mass. 257, 259 ; Com-
monwealth v. Barrett, 9 Leigh, 665; Com-

80

monwealth v. Cheney, 6 Mass. 847; The
State v. Dover, 9 N. H. 468.

2 Tt is so in Michigan; as to which,
see Campbell’s “ Political History of
Michigan,” 562, 668.

3 2 Swift Dig. 870.

4 Campbell Hist. Mich. ut sup.; Tho
State v. Jackson, 21 La. An. 674.
CHAP. XII.] METHODS OF PROSECUTION. § 146

lawed, or exiled, or any otherwise destroyed, nor will we not pass
upon him, nor condemn him, but by lawful judgment of his peers,
or by the law of the land. We will sell to no man, we will not
deny or defer to any man either justice or right.” The words
“law of the land” were expounded as synonymous with “ due
process of law,”’ and as securing to the individual those funda-
mental rights of trial which previous usage had established.1
And there is room for doubt, whether, under this provision in
the United States Constitution, or a like provision in a State
Constitution, the legislature can authorize a trial for felony,
without indictment, contrary to the established course of the
common law. The Wisconsin court has held that it can;? but
it is not probable the question will escape further agitation.

In United States Courts. — 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 presentment or
indictment of a grand jury, except,” &c.,8—a provision which
does not bind the States. But misdemeanors not within this
inhibition may, in the United States tribunals, be proceeded
against by information.®

§ 146. Form.— The English form of the Information is as
follows : —

“Of Michaelmas Term in the fifth year of Queen Victoria:

‘* Cambridgeshire, to wit: Be it remembered, that Sir Frederick Pollock,
Knight, Attorney-General of our present sovereign lady the Queen, who for
our said lady the Queen in this behalf prosecuteth, in his own proper person
cometh into the court of our said lady the Queen before the Queen herself at
Westminster, on Tuesday, the second day of November, in this same term,
and for our said lady the Queen giveth the court here to understand, that, &c.
[proceeding to set out the offence, in as many counts as the pleader chooses,
precisely as in an indictment; and omitting nothing which the indictment
should contain, even to the conclusion. A new count is introduced as fol-
lows: ‘ And the said attorney-general of our said lady the Queen, on behalf of
our said lady the Queen, further gives the court here to understand and be in-
formed, that,’ &c. The information then closes, thus]: Whereupon the said

1 2 Inst. 50 et seq.; Sears v. Cottrell, State v. Keyes, 8 Vt. 57,63; The State v.
6 Mich. 251; Brown v. Levee Commis- Jackson, 21 La. An. 574.
sioners, 50 Missis. 468. 5 United States v. Waller, 1 Saw. 701.
2 Rowan v. The ‘State, 80 Wis. 129. And see The State v. Cowan, 29 Misso.
See The State v. Cowan, 29 Misso. 830; 330; Bank of Vincennes v. The State,
Portland v. Bangor, 65 Maine, 120. 1 Blackf. 267; The State v. Benson, 38
3 Const. U. S. Amendm. art. 5. Ind. 60.
4 Noles v. The State, 24 Ala. 672; The

VOL. I. 6 81
§ 149 SOME LEADING PRINCIPLES. [Boox It.

attorney-general of our said lady the Queen, for our said lady the Queen,
prays the consideration of the court here in the premises, and that due process
of law may be awarded against him the said S. L. in this behalf, to make him
answer to our said lady the Queen touching and concerning the premises afore-
said.’?!

§ 147. How far like Indictment. — Therefore, with the exception
of merely formal parts, at the beginning and close, it is precisely
like an indictment.” “

IV. By Complaint before a Magistrate.

§ 148. Distinguished. — The proceeding to be here considered
should not be confounded with that wherein the magistrate, on
probable cause shown, binds over an accused person for trial
by a higher court.’

§ 149. sustices of Peace. — We shall see more about these offi-
cers further on.* “ Sheriffs,” says Coke, ‘‘ were great officers and
ministers of justice long before the Conquest; but justices of
peace had not their being until almost three hundred years after ;
namely, in the first year of Edward III.”® Their powers were
from time to time varied by multitudes of statutes: as judges,
their first jurisdiction over criminal causes was in sessions, where
the proceeding was by indictment, and trial by a petit jury ; and,
after they had become familiar with this, authority was given
them in some special cases to proceed on view or on complaint
out of sessions.6 Still, —

In this Country.— When the colonies which compose our older
States were settled, this branch of the English law had become
considerably developed. Yet, in our States, the statutes have so

1 Cole Inf. 262-269. For the form in
Michigan, see either of the following
cases : Washburn v. People, 10 Mich. 372;
Evans v. People, 12 Mich. 28; Wattles v.
People, 13 Mich. 446; Rice v. People, 15
Mich. 9. The following, from 2 Swift
Dig. new ed. 791, is the form in Connect-
icut : —

“To the Hon. —— Court for the
County of ——, now in session.
“ A. B. of ——, Esquire, attorney for

the State in and for said county, here in
court informs, that, &c. [setting out the
offence as in an indictment], and that the
said E. F, is now at large. Wherefore

82

the said attorney prays, that a bench
warrant may issue against the said KE. F.,
that he may be arrested and brought be-
fore this court to answer to this informa-
tion, and be dealt with according to law.

“T., Attorney.”

2 The State v. Williams, 8 Texas, 255;
People v. Higgins, 15 Ill. 110; The State
v. Miles, 4 Ind. 677; The State v. Elliott,
41 Texas, 224. See post, § 712.

5 Ante, § 82; post, § 247 et seq.

* Post, § 174-179,

5 3 Co. Pref.

6 See, for an instructive summary of
this whole matter, Paley Convict. Introd.
CHAP. XU.] METHODS OF PROSECUTION, § 153

minutely defined the functions of these officers as to leave the
question of their common-law authority almost of no conse-
quence.? .

§ 150. Convictions on View. — Quite early in the English leg-
islation on this subject, convictions on view were authorized in
some special cases; the proceeding being, that the magistrate
goes in person to the place where an offence is being committed,
and, seeing it, enters upon his record a conviction of the of-
fenders, without a complaint and without testimony. Paley says,
the earliest jurisdiction given to justices of the peace sitting out
of sessions and without a jury, was limited to two offences, and
in these the conviction was to be on view. They were cases sup-
posed to require immediate action, being forcible entries and
riots; the former, regulated by 15 Rich. 2, c. 2; the latter, by 18
Hen. 4,c. 7. And as to the latter it was directed that, if the
rioters had departed before the arrival of the justices, and so the
view could not be had, the inquiry should be by jury?

§ 151. How with us.— Those readers who are familiar with the
workings of the criminal law will see that, at the present day,
there is no need of this extremely summary jurisdiction in these
cases, or indeed in any other. Still our books contain a few
cases relating to this sort of conviction;® none, which the author
has seen, of a recent date. In most of our States, plainly this
jurisdiction does not exist, if indeed it does at the present time
in any.

§ 152. Convictions on Complaint or Information. — This brings us
back to the subject of this chapter. A conviction on complaint
or information is where some person, official or non-official, com-
plains before the magistrate that a third person has been guilty
of a petty offence which the complaint or information sets out;
whereupon the magistrate issues his warrant for the arrest of the
person accused. When such person is brought before this or
some other magistrate, evidence is heard, and, without a jury, he
is convicted or discharged as the case may require.*

§ 153. Beneficial — Course of the Proceeding. — This proceed-
ing is highly beneficial. It not only expedites business, but it
promotes substantial justice. If a poor and unknown person,

1 Post, § 176. 3 Holeomb v. Cornish, 8 Conn. 875;
2 Paley Con. 6. Commonwealth v. Eyre, 18. & R. 347.
4 Post, § 716 et seq.

83
§ 154 SOME LEADING PRINCIPLES. . [BOOK IL

arrested for some petty offence, is required to give bail to answer
-to an indictment at a distant day, he will often be unable to fur-
nish the bail, and compelled to lie in jail. When the time for
his trial comes, he may have suffered an imprisonment. greater
than the penalty which the law has affixed to the offence. If he
is guilty, he is still the victim of a wrong; and, if innocent, the
wrong is very great. But by means of the summary proceeding,
the whole case is investigated at once, and the prisoner is dis-
charged if found innocent. If found guilty, he has the right of
appeal, and an ultimate trial before a petit jury.
§ 154. Course of Discussion. — We are now prepared to enter
on the more minute examination of particular topics.
84
CHAP. XIII.] THE ARREST. § 155

BOOK ML.

THINGS PREPARATORY AND AUXILIARY TO THE IN-
DICTMENT OR INFORMATION AND TRIAL.

CHAPTER XIII.

,

THE ARREST.

§ 155. Introduction.
156-163. Manner of Arrest, and Rights of the Parties.
164-172. Arrest without Warrant, by Unofficial Persons.
178-184. Same, by the Officers of the Law.
185,186. Private Persons assisting Officer.
187-193. The Arrest under Warrant.
194-205. Breaking of Doors.
206-207 a. Manner and Time, Persons exempt, &c.
208,209. Under Search-warrants.
210-212. Seizing of Goods in other Arrests.
213-218. Disposal of Arrested Person and Goods. s
219-224 b. Fugitives from Justice.

§ 155. Nature of Subject. — The leading doctrines of this sub-
ject are plain and well established, but there are places at which
its minuter ones are indistinct and even uncertain.

How divided. — We shall consider, I. Manner of the Arrest,
and the Rights of Persons arrested and arresting; II. The Ar-
rest, without Warrant, by Unofficial Persons; III. The Arrest,
without Warrant, by the Officers of the Law; IV. Private Per-
sons assisting the Officer in Arrest; V. The Arrest under War-
rant; VI. The Breaking of Doors to make an Arrest; VII. The
Executing of the Warrant, and the Time of Arrest, and Persons
exempt; VIII. The Arrest of Persons and Goods under Search-
warrants ; 1X. The Seizing of Goods in other Cases of the Arrest
of the Person; X. The Disposal of the Arrested Person and
Goods; XI. Fugitives from Justice.

85
[Book II.

§ 158 PREPARATORY AND AUXILIARY.

I. Manner of the Arrest, and the Rights of Persons arrested and
arresting.

§ 156. Arrest definea. — An arrest is the taking into custody of

a person, or a person and his goods, in pursuance of some lawful
command or authority.
\ § 157. What Restraint and how effected. — Mere spoken words
will not constitute an arrest; there must be something by way
of physical restraint, though it is enough if the party arrest-
ing touch the other, “even with the end of his finger.”? So, ‘if
a bailiff comes into a room and tells the defendant he arrests him,
and locks the door, that is an arrest; for he is in custody of the
officer.”? Or, if one submits on being informed by the officer of
the purpose to arrest him, nothing more is required, especially
where the officer has the power to make the arrest complete.*
Thus, “if the bailiff, who has a process against one, says to him
when he is on horseback or in a coach, ‘ You are my prisoner, I
have a writ against you,’ upon which he submits, turns back, or
goes with him, though the bailiff never touched him, yet it is an
arrest, because he submitted to the process; but, if instead of
going with the bailiff he had gone or fled from him, it could be
no arrest unless the bailiff laid hold of him.”® But—

§ 158. What Disclosure of Purpose. — An actual restraint, amount-
ing to imprisonment, would seem not to constitute an arrest,
where the object of making the restraint is not communicated,
or inferable from the circumstances, or otherwise known or sus-
pected. The general rule is, that one, whether an officer or a
private person, seeking to arrest another, should make known his
purpose ;® but the surroundings of the particular case may ren-

1 And see The Law of Arrests, Lon-
don, 1742, p. 1.

2 Genner v. Sparks, 6 Mod. 178, 1 Salk.
79. And see Whithead v. Keyes, 3 Al-
len, 495, 501.

8 Lord Hardwicke, C. J., in Williams
v. Jones, Cas. temp. Hardw. 298, 801.
And see Grainger v. Hill, 4 Bing. N. C.
212, 5 Scott, 661.

4 Emery v. Chesley, 18 N. H. 198;
Mowry v. Chase, 100 Mass. 79, 85; Reg.
v. Nugent, 11 Cox C. C. 64; Crim. Law

IL § 26.
86

5 1 Salk. 6th ed. 79, note, referring to
Horner v. Battyn, Bull. N. P. 62; 8. p.
Russen v. Lucas, 1 Car. & P. 153; George
v. Radford, 3 Car. & P. 464, Moody & M.
244; Berry v. Adamson, 6 B. & C. 528,
2 Car. & P. 608; Searls v. Viets, 2 Thomp.
& C, 224; Mowry v. Chase, 100 Mass. 79,
85; Strout v. Gooch, 8 Greenl. 126.

® Mackalley’s Case, 9 Co. 65a; Brooks
v. Commonwealth, 11 Smith, Pa. 852;
The State v. Bryant, 65 N. C. 327.
CHAP. XIIL | THE ARREST. § 160

der this purpose plain; and, if they do, resistance to the arrest
will be illegal, the same as though it were stated in words! The
question of an officer’s duty to give notice of his official charac-
ter, or to exhibit his warrant, or to mention why he arrests the
person, belongs to other parts of this chapter?

§ 159. Yielding, and compelling Submission to arrest. —It is the
duty of every man to submit himself to a lawful arrest, and a forci-
ble resistance is a crime.2 But the person making it should not
use unnecessary violence.t Especially he should not needlessly
kill the other, instead of arresting him, even though in the act of
committing a felony.’ Still, —

Felony and Misdemeanor distinguished —- Flying from Arrest. — If
aman is committing a felony, and an officer, for instance, at-
tempts to arrest him, yet he runs away, and the officer calls on
him to stop, then, if he will not stop, the officer is justified in
shooting at him to compel him to stop; but, if the offence is a
misdemeanor, he has no right to take this extreme measure.®
Yet, —

§ 160. Resisting Arrest. — Alike in felony and misdemeanor,
where the person to be arrested resists instead of flying, all force
necessary to effect the purpose may be employed by the other,’
who may press forward; and, if not desisting but still pressing
forward, he is obliged to take the life of the former as in self

defence, he will be justified.§

1 Rex v. Davis, 7 Car. & P. 785; Rex
v. Howarth, 1 Moody, 207. And see
Rex v. Payne, 1 Moody, 378 ; Pew’s Case,
Cro. Car. 183, 587, 5388; 9 Co. 656; John
v. The State, 8 Head, 127, 147.

2 See post, § 189-193.

% Crim. Law, IL. § 39.

4 The State v. Mahon, 3 Harring. Del.
668; Giroux v. The State, 40 Texas, 97;
Rhodes v. King, 52 Ala. 272.

5 Reg. v. Murphy, 1 Crawf. & Dix
C. CG. 20; Gardiner v. Thibodeau, 14 La.
An. 732.

6 Reg. v. Dadson, 2 Den. C. C. 35;
Crim. Law, II. § 647-649 ; Middleton ».
Holmes, 8 Port. 424. See also The State
v. Roane, 2 Nev. 58; Dill v. The State,
25 Ala. 15; Brady v. Price, 19 Texas,
285.

7 Mesmer v. Commonwealth, 26 Grat.

976 ; Brooks ». Commonwealth, 11 Smith,
Pa. 852; Golden v. The State, 1 8S. C.
292; Burdett v. Colman, 14 East, 163,
190.

8 Morton v. Bradley, 80 Ala. 683; The
State v. Roane, 2 Dev. 58; Arthur v.
Wells, 2 Mill, 814; The State v. Mahon,
8 Harring. Del. 568; The State v. Garrett,
Winston, No. I. 144; Brooks v. Com-
monwealth, 11 Smith, Pa. 352; Lander
v. Miles, 8 Oregon, 85; United States v.
Rice, 1 Hughes, 560. And see The State
v. Fee, 19 Wis. 562. Mr. East says: “It
may be premised generally, that, where
persons having authority to arrest or im-
prison, or otherwise to advance or exe-
cute the public justice of the kingdom,
and using the proper means for that pur-
pose, are resisted in so doing, and the
party resisting is killed in the struggle,

87
§ 163 [Book m1.

PREPARATORY AND AUXILIARY.

§ 161. Breaking from Arrest. — When the arrest has been actu-
ally made, whether for felony or misdemeanor, if the arrested
person attempts to break away he may be killed to prevent
it, provided this extreme measure is necessary.1

§ 162. Unlawful Arrest.— Where an attempted arrest is unlaw-
ful, the party may resist, but not to the taking of life? In gen-
eral, if he does resist to this extent, his crime will be only
manslaughter,? yet there are circumstances in which it will be
murder.* So—

Breaking from Unlawful Arrest.— The person thus unlawfully
arrested is justified in escaping if he can;* and an attempt to
rearrest him will be equally unlawful with the first arrest. Such
is the general rule; but there are circumstances in which, if the
person arrested submits, he waives an objection which he might
have taken; and, in these circumstances, he has no right after-
ward to escape.’

§ 163. How treat Arrested Person. — One having in custody an
arrested person should treat him kindly ;® but, as we have seen,®
he may even inflict death to prevent his escape, where no other
means are available. -A fortiori, he may tie him, if this is neces-
sary; and it is laid down, that, where the officer acts honestly
and from pure motives, he is to be himself the sole judge of the

necessity of such a measure as this.!

Hence, —

Rearrest. — One who, having been lawfully arrested, breaks away

such homicide is justifiable. And, on the
other hand, if the party having such au-
thority, and executing it properly, happen
to be killed, it will be murder in all who
take a part in such resistance ; this being
considered by the law as one of the
strongest indications of malice, an out-
rage of the highest enormity, committed
in defiance of public justice, against those
who are under its special protection.” 1
East P. C. 295. And see Crim. Law,
II. § 647. But see Conraddy v. People,
5 Parker C.C. 284; Tiner v. The State, 44
Texas, 128; James v. The State, 44
Texas, 314.

1 Crim. Law, II. § 647, 650. See Cald-
well v. The State, 41 Texas, 86; Wright
v. The State, 44 Texas, 645.

2 Crim. Law, I. § 868; The State v.
Belk, 76 N. C. 10; United States v. Gay,
2 Gallis. 859.

88

3 Crim. Law, I. § 868; Commonwealth
v, Carey, 12 Cush. 246.

4 Crim. Law, II. § 699. See Lyon v.
The State, 22 Ga. 399. And see, on the
entire subject of this paragraph of the
text, Noles v. The State, 26 Ala. 31, and
Commonwealth v, Drew, 4 Mass. 891, with
the note to those cases in Hor. & Thomp.
Cases on Self Defence, 713 et seq.

5 The State v. Ward, 5 Harring. Del.
496 ; Rex v. Curran, 8 Car. & P. 397.

6 Rex v, Curvan, 1 Moody, 132.

7 The State v. Phinney, 42 Maine, 384;
Wood v. Kinsman, 5 Vt. 588.

8 Skidmore v. The State, 43 Texas, 93.
And ‘see Ryan v. Donnelly, 71 Ill. 100;
Habersham v. The State, 56 Ga. 61; The
State v. Graham, 74 N. C. 646.

® Ante, § 161.

10 The State v. Stalcup, 2 Ire. 60. See
post, § 781.
CHAP. XIII. ] , THE ARREST. § 165

from the officer, may be retaken without a fresh warrant ;1 even,
it has been held, though the officer was consenting to the escape?

II. The Arrest, without Warrant, by Unofficial Persons.

§ 164. Misprision — Crime not to arrest one committing Treason
or Felony. — We saw, in “ Criminal Law,” that a person witness-
ing the commission of a treason or felony, and neglecting to ar-
rest the offender or bring him to justice, commits, by the neglect,
the crime of misprision of treason or felony. It is misdemeanor.®
In the language of an old book: “ All persons whatsoever, who
are present when a felony is committed, or a dangerous wound
given [which, if the wounded person dies, will amount to a
felony], are obliged to apprehend the offender; otherwise they
are liable to be fined and imprisoned for the neglect.” 4 Conse-
quently, —

§ 165. Treason or Felony committed in Presence. — One who has
thus witnessed the commission of a treason or felony is permitted
to do what the law requires; namely, arrest the offender. More-

over, —

Attempted in Presence. — It is a like duty, the neglect of which

1 Cooper v. Adams, 2 Blackf. 294.

2 Commonwealth v. Sheriff, 1 Grant,
Pa. 187. Chitty says: “It is clearly
agreed by all the books, that an officer,
making a fresh pursuit after a prisoner
who has been arrested, and has escaped
through his negligence, may retake him
at any time, whether he find him in the
same or a different county, without rais-
ing hue and cry; because, as the liberty
obtained by the prisoner is wholly owing
to his own wrong, there is no reason why
he should be allowed to derive any advan-
tage from it. But where the officer has
voluntarily suffered a prisoner to escape,
it is said by some that he can no more
justify the retaking him than if he had
never had him in custody before ; because
by his own consent he has admitted that
he has nothing more to do with him. It
should seem, however, that the miscon-
duct of the officer ought not to prevent a
second arrest, in order that the offender
may be brought to justice ; and, where a
person has been convicted of a crime, and
committed in execution until he pay the

fine, and is suffered by the officer to es-
cape, the officer is bound to retake him.”
1 Chit. Crim. Law, 61. The question, in
principle, seems to stand thus: The war-
rant authorizes the officer to do two
things: first, to take the prisoner into
custody; secondly, to hold him until law-
fully discharged. Now, if, after an arrest,
the officer consents to let the prisoner go,
this is not a lawful discharge, and he and
the prisoner commit each an offence if he
goes. The warrant has not spent itself,
the prisoner is not lawfully released from
its restraining power; and, though the
officer has offended, it is a rule that the
guilt of one person does not take away
the guilt of another, or confer privileges
on the other.

3 Crim. Law, I. § 716 et seq.
Kindred »v. Stitt, 51 Ill. 401.

4 Law of Arrests, 200. And see 1
Chit. Crim. Law, 16.

5 Phillips v. Trull, 11 Johns. 486;
Keenan v. The State, 8 Wis. 182; Long
v. The State, 12 Ga. 298.

89

See
§ 167 PREPARATORY AND AUXILIARY. [BooK II.

is in the same degree criminal, to interfere to prevent the com-
mission of a treason or felony.1 Hence, though the attempt to
commit one of these offences is only a misdemeanor, a person who
sees another making the attempt may arrest him.”

§ 166. Further, of Duty — Misdemeanor distinguished from Felony.
— The foregoing is the extent to which duty, in the strict sense,
requires private persons to make arrests without warrants. And,
where they are thus indictable if they do not act, they have
rights, not easily defined, greater than where the law merely per-
mits the arrest. But,—

In Riots — Affrays, &c. —In a milder sense, “it is the duty of
every good citizen to endeavor to suppress a riot; and, when he
finds a mistaken multitude engaged in treasonable practices, to
the subversion of all peace and good order, he is protected by
law in coming forward with other well-disposed characters, to
repel them by force.” ? Hence a rising to quell a treasonable riot
is lawful.4 And, says Blackstone, ‘ Affrays may be suppressed
by any private person present, who is justifiable in endeavoring
to part the combatants, whatever consequences may ensue.”
Not necessarily will the interference be by an actual arrest and
the taking of the offenders to prison or before a magistrate, but it
may be, and ought to be in some cases. When the party arrest-
ing is sued for it, a plea of justification should contain the direct
averment, that there was an affray or breach of the peace contin-
uing at the time of the arrest; or, if it had subsided, that there
was a well-founded apprehension of its renewal.6 And, —

Affray or Riot ended. — After the tumult is over, with no pros-
pect of its renewal, it is too late to arrest or otherwise restrain
the wrongdoer without judicial process.”

§ 167. Other Past Misdemeanors. — The like rule applies also,
in one respect, in all other misdemeanors; namely, that a private
person (and the same is true of an officer), acting without a war-
rant,® cannot make the arrest for a misdemeanor committed on
an occasion already passed.®

1 Crim. Law, I. § 716 et seq. 4 Rex v. Wigan, 1 W. BI. 47.
2 Rex v. Hunt, 1 Moody, 93; Hand- 5 4 Bl. Com. 145.
cock v. Baker, 2 B. & P. 260; Reuck v. § Price v. Seeley, 10 Cl. & F. 28. And

McGregor, 3 Vroom, 70. see Knot v. Gay, 1 Root, 66.

3 Respublica v. Montgomery, 1 Yeates, * Phillips v. Trull, 11 Johns. 486.
419,421. And see Charge to the Bristol 8 Ante, § 162.
Grand Jury, 6 Car. & P. 261, note, ® Fox v. Gaunt, 8 B. & Ad. 798. See

90
CHAP. XIII. ] THE ARREST.

§ 169

§ 168. Other Treason or Felony already committed. — In felonies,
and in treason, the rule is different; and it is, that, if the offence
has been in fact committed, and the private person has reason-
able cause to suspect a particular person, he may, acting in good
faith, arrest him; without incurring any liability, civil or crimi-
nal, should the suspicion prove unfounded.! Nor is the inquiry
whether there was time to procure a warrant material.? But, if
the offence has not in fact been committed by any one, he may be
compelled, on a civil suit, to pay damages to the party arrested,
however strong or reasonable may have been his suspicions.2 Yet,
it seems, such a matter may be shown in mitigation of damages.*
The doctrine of this section extends to all felonies, whether stat-
utory or at common law, even to petit larceny.®

§ 169. Other Misdemeanors in Process of Commission. — There is
some uncertainty as to the extent to which, in misdemeanors
other than riots, affrays, and the like, private persons witnessing
their commission are permitted to interfere. In the old book
already quoted from,® we read: “ Any private person may arrest
a common notorious cheat, going about in the country with false
dice, and being actually caught playing with them, in order to
have him before a justice of the peace; for, as the discourage-
ment of such offenders is for the public good, the restraining
private persons from arresting them without a warrant from a
magistrate would be consequently prejudicial, because it would

246, 251; Wash. Crim. Law, 176; Kin-

Mathews v. Biddulph, 4 Scott N. R. 54,
1 Dowl. n. 8. 216; Butler v. Turley, 2 Car.
& P. 585.

1 Ledwith v. Catchpole, Cald. 291;
Brockway vc. Crawford, 3 Jones, N. C.
433; Holley v. Mix, 3 Wend. 850;
Wakely v. Hart, 6 Binn. 316; Common-
wealth’ v. Deacon, 8 S. & R. 47; Wrex-
ford v. Smith, 2 Root, 171; Ashley’s
Case, 12 Co. 90; Long v. The State, 12
Ga. 293; The State v. Roane, 2 Dev. 58;
Reuck v. McGregor, 8 Vroom, 70 ; Lander
v. Miles, 3 Oregon, 85; Burns v. Erben,
40 N. Y. 463; Brooks v. Commonwealth,
11 Smith, Pa. 352; Doering v. The State,
49 Ind. 56. See post, § 181. There may
be cases intimating, or holding, that, to
justify an arrest by a private person, the
particular one arrested must be proved
guilty. Rohan v. Sawin, 56 Cush. 281,
285; Commonwealth v. Carey, 12 Cush.

dred v. Stitt, 51 Ill. 401. See Kercheval
v. The State, 46 Ind. 120. But this is
contrary to the general doctrine.

2 Burns v. Erben, 40 N. Y. 463; Rohan
v. Sawin, 5 Cush. 281, 284; Brooks vu.
Commonwealth, supra.

3 Holley v. Mix, supra; Wakely »v.
Hart, supra; Findlay v. Pruitt, 9 Port.
195; Adams v. Moore, 2 Selw. N. P. 934;
Allen v. Wright, 8 Car. & P. 522; Davis
v. Russell, 2 Moore & P. 590, 5 Bing. 354;
Cowles v. Dunbar, 2 Car. & P. 565;
Doughty v. The State, 33 Texas, 1.

4 Suge v. Pool, 2 Stew. & P. 196;
Rogers v. Wilson, Minor, 407 ; Kercheval
v. The State, 46 Ind. 120.

8 People v. Adler, 3 Parker C. C. 249;
Tulley v. Corrie, 10 Cox C. C. 640.

6 Ante, § 156, note, 164.

91
§ 170 PREPARATORY AND AUXILIARY. [Book IL..

give them an opportunity of escaping, and continuing their
offences without. punishment, And, for the same reason, an
arrest of an offender by a private person for any crime prejudi-
cial to the public seems to be justifiable.” -And Hawkins says:
“It is holden by some, that any private person may lawfully ar-
rest a suspicious night-walker, and detain him till he. make it
appear that he is a person of good reputation. Also it hath been
adjudged,” &c., repeating substantially what. is laid down in the
above quotation.2 Moreover, — .

§ 170. Further and Later Views. — A constable, it has been held,
may, without a warrant, take into custody a person whom he
sees committing a forcible entry amounting to a breach of the
peace ; and the offender cannot maintain an action against a by-
stander for directing him to do his duty. But the right of the
bystander, where there is no officer present, may not necessarily

be the same.®
room for doubt.*

1 Law of Arrests, 204, 205.

2 2 Hawk. P. C. c. 12, § 20.

* Derecourt v. Corbishley, 5 Ellis & B.
188, 32 Eng. L. & Eq. 186. And see, in
connection with this case, and on this
general subject, Wheeler v. Whiting, 9
Car. & P. 262; Coward v. Baddeley, 4 H.
& N. 478; Reg. v. Phelps, Car. & M. 180;
Noden v. Johnson, 16 Q. B. 218, 2 Eng.
L. & Eq. 201; Mackaley’s Case, Cro. Jac.
279; Spalding v. Preston, 21 Vt. 9; Rex
v. Curran, 3 Car. & P. 897; Reg. v. Gwilt,
11 A. & E. 587, 3 Per. & D. 176; Rex v.
Howarth, 1 Moody, 207; Smith v. Don-
elly, 66 Ill. 464; Trask v. Payne, 48 Barb.
569; Lewis v. The State, 8 Head, 127;
Booth v. Hanley, 2 Car. & P. 288.

4 Mr. Greaves, an able English writer,
in an article originally published in the
“Law Times,” and reprinted in the 3d
ed. of Cox & Saund. Crim. Law Consoli-
dation Acts, Int. p. lxiv., contends, both
on principle and authority, “that,” in all
cases, ‘‘where a party is caught in the
act of committing any misdemeanor, he
may be arrested by any private person”
who may be present, the same as in cases
of felony. He does not claim that any
one decision has established this doctrine
in terms as thus stated ; for, in the nature
of things, a case on this subject could go

92

And in other classes of cases there is still wider

no further than its particular facts, there-
fore it could not establish any rule. See
Bishop First Book, § 174-181, 463-472.
But he deems this to be the fair result of
the collected authorities. In support of
this view, he adduces the doctrine stated
ante, § 165, that a private person may
arrest without warrant one who is at-
tempting to commit a felony, the attempt
being at common law a mere misde-
meanor. Beyond this, the case which he
deems the leading one is Holyday v.
Oxenbridge, Cro. Car. 234. This case he
states as follows: “In an action of tres-
pass, &c., the defendant pleaded that the
plaintiff communiter usus fit an ill trade
called cheating at play with false dice
and defrauding people of their money;
that he went to a house where he found
the defendant and one Arnold, unexpert
in such play, and induced them to play
at dice with him for money, and the plain-
tiff playing with them ‘with false dice
subtilly conveyed by the plaintiff (divers
sums of the defendants’ money jfalso et
Jraudulenter depredatis)’ would have sought
to escape; but the defendant, knowing
certainly that he was deceived by the
cheating with false dice, molliter manus
imposuit on the plaintiff to take him be-
fore a justice to be examined concerning
CHAP. xu]

THE ARREST.

§ 171

§ 171. How in Principle. —In legal reason, the doctrine would
seem to be the following. One who is present where another is

the said offence ; and that the justice ex-
amined him and bound him to appear at
the sessions, where he was convicted of
the said offence. On demurrer to this
plea, it was objected that ‘one cannot,
without an officer, for any cause, and that
upon his own suspicion only, arrest or
stay any person unless in felony.’ But
all the court (the chief justice being ab-
sent) held ‘the plea to be good; for it is
shown that he was a common cheater and
that he cozened with false dice [see Crim.
Law II. § 157], and therefore the defend-
ant led him to a justice of the peace;
and it appears by the plea that there was
good cause for staying him; for he was
afterwards convicted of that offence. And
it is pro bono publico to stay such offend-
ers.’” The writer adds, that this case
“has never been questioned ; and, on the
contrary, it has been sanctioned by very
great authority.” He refers to Fox v.
Gaunt, 3 B. & Ad. 798; Timothy v. Simp-
son, 5 Tyr. 244; Ingle v. Bell, 1 M. &
W. 516; Cohen v. Huskisson, 2 M. & W.
477; Webster v. Watts, 11 Q. B. 811;
Handcock v. Baker, 2 B. & P. 260. And
he refers to Hawkins and the Year Books
to show that this was also the ancient doc-
trine. At the same time, I fail to discover
cases which cover what I should deem to
be every class of misdemeanors. Yet, on
this point, it is fair to quote the learned
writer’s words: ‘‘ When we find that all
misdemeanors are of the same class [in
reason, are they ?]; that it is impossible
to distinguish in any satisfactory way be-
tween one and another [is it ?]; and that
in the only case (Fox v. Gaunt, supra)
where such a distinction was attempted,
the court at once repudiated it; and
when, on the question whether a party
indicted for a misdemeanor was entitled
to be discharged on habeas corpus, Lord
Tenterden, C. J., said, in delivering the
judgment of the court, ‘I do not know
how, for this purpose, to distinguish be-
tween one class of crimes and another.
It has been urged that the same principle
will warrant an arrest in the case of a
common assault. That certainly will fol-
low :’ (Ex parte Scott, 9 B. & C. 446.)

And when, above all, the same broad
principle that it is for the common good
that all offenders should be arrested, ap-
plies to every misdemeanor, and that
principle has been the foundation of the
decisions from the earliést times, and was
the ground on which Timothy v. Simpson
(supra, this was a case where one had ar-
rested another about to renew an affray
in which he had been engaged, and the
arrest was adjudged lawful] was decided;
the only reasonable conclusion seems to
be, that the power to arrest applies to all
misdemeanors alike, wherever the offen-
der is caught in the act.” p. Ixx. I
think, in reason, we must distinguish
between misdemeanors. Could it be
contended that any man who might see
another sell a glass of intoxicating liquor
without a license, in States where the
selling is by statute an indictable misde-
meanor, might, therefore, without com-
plaint or warrant, arrest the offender and
bring him before a magistrate? It seems
to me that such a proceeding could not
be of public benefit, consequently could
not be legally justified. On the other
hand, if a female night-walker should be
caught practising her seductions, there
would be great reason to permit her ar-
rest. But there are persons who deem
that one of these forms of seduction is as
bad, and should as much be put a stop to,
as the other. If this is so, there is still a
difference. In the one case, the thing is
malum prohibitum only ; in the other, it is
malum inse. Or,suppose both to be deemed
malum in se; in the one case, you stopa
continuing evil; in the other, an evil
merely in the particular instance, or, at
least, one which will not be checked by
the arrest, but which, not being personal
to the offender, may be carried on by an
agent. The one is ranked, in the law, as
a nuisance ; the other is not. But let us
look at another sort of public nuisance.
If a man is carrying on a manufactory
from which unpleasant smells are at times
emitted, and which may be indictable, is,
therefore, any private person authorized
to arrest him without complaint or war-
rant, and take him before a magistrate ?

93
§ 173 PREPARATORY AND AUXILIARY. [BOOK IIL

committing a crime should do something to prevent it; or, fail-
ing in this, to bring the offender to justice. If it is felony or
treason, the neglect of this duty, we have seen, is an indictable
misdemeanor. But, where the crime is of a lower grade, leaving
the duty a mere moral one, the reason of the thing would seem
to be, that the law will permit the person to discharge this moral
duty by interfering, if disposed, to prevent the commission of the
crime, or to arrest the criminal, or both. Yet it might not allow
this duty to be carried to all lengths. If the thing done was not
malum in se, but merely malum prohibitum, or was of a nature
not immediately disturbing the public repose, and not offending
public morals, or the like, so injudicious would it be to make the
arrest without a warrant, by a private person, when no percepti-
ble harm would come from the delay necessary to call in public
authority, that the courts could hardly be expected to sanction
such an arrest.

§ 172. Statutory Changes in the Law.—In some of our States,
and in England, the common-law doctrines under this sub-title,
and under others in this chapter, have been more or less modified
by statutes. The practitioner, therefore, should carefully consult
the statute books of his own State ; and, in connection with them,
the decisions in his own courts.1

III. The Arrest, without Warrant, by the Officers of the Law.

§ 173. Compared with Private Persons. — Obviously, whenever
the circumstances of a case would justify a private person in

Such a proceeding would be wholly un-
necessary; it would tend to promote
public disturbance, rather than check it;
and it would be difficult to suppose that
the law could give it countenance. It
scems to me, therefore, impossible to say
that the right of private persons to arrest
without warrant extends to every misde-
meanor. And the common understanding
of the profession and mankind must have
been so from the early periods of our law
until now; else our books of reports
would contain cases in which arrests had
been actually made in those circumstances
in which, according to the views thus
stated, they would seem to be of evil
tendency. And see McLefnon v. Rich-

94

ardson, 15 Gray, 74; Danovan v. Jones,
86 N. H. 246; Commonwealth v. Carey,
12 Cush. 246; Main v. McCarty, 16 IIL.
441; In re Powers, 25 Vt. 261.; Roberts
v. The State, 14 Misso. 188; Jones x. The
State, 14 Misso. 409; White v. Kent, 11
Ohio State, 550; Tujacque v. Weis-
heimer, 15 La. An. 276; Commonwealth
v. O'Connor, 7 Allen, 583; Stage Horse
Cases, 15 Abb. Pr. n. 8. 51, 62, 63; post,
§ 183, 184, note.

1 24 & 25 Vict. c. 96, § 103, and some
others ; Morris v. Wise, 2 Fost. & F. 51;
Doughty v. The State, 83 Texas, 1; Kin-
dred v. Stitt, 51 Ill. 401; Lewis v. The
State, 3 Head, 127; The State v. Lovell,
28 Iowa, 304.
.

CHAP. XIII. ] THE ARREST. § 174

making an arrest without a warrant, they will equally justify a
constable, sheriff, or watchman.1_ How much further the right
of these officers goes we shall consider after we have taken a
view of the law relating to—

§ 174. The Office of Justice of the Peace :—

Origin of the Office — Early Duties. —In early times under the
common law in England, every county had its conservators of the
peace, chosen by the people. Their office, says Coke,? was “ to
conserve the king’s peace, and to protect the obedient and inno-
cent subjects trom force and violence.” Thereupon, in 1827, the
statute of 1 Edw. 3, c. 16, provided, “that in every county good
men and lawful, which be no maintainers of evil, or barrators in
the county, shall be assigned to keep the peace.” “ From which
act,” it is said in Burn’s Justice,’ “‘ we are to date that final alter-
ation in our constitution, whereby the election of conservators of
the peace was taken from the people, and translated to the assign-
ment of the king. By this statute, however, at first, no other
power was given but that of keeping the peace; the more honor-
able title of justices even was not conferred, the parties elected
being still only called conservators, wardens, or keepers of the
peace. But the very next year, the form of the commission was
enlarged, and continued still further to be enlarged both in that
king’s reign and in the reign of almost every other succeeding
prince, until the thirtieth year of the reign of Queen Elizabeth,
when, by the number of the statutes particularly given in charge
therein to the justices, many of which, nevertheless, had been a
good while before repealed, and, by much vain repetition and
other corruptions that had crept into it, partly by the miswriting
of clerks, and partly by the untoward huddling of things together,
it was become so cumbersome and foully blemished that of neces-
sity it ought to be redressed. Which imperfections being made
known to Sir Charles Wrey, then Lord Chief Justice of the
King’s Bench, he communicated the same to the other judges
and barons, so as, by a general conference had amongst them, the
commission was carefully refined in the Michaelmas term, 1590 ;
and, being then also presented to the Lord Chancellor, he ac-
cepted thereof, and commanded the same to be used; which
continues with very little alteration to this day.”

1 2 Hawk. P. C. c. 18, § 1. 3 Burn Just. tit. Justices of the Peace.
2 2 Inst. 558.
95
§ 177 PREPARATORY AND AUXILIARY. [Book m1.

§ 175. Their Later Powers. — Reading on we have the follow-
ing: “This commission consists of two parts, or two different
assignments. By the first assignment, any one or more justices
have, not only all the ancient power touching the peace, which
the conservators of the peace had at the common law, but
also that whole authority which the statutes have since added
thereto. The second assignment defines their powers in Ses-'
sions.” }

§ 176. How under our Common Law. — The result is, that, when’
our forefathers came to this country, bringing with them so much
of the law of England, statutory and common, as was adapted
to their new situation and circumstances, they made the law of
England, as thus stated, a part.of their unwritten law.2 Still, in
many of our States, the judges look chiefly to their own statutes
to’ determine the authority of justices of the peace; while, on
principle, and by the practice in other States, the statutory
enumeration of powers excludes only such of those before exer-
cised in England as are repugnant to the State statute. In
Massachusetts, where a rule of interpretation not generally fol-
lowed in the other States prevails,? Sewall, J., observed: ** The
statutes which, since the present Constitution, have been enacted
on this subject, have enumerated very particularly the powers and
duties of justices of the peace, both in civil and criminal matters.
And this enumeration is so complete as to leave very little, if any,
occasion of recurring to the ancient English statutes, for the
powers of this office; and perhaps the enumeration itself may be
construed to preclude such recurrence for the purpose of infer-
ring any power not enumerated.’’4

§ 177. Personal Arrest by Justice. — A justice of the peace may
personally arrest one whom he has just cause to suspect of a
felony which he knows to have been committed ;® for, indeed,
any private individual might do the same. There are also pas-
sages in the books seeming to imply that he may thus make
arrests under circumstances in which a private individual could
not. And so it may have been before the office of a justice be-

1 See also 4 Inst. 171. The commis- 5 Stat. Crimes, § 154-162.

sion is given in full in Burn Just. tit. * Commonwealth v. Foster, 1 Mass.
Justices of the Peace. And see ante, 488, 490.
§ 149. A 5 2 Hale P. C. 87.

2 Commonwealth v. Leach, 1 Mass. 8 See Law of Arrests, 171; Holcomb
59; post, § 178. v, Cornish, 8 Conn. 375.

96

Cd
CHAP. XIII. ] THE ARREST. § 178

came judicial as at present; and possibly it is so even now.
But—

Arresting by Warrant or Verbal Order.— Justices of the peace
are now provided with under officers, and the regular course is to
issue their verbal order or their warrant, and not to serve as ser-
vants to themselves. Therefore “it is a general rule, that, where
any statute gives a justice of the peace jurisdiction over any
offence, or power to require a person to do a certain thing men-
tioned in the statute, by implication it gives a power to the jus-
tice to grant his warrant to bring the person accused of such
offence, or the person that is compellable to do the thing ordained
by the statute. For to what purpose would it be, to give the jus-
tice authority to require any person to do a thing, if he had not
power to compel the person to come before him, in order to pro-
ceed therein? ”?

§178. What by Verbal Order.—A leading idea has always
been, that justices of the peace were to preserve the peace.
Hence Lord Mansfield once observed, that a justice ‘may com-
mit, without complaint, if he has reason to apprehend the peace
will be broken, though not actually broken.” ? Even an insane
man, not capable of crime, may thus be ordered into custody
while breaking the peace. The statute of 34 Edw. 38, c. 1, pro-
vided that these officers ‘“ shall have power to restrain the offend-
ers, rioters, and all other barrators, and to pursue, arrest, take,
and chastise them according to their trespass or offence.” The
date of it is 1360, and this provision is generally accepted as
common law with us.t If, therefore, a felony or other breach of
the peace is committed in the presence of the justice, he may, as
well by verbal order as by warrant, command the arrest of the
offender. And “the persons so commanded may pursue and
arrest the offenders in his absence as well as presence.” ® So, if
one lawfully arrested in this way escapes, the justice may verbally
order him to be pursued and retaken.’ A fortiori, —

1 Law of Arrests,172. Andsee Crim. Judges, 3 Binn. 599, 612; Roberts Brit.
Law, I. § 171; Stat. Crimes, § 187 and Stats. 389. See ante, § 176.
note. , 52 Hale P. C. 86; 2 Hawk. P. C.

2 Brookshaw v. Hopkins, Lofft, 240, ¢. 13, § 14; Commonwealth v. McGahey,
248. 11 Gray, 194.

8 Lott v. Sweet, 83 Mich. 308, And 61 Hawk. P. C. Curw. ed. p. 518,
see Paetz v. Dain, 1 Wils. Ind. 148. § 16.

4 Kilty Rep. Stats. 220; Report of 7 Commonwealth v. McGahey, supra.

See Rex v. Williams, 1 Moody, 387.

VOL. I. 7 97
§ 181 PREPARATORY AND AUXILIARY. [Book III.

§ 179. In Court of Magistrate. —If an offence is committed in
the court of a magistrate, in his presence, he may verbally author-
ize the attending officer to take the offender into custody ; no
warrant being necessary! Likewise, —

Already arrested without Warrant. — If, an arrest having been
lawfully made without warrant, the offender is brought before a
magistrate, the latter may take jurisdiction and proceed to judg-
ment without issuing a warrant. For ‘“‘ why issue a warrant for
the apprehension of a party already in custody?”? Buta written
complaint or information against the party, setting out his offence,

is as necessary in such a case as in any other.®

Warrant — Other Cases. —In other cases, where the command
of the magistrate is necessary to justify the arrest, and he did not
witness the offence, he must issue his warrant.4

§ 180. Statutory Regulations. — These questions are more or less,
and not quite uniformly in the different States, regulated by stat-
utes which the reader is expected to consult.5

$181. Arrests without Warrant by Sheriffs, Constables, Police

Officers, and the like : —

Conservators of the Peace. — The sheriff was formerly, in Eng-
land, and is now in a certain sense with us, a conservator of the

peace.®
like officers.

So, in a measure, are constables, watchmen, and other
Their powers of arrest do not differ greatly ; or, at

least, the differences at common law are not distinctly defined in

the books.

On this subject, as on the powers of justices of the

peace, the reader should consult the statutes of his own State.
Past Offences. — For a past offence lower than felony, none of

1 Lancaster v. Lane, 19 Ill. 242. In
this case, an assault had been committed
in the presence of a justice of the peace,
in open court. <A statute provided, that,
“in all cases of assault and battery, and
frays, any justice of the peace may, upon
his own knowledge, or upon the oath of
any competent person, issue his warrant
to any constable of the county for the ar-
rest of every person charged with either
of said offences,” &c. And Breese, J.,
said: “ The offender was in court, and
therefore no warrant was necessary to
bring him into court. It would have been
a useless act to have issted a warrant.
The magistrate lad the right to order
him instantly into custody, and not give

98

him a chance to escape while he is mak-
ing out a warrant. The office of a war-
rant is to do that which was already
done.” p. 245. And see O’Brian v. The
State, 12 Ind. 869; Holcomb v. Cornish,
8 Conn. 3875.

2 Hoggatt v. Bigley, 6 Humph. 236.

% Tracy v. Williams, 4 Conn. 107.

42 Hale P. C. 86. See 1 Hawk. P. C.
Curw. ed. p. 518; 2 Ib. c. 18, § 14; Rex
v. Gardener, 1 Moody, 390.

5 Sands v. Benedict, 5 Thomp. & C.
19, 2 Hun, 479; Mayo v. Wilson, 1 N. H.
63; Forrist v. Leavitt, 52 N. H. 481.

® Coyles v. Hurtin, 10 Johns. 85; post,
§ 225 and note.
CHAP. XIII. ] THE ARREST. § 182

these officers can make an arrest without warrant ;! unless, for
example, it is such a dangerous assault as may end in felony, by
the death of the injured person.2, Where it is felony or treason,
and is past, the distinction between the powers of the officer and
the private person is this: should the one arrested be found not
to be guilty, the private person will not be justified “unless an
offence had been committed by some one; while the officer is
justified though no offence had been committed; yet both must
have had reasonable cause to suspect the one apprehended.? For
when a charge of this high nature is made to an officer, he is
bound to act upon it, and pursue and arrest the suspected person
at once ;4 and it would block the wheels of justice if he could not
do his official duty without being answerable in damages to the
party, should the event prove that the reasonable suspicion could
not be made good by evidence.

§ 182. Reasonable Cause for Suspicion. — What is a reasonable
cause for suspicion is a question of law; but the jury determines
the fact, whether or not it exists in the circumstances of a par-
ticular case.© An illustration of the reasonable cause is where,
pursuant to law, a proclamation has been issued by the governor
announcing the commission of afelony.’? Or, if a person is walking
the streets at night, and the indications are that he has committed
a felony, watchmen and beadles have authority at the common law
to arrest and detain him in prison for examination, though the
proof of an actual felony committed may be wanting. Or, —

Charged by Third Person — Delivered to Officer. — If a third per-
son charges one to an officer with having committed a felony, this

1 Ante, § 167; Shanley v. Wells, 71
Ill. 78; Commonwealth v. Carey, 12 Cush.
246; Commonwealth v. McLaughlin, 12
Cush. 615; Reg. v. Spencer, 3 Fost. & F.
854; Reg. v. Lockley, 4 Fost. & F. 155;
Reg. v. Marsden, Law Rep. 1 C. C. 131,
11 Cox C. C. 90; Coupey vo. Henley, 2
Esp. 540; Commonwealth v. Bryant, 9
Philad. 595; Commonwealth v. O’Con-
nor, 7 Allen, 588, 584.

2 Coupey v. Henley, 2 Esp. 540;
Shanley v. Wells, supra.

3 Ante, § 168; Davis v. Russell, 2
Moore & P. 590, 5 Bing. 354; Eanes v.
The State, 6 Humph. 58 ; Rohan v. Sawin,
5 Cush. 281; Beckwith v. Philby, 6 B. &
C. 635, 9 D. & R. 487; Hobbs v. Brans-

comb, 8 Camp. 420; Lawrence v. Hedger,
3 Taunt. 14; Samuel v. Payne, 1 Doug.
359; Ledwith +. Catchpole, Cald. 291;
Rex v. Woolmer, 1 Moody, 334; Nichol-
son v. Hardwick, 5 Car. & P. 495; John
v. The State, 3 Head, 127, 146; Common-
wealth v. Presby, 14 Gray, 65.

4 Cowles v. Dunbar, 2 Car. & P. 565.

5 Samuel v. Payne, supra.

6 Davis v. Russell, 2 Moore & P. 590,
5 Bing. 354.

7 Kanes v. The State, 6 Humph. 53.

-8 Lawrence v. Hedger, 3 ‘Taunt. 14,
And see Commonwealth v. Presby, 14
Gray, 65; Reg. v. Turberfield, Leigh &
C. 495, 10 Cox C. C. 1.

99
§ 183 [Book III.

PREPARATORY AND AUXILIARY.

will ordinarily, as we have seen,! justify and even require his
arrest by the officer;? but not necessarily if the accuser is an
accomplice. So an officer may safely take possession of. one
whom a private individual has arrested and delivered over to
him for felony ; nor need the accusation be in technical form.*

§ 183. Crimes in Presence of Officer.— What private persons
may do in arresting disturbers of the peace and others who. com-
mit crimes in their presence, as already explained,® plainly an
officer may do also. This covers so wide a ground that there is
not much left which any one could claim for the officer.; though,
practically, his official character has weight, and it is proper for
him to enter upon enterprises which a private person should
not. Still, something remains beyond, not easily defined. With-
out saying what may be competent to private persons, let us
enumerate : —

Prevent Offences by Arrest—-In Course of Commission. — Since
these officers are in a sense conservators of the peace,® they may by
virtue of their office exercise whatever force is necessary to prevent
crime, either by arresting the offenders, or by seizing and detain-
ing the instruments of crime.’ Therefore, in general, they, may
arrest persons committing any sort of indictable wrong in their
presence.2 By some authorities, this proposition would seem to
be without limit ;*® even, we have seen,” when applied to private
individuals. And by statutes and ordinances it is very exten-
sively extended to town by-laws and city ordinances. But, in
reason, and by other authorities, there are circumstances in which
an officer cannot make an arrest simply on his own view; as,

1 Ante, § 181.
2 Hough v. Marchant, Moody & M. 510;

220; Vandeveer v. Mattocks, 8 Ind. 479;
Taylor v. Strong, 3 Wend. 884; In re

Samuel v. Payne, 1 Doug. 359; Hobbs v.
Branscomb, 3 Camp. 420.

8 Isaacs v. Brand, 2 Stark. 167.

4 Rex v. Ford, Russ. & Ry. 329;
Hedges v. Chapman, 2 Bing. 528, 10
Moore, 148.

5 Ante, § 166, 169-171.

6 Ante, § 181.

1 Spalding v. Preston, 21 Vt. 9; Reg.
v. Light, Dears. & B. 382, 7 Cox C. C.
889; Shanley v. Wells, 71 Ill. 78.

8 McCullough v. Commonwealth, 17
Smith, Pa. 30; Commonwealth v. Dea-
con, 8 S. & R. 47; Willis v. Warren,
1 Hilton, 590; Boyleston v. Kerr, 2 Daly,

100

Powers, 25 Vt. 261; Butt v. Conant, Gow,
84.

9 Stage Horse Cases, 15 Abb. Pr. w. 8.
51, 62, 63. And see Wolf v. The State,
19 Ohio State, 248, 258.

10 Ante, § 170 and note.

11 Roberts v. The State, 14 Misso. 138;
The State v. Roberts, 15 Misso. 28; Tu-
jacque v. Weisheimer, 15 La. An. 276;
Burke v. Bell, 86 Maine, 817 ; Jamison v.
Gaernett, 10 Bush, 221; The State v.
Lafferty, 6 Harring. Del. 491; Butolph v.
Blust, 41 How. Pr. 481; Shanley v. Wells,
71 Ill. 78; Roddy v. Finnegan, 43 Md, 490.

2 Butolph v. Blust, 5 Lans. 84.
CHAP. XIII.] THE ARREST. § 188

in New Hampshire, it was held that he had no such power in a
case of placing a nuisance, not specified in the police law, in a
highway.t Yet doubtless there may be circumstances in which
the persistent conduct of placing and continuing to place nuisances
in a public and thronged street would justify a police officer in
interfering, by arresting the wrong-doer, without waiting to obtain
a warrant from a magistrate.2

Disturbances of Peace. — Of course, one of these officers may do
all that is lawful for a private person ’ in suppressing a riot, affray,
or the like. And “from time immemorial constables and watch-
men had authority, without warrant, to arrest those whom they
saw engaged in an affray of breach of the peace, and to detain
them until they should find proper sureties.” 4 If the officer hears
a noise in a private house, amounting to a breach of the peace, he

1 Danovan v. Jones, 86 N. H. 246. See
and compare with the text, ante, § 170
and note.

2 Keeping Public Ways clear. — It
is common and necessary for these public
officers, proceeding with no warrant from
a magistrate, to keep the public ways
clear for travel. And they are to do what
the emergencies of the particular case
require, but not palpably more. Thus it
has been ruled, that, if one playing music
ina thoroughfare collects thereby a crowd,
a policeman may request him to go on,
and may lay his hand on and slightly push
him to give effect to the remonstrance ;
and, if the latter, on so small a provoca-
tion, strikes the policeman with a danger-
ous weapon, and kills him, it will be

murder; but otherwise, if the policeman .

gives him a blow and knocks him down.
Reg. v. Hagan, 8 Car. & P. 167. And see
Hardy v. Murphy, 1 Esp. 294. So, if one
is turning toward the wall in a street on
a particular occasion, a watchman may
remonstrate with him and ask him to go
on, but not collar him to prevent his so
doing. Booth v. Hanley, 2 Car & P. 288.
One of the marshals of the city of Lon-
don, whose duty it was on the day of a
public meeting at Guildhall to see that a
passage was kept for the transit of the
members of the corporation and others to
their carriages, directed a person in the
front of a crowd at the entrance to stand
back ; and, on being told by him that he

could not, by reason of those behind, im-
mediately struck him in the face, saying
he would make him. This was held to
be in excess of his authority ; he should
simply have used pressure, and waited
a short time to afford an opportunity for
removing the party more peaceably.
“Undoubtedly,” said Tindal, C. J., “the
defendant would be justified in using a
moderate degree of pressure to remove a
person opposing those for whom he was
bound in the discharge of his duty to
make a passage. Or, if any resistance
occurred, then a more violent degree of
pressure might be used.” Imason v. Cope,
5 Car. & P. 193. So, under the English
statute of 10 Geo. 4,c. 44, § 7, which gives
to police constables certain powers of
keeping peace in the highway and other
places, the officer is not justified in laying
hold of, pushing along the highway, and
ordering to be off, a person found by him
conversing in a crowd with another,
merely because the latter is a reputed
thief. Stocken v. Carter, 4 Car. & P.
477. And see Bowditch v. Balchin,
6 Exch. 878; Roddy v. Finnegan, 43
Md. 490, ante, § 170, note.

3 Ante, § 166.

+ City Council v. Payne, 2 Nott & McC.
475, 478; Commonwealth v. Deacon, 8 S.
& R. 47; The State v. Brown, 5 Harring.
Del. 505; United States v. Pignel, 1
Cranch C. C. 810; Shanley v. Wells, 71

Ill. 78.
101
PREPARATORY AND AUXILIARY.

§ 184 [Book Ill.

may enter through an unfastened door, and arrest those whom he
there finds committing an assault or affray in his presence.’ Still
more obviously, therefore, he may do the same if the house is
public ; because any one is entitled to enter a public house.?

How promptly Arrest must be made. — Where an affray or other
misdemeanor is committed in the presence of the officer, if he
does not arrest the offenders at the time, but goes away, and re-
turns after the entire transaction is over with no danger of its
renewal, he is then too late to make the arrest without a war-
rant. But the arrest need not be instant, it may be made at a
reasonable time and fit opportunity ;* or, it has been said, on
quick pursuit.

§ 184. Statutory Authority to arrest.— The right of arrest by
the officers of the peace is more or less enlarged by statutory reg-
ulations in the several States, as well as, of late, in England; or,
if not enlarged, defined.6 A statute enlarging the right—that is,
in restraint of personal liberty—is to be strictly construed.’

But—

Constitutional. — Statutes of this sort are generally held to be

constitutional.®

1 Commonwealth v. Tobin, 108 Mass.
426.

2 Rex v. Smith, 6 Car. & P. 186. See
Reg. v. Prebble, 1 Fost. & F. 825. As to
officers acting by request in suppressing
disturbances in and clearing public and
private houses, see Reg. v. Mabel, 9 Car.
& P. 474; Rex v. Bright, 4 Car. & P. 887;
Rex v. Hems, 7 Car. & P. 312, 318. Un-
der Martial Law. — Where martial law
is declared by a State, for the putting
down of an insurrection, the officers in
military service may arrest any one whom
they reasonably believe to be engaged in
it; and may order a house to be forcibly
entered and searched, upon reasonable
grounds for belief that he is there con-
cealed; but they should use no more
force than is necessary to accomplish the
object, and they will be liable for any
oppressive abuse of power, and wilful in-
jury to person or property. Luther »v.
Borden, 7 How. U.S. 1.

102

3 Reg. v. Walker, Dears. 358, 6 Cox
C. C. 371, 25 Eng. L. & Eq. 589; Reg. v.
Marsden, Law Rep. 1 C. C. 181; Roberts
v. The State, 14 Misso. 188; The State v.
Roberts, 15 Misso. 28. Compare the last
two cases with Commonwealth v. Hast-
ings, 9 Met. 259.

4 Taylor v. Strong, 8 Wend. 384, 386.

5 Hanway v. Boultbee, 4 Car. & P. 380,
1 Moody & R. 15. And see People v.
Pool, 27 Cal. 572.

6 As, see Simmons v. Millingen, 2 C.
B. 524; In re Carr, 8 Saw. 316.

1 Ramsey v. Foy, 10 Ind. 493; The
State v. Dale, 3 Wis. 795.

8 Byers v. Commonwealth, 6 Wright,
Pa. 89; Jones v. Root, 6 Gray, 485; Ma-
son v. Lothrop, 7 Gray, 354; Williams ».
The State, 44 Ala. 41; The State v.
Bielby, 21 Wis. 204. And see Rohan
v. Sawin, 5 Cush. 281,
CHAP, XIII. ] THE ARREST.

§ 186

IV. Private Persons assisting the Officer in Arrest.

§ 185. Duty, and how protected. — “ The chief difference,” says
Hawkins, “ between the power and duty of a constable and a-
private person, in respect ‘of such arrests, seems to be this, that
the former has the greater authority to demand the assistance of
others, and is liable to the severer fine for any neglect of this
kind, and has no sure way to discharge himself of the arrest of
any person apprehended by him for felony without bringing him
before a justice of peace in order to be examined; whereas a pri-
vate person, having made such an arrest, needs only to deliver
his prisoner into the hands of the constable.”! The officer, then,
in making an arrest, or in securing his prisoner afterward, may,
if he deems it necessary, call upon a bystander for help, or even
command the aid of all persons in his precinct, and equally whether
he is acting under a warrant or without.2 A refusal to assist
him is indictable,’ provided he is proceeding by lawful author-
ity;4 or, if he is not, his command will be a justification to one
who, knowing his official character, comes in good faith to his
assistance. Again, —

Person obstructing. — One who obstructs an officer lawfully ar-
resting or detaining another,® or encourages the other to resist,’
may be taken into custody, but not needlessly beaten.

§ 186. In Officer's Presence.— To justify the private person,
who thus assists the officer, the latter must be in some sense
present commanding him. There is no precise distance which
the two may be apart; but, where a sheriff is endeavoring: to
make an arrest, or preserve the peace, and he has called in others
to help him, he is, though absent from the particular place occu-
pied by them, to be deemed constructively present, within this

1 2 Hawk. P. C. e. 13, § 7.

2 The State v. Shaw, 3 Ire. 20 ; Coyles
v. Hurtin, 10 Johns. 85; Mitchell v. The
State, 7 Eng. 50; Burdett v. Colman, 14
East, 163.

3 Crim. Law, I. § 469.

4 The State v. Shaw, 3 Ire. 20.

5 McMahan ». Green, 34 Vt. 69; Reed
v. Rice, 2 J.J. Mar. 44. And see Forrist
v. Leavitt, 52 N. H. 481; Schaw v. Die-
trichs, 1 Wils. Ind. 153. If the person
making the arrest is not a known pub-

lic officer, but assumes to be acting by
special authority, those assisting him
should know whether the authority ex-
ists, for, if it does not, they will not
be protected. Dietrichs v. Schaw, 43 Ind.
175.

6 Levy v. Edwards, 1 Car. & P. 40;
Anonymous, 1 East P.C. 305; Coyles v.
Hurtin, supra; McMahan v. Green, 34
Vt. 69; Roddy v. Finnegan, 43 Md. 490.

7 White v. Edmunds, Peake, 89.

103
§ 187 PREPARATORY AND AUXILIARY. [Book III.

rule, if his absence is in furtherance of the common design.
“ The sheriff,” said Kent, C. J., “is, guodam modo, present by his
authority, if he be actually engaged in efforts to arrest, dum fer-
vet opus, and has commanded and is continuing to command and
procure assistance. When he is calling on the power of the
county, or a requisite portion of it, to enable him to overcome
resistance, it would be impossible that he should be actually
present in every place where power might be wanting. The law
is not so unreasonable as to require the officer to be an eye or ear
witness of what passes, and to render all his authority null and
void except when he is so present.” In this case, the sheriff's
absence was to procure more assistance ; and the court held, that
those whom he left behind to guard a house in which were as-
sembled the persons to be arrested, could not lawfully, during
this his temporary absence, permit them to escape.1

‘V. The Arrest under Warrant.

§ 187. Warrants legal or illegal on Face — Jurisdiction or not. —
This is not the place to consider the proper form of the warrant.
If a warrant in due form, proceeding from competent authority,
is put into the hands of an officer to whom it is addressed, he
should execute it; and he will be protected, even though he
knows it was obtained for an undue purpose.? But it is other-
wise if the warrant is illegal on its face, or if the magistrate had
no jurisdiction, and he must decide the question of jurisdiction at

his peril.2 And though he is not justified in making an arrest on:

1 Coyles v. Hurtin, 10 Johns. 85, Spen-
cer, J., dissenting. And see, to the like
effect, Commonwealth v. Field, 18 Mass.
321. Acting through Third Person. —
There is a difference between the officer’s
thus calling in assistance, and attempting
toact through the agency of a third person.
When, therefore, a constable, having a
warrant of arrest, gave it to his son, who
executed it while the father was in sight
a half mile off, the arrest was held to be
illegal. Rex v. Patience, 7 Car. & P. 775.
A sheriff cannot constitute a deputy for a
particular act, except in writing; and the
arrest, on a bench warrant directed to the
sheriff, of a person indicted and under
recognizance to appear, by one having

104

only the sheriff’s verbal authority, is ille-
gal, and does not discharge the recog-
nizance. People v. Moore, 2 Doug.
Mich. 1,

2 The State v. Weed, 1 Fost. N. H.
262.

3 Grumon v. Raymond, 1 Conn. 40;
The State vr. Crow, 6 Eng. 642; Durr v.
Howard, 1 Eng. 461; Noles v. The State,
24 Ala. 672; The State v. McDonald,
3 Dev. 468; Lampson v. Landon, 5 Day,
506, 508; Griswold v. Sedgwick, 6 Cow.
456; Sanford v. Nichols, 18 Mass. 286;
Reynolds v. Corp, 3 Caines, 267; Hall v.
Howd, 10 Conn. 514; Welch v. Scott,
5 Ire. 72; Donahoe v. Shed, 8 Met. 826;
Rex v. Hood, 1 Moody, 281; People v.
CHAP. XIII] THE ARREST. § 188
a void process, he is on one that is voidable for some irregularity
or mistake.) But—

Return. — An officer should make return to the court or magis-
trate of all processes directed to and served by him;? so that,
fully to secure the law’s protection for an arrest, he must return
the warrant.®

Function of Warrant performed. — If, after the warrant is issued,
the party has submitted and entered into a recognizance to ap-
pear at court, the officer cannot then arrest him on the war-
rant, though he does not appear. And in like manner, in a civil
case, an officer cannot make the arrest after the return day is
passed.5

§ 188. To whom Warrant addressed. — At common law, the war-
tant of arrest may be addressed as well to a private person as to
an officer ;® it is so in some of our States.7 . But, as Hawkins ob-
serves, “it is most advisable to direct it to the constable of the
precinct wherein it is to be executed ; for that no other constable,
and a fortiori no private person, is compellable to serve it.”® In-
deed, in other of our States, the power of private persons, or of
officers out of their precincts, to serve warrants directed specially

to them, does not exist, or it exists only under restrictions.®

Koeber, 7 Hill, N. Y. 89; Camp v. Mose-
ley, 2 Fla. 171; Sleight v. Ogle, 4 E. D.
Smith, 445; Moore v. Watts, Breese, 18;
Gurney v. Tufts, 87 Maine, 180; Tracy
v. Williams, 4 Conn. 107; The State v.

Leach, 7 Conn. 452, 456; The State v..

Curtis, 1 Hayw. 471; Conner v. Com-
monwealth, 8 Binn. 88; Sweet v. Negus,
30 Mich. 406 ; Howard ». Reid, 51 Ga. 328.

1 Nichols v. Thomas, 4 Mass. 232, 234;
Pearce v. Atwood, 18 Mass. 324; Sanford
v. Nichols, 18 Mass. 286, 288; Hoit v.
Hook, 14 Mass. 210, 218. And see Boyd
v. The State, 17 Ga. 194. Chitty says:
“Tf the warrant be in itself defective,
if it be not enforced by a proper officer,
or if it be executed out of the jurisdic-
tion without being backed by the magis-
trate, or the wrong person be taken
under it, the party may legally resist the
attempt to apprehend him ; and even third
persons may lawfully interfere to oppose
it, doing no more than is necessary for
that purpose. But if the process be legal
and duly executed, resistance and inter-
ference are illegal, and subject the parties

It

to an indictment or attachment.” 1 Chit,
Crim. Law, 60, 61.

2 Dalt. Sheriff, 162; 178 ; Imp. Sheriff,
333.

8 Tubbs v. Tukey, 3 Cush. 438 ; Slomer
v. People, 25 Ill. 70. And see Reg. v. Da-
vis, Leigh & C. 64; s.c. nom. Reg. v. Da-
vies, 8 Cox C. C. 486; Stone v. Dana, 5
Met. 98 ; Brock v. Stimson, 108 Mass. 520,

* The State v. Queen, 66 N. C. 615.
See Doyle v. Russell, 830 Barb. 800; The
State v. Downs, 8 Ind, 42.

5 Stoyel v. Lawrence, 3’ Day, 1; Pres-
cott v. Wright, 6 Mass. 20. °

6 Kendal’s Case, 5 Mod. 78, 81, 1 Ld.
Raym. 65, 66; 1 Hale P. C. 581.

7 Commonwealth v. Keeper of Prison,
1 Ashm. 188; Kelsey v. Parmelee, 15
Conn. 260; Meek v. Pierce, 19 Wis. 300.
And see Stuart v. Hines, 83 Iowa, 60;
Wells v. Jackson, 8 Munf. 458. |

8 2’ Hawk P. C. c. 18, '§ 27; 1 Hale
P. C. 581.

9 Commonwealth v. Foster, 1 Mass.
488; Noles v. The State, 24 Ala. 672.
And see ante, § 178.

105
§ 189 PREPARATORY AND AUXILIARY. [Book IL. |

was held in North Carolina, that, where one not an officer, but
specially deputed under the statute, makes the arrest and returns
the warrant to a justice of the peace who acts on the case, his
authority is at an end; and he is not indictable for permitting an
escape, because he neglected to commit the prisoner after the
justice had by parole ordered the commitment.1

§ 189. Who serve Warrant. — Chitty says, that, if the warrant
is “directed to the sheriff, he may authorize others to execute it
[not verbally, however, for the deputy must be constituted such
by a written instrument?]; but that, if it be given to an inferior
officer, he must personally put it in force, though any one may
lawfully assist him. And if a warrant were generally directed
to all constables, no one could act under it out of his own pre-
cinct; and, if he did, he would have been a trespasser. But if it
were directed to a particular constable by name, he might execute
it anywhere within the jurisdiction of the justice by whom it was
granted ; because, as we have seen, a justice may direct his warrant
to any person he may think fit; in which case, by the express
nomination of the party, his authority becomes coextensive with
that of the magistrate.”® But a warrant directed to one class of
officers cannot be served by an officer of another class.*

Arrest beyond Jurisdiction. — Without the aid of a statute, a
justice of the peace cannot send his warrant of arrest out of his
own county,® or an officer execute it out of the latter’s county
or district.6 The common remedy for this used to be by the pro-
cess called backing the warrant; that is, a justice of the peace in
the other county, where the arrest was to be made, writing his
name upon it.’? But generally in our States this inconvenience
is provided for, by differing statutes, in some other and better
way.’

1 The State v. Dean, 3 Jones, N. C.

393.

2 Ante, § 186, note.

31 Chit. Crim. Law, 48; Rex wv.
Chandler, 1 Ld. Raym. 6545, 546.

4 Reg. v. Sanders, Law Rep. 1 C. C.
75, 10 Cox C. C. 445. Questions of this
sort, and of the authority of particular
officers, will differ with the statutes of
‘the States. And see Commonwealth v.
Martin, 98 Mass. 4; Commonwealth v.
Hastings, 9 Met. 259.

5 2 Hale P. C. 115.

106

6 1 Chit. Crim. Law, 48; Lawson v.
Buzines, 3 Harring. Del. 416.

™1 Chit. Crim. Law, 45; 1 Hayes
Crim. Stat. Law Ir. 71; Rex v. Kynas-
ton, 1 East, 117; Clark v. Cleveland,
6 Hill, N. Y. 344; Commonwealth v.
Jailer, 1 Grant, Pa. 218.

8 Sturm »v. Potter, 41 Ind. 181; John-
ston v. The State, 2 Yerg. 58; Blake v.
Burke, 42 Md. 45; Krug v. Ward, 77 Ill.
608; Parrish v. The State, 14 Md. 288;
Papineau v. Bacon, 110 Mass. 819; Com-
monwealth v. Wolcott, 110 Mass. 67;
CHAP. XIII.] THE ARREST.

§ 191

§ 190. Possession of Warrant.— An officer, to be justified in
making an arrest under a warrant, must have it in possession ;
as, if it has been delivered to him, but he has left it at his office
or station-house, this is not sufficient.

§ 191. Whether show Warrant. — Hawkins says, that “ all pri-
vate persons ” to whom warrants are directed, “and even officers
if they be not sworn and commonly known, and even these if they

_act out of their precinct, must show their warrants, if demanded.”
This proposition is universal and unquestioned.2 He says further,
that sworn and known officers, acting within their precincts,
“need not show their warrant to the party, notwithstanding he
demand the sight of it; but” they ‘“ ought to acquaint the party
with the substance of their warrants.” As to this, Lord Kenyon
has said, “ that, if it be so established, it is a most dangerous doc-
trine ; because it may affect the party criminally in case of any
resistance ; and, if homicide ensue, the legality of the warrant
enters materially into the merits of the question. I do not think
that a person is to take it for granted that another, who says he
has a warrant against him, without producing it, speaks truth.
It is very important, that, in all cases where an arrest is made by
virtue of a warrant, the warrant, if demanded at least, should be
produced.”* This reasoning would settle the question, if there
had been any doubt, that a private person, or an officer not known
to be such, must produce his warrant. But something ought to
be allowed to official position ; and, if one known by me to be an
officer tells me he has a warrant to arrest me, claiming that it is
legal and in due form, as he necessarily does by the very act of
attempting the arrest, I ought to yield to him sufficiently to fur-
nish opportunity for calmly looking into the question. Hence it
has been considered, that the arrest, the explanation, and the
reading of the warrant when demanded, “are obviously succes-:
sive steps. They cannot all occur at the same instant of time.”
And, in the case of a known officer, ‘ the explanation must follow

Doyle v. Russell, 30 Barb. 800; People v.
Shaver, 4 Parker C. C. 45.

1 Galliard v. Laxton, 2 B. & S. 363,
9 Cox C. C. 127; Reg. v. Chapman, 12
Cox C. C. 4,2 Eng. Rep. 160; Codd »v.
Cabe, 1 Ex. D. 352.

2 United States ». Jailer of Fayette,
2 Abb. U. S. 265, 275; Frost v. Thomas,

24 Wend. 418; The State v. Curtis, 1
Hayw. 471; Commonwealth v. Field, 18
Mass. 821; Arnold v. Steeves, 10 Wend.
614.

3 2 Hawk. P. C. c. 18, § 28.

4 Hall v. Roche, 8 T. R. 187, And see
1 Chit. Crim. Law, 41; 1 Hayes Dig.
Crim. Stat. Law, 2d ed. 69.

107
§ 1938 PREPARATORY AND AUXILIARY. [Book m1.

the arrest ; and the exhibition and perusal of the warrant must
come after the authority of the officer has been acknowledged,
and his power over his prisoner acquiesced in.” 1

Known Official Character. — What is presumed knowledge of the
official character may not always be plain; but, if one is wearing
the accustomed badge of office, this will presume knowledge in
the arrested person, even where the officer is a fresh incumbent.?
And, if he were elected by the people, that ought to be deemed
a sufficient notice. Therefore —

§ 192. Continued, and Arrests without Warrant.— We may con-
cur in opinion with the majority of the English judges who held,
that, where a watchman, of known official character, — “ dressed
in a watchman’s coat, and had his lantern,” —is proceeding with-
out a warrant, he may arrest a person really on a charge of rob-
bery, without disclosing to him the charge, though in fact the
prisoner has done nothing actually justifying the arrest:3 And
one committing an offence, and arrested by a known officer, can
sufficiently discern the reason without being told.‘

§ 193. Prisoner getting the Warrant. — If the officer does so in-
cautious a thing as to permit the prisoner to take the warrant into
his hands to peruse, then the latter refuses to return it, he may use
“just so much violence as is necessary to retake it, and no more.’’§

1 Commonwealth v. Cooley, 6 Gray,
350, 356, 357, opinion by Merrick, J. In
a Delaware case, “the court said, that,
with regard to a known public officer of
the county, it was not necessary for him
either to produce his warrant or state his
character and authority before making the
arrest. The arrest itself is laying hands
on the defendant; and it might be de-
feated by the ceremony of producing and
explaining a paper before the arrest is
made. It is quite time to produce the
authority on the demand of the party
arrested, and after the arrest. Every one
is bound to know the character of an
officer who is acting within his proper
jurisdiction, and every citizen is bound
to submit peaceably to such officer, until
he can demand and investigate the cause
of his arrest. Ifthe officer have no proper
warrant for the arrest, he is liable to the
defendant, who can suffer no wrong from
submitting to the law; but, if he resist
before such investigation, and the officer

108

have authority, he is indictable for ob-
structing such officer in the discharge of
his duty.” The State v. Townsend, 5
Harring. Del. 487, 488. This seems also
to be the doctrine of other cases, and it
may doubtless be deemed the present
American law. Arnold v. Steeves, 10
Wend. 514. And see Kernan v. The
State, 11 Ind. 471; Drennan v. People,
10 Mich. 169; The State v. Freeman,
8 Iowa, 428; Plasters v. The State, 1
Texas Ap. 673. But see The State vo.
Garrett, Winston, No. I. 144.

2 Yates v. People, 82 N. Y. 509. And
see Commonwealth v. Tobin, 108 Mass.
426.

8 Rex v. Woolmer, 1 Moody, 334.
See, also, Rex v. Gordon, 1 East P. C.
815, 352.

4 Wolf v. The State, 19 Ohio State,
248. And see People v. Pool, 27 Cal.
572.

5 Rex v. Milton, Moody & M. 107; 8.0.
nom. Rex v. Mitton, 8 Car. & P. 31,
CHAP. XIII]

THE ARREST. § 196

VI. The Breaking of Doors to make an Arrest.

§ 194. Building other than Dwelling-house.— There is no objec-
tion, even in civil cases, to an officer’s breaking into any building
not a dwelling-house or appurtenant to it, to make an arrest.!
We are here to constder the arrest in that building or cluster of
buildings which constitutes the castle, as explained in “Statutory,
Crimes.” 2

§ 195. What Protection to Castle. — The doctrine that a man’s
dwelling-house is his castle, which he may close against intruders,
including even the officers who come to attach his person or
goods on civil process,’ and that he may defend it to the taking
of life when necessary, has been explained in other connections.*
But this doctrine furnishes no direct protection from arrests for
crime ; the rule of the common law being, that no man can have
a castle against the king. Yet it imposes some cautions on the
officers, and regulates their steps in making an arrest in the
dwelling-house.

§ 196. In making what Arrests the Castle may be broken. — The
right to break outer doors to make an arrest extends to every sort
of indictable wrong where the arresting party is acting under a
lawful warrant ; and to all lawful arrests for past offences, whether

by officers or private individuals.®

1 Penton v. Brown, 1 Keb. 698; Fuller-
ton v. Mack, 2 Aikens, 415; Howe Pr.
150.

2 Stat. Crimes, § 290. See McLennon
v. Richardson, 15 Gray, 74; Whalley v.
Williamson, 7 Car. & P. 294.

3 Oystead v. Shed, 13 Mass. 520;
Cook’s Case, Cro. Car. 537.

4 Crim. Law, I..§ 858, 859, 877; II.
§ 707, 1259.

5 Semayne’s Case, 5 Co. 91a; Com-
monwealth v. Reynolds, 120 Mass. 190,
196. j

8 Maleverer v. Spinke, 1 Dy. 355, 36);
Curtis’s Case, Foster, 135; Launock »v.
Brown, 2 B. & Ald. 592; 2 Hawk. P. C.
c. 14, § 8-7. I have stated the doctrine

in: the text as I believe it to be in just.

principle, — and, on the whole, by the
authorities, — though on one or two
points more or less may be found in the

It also extends to processes

books adverse. This isnot surprising ;
for the adjudications are few, and much
of the doctrine on this subject in our
books is drawn from the old dicta. Coke
says, that one of the questions resolved
in Semayne’s Case was, that, “in all
cases when the king is party, the sheriff
(if the doors be not open) may break the
party’s house, either to arrest him, or to
do other execution of the king’s process,
if otherwise he cannot enter.” Semayne’s
Case, 5 Co. 91a, 914. No one doubts
that this right of the “ sheriff” extends
equally to a constable, and to a private
person to whom a warrant of arrest is
lawfully directed. And the same doctrine
would seem in reason to apply also to
arrests without warrant; for they are
made just as much in behalf of the State
and in its cause as are the others, — the
question of warrant or no warrant per-

109
PREPARATORY AND AUXILIARY.

§ 197 [Book II.

for legislative contempts and contempts to the ordinary courts
of justice! And, if one already arrested, even on civil process,
breaks away from the officer, this is a contempt for which, if he
retreats into his house, the outer door may be broken.? So it may
be on a process against a party to find sureties for his good be-
havior,’ or to search the house for stolen goods; * and, in general,
on search-warrants against the house, lawfilly granted.®
there are some other instances, not particularly within the scope
of these volumes.

§ 197. Arrests for Crime in Presence. — Returning to the right
of arrest for a crime committed in the presence of the arresting
party,® if it is an affray or other offence less than felony there is
not generally occasion to inquire into the right of breaking outer

And

taining to form, not substance; and the
arrest in either case being by authority of
law, on behalf of the public. So that, as
Hawkins tells us, the doors may be broken
“where one known to have committed a
treason or felony, or to have given another
a dangerous wound, is pursued, either
with or without a warrant, by a constable
or private person.” 2 Hawk. P. C. c. 14,
§ 7. Ithink there is no dispute as to the
soundness of this doctrine. ‘ But,” he
adds, “‘ where one lies under a probable

suspicion only, and is not indicted, it’

seems the better opinion at this day that
no one can justify the breaking open
doors in order to apprehend him.” Ib.
To the like effect, and where the arrest
is by a private person, see Brooks v. Com-
monwealth, 11 Smith, Pa., 852; Washb.
Crim. Law, 175, 176. So that, if a mur-
der is committed, and suspicion points
however clearly to A as the murderer,
and A shuts himself in his house declin-
ing to give himself up to justice, and it
is Saturday night at an hour too late to
get a warrant from a magistrate, there is
no way but to give him till Monday morn-
ing to escape, if he can; unless parties,
arresting him for the public good, will
take upon themselves the burden of prov-
ing, at a trial, not only that there had
been a homicide, of which the arrested
party is clearly suspected, but that the
homicide was felonious, and that the per-
son arrested is in fact guilty. I do not
propose to pass under review the various

110

‘dicta sustaining this absurdity. See 1

Chit. Crim. Law, 52, 53. In a case of
conflict, why not adopt the opinion which
is the more reasonable, and is in accord
with the general doctrine ? For example,
Hale, in his first volume, says, “ By the
book of 13 Edw. 4, 9a, a man that arrests
upon suspicion of felony may break open
doors, if the party refuse upon demand
to open them, and much more may it be
done by the justice’s warrant.” 1 Hale
P. C. 583.

1 Burdett v. Abbott, 14 East, 1, 157,
162, 5 Dow, 165, 4 Taunt. 401, 410;
Brigg’s Case, 1 Rol. 886, stated, with
further facts, 14 East, 157. A contempt
of court is deemed an offence against the
State, Crim. Law, II. § 269; anda breach
of the peace, Bayley, J., in Burdett v.
Abbott, supra, at-p. 162; Anonymous,
Willes, 459.

* Genner v. Sparkes, 1 Salk. 79; 8. c.
nom. Genner v. Sparks, 6 Mod. 173;
Anonymous, Lofft, 890. And see Fra-
ser’s note to Semayne’s Case, supra ; Fos-
ter, 320; 2 Hawk. P. C. ce. 14, § 9; 1
Chit. Crim. Law, 58.

8 Anonymous, Sir F. Moore, 606; 1
Chit. Crim. Law, 58, referring to 2 Hawk.
P. C.c. 14, § 8; Moore, 606, 668; Foster,
186; Dick. Just. Arrest, III.

41 Chit. Crim. Law, 54.

5 Ib. 67; Cooper v. Booth, 3 Esp. 185.
And see Kneas »v. Fitler, 2S. & R. 263.

8 Ante, § 165, 166, 169-171, 178, 179,

183.
\

Wh
CHAP. XIII. ] THE ARREST. § 201

doors ; for, in general, what one does within his own barred and
bolted house is not in the presence of a person outside. Still,
“when an affray,” says Chitty,! “is made in a house, in the view
or hearing of a constable, he may break open the outer door in
order to suppress it.2 So, in some extreme cases, it has been
holden lawful even for a private individual to break and enter the
house of another in order to prevent him from murdering another
who cries out for assistance.” But the breaking open of the
outer door of a dwelling-house without a warrant is not lawful,
even to an officer, for the arrest of persons within who are
merely engaged in unlawful gaming, or the selling of intoxi-
cating liquor without license. Yet, —

§ 198. Offender flying to: House. —‘“ Where,” says Hawkins,
“those who have made an affray”’ in the presence of the officer
“fly to a house, and are immediately pursued by him, and he is
not suffered to enter . . . . to apprehend the affrayers,” he may
break the door.®

§ 199. What a Breaking. — Undoubtedly more or less stratagem
may be lawfully employed by an officer who is not entitled to
break the outer barriers, to gain admission ;® but it is a breaking
to procure, by a false pretence, one within the house to open the
door, and then without permission rush in with violence.’

§ 200. Inner Doors. — When the officer has once made a lawful
entrance through the outer door into the house, in the service of
a process either civil or criminal, he may proceed to break inner
doors, if necessary.2 But, —

§ 201. Notice and Demand. — Whether the breaking is of an
inner door, or of the outer, where the latter is lawful, it cannot
be lawfully made until the officer has notified the inmates of his
business, and demanded admittance. Otherwise, inquired Abbott,
C. J., “ how is it possible for a party to know what the object of
the person breaking open the door may be? He has a right to
consider it as an aggression on his private property, which he will
be justified in resisting to the utmost.” ®

1 1 Chit. Crim. Law, 52, 53. 7 Parke v. Evans, Hob. 62a. And see
22 Hale P. C. 95; 1 Hawk. P. C. c. Waterhouse v. Saltmarsh, Hob. 263 a.
63; 2Ib. c. 14; Dick. Just. Arrest, III. 8 Lee v. Gansel, Cowp. 1; Ratcliffe

3 Handcock v. Baker, 2 B. & P. 260. v. Burton, 8 B. & P. 228, 229; Rex v.
4 McLennonv. Richardson, 16Gray,74. Bird, 2 Show. 87; Smith v. Butler, Comb.
5 2 Hawk. P. C. c. 14, § 8. 826.

8 Rex v. Backhouse, Lofft, 61. 9 Launock v. Brown, 2 B. & Ald. 592,

111
§ 205 PREPARATORY AND AUXILIARY. [Book 11.

§ 202. Locked in.—If the officer, having lawfully entered the
house through an open outer door, is locked in by the inmates,
he may break out, or be rescued by his associates breaking in.!

§ 203. Arrest after Escape.— To justify the breaking of outer
doors in the arrest of one after an escape from the officer, in a
case where such breaking was not originally permissible, which,
we have seen, may be done,? the first arrest must have been
complete and lawful; for otherwise there could be no escape.?
But it can make no difference that the officer consented. to his
going; for this he had no right to do.

§ 204. Castle of Third Person. — ‘‘ The house of a third person,”
says Chitty,® “if the offender fly to it for refuge, is not privileged,
but may be broken open after the usual demand ; for it may even
be so upon civil process.”® This is universal doctrine.’ “ But
then, —

§ 205. Person to be arrested not found. — “It is said,” con-
tinues Chitty, “it is at the peril of the officer that the party,
against whom he has obtained the warrant, be found there; for
otherwise he will be a trespasser.”® This qualification of the
doctrine is not without American support.? But it rests on no
adequate reason; and the better view, according with various an-
alogies, is, that, if the officer acts in good faith, and on due notice
to the occupants of the house, he will be justified though he does

not find the person to be arrested.”

594; Semayne’s Case, 5 Co. 91a; Lloyd
v. Sandilands, 2 Moore, 207; Burdett v.
Abbott, 14 East, 1, 163; Ratcliffe v. Bur-
ton, 3 B. & P. 223, 229; Waterhouse v.
Saltmarsh, Hob. 268 a.

1 White v. Wiltshire, Cro. Jac. 555;
1 Chit. Crim. Law, 58, referring to Cro.
Jac. 555; Foster, 319; 6 Mod. 178;
2 Hawk. P. C.c. 14, § 11; 1 Hale P. C.
459; Dick. Just. Arrest, III.

2 Ante, § 196.

8 Crim. Law, II. § 1074, 1077, 1094;
Genner v. Sparks, 6 Mod. 178, 174; s.c.
nom. Genner v. Sparkes, 1 Salk. 79.

4 Crim. Law, II. § 1104.

5 1 Chit. Crim. Law, 57.

6 § Co. 91; 2 Hale P. C. 117; Curtis
v, Hubbard, 1 Hill, N. Y. 886; Walker v.

112

‘

Fox, 2 Dana, 404; De Graffenreid v.
Mitchell, 3 McCord, 506.

7 Commonwealth v. Reynolds, 120
Mass. 190; Oystead v. Shed, 18 Mass.
520; Allen v. Martin, 10 Wend. 800;
Hawkins v. Commonwealth, 14 B. Monr.
395; Bell v. Clapp, 10 Johns. 263; The
State v. Shaw, 1 Root, 184; Kelsy v.
Wright, 1 Root, 83; The State v. Smith,
1N. H. 846.

8 2 Hale P. C. 117; 5 Co. 98a; John-
son v. Leigh, 1 Marshall, 565, 6 Taunt.
246.

® Hawkins v. Commonwealth, 14 B,
Monr. 396.

10 Commonwealth v. Reynolds, 120
Mass. 190; Commonwealth v. Irwin,
1 Allen, 687; Barnard v. Bartlett, 10
Cush. 601.
CHAP. XII.] THE ARREST. § 207

VII. The Executing of the Warrant, and the Time of Arrest, and
Persons exempt.

§ 206. How proceed with Warrant. — Chitty observes,! that “ the
officer” to whom a warrant is directed “ should, as soon as he con-
veniently can, though he may do so at any time afterwards until
the object of the warrant has been satisfied,? proceed with secrecy
to find out and actually arrest the party; not only in order
to secure him, but also to subject him and all other persons
to the consequences of escape or rescue. And if he refuse or
neglect to execute the warrant, he will be punishable for his dis-
obedience or neglect. But at some of the police offices it is the
practice to deliver the warrants for common assaults to one of
the constables, who goes round to the parties accused, and states
the time when they must go before a magistrate, in order that
they may be provided with sureties.”

Directed to Several. — Again: 5 “ A warrant directed to several
may be executed by one ;° but it is said, that, if it direct four,
jointly and not severally, to arrest, then they must all be pres-
ent.” 7

§ 207. Time of Day.— The arrest may be made as well in the
night as in the day,’ at whatever hour the officer deems expe-
dient.®

Sunday. — Under the original common law, arrests, equally in
civil and criminal causes, could be made on Sunday. The dis-
tinction was, that, while judicial acts ought not then to be done,
ministerial ones were lawful; “for,” says Coke, “otherwise per-
adventure they can never be executed.” Thereupon the stat-
ute of 29 Car. 2, c. 7, § 6, made unlawful and void the service,
“upon the Lord’s day,” of “any writ, process, warrant, order,

1 1 Chit. Crim. Law, 47, 48. Palmer, 52; Dalt. Just. c.169; Dick. Just.
2 Dickenson v. Brown, Peake, 284. Arrest, II.
3 Dalt. Just: 169; Dick. Just. Arrest, 7 Boyd v. Durand, 2 Taunt. 161.
II. 8 1 Chit. Crim. Law, 16; Mackalley’s
4 Crouther’s Case, Cro. Eliz. 654; Case, 9 Co. 65a, 66a; The State v. Smith,
1 Hale P. C. 581. 1 N. H. 846; Bell v. Clapp, 10 Johns.
6 1 Chit. Crim. Law, 49. 263; The State v. Shaw, 1 Root, 184;

6 1 East P. C. 820; Hut. 127; Rexv. Kelsy v. Wright, 1 Root, 83; The State
Hobbs, Yely. 25; 8.c. nom. Rex v. Hobs, v. Brennan’s Liquors, 25 Conn. 278.
Cro. Eliz. 918; White v. Whitshire, 9 Wright v. Keith, 24 Maine, 158.
10 Mackalley’s Case, 9 Co. 65a, 665.

VOL. 1. 8 113
§ 207 a PREPARATORY AND AUXILIARY. [Book I.

judgment, or decree; except in cases of treason, felony, or breach
of the peace.” The date of this statute is 1676. Kilty mentions
this sixth section as “in force” in Maryland.t The Pennsylvania
judges omit it from the list of statutes of force in the latter State?
It would not be safe to say any thing positive on this point with
respect to most of the States. The point is of but little practical
consequence ; because, in most or all of the States, there are stat-
utes in like terms with this one. And it has been held in Eng-
land, that, —

Breach of Peace, &c.— Under the exception of “ treason, felony,
or breach of the peace,” all indictable offences are comprehended,!
—a meaning a little broader than is given the term “ breach of
the peace” in some other connections.’ Therefore an arrest may
be made on Sunday for a criminal conspiracy, as being a “ breach
of the peace” ;® likewise, for a contempt of court.’ The Amer-
ican doctrine is believed to be the same.®

§ 207 a. Exemptions from Arrest. — There are various exemp-
tions from arrest, of particular persons, or persons in particular
circumstances, familiar in civil jurisprudence, but they do not
generally apply to crime.2 Yet —

Foreign Embassador, &c.— Not even for crime is it lawful to
arrest a foreign sovereign, or his diplomatic agent, or a registered
domestic or domestic servant of either, who may be within our
local jurisdiction. On the other hand, —

1 Kilty Rep. Stats. 242.

2 Report of Judges, 3 Binn. 595.

3 See Crim. Law, I. § 499.

4 Stat. Crimes, § 198. See Pearce v.
Atwood, 18 Mass, 824, 347; Rawlins v.
Ellis, 2 Cox C. C. 96.

5 Crim. Law, I. § 586. See post,
§ 264 n.

6 Rawlins v. Ellis, 16 M. & W. 172.

7 Anonymous, Willes, 459. See ante,
§ 196, note. Durnford, in a note in his
edition of Willes, says, in this place, an
arrest may be made on Sunday “ under
an escape warrant,” Moore’s Case, 2 Ld.
Raym. 1028; or one wrongfully escaped
“may be retaken on a Sunday without a
warrant,” Tb.; Atkinson v. Jameson, 5
T. R. 25. “But bail cannot take the de-
fendant on a Sunday in order to surren-
der him, Brookes v. Warren, 2 W. BI.
1278; nor can a defendant, who has been

114

convicted on a penal statute, be arrested
on a Sunday for non-payment of the pen-
alty, Rex v. Myers, 1 T. R. 265; nor can
a rule nist for an attachment for non-
payment of a sum of money pursuant to
the master’s allocatur be served on a Sun-
day, Mclleham v. Smith, 8 T. R. 86.”

8 See Pearce v, Atwood, 13 Mass. 324,
347; Watts v. Commonwealth, 5 Bush,
809. Thus, Liquor Laws. — Arrests for
the violation of the liquor laws may be
made on Sunday. Keith v. Tuttle, 28
Maine, 826; Main v. McCarty, 15 IIL
441.

9 “The exemptions which exist in
civil cases here cease to operate.” 1
Chit. Crim. Law, 12. And see United
States v. Kirby, 7 Wal. 482.

10 Crim. Law, I. § 126-128; R. S. of
U.S. § 4062-4065.
CHAP, XIII] THE ARREST. § 208

Members of Congress. — The Constitution of the United States
provides, that the senators and representatives “shall in all cases,
except treason, felony, and breach of the peace, be privileged
from arrest during their attendance at the sessions of their re-
spective houses, and in going to and returning from the same.” !
The exception, it is perceived, is in the exact words of the statute
of Charles, already explained,? and there is no just room for doubt
that it should be interpreted in the same way; so that, on any
criminal charge, a member of the Senate or House of Represent-
atives may be arrested like a private person.2 Also —

Members of the State Legislature. — The members of our State
legislatures are generally exempt from arrest in civil cases, but
not in criminal.

Married Women.— A married woman is liable to be arrested
for crime, the same as any other person.®

VIII. The Arrest of Persons and Cloods under Search -Warrants.®

§ 208. What Breaking. — “If,” says Chitty,” ‘the door be shut,
and, upon demand, not opened, it may be broken open;® and so
may boxes, after the keys have been demanded; and, though the
goods be not found, the officer will be excused.” ®

Follow Directions of Warrant. — “ The officer must strictly ob-
serve the directions of the warrant; and, if he be directed to
seize only stolen sugar, and seize tea, he will be a trespasser.” 1
But he is justified if he seizes goods which the warrant describes,
though they turn out not to be the particular ones which the
person procuring it had in mind." In general, the officer should

,

§ See post, § 240-246.

7 1 Chit. Crim. Law, 66.

8 See ante, § 196.

9 2 Hale P. C. 151; Samuel v. Payne,

1 Const. U. S. art. 1, § 6.

2 Ante, § 207. | ;

& Story Const. § 865. Such is the
English parliamentary law; a member

of parliament being liable, for example,
to arrest for a seditious libel. Wilkes’s
Case, 19 How. St. Tr..981, 998. Other
Persons. —~ As to other persons in the
employment of the United States, see
United States v. Kirby, 7 Wal. 482;
Penny v. Walker, 64 Maine, 480.

4 Coffin v. Coffin, 4 Mass. 1, 29; Scott
v. Curtis, 27 Vt. 762.

5 Rex v. Morris, 2 Leach, 4th ed. 1096 ;
Rex v. Taylor, 3 Bur. 1679.

1 Doug. 359; Entick v. Carrington, 2
Wils. 275, 284; Ratcliffe v. Burton, 3 B.
& P. 223, 228. The demand is necessary
only when there is some person present,
of whom it can be made. Androscoggin
Railroad v. Richards, 41 Maine, 233.

10 Price v. Messenger, 2 B. & P. 158;
Bell v. Oakley, 2 M. & S. 259, 261; En-
tick v. Carrington, 2 Wils. 275, 291, 292.

11 Stone v. Dana, 5 Met. 98; Gray v.
Davis, 27 Conn. 447.

115
§ 210 PREPARATORY AND AUXILIARY. [Book M1.

seize only the goods specified ; yet Abbott, C. J., in one case ob-
served, that, if certain articles “had, from their nature, been
likely to furnish evidence of the identity of the articles stolen
and mentioned in the warrant,” he should have been “inclined to
think that there might have been reasonable ground for seizing
them, though not mentioned in the warrant.”! This qualifica-
tion of the doctrine comes froma principle to be considered
under our next sub-title.

§ 209. The Place searched. — A warrant, directing the search
of the dwelling-house of a person, authorizes the officer to search
only the house which he occupies; and, under it, a house owned
by him, but occupied by another person, cannot be lawfully
searched.27 Where the warrant required the officer to search for
some specified liquors “‘in a certain dwelling-house in said city
of Augusta, situate on Winter Street, so called, and being the
same premises occupied by said Jones”; the court held, that it
did not justify a forcible entry into and search of the barn of
Jones, adjoining the dwelling-house.3

Arresting the Person.— The warrant generally commands the
officer, if he finds the goods, to bring also a person named in it ;4
and this part should be obeyed as well as the other.5

IX. The Seizing of Goods in other Cases of the Arrest of the
Person.

§ 210. Search Prisoner — (Implements of Escape). — An officer,
having made an arrest, is required to keep the prisoner safely
until lawfully discharged ;.and, if the latter is violent, or if for
any other reason an attempt at escape is apprehended, he may
search his person.to ascertain whether he has implements to aid
his escape, and may take them away. But the right of search
for this purpose does not exist as of course in every case ; as, for
example, where the arrest is for mere disorderly drunkenness,
and it is submitted to, and there is no ground to fear an attempt
at escape.® In like manner, in cases of larceny, and others in

1 Crozier v. Cundy, 9 D. & R. 224, 226. 3 Jones v. Fletcher, 41 Maine, 264,
And see The State v. Brennan’s Liquors, 266.
25 Conn, 278. 4 Burn Just. “ Search-warrants;” 1
2 McGlinchy v. Barrows, 41 Maine, Chit. Crim. Law, 66; post, § 218.
74. And see Flaherty v. Longley, 62 5 Stone v. Dana, 5 Met. 98.
Maine, 420. 6 Leigh v. Cole, 6 Cox C. C. 829,
116
CHAP, XIII.]

THE ARREST. § 212

which there is a probability of finding evidence of guilt on the
prisoner’s person, he may be searched for them. And —

’ Evidences of Guilt.— The officer, on making the search, may
take from the prisoner any articles of property which, it is pre-
sumable, may furnish evidence against him. But money, for
example, should not be taken, “unless it be in some way con-
nected with the charge or proof against him, as he is thereby de-
prived of the means of making his defence.”! Nor should one
apprehended for rape be deprived of his watch; and, where he
was, the court ordered its restoration.?- And, in just principle, —

§ 211. Limits of Doctrine. — The arresting officer should con-
sider the nature of the accusation; then, if he finds on the pris-
oner’s person, or otherwise in his possession, either goods or money
which he reasonably believes to be connected with the supposed
crime, as its fruits, or as the instruments with which it was com-
mitted, or as. supplying evidence relating to the transaction,® he
may take them, and hold them to be disposed of as the court
shall direct.

Statutes. — There are in some of the States statutes in aid of
this authority. Where the provision was, that, on arrest for
larceny, the officer shall “seize and secure the money, goods, or
other articles alleged to be stolen, which shall be found in the
possession of such accused person, or which shall be waived by
him in flying from justice,” the arresting officer was held to be
justified in breaking open the shop of the accused person and
taking thence the stolen goods.*

§ 212. What to do with Things taken. — This taking of things
from the arrested person does not change the property in them.®
And the officer cannot appropriate money so taken to pay the
expense of conveying the prisoner to prison.6 He holds all such
property, whether money or goods, subject to the order of the

11 Hayes Dig. 70, referring to Rex
v. Jones, 6 Car. & P. 348; Rex v. O’Don-
nell, 7 Car. & P. 188; Rex v. Kinsey,
7 Car. & P. 447; Reg. v. Frost, 9 Car. &
P. 129.

2 Rex v. Kinsey, supra.

3 Prisoner’s Boots—Tracks. — Thus,
if there are tracks, supposed to be the
prisoner’s, the officer may require him to
put his feet in them, or to take off his
boots to be compared with them, as a

means of furnishing evidence for the trial.
The State v. Graham, 74 N. C. 646.

4 Banks v. Farwell, 21 Pick. 156. See
also Peters v. The State, 9 Ga. 109; Rex
v. Amey, Russ. & Ry. 500. ~

5 Rickers v. Simcox, 1 Utah Ter. 33;
Ex parte Craig, 4 Wash. C. C. 710.

6 Reg. v. Bass, 2 Car. & K. 822. See
Reg. v. Roberts, Law Rep. 9 Q. B. 77,
12 Cox C. C. 574,

117
§ 218 PREPARATORY AND AUXILIARY. [BOoK IIL.

court; and, in proper circumstances, he will be directed to re-
store it, in whole or in part, to the prisoner. This power of the
court will be exercised both in cases where the original taking
was wrongful, and where for any other reason there ought to be
a partial or complete returning of the thing.’

X. The Disposal of the Arrested Person and Goods.

§ 213. arrest by Private Person. — A private person, who,
without a warrant, has made an arrest for treason or felony, has
his election to take the prisoner immediately before a justice of
the peace who will examine and bind him over to the higher
court, or to deliver him to the proper police officer, or to the
jailer'at the jail2 And, says Chitty, where the arrest is for ‘“ as-
sisting in an affray”’ in his presence, “ he may lawfully detain him
till the heat is over, and then deliver him to the constable ;’’8

1 Reg. v. Bass, supra; Rex v. Burgiss,
7 Car. & P. 488; Rex v. Barnett, 3 Car.
& P. 600; Ex parte Craig, 4 Wash. C.C.
710. See Reg. v. Pierce, 6 Cox C, C.117;
Bullock v. Dunlap, 2 Ex. D. 48. What
the Judges have said on this Subject. —
In an Irish case, Perrin, J., observed : “I
wish it to be understood, that, unless the
party apprehended be charged with the
taking of money, or, at least, money’s
worth, the police have no right to take
from him the money which he has on his
person. To take away the party’s money
in such cases is to deprive him of the
lawful means of defence.” Reg. v. Mc-
Kay, 3 Crawf. & Dix C. C. 205. And, in
England, said Patteson, J.: ‘ Generally
speaking, it is not right that a man’s
money should be taken away from him,
unless it is connected in some way with
the property stolen. If it is connected
with the robbery, it is quite proper that
it should be taken. But unless it is, it is
not a fair thing to take away his money,
which he might use for his defence. I
believe constables are too much in the
habit of taking away every thing they
find upon a prisoner, which is certainly
not right. And this is a rule which ought
to be observed by ull policemen and other
peace officers,” Yet in the case in which
these observations were made, the pris-

118

oner, who was indicted for stealing silver
spoons and other articles, not money,
seems to have been tried and convicted
without any restoration being first made.
Rex v. O'Donnell, 7 Car. & P. 188. Com-
pare with Rex v. Burgiss, 7 Car. & P.
488. If the charge against the arrested
person is the stealing of a horse, and the
prisoner has the horse with him, the offi-
cer ought not to take away money found
about his person. Rex v. Jones, 6 Car.
& P. 343, But we may presume, that, if
the horse is not found in the prisoner’s
possession, the officer may take his
money; because, on his conviction, if
this money should appear to have been
received by him on a sale of the horse,
the court would order it to be restored,
not to the prisoner, but to the owner of
the horse. 1 Chit. Crim. Law, 819, And
the officer may take stolen property which
is in the possession, yet not on the
person, of the defendant. Houghton »v.
Bachman, 47 Barb. 888. See also, on the
subject of the foregoing sections, Spald-
ing v. Preston, 21 Vt. 9; ante, § 208.

2 1 Chit. Crim. Law, 20, referring to
1 Hale P. C. 589; 2 Ib. 77, 81; 2 Hawk.
P. C. c. 13, § 7, and c. 16, § 3.

3 Chitty Crim. Law, ut sup. ; referring
to 2 Hawk. P. C. ¢. 18, § 8.
CHAP. XIII.] THE ARREST. § 214

or, doubtless, he may otherwise dispose of the arrested person in
the same way as where the arrest is for treason or felony. He
must not retain the custody an unreasonable time.?

§ 214. By Officer without Warrant.—‘ A constable, having ar-
rested the offender,” says Chitty,? ‘may, in case of an affray, put
him in the stocks, or otherwise confine him, till the heat of his
passion or intemperance is over, or till he can bring him before a
justice of the peace; and, in case of any offence for which the
party suspected may be apprehended, a constable may convey
him to the sheriff or jailer* of the county or franchise; but the
safest and best course is said to be, in all cases, to carry the
offender before a justice of the peace, as soon as circumstances
will permit. But where the parish clerk refused to read in
church a notice presented him for that purpose, and the person
presenting it read it himself at a time when no part of the church
service was going on, it was held that, though a constable might
be justified in removing him from the church, and detaining him
until the service was over, yet he could not legally detain him
afterwards to take him before a magistrate.6 And a constable
arresting a man on suspicion of felony must take him before a
justice to be examined, as soon as he reasonably can; and, it
seems, a constable cannot justify handcuffing a prisoner, unless it
be necessary to prevent his escape.” 7? But the time during which
the prisoner may be detained is regulated by statute in some of
our States.

_ Discharging without further Steps. —— There are circumstances,
therefore, in which an officer (or a private person®) who, pro-

1 See the observations of Gibson, J.,
in Commonwealth v. Deacon, 8 S. & R.
47.

2 Habersham v. The State, 56 Ga. 61.

3 1 Chit. Crim. Law, 238, 24.

4 It is his duty to receive the arrested
person. McCullough v. Commonwealth,
17 Smith, Pa. 30.

5 2 Hale P.C. 95, &e.
Steeves, 10 Wend. 514,

6 Williams v. Glenister, 2 B. & C. 699.

74B.&C. 596. In the case here re-
ferred to by Chitty, Wright v. Court,
6D. & R. 623, 4 B. & C. 596, it was held,
that the constable is not justified in de-
laying for three days to take the prisoner
before a magistrate. ‘ And,” it was

See Arnold v.

added, “even a magistrate is not author-
ized by law, and much less is a constable
therefore, to detain a person so arrested,
except for a reasonable time, and except
for the purpose of his being examined.
The magistrate might have been justified
in ordering the plaintiff to be detained
until Clarke could bring forward his evi-
dence; but, without his order, the de-
fendants could not possibly be justified
in detaining him for any such purpose.”
See also Wheeler v. Nesbitt, 24 How.
U. S. 544. See Handcuffing,—as to
handcuffing, ante, § 168. And see Ex
parte Taws, 2 Wash. C. C. 353; Leigh
v. Cole, 6 Cox C. C. 829.

8 Habersham v. The State, 56 Ga. 61.

119
§ 216 PREPARATORY AND AUXILIARY. [Book II.

ceeding without a warrant, has made a lawful arrest, not only
may, but should, discharge the arrested person without taking
him before a magistrate. If it appears, on further inquiry, that
there is really no ground to suspect him of any offence, however
otherwise it may have seemed at the time of the arrest, or that
for any other reason there is nothing for the magistrate to pass
upon, his social duty, with which his legal is in accord, requires
—or, at least, justifies—the immediate release of one whom
there is no longer any occasion to detain.1 Nor, in principle,
could one who has consented to his own discharge, though un-
lawfully granted by the officer, acquire, by reason of the dis-
charge, any rights against the officer which he would not have if
he had been taken before a magistrate. Where the arrest is under
a warrant, the rule is, we have seen,? different; for the officer
must obey its commands, and return his doings thereon to the
magistrate or court. And a statute, authorizing or requiring an
arrest without a warrant, may in a certain sense stand in the place
of a warrant ;° and in terms it may require, like a warrant, the tak-
ing of the arrested person before a court or magistrate, therefore
making this further step necessary for the officer’s justification.*
§ 215. By Watchman without Warrant. — ‘“ A watchman,” says
Chitty, “having apprehended a party, may discharge himself
from liability for an escape, by delivering him to a constable, or
he may himself take him before a magistrate.”® But the duties
of watchmen are generally in our States defined by the statutes.
§ 216. Where the Arrest is by Warrant. — Chitty says:7 When
the officer having a warrant “has made his arrest, he is, as soon
as possible, to bring the party to the jail or to the justice, accord-
ing to the import of the warrant.” In some localities, the ar-
rested person must be taken before the justice who issued the
warrant ;® in others, he may be taken before any magistrate
within the jurisdiction.2 The officer must follow the law on this

1 2 Hale P. C. 95; Cowles v. Dunbar, Mason v. Lothrop, 7 Gray, 354; Kennedy
2 Car. & P. 565; McDonald v. Rooke, v. Favor, 14 Gray, 200; The State v.
2 Bing. N. C. 217, 2 Scott, 859. Andsee Parker, 75 N. C. 249. -

Simmons v. Milligen, 2 C. B. 524. 5 1 Chit. Crim. Law, 24.
2 Ante, § 187. 6 Dalt. Just. ce. 104.
8 Warner v. Grace, 14 Minn. 487. 7 1 Chit. Crim. Law, 69.

4 Papineau v. Bacon, 110 Mass. 319; ® People v. Fuller, 17 Wend. 211;
Brock v. Stimson, 108 Mass. 620; Gainey Batchelder v. Currier, 45 N. H. 460.
v. Parkman, 100 Mass. 816. See Com- 9 Commonwealth v. Wilcox, 1 Cush.
monwealth v. Tobin, 108 Mass. 426; 603; Ex parte Branigan, 19 Cal. 138.

120
CHAP. XIII. ]

THE ARREST. § 218

subject ;1 or, the law permitting, he may, and indeed must, fol-.
low the terms of the warrant. But, the law giving the jurisdic-
tion, if the direction in the warrant is to bring the prisoner before
the magistrate issuing it or any other justice of the peace, the
right to elect is in the officer.2 “If he be guilty of unnecessary
delay,” continues Chitty, “it is a breach of duty But if the
time be unseasonable, as in or near the night, whereby he can-
not attend the justice, or if there be danger of a rescue, or the
party be ill and unable at present to be brought, he may, as
the case shall require, secure him in the stocks; or, in case the
quality of the prisoner or his indisposition so require, detain him
in a house till the next day, or until it may be reasonable to
bring him.” * Instead of the stocks, there are generally in our
States places of temporary security in which prisoners may be
locked up till they can be conveniently taken before the magis-
trate or to jail.

§ 217. Officer while Prisoner before Magistrate.— The prisoner,
while before the magistrate, is in law still in the custody of the
officer,® “until. he has been either discharged, bailed, or com-
mitted to prison. The officer may keep his warrant for his own
justification, and need only return to the justice what he has done
in pursuance of his commands.’ ®

§ 218. How on Search-warrant. — “If, on the return,” says
Chitty,’ of a search-warrant “before the justice, it appear that
the goods were not stolen, they are to be restored to the posses-
sor. If it appear they were stolen, they are not to be delivered
to the proprietor, but deposited in the hand of the sheriff or con-
stable, in order that the party robbed may proceed, by indicting
and convicting the offender, to have restitution. The party who
had the custody of the goods is to be discharged if they were not
stolen; and, if they were, not by him, but by another person,
who sold or delivered them to him, and it appear that he was

1 Stetson v. Packer, 7 Cush. 562.

2 Foster’s Case, 5 Co. 59a.

3 Reg.v. Derby, Fort. 140, 148 ;' 2 Hale
PC.119. An officer who, at a distance
from the jail, has arrested one whom it
is his duty to commit, may judge of the
time to start for the jail, and the state of
the weather in which he will go. The
limit of the right is, that he must not
needlessly expose the prisoner’s health,

o

or do him a personal injury. Butler v.
Washburn, 5 Fost. N. H. 2651.

4 2 Hale P. C. 95, 96, 119, 120.
:, § 2 Hale P. C. 120; Commonwealth v.
Morihan, 4 Allen, 585, See post, § 952 a.

6 1 Chit. Crim. Law, 60, referring to
Reg. v. Wyatt, 2 Ld. Raym. 1189, 1196;
Dick. Just. Arrest, 1V. As to the offi-
cer’s return, see also ante, § 187, 214.

7 1 Chit. Crim. Law, 67.

121
§ 220 PREPARATORY AND AUXILIARY. [Book II.

ignorant of the mode in which they were procured, he may be
discharged, but bound over to give evidence as a witness against
him that sold them. If it appear that he knew them to be sto-
len, then he should be bound to answer the felony; for there is
a probable cause of suspicion, at least that he was accessory after
the fact.” 1

XI. Fugitives from Justice.

§ 219. General Doctrine. — We have seen what is the general
doctrine ; namely, if a man commits a crime in one state and es-
capes into another, neither the officers of the former state can
arrest him in the latter, nor is the sovereign power of the latter
under obligation to surrender him unless it has so agreed.2 But
the Constitution of the United States imposes the duty of sur-
render as between the States; and, by treaties, it has been to
some degree assumed as between the United States and most for-
eign nations. We shall consider— °

§ 220. First. How between the States : —

Constitutional Provision. — By the Constitution of the United
States, “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, and be removed to the State
having jurisdiction of the crime.” 2

‘What the Offence.— There have been differences of opinion
among the executive officers of our States, and perhaps some ju-
dicial differences, as to what are the offences indicated by the
words “treason, felony, or other crime.” The word “crime,”
standing alone, includes whatever is pursuable by indictment or
other like proceeding on behalf of the state, the object whereof
is punishment.* But it has been sometimes supposed, that, being
in this place connected with the words “ treason” and “ felony,”
it is here limited in meaning to offences of a similar nature.6 On
the other hand, that it extends to statutory as well as common-
law offences is conceded ;® and, in the Supreme Court of the
United States, Taney, C. J., laid down, in the broadest terns,

12 Hale P. C. 151, 152. 5 In re Greenough, 31 Vt. 279. As to
2 Crim. Law, I. § 125. the rule, see Stat. Crimes, § 245-248.

3 Const. U.S. art. 4, § 2. 6 In re Greenough, supra; In re Fet-
4 Crim. Law, I. § 32, 628, 624. ter, 3 Zab. 311; In re Clark, 9 Wend.

212; In re Hughes, Phillips, 57.
122
CHAP. XIII.]

THE ARREST. § 221

the doctrine, not dissented from by any judge, that this clause
embraces “every act forbidden and made punishable by a law of:
the State,” — “every offence made punishable by the law of the
State in which it was committed,’ —‘ every offence known to
the law of the State from which the party charged had fled,”
— “without any exception as to the character and nature of the
crime.” And the purpose of the framers of the Constitution in -
connecting the words “treason” and “felony” with the word
‘crime ” was deemed to be, to exclude the possible construction
that political offenders were not to be surrendered the same as
others.1_ This is believed to be now the established interpreta-
tion; nor need the criminal act be such in the State surrender-
ing the fugitive, if it is such in the State where committed.

What the Fleeing from Justice. — A fleeing from justice, within
this provision, implies that a crime shall have been committed in
the State making the demand,‘ by one ‘“‘ who shall flee” to the
other State ;° but, to constitute a fleeing, he need only depart
from the State without waiting to abide the consequences of his
act, and it is immaterial that the place to which he goes is his
own home.’ Hence, it seems, that, if one commits a crime in a
State in which he is not personally present, as in various circum-
stances he may,’ there is no means by which he can be trans-
ferred, against his will, to the place of its commission to be tried,
—a question not, probably, judicially determined.

§ 221. Legislation by Congress. — Statutes of the United States
regulate the proceedings under this provision of the Constitu-
tion. A demand for the surrender is to be made by the execu-
tive authority of the one State upon that of the other, supported
by “a copy of an indictment found, or an affidavit made before a
magistrate, &c., charging the person demanded with having
committed treason, felony, or other crime, certified as authentic

See In re

1 Kentucky v. Dennison, 24 How. U.S.
66, 99-103.

2 People v. Brady, 56 N. Y. 182, 188;
Brown’s Case, 112 Mass. 409; Morton v.
Skinner, 48 Ind. 123, and the authorities
there referred to.

8 Johnston v. Riley, 18 Ga. 97; Inre
Voorhees, 3 Vroom, 141.

4 Ex parte Smith, 3 McLean, 121.

5 In re Heyward, 1 Sandf. 701, 708.

6 Kingsbury’s Case, 106 Mass. 228; In

re Voorhees, 3 Vroom, 141.
Manchester, 5 Cal. 237; Degant v. Mi-
chael, 2 Ind. 896; and, as to “fleeing
from justice ” within statutes of limita-
tion, United States v. O’Brian, 3 Dil-
lon, 381; United States v. Smith, 4 Day,
121.

7 Ante, § 53.

8 See The State v. Chapin, 17 Ark.
661.

123

i
§ 222 PREPARATORY AND AUXILIARY. — [BOOK IIL.

by the governor or chief magistrate of the State, &c., from whence
the person so charged has fled.” Thereupon it becomes the duty.
of the one governor to cause the fugitive to be arrested and deliy-
ered to the agent of the other. This has been the provision ever
since 1793, when it was originally adopted.2 But—

Compelling State Officers. — No officer of a State can be required
to act officially under a statute of the general government;
though, if he chooses, and his State does not forbid, he may.’
Hence neither the courts nor any other department of the gov-
ernment of the United States can compel a State governor to
surrender the fugitive.t. Hitherto this duty has been discharged,
freely, notwithstanding it was voluntary; yet, necessarily, ac-
cording to the views of it entertained by the governor on whom
the demand was made, which in some instances have differed
from those of the one making the demand.

Constitutional. — Awkward as it seems to require a duty whose
performance cannot be compelled, this statute is still held to be
constitutional.6

§ 222. The Formal Steps. — We should distinguish the steps to
be taken under the statute of the United States from those per-
missible under State laws. Under the former, now being con-
sidered, we have the —

Affidavit or Indictment. —If the requisition is on affidavit, the
latter need not contain all the mere formalities of an indictment.®
Yet, whether the one or the other, the accusation must be direct,
of a full and complete offence,’ committed in the State.8 A charge
on “information and belief” is not sufficient.®

Requisition. — The governor of the State in which the offence
was committed, being satisfied of the genuineness of the affidavit
or indictment,” certifies to.a copy of it, according to the direction
of the statute, and appoints an agent to receive the offender when
arrested.

1 RB. S. of U. S. 5278, 5279. * In re Fetter, 3 Zab. 8311; Ex parte
2 1 Stats. at Large, 302; Kentucky v. Smith, 3 McLean, 121; In-re Heyward,
Dennison, 24 How. U. S. 66. 1 Sandf. 701; In re Leland, 7 Abb. Pr.
® Prigg v. Pennsylvania, 16 Pet. 539. ww. s. 64. See Davis’s Case, 122 Mass.
* Kentucky v. Dennison, supra. 824.
5 Jones v. Van Zandt, 5 How. U. S. ® Ex parte Smith, supra.
215. 10 In re Manchester, 5 Cal. 287. See
6 In re Manchester, 5 Cal. 237. Davis’s Case, 122 Mass, 324.

7 In re Greenough, 81 Vt. 279; People
v. Brady, 66 N. Y. 182.

124
CHAP. XIII.] THE ARREST. § 223

Proceedings for Arrest.—- When the governor of the State to
which the fugitive has fled receives the papers thus described,
and finds them to be in due form, he should issue his warrant for
arrest as of course, the duty being ministerial The warrant
need not be accompanied by the copy of the affidavit or indict-
ment;? nor need it, if it sets out, as it should, the offence 2 and
thé requisition‘ in general terms, describe them formally.5 It
should properly be under the great seal of the State (whether
the seal is necessary in all the States we need not here inquire) ;
and, in Missouri, where the impression of the seal was unintelli-
gible, the warrant was adjudged void.®

The Agent.— The agent to transmit the fugitive is protected
though there is a defect in the warrant of arrest; for with that
he has nothing to do.” If he withdraws the requisition and de-
clines to receive the fugitive, this will be presumed to be by
authority from his principal.®

§ 223. Arrests under State Authority. — In a Texas case, Roberts,
C. J., observed: “The provision of the Constitution of the
United States, requiring the surrender of fugitives from justice,
is in the nature of a treaty stipulation between the States of the
Union, and it is equally binding upon each State and all of the
officers thereof for its faithful execution as though it was a part of
the constitution of each State, whether Congress had passed laws
relating thereto or not. Those laws have been passed to establish
uniformity in the mode of performing this constitutional duty rest-
ing upon each State.”® It is not certain that this view, so clear
and apparently so just, is in accord with all judicial opinions; but,
at least, all hold it to be competent for the States to legislate, as
most have done, not in a way contravening the’ act of Congress,”
but furnishing minuter directions and auxiliary helps.“ Some

1 Kentucky v. Dennison, 24 How. 7 Johnston v. Vanamringe, 6 Blackf.
U. S. 66; In re Clark, 9 Wend. 212,219; 811. See Commonwealth v. Hall, 9 Gray,
Hibler v. The State, 43 Texas, 197; 262. As to his duty to bring the fugitive
Johnston v. Riley, 13 Ga. 97; In re before the governor, see Pettus v. The
Rutter, 7 Abb. Pr. n.s. 67; People v. State, 42 Ga. 358.

Brady, 56 N. Y. 182. 8 In re Troutman, 4 Zab. 684. See
2 Nichols v. Cornelius, 7 Ind. 611. Commonwealth »v. Hall, 9 Gray, 262.
3 Ex parte Cubreth, 49 Cal. 425. ® Hibler v. The State, 43 Texas, 197,

4 Ex parte Thornton, 9 Texas, 635. 208.

5 Kingsbury’s Case, 106 Mass. 223; In 10 Prigg v. Pennsylvania, 16 Pet. 539.
re Clark, supra. 11 Commonwealth v. Tracy, 5 Met. 586,

6 Vallad v. St. Louis, 2 Misso. 26. 650; Ex parte Rosenblat, 51 Cal. 286;

125
[Book III.

§ 2236 PREPARATORY AND AUXILIARY.

cases, explanatory of State statutes, are referred to in a note.1
Under the Act of Congress, as we have seen, no steps are required
in the State to which the fugitive has fled, until a requisition has
been made by the governor of the State of the offence ;? but some
of the State statutes provide for an arrest without this preliminary,
and the holding of the fugitive to await a requisition, while others
do not, or provide an intermediate course. In some of the States,
such preliminary steps are permissible without the aid of a statute.*

§ 223 a. Proceedings reviewed on Habeas Corpus. — A person can-
not be taken out of a State except on proceedings regular in
form. Therefore, when one is in custody as a fugitive from justice,
any competent court may, on habeas corpus, revise the proceed-
ings; and, if they are defective, discharge him.’ But the ques-
tion of actual, or even probable, guilt will not be inquired
into ;® nor will the formal sufficiency of the indictment, if it sub-
stantially charges a crime.’

§ 2236. Secondly. How between States and United States,
Territories, ge. :—

Offences against United States.—It is familiar doctrine, con-
stantly practised upon, that the United States government has a
local jurisdiction within the States;® so that it needs no help
from the States to arrest its criminals found within State limits.
And the statutes have provided for the apprehension of persons
in other districts than those in which they are to be tried, and
their removal for trial.2 There can be no removal for a prelimi-
nary examination, the place for which is the district of the arrest.

Robinson v. Flanders, 29 Ind. 10; Ex
parte Cubreth, 49 Cal. 435; Common-
wealth v. Hall, 9 Gray, 262.

1 The cases in the last note, and Com-
monwealth v. Jailer, 1 Grant, Pa. 218;
Degant v. Michael, 2 Ind. 896; The State
v. Hufford, 28 Iowa, 891 ; Ex parte White,
49 Cal. 483.

2 People v. Brady, 56 N. Y. 182.

8 Ex parte Rosenblat, 51 Cal. 285 ; Ex
parte White, 49 Cal. 433; Ex parte Cu-
breth, 49 Cal. 485; In re Rutter, 7 Abb.
Pr. x. 8. 67; Ex parte Pfitzer, 28 Ind.
450; The State v. Hufford, 28 Iowa, 391.

4 In re Fetter, 3 Zab. 811, 319, 820;
The State v. Howell, R. M. Charl. 120;
The State v. Loper, 2 Ga. Decis. 88; The
State v. Buzine, 4 Harring. Del. 672; In

126

re Washburn, 4 Johns. Ch. 106; Morrell
v. Quarles, 85 Ala. 544. And see People
v. Schenck, 2 Johns. 479.

5 In re Clark, 9 Wend. 212; In re Hey-
ward, 1 Sandf. 701; Hibler v. The State,
43 Texas, 197; In re Manchester, 5 Cal.
237 ; Ex parte Smith, 8 McLean, 121.

8 Inre Clark, supra; Inre Greenough,
31 Vt. 279; Ex parte Watson, 2 Cal. 59;
The State v. Buzine, 4 Harring. Del. 572;
People v. Brady, 56 N. Y. 182.

7 Davis’s Case, 122 Mass. 324.

5 Crim. Law, I. § 156 et seq.

9 R.S. of U. S. § 1014; act of June
22, 1874, Stats. at Large, c. 396.

10 United States v. Shepard, 1 Abb.
U.S. 481.
,

CHAP. XIII. ] THE ARREST.

§ 224
On such examination, a valid indictment found against the ar-
rested person in the other district is adequate unless con-
trolled ;! but, if the indictment is invalid, the-removal will not
be ordered.?

Offences against State or Territory. — The statute, already dis-
cussed, providing for the surrender of fugitives as between the
States, applies also as between the Territories and the States and
Territories; its words being, ‘the executive authority of any
State or Territory,” &c.?

§ 224. Thirdly. Under Treaties with Foreign Nations : —

Statutes in Aid of Treaties. — Some treaties require statutes to
give them effect, others do not.4 Extradition treaties are in a
measure of the former sort,® but not fully.6 The need of legisla-
tion has been supplied, not by a particular statute for each treaty,
but by general provisions for all.’

The Proceedings. — The course of proceedings has been pointed
out by the statutes, in connection with which the particular
treaty is to be considered. But this is a line of practice to which
our lawyers are so rarely called, and the opportunities for look-
ing up the law in a particular case are so ample, that it is deemed

best not to encumber the present page with detail.8
Construction.— The like may be said of the interpretation of

the treaties.®

Power of the States. — The States have no jurisdiction over this
question, and State legislation upon it is void.”

1In re Alexander, 1 Lowell, 580;
United States v. Haskins, 3 Saw. 262.

2 In re Buell, 3 Dillon, 116. See In
re Clark, 2 Ben. 540.

3 R.S. of U.S. § 5278. And see Ex
parte Romanes, 1 Utah Ter. 23; In re
Romaine, 28 Cal. 585; United States v.
Haskins, 3 Saw. 262.

4 Stat. Crimes, § 14.

5 In re Metzger, 1 Barb. 248, 1 Parker
C. C. 108. .

® In re Sheazle (British Prisoners),
1 Woodb. & M. 66.

7 B.S. of U. S. § 5270-5277.

8 Consult In re Kaine, 14 How. U. S.
103; In re Metzger, 5 How. U. S. 176;
In re Stupp, 12 Blatch. 601; United
States v. Nash, Bee, 266; In re Sheazle,
1 Woodb. & M. 66; In re Dugan, 2
Lowell, 867; In re Kelley, 2 Lowell, 339;
In re Metzger, 1 Barb. 148, 1 Parker

C. C. 108; Inre Heilbonn, 1 Parker C. C.
429; Commonwealth v. Deacon, 10 8. &
R. 125; Inre Henrich, 5 Blatch. 414, 10
Cox C. C. 626; In re Farez, 7 Blatch.
345, 491; In re Macdonnell, 11 Blatch.
79; In re Ross, 2 Bond, 252; British
Prisoners, 1 Woodb. & M. 66.

9 In re Stupp, 11 Blatch. 124; In re
Metzger, 1 Barb. 248, 1 Parker C. C. 108;

In re Kelley, 2 Lowell, 339; In re Dugan,

2 Lowell, 867; In re Lagrave, 45 How.
Pr. 801, 315; In re Farez, supra; Attor-
ney-General v. Kwok-a-Sing, Law Rep.
5 P. C. 179, 12 Cox C. C. 565; In re De
Giacomo, 12 Blatch. 891; In re Ternan,
9 Cox C. C. 522; Ex parte Windsor, 10
Cox C. C. 118, 6 B. & S. 522; Ex parte
Bouvier, 12 Cox C. C. 303, 4 Eng. Rep.
650.

10 Crim. Law, I. § 185; People v. Cur-
tis, 60 N. Y. 821. And see Holmes v,

127
§ 224 d PREPARATORY AND AUXILIARY. [Book II.

Habeas Corpus. — A review of a case by habeas corpus is per-
missible, the same as on an arrest on flight from a State; but,
in detail, there are some minor differences between the two cases.!

§ 2244. Fourthly. Some Questions relating to both Kinds of
Surrender : —

Conflicting Processes. —It seems to be the doctrine, not hitherto
established by any great amount of authority, that, if the requisi-
tion for the surrender to a sister State finds the person in prison,
though on civil process, it can only operate to hold and take him
when such imprisonment is ended.? If the fugitive is on bail, and
is surrendered, the effect of the surrender on the liabilities of his
sureties would appear to be not uniform in all circumstances, —
depending on principles not here to be discussed.3

§ 224. Holding on other Claims.— One wrongfully brought
within a jurisdiction, and there arrested on a civil process, should
be discharged ;* “for,” says Lord Holt, *‘ no lawful thing, founded
upon a wrongful act, can be supported.” > But this rule does not
apply in criminal cases; because the State is, in them, the plaintiff,
and in point of law it can do no wrong. However wrongfully,
then, one may have been forced or cajoled into a jurisdiction, he
can there be held for his crime. Still, where a man had been
violently taken from Michigan to Pennsylvania, without any
process, Gibson, C. J., said, that, though he could not therefore
claim his discharge from arrest in due form in the latter State,
yet, “chad the prisoner’s release been demanded by the executive
of Michigan, we would have been bound to set him at large.”?
From all this reasoning it follows, that, if a fugitive from one of
our States to another has been returned on lawful process, he
may justly be put on trial for any offence, though not embraced
in the requisition. Should he first be sent back, he must still be
returned on a fresh requisition; and that would be a vain and
idle proceeding. But, —

Jennison, 14 Pet. 540 ; Ex parte Holmes,
12 Vt. 631; Commonwealth v. Deacon,
10S. & R. 125.

1 Ex parte Van Aernam, 8 Blatch. 160;
In re Henrich, 6 Blatch. 414; In re Mac-
donnell, 11 Blatch. 79; In re Farez,
7 Blatch. 845, 2 Abb. U. S. 846, 40 How.
Pr. 107; Ex parte Huguet, 12 Cox C. C,
651, 8 Eng. Rep. 595.

4In re Troutman, 4 Zab. 684; The
State v. Allen, 2 Humph. 268.

128

% Taylor v. Taintor, 16 Wal. 866; The
State v. Allen, 2 Humph. 258; Ingram v.
The State, 27 Ala. 17.

* Ilsley v. Nichols, 12 Pick. 270, 275;
Wanzer v. Bright, 52 Ill. 85, 40, 41.

5 Luttin v. Benin, 11 Mod. 50, 61.

6 Crim. Law, I. § 185; People v. Rowe,
4 Parker C. C. 268; The State v. Ross,
21 Iowa, 467.

7 Dow’s Case, 6 Harris, Pa. 87, 39.
CHAP. XIII.] THE ARREST. § 224

Same after Surrender under Treaty. —If, pursuant to a treaty
which provides for a surrender for some offences, not for others,
a fugitive has been given up and found not guilty of the particu-
lar offence, there is no just ground for holding and trying him for
what is not within the treaty, without the consent of the surren-
dering government.! Yet questions of this sort: have been gen-
erally deemed by our courts diplomatic, and they have held
prisoners thus surrendered to whatever charge has been preferred
against them.?, And in New York, by the opinion of the majority
of the court, the returned fugitive may even be arrested on a civil
process.2 Whatever be the true doctrine in cases where the
executive authority of the United States is satisfied, in principle,
a court, whether State or national, ought to release the prisoner
if requested by the President. Indeed, in a late case before the
Court of Appeals of Kentucky, the complete doctrine to which it
seems impossible to find an answer in principle was maintained,
that, as by the Constitution of the United States a treaty is a
law, binding as well upon the National and State Courts as upon
the executive department of the United States government,®
whenever, in a criminal case, even before a State court, it ap-
pears that the defendant is a surrendered fugitive, who has been
acquitted of the charges on which he was surrendered, the court
should set him at liberty, as against any attempt to hold him for
a crime not mentioned in the treaty. The single fact, that the
surrender for particularized offences is stipulated for, excludes by
implication all others; and the court, on which the treaty oper-
ates with the force of law, the same as though it were a statute,
is deprived of jurisdiction to take cognizance of an excluded
offence.®

1 See an excellent article by Judge 3 Adriance v. Lagrave, 59 N. Y. 110.
Lowell, on Winslow’s Case, 10 Am. Law 4 And see Crim. Law, I. § 132, 188,
Rev. 617. and notes.

2 United States v. Caldwell, 8 Blatch. 5 Stat. Crimes, § 11, 13, 14.

1381, 182, 188 ; United States v. Lawrence, § Commonwealth v. Hawés, 6 Cent.
13 Blatch. 296; Reg. .v. Philips, 1 Fost. L. J. 350, 13 Bush, 697.
& F. 105.

VoL. I. 9 129
§ 225 PREPARATORY AND AUXILIARY. [Book m1.

CHAPTER XIV.
THE PRELIMINARY PROCEEDINGS BEFORE THE MAGISTRATE.

§ 225. Holding for Trial. — After a person has been arrested, his
presence before the court for trial and sentence must be secured,
or justice will fail. This is done by committing him, either to an
officer who confines him within the walls of a prison, or to private
persons who as bail become responsible for his appearance, and
suffer him while not wanted to go at large. The procedure
connected herewith is now to be considered. Itis largely statu-
tory, yet the statutes are in the main similar, and much of it is
not dependent on particular statutory terms.

The Magistrate or Court. — The authority thus to bind over or
commit suspected offenders for trial may come by implication
from the nature of the office held, or from the terms of a statute.
Thus, — =

Conservators of the Peace.— We have seen! that there were
anciently officers known as conservators of the peace, whose func-
tions have since been incorporated with those of justices of the
peace. And the doctrine to be gathered from the books appears
to be, that, whenever the authority to keep the peace is conferred
upon any official person, he becomes thereby a conservator of the
peace ; and, as such, he may by warrant cause persons suspected
of any crime to be arrested, and may examine and commit them,
or hold them by bail, for trial before the proper court.2. There
are, likewise, possessing these powers, conservators of the peace
ex officio; among whom are mentioned, in the English books,
the Lord Chancellor, each several justice of the Queen’s Bench,

1 Ante, § 174. with us, he is not so to the fullest extent.
2 Post, § 229; Burn. Just. Justices Yet, in a modified sense, he and the con-
of the Peace; 2 Hawk. P. C. c. 8. stables and police officers of cities are,
Sheriffs. — The sheriff, who used, in without the full power of issuing warrants
England, to be a judicial officer, was then of arrest and commitment, and acting as
a conservator of the peace; but now, examining magistrates. See ante, § 181.

180
CHAP. XIV. ] PRELIMINARY BEFORE MAGISTRATE.

§ 227
every court of record, and every coroner. All authority,
whether in England or here, is necessarily exercised under the
laws, to which it must conform ; so that, by force of our statutes,
we may find modifications of the powers of the conservators of
the peace. Moreover, —

Express Statutory Authority. — We have statutes expressly au-
thorizing particular officers to bind over and commit for trial: per-
sons suspected of crime, and more or less minutely pointing out
the procedure. Practically, in our States, —

§ 226. Justices of the Peace.— This work is generally done by
Justices of the peace.2 Or, —

Commissioners, &e.— When the offence is against the United
States, the committing magistrate is ordinarily “‘ any commissioner
of a circuit court to take bail”; but the statute also gives the power
to the Federal Judges, and to the State justices of the peace and
higher judicial ofticers,? the State officers not being compellable,
yet permitted, to act.4 A commissioner of the United States court
has authority only over offences created by act of Congress.

§ 227. Warrant of Justice. — The warrant, by an inferior magis-
trate, should or may, perhaps, differ in some respects, but not
greatly, from that of a superior one. Let us here consider, —

Seal. — It is a disputed question whether the warrant of a jus-
tice of the peace must be under seal to be valid, if the statute is
silent on the point. Chitty ® says, the doctrine generally laid down
requires it “to be under the hand and seal of the justice who makes
it;? but it seems sufficient if it be in writing, and signed by him,
unless a seal is expressly required by particular act of Parliament.’’8

1 Burn Just. ut sup.; 1 Chit. Crim.
Law, 84-36. Another proposition, nar-
rower than that in the text, is, that,
“where a statute gives a justice [or,
plainly, any judicial officer] jurisdiction
over an offence, it impliedly gives him
power to apprehend any person charged
with such offence.” 1 Chit. Crim. Law,
35.

2 People v. Mellor, 2 Col. Ter. 705;
Commonwealth v. McNeill, 19 Pick. 127;
State Treasurer v. Rice, 11 Vt. 339. The
same magistrate need not necessarily con-
duct the entire proceedings. Ex parte
Bollman, 4 Cranch, 75, 129. While, in
general, one magistrate is sufficient, a
particular statute may require two.

Franklyn’s Case, 1 Mod. 68; Murphy ».
Commonwealth, 11 Bush, 217.

3 RK. S. of U.S. § 1014.

4 Ante, § 221.

5 United States v. Hand, 6 McLean,
274. And see, as to commissioners,
United States v. Rundlett, 2 Curt. C. C.
41; United States v. Case, 8 Blatch. 250;
United States v. Horton’s Sureties, 2 Dil-
lon, 94; and cases stated 1 Brightly Fed.
Dig. 129.

6 1 Chit. Crim. Law, 38.

7 1 Hale P. C. 577; 2 Ib. 111; Com. Dig.
Imprisonment, H. 7 ; 2 Hawk. P. C.c. 13,
§ 21; 4Bl. Com. 290; Windsor v. Gover,
2 Saund. Wms. ed. 802, 305 a, note 18.

8 Padfield v. Cabell, Willes, 411; Bull.

131
§ 228 PREPARATORY AND AUXILIARY. [Book It,.
It has been adjudged valid without seal in South Carolina,! New
Hampshire,” and New York ;* but in several of the other States.
the seal is held to be essential.4 A wafer, if adopted by the
magistrate as his seal, is adequate.©5 The question is for the
court, which, and not the jury, determines whether a warrant is
under seal or not.®

§ 228. Jurisdictional Matter in Warrant. — The familiar doctrine,
that the record of a court of limited jurisdiction must affirmatively
show the jurisdiction over the particular case,’ does not in reason,
or apparently in practice, apply to the warrant.§ For a justice of
the peace may issue his warrant of arrest when he has no juris-
diction over the offence;® nor are his powers in this respect
ordinarily inferior to those of the highest judge, except that com-
monly they extend over a narrower locality. But, by whatever

officer issued, —

N. P. 88; Burn Just. Warrant, IV.;
Dick. Just. Warrant, III.; Toone, 450.

1 The State v. Vaughn, ‘Harper, 313.-

2 Thompson »v. Fellows, 1 Fost. N. H.
425; Davis v. Clements, 2 N. H. 390.

8 Gano v. Hall, 42 N. Y. 67; Millett v.
Baker, 42 Barb. 215.
_ 4 Welch v. Scott, 5 Ire. 72, 75; The
State v. Caswell, T. U. P. Charl. 280;
Somervell v. Hunt, 8 Har. & McH. 118;
Tackett v. The State, 8 Yerg. 392; Lough
v. Millard, 2 R. I. 486; The State v.
Drake, 36 Maine, 366, 368. In Welch v.
Scott, Ruffin, C. J., said: “So many of
the older and most respectable authorities
lay it down positively that a seal is neces-
sary to a warrant for a criminal charge,
that we are obliged to consider it estab-
lished law.” In The State v. Drake, Shep-
ley, C. J., observed, that the cases holding
the seal to be unnecessary “do not ap-
pear to have been those authorizing an
arrest or imprisonment of a person”;
adding, — “If. a warrant issued without
a seal in a criminal prosecution, by a
magistrate, may be valid, it would seem
that one might be when so issued by any
court of justice; and yet all such pre-
cepts, issuing from a court having a seal,
must be issued under the sanction of that
seal, This appears to have been admitted
by the Lord Chief Justice, in his opinion
in the case of Padfield v. Cabell, Willes,
411, when the precept issued from any

182

court of record. Whenever it has been
held, that a warrant issued in a criminal
prosecution might be valid without a seal,
it ig apparent that there has been a strain-
ing of the law to support the proceed-
ings.” p. 869. I cannot but think that
justices of the peace and courts of record
are properly distinguishable as to the
warrant; and that, on this mere techni-
cal point, where nothing of legal principle
is involved, it accords well with our mod-
ern ideas to hold the simpler form suffi-
cient.

5 The State v. McNally, 34 Maine, 210.
See Bishop Con. § 16.

6 The State v. Worley, 11 Ire. 242.
A complaint and the justice’s warrant
were on the same piece of paper, and the
only seal was at the right hand of his sig-
nature to the complaint ; so that, in order
to separate the two, and leave the seal on
the warrant, they must be divided by a
crooked line. This was held sufficient.
Tenney, J., observing of the papers be-
fore the court as a whole, said: ‘The
magistrate does not say, that there was a
seal on the complaint; but he does say,
that the warrant was under seal. Can
the Court say that they must necessarily
be separated by a straight line?” The
State v. Coyle, 33 Maine, 427,

7 Post, § 286, 664.

® Rex v. Goodall, 1 Keny. 122,

9 1 Chit. Crim. Law, 35.
CHAP. XIV.]| PRELIMINARY BEFORE MAGISTRATE. § 229

Describing Offence — (Warrant of Arrest —Mittimus ). — The war-
rant, whether of arrest! or commitment (called a mittimus) ?
must state for what offence the arrest or commitment is made.
Precisely how minute it must be is a question partly of local
usage, upon which the authorities are not quite harmonious; as
the reader will see on consulting the cases cited to this section.
The other requirements of the warrant are explained in other
connections.

§ 229. Other Officers. — Among the other officers having the
like powers with justices of the peace and commissioners, are, as
we have seen, —

The Judges of the Courts. — According to the English doctrine,
the judges of the courts “intrusted with the conservation of the
peace’ ® may issue warrants of arrest, and may commit persons
‘already before them, when the occasion for it judicially appears.®
If, however, there is to be an original arrest on their warrant, fol-
lowed by a preliminary examination which may result in holding
the party: for trial, the practice — not obligatory, but permissible
—is to make the warrant returnable before a justice of the peace,
who will conduct the remainder of the proceedings.’ We have
seen ® that a statute has given like powers to our United States
judges; and, without any direct statutory aid, the American doc-
trine appears to be, that they pertain both to our national and

1 In re Booth, 3 Wis. 1; Caudle »v.
Seymour, 1 Q. B. 889, 1 Gale & D. 454;
The State v. Rowe, 8 Rich. 17; The State
v. Everett, Dudley, 8. C. 295; Floyd v.
The State, 7 Eng. 48.

2 Rex v. Judd, 2 T. R. 255, 1 Leach,
Ath ed. 484, 2 East P.C.1018; The State
v. Bandy, 2 Ga. Decis. 40; Ex parte
Rohe, 5 Pike, 104; Ricker, petitioner, 32
Maine, 87; Rex v. Kendal, 1 Ld. Raym.
65, 1 Salk. 847; s.c. nom. Rex v. Ken-
dall, Skin. 596, 599; Rex v. Wyndham,
1 Stra. 2; Rex v. Marks, 8 East, 157;
Day v. Day, 4 Md. 262; Bennac v. Peo-
ple, 4 Barb. 31; Commonwealth v. Ward,

4 Mass. 497; Young v. Commonwealth,

1 Rob. Va. 744.

3 A warrant issued in one of the coun-
ties in North Carolina, charging a person
with having committed murder “ some-
where between this place and the State
of Texas,” was adjudged void for un-
certainty: Price v. Graham, 3 Jones,

N. C. 545. See also Doyle v. Falconer,
Law Rep. 1 P. C. 328; Rex 7. Kendal,
Holt, 144; Ex parte Burford, 3 Cranch,
448; Bradstreet v. Furgeson, 17 Wend.
181, 28 Wend. 638;.Boyd v. The State,
17 Ga. 194; Pratt v. Bogardus, 49 Barb.
89; Boyd v. Commonwealth, 1 Rob. Va.
691; Ex parte Cross, 1 C. B. x. s. 573. A
Massachusetts statute requires the war-
rant to recite the substance of the accu-
sation; and this is held to be complied
with by making it on the same paper
with the complaint, and referring to it.
Commonwealth v. Dean; 9 Gray, 283.
And see post, § 242.

4 Ante, § 225, 226.

5 1 Hale P. C. 578.

6 Authorities cited ante, § 225; 1 Chit.
Crim. Law, 84.

7 1 Hale P. 0. 578; 1 Chit. Crim. Law,
86.
8 Ante, § 226.

183
§ 229 PREPARATORY AND AUXILIARY. [Book UI.

State judges, the same as to the English. Of course, in a particu-
lar State, the general effect of its legislation, or the special effect
of a specific statute, may be found more or less to modify this
doctrine. Either the court, as such, may exercise the power, or
the judge may, in his capacity of magistrate A common instance
of its exercise is in a case of —

Defective Proceedings quashed. —If an indictment is found ill
and quashed, the defendant is not necessarily to be set at liberty;
but the court may commit him or hold him to bail, to answer to a
fresh indictment ;? or, the grand jury being in session, require him
to remain in court while they examine his case and bring in a
new indictment ;® or direct the officer to take him before a jus-
tice of the peace to answer to a fresh complaint. If, however,
the statute of limitations has fully run, barring the new proceed-
ings, or if for any cause they cannot be constitutionally had,
the defendant will be discharged.7 Again, —

Sureties of Peace.— Though the evidence comes short of sus-
taining the charge in the indictment, if, on the trial, enough is
shown to justify the court in putting the defendant under bonds

1 Consult Berry v. The State, Dudley,
S. C. 215; Commonwealth v. The Jailer,
1 Grant, Pa. 218; The State v. Thornton,
13 Ire. 256; People v. Smith, 1 Cal. 9;
Cameron v. The State, 138 Ark. 712;
Commonwealth v. Cummins, 18 B. Monr.
26. In Mississippi, it was adjudged that
the effect of the statute of 1842, creating
the office of vice chancellor, is to make
him a conservator of the peace. There-
fore he may commit persons breaking the
peace, and bind them to answer before
the proper court. Thacher, J., observed :
“Within the duties and powers of gen-
eral conservators of the peace, from the
earliest periods, has been included the
power to commit all breakers of the peace,
or to bind them in recognizances to keep
it, or to answer for offences committed
against it.” The State v. Wofford, 10
Sm. & M. 626. It was held in the United
States Circuit Court, by Marshall, C. J.,
that the court, sitting as a court, has
authority to commit a person charged
with an offence, although the grand jury
is in session before whom a bill may be
presented. He said: ‘It is believed to
be a correct position, that the power to
commit for offences of which it has cog-

134

nizance is exercised by every court of
criminal jurisdiction, and that courts as

.well as individual magistrates are conser-

vators of the peace. Were it otherwise,
the consequence would only be, that it
would become the duty of the judge to
descend from the bench, and, in his char-
acter as an individual magistrate, to do
that which the court is asked to do.”
United States v. Burr, 1 Burr’s Trial,
Philad. ed. 79, 80.

2 United States v. Townmaker, Hemp.
299; Nicholls v. The State, 2 Southard,
539; Peter v. The State, 3 How. Missis.
433; United States v. Dustin, 2 Bond,
832; Jones v. The State, 11 Sm. & M.
815. See People v. Blakeley, 4 Parker
C. C. 176.

3 Crumpton v. The State, 48 Ala. 31.
And see Reg. v. Rudick, 8 Car. & P. 287.

# Young v. Commonwealth, 1 Rob.
Va. 744.

5 Redfield v. The State, 24 Texas,
138.

6 The State v. Jones, 6 Halst, 289.

7 And see Ex parte Bull, 42 Cal. 196;
Gooden v. The State, 85 Ala. 480; Fitch
v. The State, 2 Nott & McC. 558,
CHAP. XIV.] PRELIMINARY BEFORE MAGISTRATE. § 230

to keep the peace,! the practice, at least of some courts, is to order
him to furnish sureties of the peace, instead of discharging him,
on the coming in of the verdict of not guilty. Doubtless there
are States in which this method, falling short of statutory require-
ments, would therefore be inadequate.

§ 229a, Mayor.— In a part of our States, the mayor of a city
has the jurisdiction of a justice of the peace.’

§ 229. Coroner. — A coroner’s inquest is in its nature a court
of inquiry, and he has the power to commit or bind over suspected
persons and witnesses. And, beyond this, we have seen, that,
at common law, he is a conservator of the peace,® though perhaps
he may not be such under the statutes of all our States.

§ 230. Proceedings before Inferior Magistrate : —

Statutes. — The proceedings before inferior, committing magis-
trates are to a large degree statutory. To what extent, or whether
at all, the statutes control the superior courts and their judges,
acting ea officio as conservators of the peace, is a question not
much illumined by decisions ; but, in reason, and in general, they
should be held to extend no further than to the ordinary proceed-
ings before the magistrates mentioned in them, on original arrest.

The Complaint. — Not speaking now of the magistrate’s power
of commitment for criminal acts done in his presence,® he cannot
proceed against one without an accusation from a third person.”
And he should give some proper consideration to the nature of
the accusation and the evidence by which it is sustained, before
issuing his warrant of arrest.®

1 Crim. Law, I. § 945; post, § 264n; 3 Santo v. The State, 2 Iowa, 165;

Burn Just. Sureties of the Peace ; Prick-
ett ». Gratrex, 8 Q, B. 1020; Ritchey
v. Davis, 11 Iowa, 124; Steele v. The
State, 4 Ind. 561; Commonwealth v.
Ward, 4 Mass. 497; Commonwealth v.
Morey, 8 Mass. 78; Conklin v. The State,
8 Ind. 458; Long v. The State, 10 Ind.
858; Collins v. The State, 11 Ind. 312;
The State v. Maners, 16 Ind. 175; Beck-
with v. The State, 21 Ind. 225; The State
v. Tooley, 1 Head, 9; Commonwealth v.
Oldham, 1 Dana, 466; Doyle’s Case, 19
Abb. Pr. 269; Tomlin v. The State, 19
Ala. 9.

2 Bamber v. Commonwealth, 10 Barr,
839; Respublica v. Donagan, 2 Yeates,
437; People v. Berner, 13 Johns. 383.
See Reg. v. Rogers, 7 Mod. 28.

Cluggish v. Rogers, 13 Ind. 5388; Gulick
v. New, 14 Ind. 93; Commonwealth
v. Leight, 1 B. Monr. 107; Shafer v.
Mumma, 17 Md. 331. See Holmes v.
The State, 44 Texas, 631.

4 Post, § 1198, 1199; Burn Just.
Coroner; 1 Chit. Crim. Law, 164; Reg.
v. Taylor, 9 Car. & P. 672; Bass v.
The State, 29 Ark. 142; Wormeley v.
Commonwealth, 10 Grat. 658; People v.
Budge, 4 Parker C. C. 519.

5 Ante, § 225; 2 Hale P. C. 88; 1
Chit. Crim. Law, 26. And see Giles v.
Brown, 1 Mill, 230.

6 Ante, § 177-179.

7 Windham v. Clere, Cro. Eliz. 1380.
See Rafferty v. People, 69 Ill. 111.

8 People v. Lynch, 29 Mich. 274; Rex

/ 185
§ 231 PREPARATORY AND AUXILIARY. [Book m1.

Under Oath. — In the absence of any statutory direction, an
oath to the complaint seems not to be absolutely essential! “A
justice of the peace,” said Lord Holt, “may commit without oath;
but he is not wise if he doth so, for then he must make out the
cause of commitment at his peril, but if oath be made he is safe.’’?
Most of our statutes require the complaint to be verified by oath ;8
and some of our State constitutions direct that warrants for arrest
shall issue only on “ probable cause, supported by oath.”* The
usual and only proper evidence of the oath is the magistrate’s
certificate. The particular testimony of the complainant need not
be set out, unless the statute so requires.6 If the complaint is in
due form, itself under oath, and duly certified to by the magis-
trate, it cannot be invalidated by evidence that there was no
further examination of the complainant before the issuing of the
warrant.’

State the Offence. — It must adequately charge an offence ;® but
-not necessarily, it seems, in the full, technical form employed in
an indictment.2 A charge merely upon the knowledge and belief
of the complainant has been held, in Maine, to be sufficient with-
out a more positive averment.”

§ 231. Form of the Jurat.— The magistrate’s simple certificate
to the complaint as “‘ Taken and sworn before me” is sufficient.
And so is any other like form from which the idea can be

collected.”

v. Simons, 6 Car. & P. 540; Bradstreet
v. Furgeson, 17 Wend. 181; Redmond »v.
The State, 12 Kan, 172; Bellinger v.
People, 8 Wend. 595.

1 Post, § 282, 718.

+ Rex v. Pain, Holt, 294, 295. See
Elsee v. Smith, 1 D. & R. 97,2 Chit. 804;
The State v. Lamos, 26 Maine, 258.

3 Allen v. Staples, 6 Gray, 491.

4 Walker v. Cruikshank, 2 Hill, N. Y.
296 ; Conner v. Commonwealth, 8 Binn.
38.

5 The State v. J. H., 1 Tyler, 444.

5 The State v. Hobbs, 89 Maine, 212.

7 Commonwealth v. Farrell, 8 Gray,
463.

8 Housh v. People, 76 Ill. 487; Taylor
v. The State, 82 Ind. 153; Moore »v.
Watts, Breese, 18.

8 Ewing v. Sanford, 19 Ala. 605;
Field v. Ireland, 21 Ala, 240; People v.
Hicks, 15 Barb. 153; Payne v. Barnes,

186

5 Barb. 465; Parker v. The State, 4 Ohio
State, 663; The State v. Corson, 1 Fairf.
473.

10 The State v. Hobbs, 39 Maine, 212.
See The State v. Dale, 3 Wis. 795; Peo-
ple v. Becker, 20 N. Y. 854.

11 Commonwealth v. Bennett, 7 Allen,
633. See Smart v. Howe, 8 Mich. 690;
In re Teachout, 15 Mich. 346.

12 Commonwealth v. Wallace, 14 Gray,
382; Commonwealth v. Sullivan, 14 Gray,
97; Commonwealth v. Keefe, 7 Gray,
882; Commonwealth v. Quin, 6 Gray,
478; Webb v. The State, 21 Ind. 286.
Further as to Form of Affidavit. — The
signature of the affiant, which is proper
and usual, is still not necessary in an affi-
davit. Watts v. Womack, 44 Ala. 606;
Hitsman v. Garrard, 1 Harrison, 124;
Shelton v. Berry, 19 Texas, 154; Millius
v. Shafer, 3 Denio, 60. But see Hatha-
way v. Scott, 11 Paige, 178. It must be
CHAP. XIv.] PRELIMINARY BEFORE MAGISTRATE.

§ 232

Amendment of Jurat.— A jurat. inadequate in form, while the
facts are sufficient, may be amended.!

§ 232. Competency of Complainant. — It may not be entirely
clear whether one incompetent in general to be a witness, by
reason of having been convicted of an infamous crime, can make
a valid complaint. Where, in South Carolina, a written com-
plaint and an oath were not deemed essential as foundation for
the issuing of a warrant, a warrant issued on the complaint, under
oath, of such a person, was held to be good? Still, if the oath
were necessary, there is English authority in effect the other
way,’ and some American.

Statutory Complainant refusing. — A statute of Iowa provides,
that ‘no prosecution for adultery can be commenced but on the
complaint of the husband or wife.” And it was held, that a hus-
band could not be prosecuted for this crime when his wife refused
to complain, although she had complained against the other

guilty party.®

so distinct and positive, and otherwise so
formal, that perjury can be assigned upon
it, or it will be void. Watson v. Walker,
1 Moore & S. 487; Peers v. Carter, 4 Litt.
269 ; Gaddis v. Durashy, 1 Green, N. J.324.

1 The State v. Smith, 54 Maine, 33.

2 The State v. Killet, 2 Bailey, 289,
290. Said Earle, J.: ‘The legal incom-
petency of such a person to be a witness
in any case, and even to take an oath, ex-
cept on incidental matters necessary for
defence, is clear enough as a general prin-
ciple. And yet I find it nowhere laid
down that he shall not be competent to
originate a prosecution. Ido not regard
it as indispensable, that the information
for a warrant should be on oath; nor, if
on oath, that it should be in writing; al-
though both are usual and proper. I think
a warrant would be legal, if issued on such
grounds of information as might satisfy
the justice, without oath. And if the in-
formation on oath and in writing had not
accompanied the warrant in the present
case, I should not have felt myself at lib-
erty to call on the justice for the grounds
on which he proceeded. He had jurisdic-
tion of the subject-matter; he was him-
self satisfied that there was ground of
suspicion; and I have not the right of
hearing an appeal from his decision, or
of setting aside his act. But inasmuch

as he has chosen to exhibit the grounds
of his proceeding, I am permitted to
judge of their sufficiency, so far as to
determine whether there is good cause
to detain the prisoner in actual confine-
ment. Exercising, therefore, the powers
of the court on the subject of bail, and
perceiving that the only foundation of
the charge is the oath of one not compe-
tent to give evidence, the prisoner ought
not to be detained in confinement; for at
the utmost it furnishes ground of but
light suspicion. But I conceive that a
prosecution is legally instituted for a
specific, substantive offence, which may
be prosecuted, and on which the prose-
cutor may yet give evidence; for a par-
don would restore his competency, and
the prisoner may yet be convicted.” And
see United States v. Burr, Burr’s Trial,
Philad. ed. 11, 15. A statute of Ken-
tucky having provided, that “no negro
or mulatto shall be a witness,” &c., a free
man of color was held to be competent,
by his own oath, to require a white man
to give security to keep the peace. Com-
monwealth v. Oldham, 1 Dana, 466.

3 Rex v, Moore, Cas. temp. Hardw.
176; Walker v. Kearney, 2 Stra. 1148;
1 Greenl. Ev. § 374.

4 Taulman v. The State, 37 Ind. 353.

5 The State v. Roth, 17 Iowa, ‘336,

187
§ 238 PREPARATORY AND AUXILIARY. [BOOK III.

§ 233. Evidence to commit — Probable Cause. — The issue be-
fore the magistrate is not, whether the defendant is guilty in
fact, but whether there is probable cause to believe him guilty,
so as to require an investigation by a jury.1 On the one hand,
the magistrate will demand no other proof of the corpus delicti
than may be found in the prisoner’s confession ;? on the other’
hand, he will discharge him if satisfied that no crime has been
committed.2 It has sometimes been supposed, and even held, that
only the witnesses for the complainant, not the defendant’s, should
he examined ;* but this hard doctrine is not the better one, even
in authority.6 Lord Denman once stated the better practice,
thus: “In all cases in which prisoners charged with felony have
witnesses, and those witnesses are in attendance at the time of
the examination before the magistrate, I should recommend that
the magistrate should hear the evidence of such witnesses as the
prisoner, on being asked, wishes to be examined in his defence.
If such witnesses merely explain what has been proved in support
of the charge, and are believed, they will actually have made out
a defence on behalf of the accused, and there would, of course, be
no necessity for any further proceedings ; but, if the witnesses so
called contradict those of the prosecution in material points, then
the case would be properly sent to a jury to ascertain the truth of
the statements of each party. And the depositions of the pris-
oner’s witnesses, being taken and signed by them, should be trans-
mitted to the judge, together with the depositions in support of
the charge.” ®

Name of Informant. — Where an officer, who made the arrest,
was examined as a witness, he was not compelled to disclose the.
name of one from whom he received a confidential communication
which led to the prisoner’s detection.”

Wright, C. J., dissenting. Other Infor-

malities in Complaint.— The State v.
Soragan, 40 Vt. 450; Commonwealth v.
Barhight, 9 Gray, 113.

' The State v. Hartwell, 35 Maine,
129; United States v. Burr, Burr’s Trial,
Philad. ed. 11, 15; Cox v. Coleridge, 1 B.
&C. 87,2 D. & RB. 86; Secor v. Babcock,
2 Johns. 203; In re Van Campen, 2 Ben.
419; Yaner v. People, 84 Mich. 286; The
State v. Corson, 1 Fairf. 473.

2 United States v. Bloomgart, 2 Ben.

356.
138

8 United States v. Lumsden, 1 Bond,
5; Yaner v. People, supra. See post,
§ 866; Ganea v. Southern Pacific Rail-
road, 51 Cal. 140.

4 United States v. White, 2 Wash.
C. C. 29. And see Rex v. Neal, Cas.
temp. Hardw. 112.

5 Post, § 867; Ex parte Mahone, 30
me 49; Templeton v. People, 27 Mich.

OL.

8 Anonymous, 2 Car. & K. 845.

7 United States v. White, 2 Wash.
C. C. 29.
CHAP. XIV. ] PRELIMINARY BEFORE MAGISTRATE.

§ 284 b

§ 234. Amending or substituting Complaint. — If the complaint is
found to be insufficient, the magistrate may permit it to be
amended, the complainant being present and consenting ;1 or, if
a different offence appears, he may still hold the prisoner under
it until a fresh complaint is drawn, covering the crime as proved.?
Quite consistently with this doctrine it was ruled, in England, by
Lord Tenterden, that, —

Detaining Known Person.— If a person known to magistrates
happens to be in their court, and they suspect an absent person
has a complaint to make against him for a misdemeanor, they
cannot detain him to send for the person. And, said the learned
judge, ‘I think that a magistrate is not justified in detaining a
known person till a charge is made. The magistrate should have
the charge actually made before he detains the party.” 3

§ 234 a. Continuing and Bailing or Committing. — The magistrate
may make reasonable continuances of the hearing, and in the in-
tervals bail or commit the prisoner.*

§ 2346. Procedure before Magistrate.— There are questions
connected with the procedure before the magistrate dependent on
statutes which differ in the States, not to be discussed here.6 In
England and some of our States, the magistrate takes the testi-
mony of the witnesses and the prisoner’s statement in writing.
The orderly course is, first, in the presence of the prisoner,’ to
receive the testimony against him, and then call upon him for
whatever he has to say.2 It is competent for him, at least in
some of our States, and with the consent of the magistrate, to

1 Linhart v. Buiff, 11 Cal. 280.

2 The State v. Shaw, 4 Ind. 428; Red-
mond v. The State, 12 Kan. 172; People
v. Smith, 1 Cal. 9; Yaner v. People, 34
Mich. 286.

3 Rex v. Birnie, 5 Car. & P. 206, 1
Moody & R. 160.

4 Scavage v. Tateham, Cro. Eliz. 829;
Reg. v. London, 1 Dav. & M. 486, 5 Q. B.
655; The State v. Gachenheimer, 30 Ind.
63; People v. Freeman, 20 Mich. 413;
The State v. Allen, 38 Ala. 422; Potter
v. Kingsbury, 4 Day, 98; Hamilton v.
People, 29 Mich. 173; Ogden v. People,
62 Ill. 68; Davis v. Capper, 10 B. & C.
28, 5 Man. & R. 68, 4 Car. & P. 184;
Stimpson v. Rogers, 4 Blatch. 333. See
Commonwealth v. Salyer, 8 Bush, 461;
The State v. Kruise, 83 Vroom, 313.

5 People v. Gibbons, 48 Cal. 557; The
State v. Vandergraff, 23 La. An. 96;
Kendle v. Tarbell, 24 Ohio State, 196;
Scovern v. The State, 6 Ohio State, 288.

§ Post, § 1198 et seq. ; Rex v. Coveney,
7Car & P. 667; Rex v. Thomas, 7 Car.
& P. 817; Reg. v. Painter, 2 Car. & K.
819, 2 Cox C. C. 244; Rex v. Grady, 7
Car. & P. 650; Rex v. Fuller, 7 Car. & P.
269; Nelson v. The State, 2 Swan, Tenn.
237; The State v. Parish, Busbee, 239;
The State v. McLeod, 1 Hawks, 344;
Wright v. The State, 60 Missis. 332;
Bellinger v. People, 8 Wend. 595.

7 Reg. v. Johnson, 2 Car. & K. 394.

8 Rex v. Fagg, 4 Car. & P. 566. See
Rex v. Jones, Car. Crim. Law, 3d ed. 18;
Rex v. Green, 5 Car. & P. 312.

139
§ 235. PREPARATORY AND AUXILIARY. [Book m1.

waive the examination; and then no testimony need be taken
against him.!

Binding over or Committing — (Party — Witnesses).— If the
magistrate determines to hold the prisoner to answer to a higher
court, he thereupon commits him and the witnesses, or takes
their several recognizances, as the case may require. Then, and
in the absence of any special statute, his functions in. the case
cease.3

§ 235. Warrant of Commitment — (Warrant of Arrest).-—— We
have already seen something of the form of the warrant of com-
mitment. Some other points concerning it and the warrant for
arrest will appear in the cases referred to in the note.® It
may be either to the sheriff, who is the keeper of the prison,
or to the prison.6 According to a principle already stated,’ it
would seem that, if a warrant of arrest is insufficient or void, yet
if the accused person has been brought before the magistrate
under it, he is not therefore to be set at liberty, whatever may be
his rights as against the officer and other persons connected with

the proceeding.®

Supersedeas. — One justice of the peace, it has been held in
South Carolina, cannot supersede a warrant issued by another, for

a crime.®

1 The State v. Ritty, 23 Ohio State,
662. See Ex parte Walsh, 39 Cal. 705.

2 Commonwealth v. Ward, 4 Mass. 497;
The State v. Heathman, Wright, Ohio,
690; Simpson v. Robert, 85 Ga. 180 ; Red-
mond v. The State, 12 Kan. 172; Ar-
nold v. The State, 25 Ala. 69; Reg. v.
Smith, 2 Car. & K. 207; United States
v. Lloyd, 4 Blatch. 427; The State v.
Thompson, 20 N. H. 250.

4 The State v. Russell, 24 Texas, 505;
Steel v. Williams, 13 Ind. 73; The State
v. Young, 56 Maine, 219; The State »v.
Randolph, 26 Misso. 218. See The State
v. Mousely, 4 Harring. Del. 553.

4 Ante, § 227, 228.

5 Rex v. Goodall, 1 Keny. 122; The
State v. Hawes, 65 N.C. 801; Rafferty v.
People, 69 Ill. 111; Commonwealth ».
McCaul, 1 Va. Cas. 271, 800; Common-
wealth v. Murray, 2 Va. Cas. 504; Brad-
street v. Furgeson, 17 Wend. 181, 23
Wend. 638; Rex v. Hood, 1 Moody, 281;
Reg. v. Downey, 7 Q B. 281; Prell v. Me-
Donald, 7 Kan. 426; Mayhew v. Parker,

140

8 T.R. 110; Mayhew v. Hill, 2 Esp. 683;
McEwin v. The State, 3 Sm. & M. 120;
People v. Rhoner, 4 Parker C. C. 166; Rex
v. Wyndham, 1 Stra. 2; Nason v. Staples,
48 Maine, 123; Commonwealth v. Moran,
107 Mass. 239; People v. Smith, 1 Cal. 9;
Commonwealth v. Ward, 4 Mass. 497; .
The State v. Freeman, 8 Iowa, 428; The
State v. McAllister, 25 Maine, 490; North-
rop v. Brush, Kirby, 108;~The State v.
MeNally, 34 Maine, 210.

6 Rex v. Fell, 1 Ld. Raym. 424; post,
§ 288.

7 Ante, § 224d.

8 See and compare Prell v. McDon-
ald, 7 Kan. 426; Commonwealth v. Boon,
2 Gray, 74; Gano v. Hall, 42 N. Y. 67;
Reg. v. Downey, 7 Q. B. 281; Common-
wealth v. Henry, 7 Cush. 612; Wright v.
Commonwealth, 2 Rob. Va. 800; In re
Romaine, 28 Cal. 685.

® Colvert v. Moore, 1 Bailey, 549. The
learned judge observed: “ According to
the ancient common law, it would seem
that one justice might supersede a war-
CHAP. XIV.]

PRELIMINARY BEFORE MAGISTRATE. § 237

Magistrate having full Jurisdiction. — If, on examining the testi-
mony; it appears to the magistrate that he has complete jurisdic-
tion over the offence concurrent with the higher court, he may,
in his discretion, either bind over the prisoner to answer to such
court, or enter a conviction.!

§ 236. Review by Habeas Corpus. — Irregularities in a commit-

ment for trial may be examined into, and the prisoner be dis-
charged, remanded to prison, or bailed, as the case may require,
on habeas corpus.? ;
- Whether Magistrate's Jurisdiction inferior. — When a justice of
the peace sits for the trial of a cause, his isa court of inferior juris-
diction. “And the rule for jurisdiction is, that nothing shall be
intended to be out of the jurisdiction of a superior court but that
which specially appears [in the record, allegations, or other
papers] to be so; and, on the contrary, nothing shall be intended
to be within the jurisdiction of an inferior court but that which
is so expressly alleged.” ® We have already seen some reasons for
the opinion, that, within this distinction, an examining. court,
though held by a justice of the peace, is not to be deemed of
inferior jurisdiction.* Indeed, —

§ 237. Ministerial Functions.—In the exercise of this juris-
diction, the magistrate is deemed to act, not judicially, but minis-
terially ; at least, he does not put forth “judicial power,” within
the meaning of the constitution of the United States. Again, —

v. Ward, 4 Mass. 497; Snowden v. The
State, 8 Misso. 483; People v. McLeod,

rant issued by another to compel a party
to find surety of the peace ; but the power

is limited to that case alone, and even this
is taken away in England by Stat. 21, Jac.
1, c. 8, unless upon motion made in open
court, and upon sufficient sureties in a
fixed sum”: referring to 1 Hawk. P. C.
c. 60,.§ 14; Bac. Abr. Supersedeas, C.
This statute was said not to be of force
in South Carolina, yet “the evils recited
in its preamble” operated to prevent the
prior law on the subject from being there
received.

1 Commonwealth v. Harris, 8 Gray,
470. And see The State v. Hall, 25 Vt.
247.

2 Geyger v. Stoy, 1 Dall. 185; Com-
monwealth v. The Sheriff, 7 Watts & S&S.
108; The State v. Randolph, 26 Misso.
213; People v. Smith, 1 Cal. 9; Ex parte
Burford, 3 Cranch, 448; Commonwealth

1 Hill, N. Y. 877; The State v. Asselin,
T. U. P. Charl. 184; Commonwealth v.
Holloway, 5 Binn. 512; In re McIntyre,
5 Gilman, 422; Ex parte Champion, 52
Ala. 311; Ex parte Keeling, 50 Ala. 474;
Evans v. Foster, 1 N. H. 874; Marriot’s
Case, 1 Salk. 104; Ex parte Jones, 20
Ark. 9; The State v. Best, 7 Blackf. 611;
Ex parte Granice, 51 Cal. 875; People v.
Richardson, 4 Parker C. C. 656.

8 Peacock v. Bell, 1 Saund. Wms. ed.
78, 74; Winford v. Powell, 2 Ld. Raym.
1310; People v. Koeber, 7 Hill, N. Y. 39;
People v. Mallon, 89 How. Pr. 454; post,
§ 664.

4 Ante, § 228.

5 Ex parte Gist, 26 Ala. 156; Ex parte
Pool, 2 Va. Cas. 276. And see Prigg v.
Pennsylvania, 16 Pet. 539.

141
§ 239 PREPARATORY AND AUXILIARY. [BOOK III.

§ 238. Name of Officer. — While it is proper and usual for the
justice of the peace, in his mittimus and other like papers, to sub-
scribe himself as “justice of the peace,” this is believed not to be
essential ; but, if any question arises, the official fact may be
shown by averment and proof.! Still, contrary to this, Hawkins
says, the mittimus “must be in writing, under the hand and seal
of the person by whom it is made, and expressing his office, or
authority, and the time and place at which it is made, and must
be directed to the jailer, or keeper of the prison.” ?

§ 239, Not Inferior. — For these and other reasons, as well as
from what the books explain of the general course of practice, we
conclude that, if the examining tribunal of the magistrate is to
be compared to thé ordinary courts, its jurisdiction is not to be
deemed inferior. Practically it may be best that his authority
appear on the face of the proceedings, while not necessary in
strict law. Justices of the peace being the ordinary committing
force of the country, the presumption should be in favor of their
jurisdiction, the same as in favor of the superior courts doing the

1 Rex v. Goodall, Say. 129; 2 Hale
P. C. 122, 128; The State v. Manley,
1 Tenn. 428. See The State v. Green,
8 Green, N. J. 88; Ladow v. Groom,
1 Denio, 429.

2 2 Hawk. P. C. c. 16, § 13.

8 The case of Rex v. Goodall, Say. 129,
cited to the last section, is very strong.
It was decided in 1754. Sayer is not a
reporter of high repute, yet I see no rea-
son to doubt his correctness in this in-
stance. It was a hubeas corpus case in
the King’s Bench. Goodall had been
committed for a felony not clergyable,
by a warrant signed “ Thomas Longford,
Mayor.” It was objected that Longford
did not appear by the warrant to be a
justice of the peace or to have authority
to commit. “ But we are of opinion,”
said the court, “that it is not necessary
that an authority to commit should ap-
pear in a warrant of commitment. In
Elderton’s Case, 6 Mod. 78, 75, it is laid
down by Holt, C.J., that it need not ap-
pear in a warrant of commitment that the
person who issued the warrant was a jus-
tice of the peace. In the case of Rex v.
Talbot, Mich. 4 Geo. 2, the authority of
what is laid down by Holt, C. J., in Elder-
ton’s Case was recognized; and the fol-

142

lowing distinction, which is, in our opinion,
a very sensible one, was taken; namely,
that in a conviction an authority to con-
vict must appear, because convicting is 4
judicial act ; but that an authority to com-
mit need not appear in a warrant of com-
mitment, because the issuing of such a
warrant is a ministerial act. If it be not
necessary that an authority to commit
should appear in a warrant of commit-
ment, the court will never intend a want
of authority in the person who issued the
warrant ; but, until the contrary appear,
will presume that he had an authority.”
To the like effect we read in Burn’s Jus-
tice of the Peace tit. Commitment, iv. as
follows: “It is said that the authority of
the magistrate ought to be shown on the
face of the warrant; but this, in strict
ness, is not absolutely necessary, for his
authority may be supplied by parol evi-
dence”: referring to 2 Hawk. P. C.c. 16,
§ 18; 2 Hale P. C. 122; 1 Keny. 122; May-
hew v. Locke, 2 Marshall, 877. The author
adds: ‘It is, however, usual and best
to state the authority.” See also The
State v. Manley, 1 Tenn. 428, 429; Gur-
ney v. Tufts, 37 Maine, 180; Common-
wealth v. Murray, 2 Va. Cas. 604; Chase
v. People, 2 Col. Ter. 628.
CHAP. XIV.]

PRELIMINARY BEFORE MAGISTRATE. § 289 a

general judicial business. Moreover, their acts being ministerial,
rather than judicial, their authority on other principles would
seem to be provable in any way, like any other fact, rendering
its appearance in the record or process unnecessary.

Statutory Directions. — All statutory directions must, of course,
be complied with in these proceedings, or they will not be good.

§ 239 a. Necessity of Preliminary Examination. — Except by force
of some statutory provision not found generally in our States, the
preliminary examination is not necessary ; being a mere expedient
to prevent the suspected person from escaping, or for preserving
the evidence, or keeping the witnesses within control. But, in
a few of the States, the preliminary examination must, by statute,

precede the indictment in particular cases, or in all?

1 Devine v. The State, 4 Iowa, 443.

2 French v. People, 3 Parker C. C.114;
The State v. Oscar, 13 La. An. 297; Har-
per v. The State, 7 Ohio State, 73; The
State v. Bunger, 14 La. An. 461; The
State v. Webster, 39 N. H. 96.

3 The State v. Pritchard, 35 Conn. 319;
The State v. Hanchett, 38 Conn. 35 ; Mor-
rissey v. People, 11 Mich. 827; Washburn
v. People, 10 Mich. 372; Turner v. People,
88 Mich. 863; Yaner v. People, 34 Mich.
286 ; People v. Jones, 24 Mich. 215; The

State v. Barnett, 8 Kan. 250; The State
v. Stevens, 36 N. H. 59; The State vo.
Hilton, 82 N. H. 285; The State v.
Thompson, 20 N. H. 250; Montgomery
v. The State, 7 Ohio State, 107 ; Jackson
v. Commonwealth, 23 Grat. 919; Chahoon
v. Commonwealth, 20 Grat. 783 ; Wright
v. Commonwealth, 19 Grat. 626 ; Shelly v.
Commonwealth, 19 Grat. 653; Philips v.
Commonwealth, 19 Grat. 485; The State
v. Stewart, 7 W. Va. 731; The State v.
Strauder, 8 W. Va. 686.

148
§ 241 PREPARATORY AND AUXILIARY. [Book In.

CHAPTER XV...

SEARCH—-WARRANTS.

§ 240. Already considered. — We have already seen how the
search-warrant is to be.executed by the officer.?

Uses — Historical View. — ‘“‘ Search-warrants,” said Merrick, J.,
in a Massachusetts case, ‘‘ were never recognized by the common
law as processes which might be availed of by individuals in the
course of civil proceedings, or for the maintenance of any mere
private right ; but their use was confined to cases of public prose-
cutions, instituted and pursued for the suppression of crime or
the detection and punishment of criminals. Even in those cases,
if we may rely on the authority of Lord Coke, their legality was
formerly doubted ; and Lord Camden. said that they crept into
the law by imperceptible practice. But their legality has long
been considered to be established, on the ground of public neces-
sity ; because, without them, felons and other maléfactors would
escape detection.” ?

How guarded with us — Constitutional. — While, therefore, search-
warrants are allowed in our country, they are here guarded with
particular care, to prevent their becoming engines of wrong; even,
in probably most of the States, by express constitutional provi-
sions. Thus, in Massachusetts: “ Every subject has a right to
be secure from all unreasonable searches and seizures of his per-
son, his houses, his papers, and all his possessions ; all warrants,
therefore, are contrary to this right, if the cause or foundation of
them be not previously supported by oath or affirmation, &c.”’3
Hence, —

§ 241. Statutory and Constitutional Regulations. — Though the
search-warrant pertains to the common law, our statutes generally

1 Ante, § 208, 209, 218; Common- 454, 456, 457; Entick v. Carrington, 19
wealth v. Gaming Implements, 119 Mass. Howell St. Tr. 1029, 1067; 1 Chit. Crim.
332. : Law, 64.

2 Robinson v. Richardson, 18 Gray, 3 Mass. Const. Bill of Rights, art. 14.

144
CHAP. XV. ] SEARCH-WARRANTS.

§ 242

provide when it may be issued, and our constitutions keep it
within bounds. The jurisdiction to award it is commonly with
justices of the peace.

Stolen Goods.— The most frequent use of it is to search for
stolen goods,! and to this use it appears formerly to have been
limited.?

Lottery Tickets. — Statutes sometimes authorize the seizure, by
means of it, of lottery tickets and materials for a lottery, made or
procured contrary to law; and such a statute has been held, in
Massachusetts, not to be unconstitutional.2 So,—

Intoxicating Liquors. — In some of the States, search-warrants
are allowed for intoxicating liquors kept for sale contrary to the
provisions of a statute ;* and warrants of this sort have been
held in Massachusetts to be constitutional.

Gaming Implements. — Another statutory use of search-warrants
is for the implements of gaming.

§ 242. Form of the Search-warrant :

Specific. — The search-warrant should be sufficiently specific in
terms, general warrants having always been deemed illegal.’

Under Oath. — By the common law, and especially by statutes
everywhere prevailing, this warrant can issue only on complaint
under oath.®

In Other Respects. — By the practice in some of the States, the
complaint and warrant are attached ; in others, not; either, it is
believed, is well enough.? If the things to be searched for are
described in the complaint, then the attached warrant directs the

1 Ante, § 208; 2 Hale P. C. 149; Stone
v. Dana, 5 Met. 98; The State v. Mann,
6 Ire. 45.

2 Entick v. Carrington, 19 Howell St.
Tr. 1029, 1067.

3 Commonwealth v. Dana, 2 Met. 329.

4 Commonwealth v. Intoxicating Li-
quors, 97 Mass. 334, and other cases
under the same name, 108 Mass. 448, 105
Mass. 178, 105 Mass. 181, 105 Mass. 468,
105 Mass. 595, 118 Mass. 13, 115 Mass.
145, 13 Allen, 52; The State v. McCann,
59 Maine, 883; The State v. Bartlett, 47
Maine, 388; The State v. Stevens, 47
Maine, 857; The State v. Whiskey, &c.,
64 N. H. 164; The State v. Brennan’s
Liquors, 25 Conn. 278; Lincoln v. Smith,
27 Vt. 828; The State v. Burke, 66

VOL. I. 10

Maine, 127; The State v. Erskine, 66
Maine, 858; Adams v. McGlinchy, 66
Maine, 474; The State v. Howley, 65
Maine, 100.

5 Allen v. Staples, 6 Gray, 491. See
also, in Maine, The State v. Miller, 48
Maine, 576.

6 Commonwealth v. Gaming Imple-
ments, 119 Mass. 332.

12 Hale P. C. 150; 2 Hawk. P. C.
c. 18, § 10,17; Money v. Leach, 1 W.'BL.
555, 8 Bur. 1742.

8 Ante, § 240; 2 IIale P. C. 150;
Elsee v. Smith, 1 D. & R. 97, 2 Chit.
804; Entick v. Carrington, 19 Howell St.
Tr. 1029, 1067 ; Commonwealth v. Intoxi-
cating Liquors, 138 Allen, 52.

9 The State v. Erskine, 66 Maine, 858.

146
§ 245 [Book II.

PREPARATORY AND AUXILIARY.

officer to search for the things “mentioned in the above com-
plaint,” this is sufficient.!_ If the precept commands the officer to
break and enter a dwelling-house, it must state an adequate cause.”
A constable may serve a search-warrant which is issued on com-
plaint of himself and another person.’ If, on the face of the war-
rant, the magistrate appears to be without jurisdiction, the officer
serving it will be a trespasser. And there are various other
points adjudged, of a like nature.

§ 243. Seal. — If other warrants must be under seal, so must
the search-warrant.é

Statutory Mandates. — It must conform to every statutory man-
date ;7 as,in Maine, under the statute of 1853, c. 48, § 11, it must
show on its face that the magistrate, before issuing it, caused the
testimony of the witnesses to be reduced to writing, and verified
by their oath or affirmation, else it will be void.’

Day or Night.— Lord Hale deems it “fit” that the warrant
should limit the time of search to the day.2 But the Connecticut
court has held that this is not necessary to its validity ; “ the
presumption,” said Waite, C. J., “is, that the officer will execute
his precept at a proper time and in a proper manner, although it
contains no special direction to that effect.”

§ 244. Description of Place and Thing.— As general warrants are
unlawful," the place and thing must be described. This, which
is required at common law, is so also, in some of our States, by
the constitution.“ Thus, —

§ 245. How minute as to Place.— It is not sufficient if it simply
commands the search of the “suspected place.” !# Probably the
test is, that it shall enable the officer to find the place without

1 Commonwealth v. Dana, 2 Met. 829;
Dwinnels v. Boynton, 3 Allen, 310.

2 Sanford v. Nichols, 18 Mass. 286.

3 Commonwealth v. Certain Intoxi-
cating Liquors, 6 Allen, 596.

4 The State v. Mann, 5 Ire. 45; En-
tick v. Carrington, 19 Howell St. Tr.
1029.

5 Downing v. Porter, 8 Gray, 589;
Allen v. Staples, 6 Gray, 491; Guenther
uv. Day, 6 Gray, 490; Commonwealth v.
Lottery Tickets, 5 Cush. 3869.

6 People v. Holcomb, 8 Parker C. C.
656; ante, § 227.

7 Commonwealth v. Certain Intoxi-
cating Liquors, 18 Allen, 52; Sanders

146

v. The State, 2 Iowa, 280; The State v.
Spencer, 38 Maine, 80.

8 The State v. Carter, 39 Maine, 262;
Jones v. Fletcher, 41 Maine, 254; The
State v. Staples, 87 Maine, 228.

9 2 Hale P. C. 150.

10 The State v. Brennan’s Liquors, 25
Conn. 278, 284.

U Ante, § 242.

12 Bellv. Clapp, 10 Johns. 268; Sanford
v. Nichols, 13 Mass. 286 ; Grumon v. Ray-
mond, 1 Conn. 40; Frisbie v. Butler,
Kirby, 213.

18 Reed v. Rice, 2 J. J. Mar. 44.

14 People v. Holcomb, 8 Parker C. C.
656, 666.
CHAP. XV.] SEARCH-WARRANTS. § 246

inquiring what was in the mind of the person making the com-
plaint, or of the magistrate ; or, in the words of a learned judge,
“ The description of the place to be searched should be as certain
in a warrant as would be necessary in a deed to convey such
place.” 4

As to Thing. — Where the property was described as “ three
cases of misses’ and women’s boots, of the value of one hundred
dollars ; a lot.of oak-tanned soles, of the value of fifty dollars ;
and ten sides of sole leather of the value of forty dollars,” this
was held to be sufficient.2, And it was the same where the de-
scription was “certain spirituous and intoxicating liquors, to wit,
rum, gin, brandy, whiskey, wine, alcohol, and ale.” 8

§ 246. Evidence obtained by Search-warrant : —

Admissible. — The evidence which a search-warrant procures
may be used. against the party; not being inadmissible as an
admission under duress or as furnished by the prisoner through
compulsion against himself, or as otherwise unfairly or illegally
obtained, even if the search-warrant was illegally issued.t

1 May, J., in Jones v. Fletcher, 41 3832; Commonwealth v. Intoxicating

Maine, 254, 256. And see Santo v. The
State, 2 Iowa, 165; Meek v. Pierce, 19
Wis. 800; Dwinnels v. Boynton, 3 Allen,
810; The State v. Robinson, 38 Maine,
564 ; Commonwealth v. Dana, 2 Met. 829 ;
Lincoln v. Smith, 27 Vt. 328; Common-
wealth v. Intoxicating Liquors, 97 Mass.

Liquors, 97 Mass. 334; The State v.
Bartlett, 47 Maine, 388.

2 Dwinnels v. Boynton, supra.

8 The State v. Whiskey, &c., 54 N. H.
164.

4 The State v. Flynn, 36 N. H. 64.

147
§ 248 PREPARATORY AND AUXILIARY. [Book II.

CHAPTER XVI.

THE DOCTRINE AND METHODS OF BAIL.

§ 247. Introduction.
248-250. Nature of Bail, &c.
251-263 a. When and before whom Bail given.
264-264 e. The Forms of Bail.
264 -264n. Charging, Discharging, &c.

§ 247. What for this Chapter, and how divided.— We shall con-
sider, I. The Nature of Bail and how the Principal and Sureties
are related ; II. When and before whom Bail may be given;
III. The Forms of Bail; IV. Charging, Discharging, and other-
wise Relieving and Binding the Sureties.

I. The Nature of Bail and how the Principal and Sureties
are related.

» §248. Bail defined. — The verb to bail, when applied to per-
sons, signifies the delivery, in legal form, of one under arrest to
another or others who thereby become entitled to his custody,
and, with him, responsible for his appearance when and where
agreed in fulfilment of the purpose of the arrest. The noun bail
may denote either the process of bailing (in which sense “ bail-
ment” is sometimes employed as its synonym), or the one or
more persons who thus are made the custodians and sureties.
Mainprise, and how defined. — Mainprise is scarcely known in
the modern law. It is nearly the same thing as bail, from which,
says Hawkins, its “chief if not the only difference ” is, “ that a
man’s mainpernors are barely his sureties, and cannot justify the
detaining or imprisoning of him themselves in order to secure his
appearance,” as bail may lawfully do. Nothing further will be
said of it in this chapter.
1 And see, and compare, 4 Bl. Com. Lee v. The State, 51 Missis. 665; Com-

296, 297; Bac. Abr. Bail in Criminal monwealth v. Bronson, 14 B. Monr. 361.
Causes; 2 Hawk. P. C. c. 15, § 2, 3; 22 Hawk. P. C. c. 15, § 2, 8

148
CHAP. XVI.]_ DOCTRINE AND METHODS OF BAIL. § 250

§ 249. Powers of Bail. — “If the party bailed,” observes Haw-
kins, “ be suspected by his bail as likely to deceive them, he may
be detained by them and enforced to appear according to the
condition of the recognizance, or may be brought by them before
the justice of peace, by whom he shall be committed unless he
find new sureties.” ! Bail, therefore, may at pleasure arrest their
principal personally and without a warrant, doing no violence
unless resisted ; or they may depute another for the purpose, yet
the deputy cannot substitute an agent of hisown. He can simply
employ the help of others, which must be rendered in his actual
or constructive presence.2. Hence, also, —

§ 250. Surrender Principal. — Bail may at any time surrender
the principal, and thereby discharge themselves.? The officer or
tribunal to whom the surrender is made, must be one having
authority to take charge of him; differing, therefore, with the
circumstances, and the statutes of the particular State. Not gen-
erally can it be made to the committing magistrate; for his
functions in the case are at an end.’ Ordinarily it may be to the
sheriff,® though the South Carolina court once held that it could
not be to a deputy sheriff. It “must be,” said the learned judge,
“to some officer who may commit the principal to jail, or admit
him to bail; but the deputy sheriff can do neither.”7 In Ken-
tucky, it may be made to the Circuit Court, if in session ; but, if
the term has not arrived, then it may be made to the tribunal by

that it is otherwise essential, but I have
before me no case on the question.

1 2 Hawk. P. C. c. 18, § 3.
2 The State v. Mahon, 3 Harring. Del.

568; Nicolls v. Ingersoll, 7 Johns. 145;
Pease v. Burt, 8 Day, 485. The arrest
may be made at any time or place, even
on Sunday or in a court room or in another
State, and the doors of the castle may be
broken to effect it, and the sheriff be re-
quired to assist therein. Ib.; Common-
wealth v. Brickett, 8 Pick. 1388; Read v.
Case, 4 Conn. 166; Anonymous, 6 Mod.
231; Smith v. Catlett, 1 Cranch, C. C.
56. In matter of prudence, and as af-
fecting the rights and duties of third per-
sons, the bail making the arrest should
have in possession, and exhibit when
occasion requires, a duly attested copy of
the recognizance. In some States, this is
made necessary by statute. The State
v. Beebe, 13 Kan. 589. I am not aware

8 Harp v. Osgood, 2 Hill, N. Y. 216;
The State v. Lazarre, 12 La. An. 166;
The State v. Meyers, 61 Misso. 414; The
State v. Rollins, 52 Ind. 168; The State
v. Rosseau, 89 Texas, 614; Mitchell v.
Commonwealth, 12 Bush, 247. A sur-
render by one of several sureties, absolv-
ing him, absolves also the others. The
State v. Doyal, 12 La. An. 653.

4 Stegars v. The State, 2 Blackf. 104.
But see The State v. Le Cerf, 1 Bailey,
410.

5 Ante, § 2345.

6 Stegars v. The State, supra; Lee v.
The State, 51 Missis. 665; Kellogg v.
The State, 48 Missis. 57.

7 The State v. Le Cerf, supra.

149
§ 251

which he was sent to the court for trial.1

PREPARATORY AND AUXILIARY.

[Book III.

The surrender is not

perfected till the court takes charge of the principal ; then it is?
Habeas Corpus for Surrender.— In proper circumstances the
court, in aid of bail, will order the principal, if in confinement, to
be brought in for surrender on habeas corpus.
Common Law — Statutes. — Bail was known to the ancient com-

mon law.

But, in England, it was greatly regulated by statutes,

early and late ; and some of the English statutes are common law

with us.

explained by the English authors, especially by Hawkins.®

These statutes, and the practice under them, are well

Our

own statutes, differing more or less in the several States, have
with us in the main superseded the English.

II. When and before whom Bail may be given.

§ 251. By what Officer or Court : —

The Sheriff.— Anciently the sheriff, possessing judicial with
ministerial powers, was the principal bailing officer.6 In many of
our States he may take bail ;7 in others, not.8

The Judges. — In general, all judges of the superior courts, and
especially those who are authorized to issue the writ of habeas
corpus, whether sitting as a court or in chambers, may grant bail

in criminal cases.°

1 Commonwealth v. Bronson, 14 B.
Monr. 361.

2 Commonwealth v. Ray, cited 2 Met.
Ky. 386; Commonwealth v. Coleman,
2 Met. Ky. 382; Anonymous, 1 Salk. 105.
See also, as to the mode of making the
surrender, Rountree v. Waddill, 7 Jones,
N. C. 309.

8 Comstock v. Seagraves, 1 Story, 546.

4 1 Reeves Hist. Eng. Law, 3d ed. 196;
Bac. Abr. Bail in Criminal Causes, A.

5 2 Hawk. P.C. c. 15.

6 2 Hawk. P. C. c. 15, § 25-31; 2 Hale
P. C. 128, 186; Bac. Abr. Bail in Crimi-
nal Causes, A.; Anonymous, 6 Mod.
179.

1 Kellogg v. The State, 43 Missis. 57;
McClure v. Smith, 56 Ga. 489; Kearns v.
The State, 6 Blackf. 884; Moss v. The
State, 6 How. Missis. 298; Dickinson v.
Kingsbury, 2 Day, 1; The State v. Me-
Keown, 12 La. An. 596; McCole v. The

150

On narrower ground, the power to hear an

State, 10 Ind.50; Commonwealth v. Reed,
3 Bush, 516; Merrill v. The State, 46
Ala. 82; Overaker v. The State, 4 Sm.
& M. 738; Shreeve v. The State, 11 Ala.
676. As to deputy sheriffs, see The State
v. Wilson, 12 La. An. 189; The State v.
Edwards, 4 Humph. 226.

8 The State v. Walker, 1 Misso. 546.
And see further, as to the sheriff bailing,
Jacquemine v. The State, 48 Missis. 280 ;
The State v. Miller, 31 Texas, 564; The
State v. Howell, 11 Misso. 613; Antonez
v. The State, 26 Ala. 81; The State v.
Hill, 8 Ire. 398 ; The State v. Horn, Meigs,
473; Gray v. The State, 5 Pike, 265; .
Moore v. The State, 28 Ark. 480; The
State v. Gordon, 18 La. An. 528; Gray vw
The State, 43 Ala, 41.

9 Ante, § 2840, 286; 1 Gude Pr. 275;
Rex v. Greenwood, 2 Stra. 1188; People
v. Town, 8 Scam. 19; People v. Perry,

8 Abb. Pr. N. 8.27; The State . Everett,
CHAP. XVI.] DOCTRINE AND METHODS OF BAIL. § 252

accusation carries with it the authority to bail the accused person
if bailable ;1 and there are circumstances and localities in which
a judge not having this jurisdiction cannot take bail.?

Justice of Peace. — A justice of the peace, while exercising a
jurisdiction over a particular cause not finally disposed of, can, as
incident thereto, grant bail. And by the statutes in some of the
States his authority extends somewhat further. But he has not
the full power of the judges of the higher courts.®

§ 252. In what Cases : —

Guilt doubtful. — The courts are not quite agreed on the prin-
tiple which should move them to allow bail. In an English case,
Erle, J., expressed it thus: “ Wherever the crime is of ‘great
magnitude, the punishment of a high nature, and the evidence of
crime clear, then an application of this sort ought in my judgment
to be refused. But if any one of these requisites be wanting, the
court will exercise its discretion in the matter.” ® Hence, by the
courts that proceed on this principle, —

After Verdict of Guilty.—It is sometimes laid down very
broadly, that there can be no bail after a verdict by the petit
jury finding the prisoner guilty. Even where, in a murder case,
such verdict was doubtful, the judges would not accept bail while
holding the question of its correctness under advisement.’ And

Dudley, S. C. 295; People v. Smith, 1
Cal. 9; Ex parte Tayloe, 5 Cow. 89; The
State v. Abbot, R. M. Charl. 244; The
State v. Hill, 3 Brev. 89; Commonwealth
v. Semmes, 11 Leigh, 665; Snowden v.
The State, 8 Misso. 483; Finch v. The
State, 15 Fla. 633; Holley v. The State,
15 Fla. 688; The State v. Wilson, 12 Ia.
An. 189; Ex parte Croom, 19 Ala. 561;
People v. Rutan, 3 Mich. 42; The State
v. Zwifle, 22 Misso. 467; Commonwealth
v. Keeper of Prison, 2 Ashm. 227; Luckett
v. The State, 51 Missis. 799; Adair v.
The State, 1 Blackf. 200; Street v. The
State, 43 Missis. 1.

"1 People v. Van Horne, 8 Barb. 158;
Ex parte Ryan, 44 Cal. 555; The State
v. Dawson, 6 Ohio, 251; Crandall v. The
State, 6 Blackf. 284; Schultze v. The
State, 48 Md. 295; Commonwealth v.
Field, 11 Allen, 488.

2 Powell v. The State, 15 Ohio, 579;
The State v. Montgomery, 7 Blackf. 221;
Paine v. The State, 7 Blackf. 266; The

State v. Ramsey, 23 Misso. 327; The
State v. Nelson, 28 Misso. 18; Bowman
v. Commonwealth, 14 B. Monr. 390. And
see Elliott v. Dudley, 8 Mich. 62.

3 Ante, § 234a, 2346; Anonymous,
6 Mod. 179; Anonymous, 11 Mod. 51.

4 Moore v. Commonwealth, 6 Watts
&S. 314.

5 Hamlett v. Commonwealth, 3 Grat.
82; Commonwealth v. Otis, 16 Mass. 198;
Commonwealth v. Cheney, 6 Mass. 347;
Commionwealth v. Keeper of Prison, 2
Ashm. 227; Steel v. Commonwealth,
7 Watts, 454; The State v. McGunnegle,
8 Misso. 402.

® Reg. v. Barronet, Dears. 51, 60, 1 El-
lis & B. 1,16 Eng. L. & Eq. 361.

7 Rex v. Morgan, 1 Bulst. 84, 88. “A
man convicted of felony is not bailable, for

‘pail is allowed when it is indifferent or

doubtful whether the person accused be
guilty or not; but, as to him who is con-
victed, two juries have passed upon him,
and it is evident that he is guilty.” An-

151
§ 254. PREPARATORY AND AUXILIARY. [Book II.

where there was a conviction for a forcible entry, and proceedings
for its reversal were pending, the court refused to bail the de-
fendant ; “ being in execution for a fine, and having committed
a very notorious breach of the peace in the heart of the city;
though a long vacation was coming on.”! In another case of
misdemeanor, while the court was holding the verdict and the
sentence to be rendered under advisement, “ Lord Kenyon said,
that, unless the prosecutor consented to the defendant’s remaining
out on bail, it was a matter absolutely of course that he should
be committed: the court had no discretion to exercise, and the
practice was too well settled to admit of argument.” ? Still, —

§ 258. Continued. — Where one was convicted of a libel, and
was sick, the court said: “ The offence is so great that an ade-
quate punishment may endanger his life, and to lessen the judg-
ment would be an ill precedent; therefore bail him for the
present, and we will give judgment when he is better.”8 And
the later English doctrine in cases of misdemeanor seems to be,
that, if it is probable the objections raised in behalf of the pris-
oner after verdict may prevail, the court will accept bail ;4
though not as of course, even where bail was his right before |
verdict.5 And since the result of a litigation can never be known
till the day of sentence, as well as for other obvious reasons, the
American courts accept bail after sentence in cases not capital,
when a sound and cautious discretion prompts, though not so
freely us before verdict.6 This more merciful conclusion has in
some of our States been aided by express legislation.

§ 254. After Sentence. — When the sentence has been pro-
nounced and the prisoner is in execution, he cannot ordinarily be
bailed ; for then the punishment itself would fail. But there may
be such proceedings for the reversal of the judgment as, in justice,
should demand the acceptance of bail in the mean time. In one

ovymous, Jenk. Cent. 219; 2 Dy.179,
pl. 42. See also Rex v. Keat, 1 Salk.
103, 12 Mod. 102, 5 Mod. 288,

1 Reg. v. Layton, 1 Salk. 106; 8. c. nom.
Reg. v. Leighton, Fort. 39.

2 Rex v. Waddington, 1 East, 148, 159,

8 Rex vu. Bishop, 1 Stra. 9. As to
sickness, see post, § 256, 259. ,

* Reg. v. Harris, 4 Cox C. C. 21.

5 Reg. v. Bird, 5 Cox C. C. 11, 19,

2 Eng. L. & Eq. 489.
152

* Ex parte Dyson, 25 Missis. 856;
Corbett v. The State, 24 Ga. 391; The
State v. Connor, 2 Bay, 84; The State-v.
Daniel, 8 Ire. 21; The State v. Ward, 2.
Hawks, 448, 447; Ex parte Hoge, 48 Cal
3; People v. Peis, 48 Cal. 552; Davis v.
The State, 6 How. Missis. 899 ; The State
v. Hill, 3 Brev. 89; People v. Lohman,
2 Barb. 450. See The State v. Vion, 12
La. An. 688.
CHAP. XVI.] DOCTRINE AND METHODS OF BAIL. § 255

case, “the defendant was convicted for keeping an alehouse with-

out license, and was thereupon committed for a month as the act

directs. After he had lain a fortnight he brought a certiorari,

and upon the return of it he was admitted to bail; the court
being of opinion, that, if the conviction was confirmed, they could

commit him in execution for the residue of the time.”! But when
a person in execution for the criminal offence of usury brought a
writ of error, his application for bail “ was denied ; though there
was an apparent error in the record, and though it was formerly
the practice to bail in such case; for, per Curiam, we ought not
to enlarge a prisoner in execution.”? It is perhaps, therefore, the
common-law doctrine that, after the prisoner is committed in exe-
cution of the sentence, he cannot have bail, even while taking
steps to have the sentence reversed. But it is now otherwise in
England under recent statutes, which allow bail in these circum-
stances,® and so it is in many or most of our States.4

After and before Indictment found. — The finding of an indict-
ment by the grand jury is a significant step in the proceedings,
rendering the court less ready to grant bail than before.®

§ 255. In Felony and Treason : —

Probable Guilt and Escape. — Bail would be accepted in every
case if it was as certain as confinement in a prison to secure the
presence of the defendant at the trial and sentence. But there is
always danger of an escape, and it increases in proportion to the
severity of the impending punishment and the danger of a convic-
tion. These two elements, therefore, should be taken into the
account together on the questions of accepting bail and the

1 Rex v. Reader, 1 Stra. 581. One in
execution for a fine, on conviction of riot,
was enlarged on recognizing to prosecute
his writ of error with effect or to pay his
fine ; “though the court did all agree he
could not be taken in execution again ;
and here was cited the case of The King
v. Legier, where Lord Hale refused to
take bail, he being in execution, and hav-
ing brought his writ of error, unless he
brought the money into court.” Rex v.
Saltash, 2 Show. 93.

2 Anonymous, 3 Salk. 58, Vent. 2.
And see Rex v. Brooke, 2 T. R. 190.

3 Stats. 8 & 9 Vict. c. 68, § 1, and 16
& 17 Vict. c. 82, § 1; Archb. Pl. & Ev.
13th Lond. ed. 169; Dugdale v. Reg.,

Dears. 254, 2 Ellis & B. 129, 20 Eng. L.
& Eq. 86; Dugdale v. Reg., 24 Law J.
n. 8. M. C. 55, 29 Eng. L. & Eq. 184.

4 People v. Lohman, 2 Barb. 450; Peo-
ple v. Folmsbee, 60 Barb. 480; Miller v.
The State, 15 Fla. 575. See Dempsey v.
People, 5 Parker C. C. 85.

& Reg. v. Chapman, 8 Car. & P. 558;
Rex v. Mohun, Holt, 84, Skin. 683; People
v. Tinder, 19 Cal. 539; Lynch v. People,
88 Ill. 494; Zembrod v. The State, 25
Texas, 619; Ex parte Heffren, 27 Ind.
87; lx parte Vaughan, 44 Ala. 417; Reg.
v. Langley, 4 Cox C. C. 157; Ex parte
Mosby, 31 Texas, 666. And see post,
§ 256, note.

153
§ 256 PREPARATORY AND AUXILIARY. [Book II.

amount.! And where the probabilities of flight are overwhelming,
there should be no bail.2, A capital crime, with guilt and convic-
tion certain, is of this sort; for, in the language of Scripture, ‘all
that a man hath will he give for his life.” Still, —

§ 256. All Offences bailable.— By the common law, prevailing
to the present time in a part of our States, all offences, not ex-
cepting treason and the capital and other felonies, are bailable ;
though these high crimes are so only in the discretion of the
court, not of right.2 But, —

Discretion. — In the exercise of the judicial discretion, it is the
common rule to refuse bail in a capital case ;* and, if the guilt
is plain, — as, for example, where the prisoner acknowledges it, ®
—the rule is nearly or quite imperative.6 But, in exceptional
circumstances, if there is doubt of the prisoner’s guilt,’ and espe-
cially if confinement will endanger his life,’ the court will release
him on bail, even in a capital case.? In felonies not capital, bail,

1 People v. Van Horne, 8 Barb. 158,
165, 166; In re Barronet, 1 Ellis & B. 1,
Dears. 51; In re Robinson, 28 Law
J. n. 8. Q. B. 286; Reg. v. Scaiffe,
6 Jur. 700; People v. Cunningham, 3
Parker C. C. 520; Rex v. Baltimore, 4
Bur. 2179.

2 People v. Dixon, 4 Parker C. C. 651.

3 Reg. v. Barthelemy, Dears. 60, 61;
Rex v. Higgins, 4 O.S., U. C. 88; Har-
vey’s Case, 10 Mod. 334; Danby’s Case,
Skin. 56; Stafford’s Case, T. Raym. 381;
United States v. Hamilton, 3 Dall. 17;
United States v. Stewart, 2 Dall. 848;
United States’ v. Burr, 1 Burr’s Trial,
806-312; Rex v. Wyndham, 1 Stra. 2;
The State v. McNab, 20 N. H. 160; Rex
v. Delamere, Comb. 6, 111; Rex v. Pep-
per, Comb. 298; Rex v. Yates, 1 Show.
190; Watson’s Case, 1 Salk. 106; Far-
ington’s Case, T. Jones, 222; Anonymous,
Lofft, 281; People v. Hyler, 2 Parker
C. C. 570; Page v. Price, 8 Salk. 57;
The State v. Hill, 3 Brev. 89,1 Tread.
242; The State v. Rockafellow, 1 Halst.
332; Foley v. People, Breese, 31; Ex
parte Bryant, 384 Ala. 270; People v. Van
Horne, 8 Barb. 158; Reg. v. Barronet,
Dears. 51,1 Ellis & B. 1, 16 Eng. L. &
Eq. 361.

*# Rex v. Kirk, 12 Mod. 809; Rex v.
Carter, 7 Mod. 172; Rex v. Acton, 2 Stra.
851; Rex v. Greenwood, 2 Stra. 1188;

154

Reg. v. Chapman, 8 Car. & P. 558; United
States v. Stewart, 2 Dall. 343; Florida v.
Mullin, 3 N. Y. Leg. Obs. 210; People v.
Tinder, 19 Cal. 539.

5 Reg. v. Barronet, Dears. 51, 56, 57,
1 Ellis & B. 1, 16 Eng. L. & Eq. 361.

® Moore v. The State, 31 Texas, 572;
Street v. The State, 48 Missis. 1.

7 Ante, § 255; post, § 257; People v.
Lohman, 2 Barb. 450; Green v. Common-
wealth, 11 Leigh, 677,

8 Commonwealth v. Semmes, 11 Leigh,
665; United States v. Jones, 3 Wash.
C. C. 224; Archer’s Case, 6 Grat. 705.
And see Thomas v. The State, 40 Texas,
6; Lester v. The State, 83 Ga. 192; post,
§ 259.

® After or before Indicted.— A dis-
tinction sometimes taken is between cases
in which there is already an indictment,
and those in which there is not. See
ante, § 254. Thus, it was in one case
said: “If aman be found guilty of mur-
der by the coroner’s inquest, we some-
times bail him ; because the coroner pro-
ceeds upon depositions taken in writing,
which we. may look into. Otherwise, if
aman be found guilty of murder by a
grand jury; because the court cannot
take notice of their evidence, which they
by their oath are bound to conceal.”
Mohun’s Case, 1 Salk. 104. And see the
next section. Also see Rex v. Magrath,
CHAP. XVI.] DOCTRINE AND METHODS OF BAIL. § 257

under the common-law essay is more freely granted, yet still cau-
tiously and not as of course.!

§ 257. What look into. — The leading consideration being the
question of probable guilt, the court will look into the depositions
taken before the coroner? and the committing magistrate? As
to the evidence which was produced before the grand jury, we
have seen,‘ that, being private, judicial notice of it is not possible.
But for some other purposes,®— and, on principle, for the pur-
pose of bail,—the doings of a grand jury may be judicially
inquired into, and even the testimony of a juror may be admitted.
The difficulty, if it is one, has been overcome by legislation in
some of our States; and, in one way or another, it seems to
have become the American doctrine that, even after indictment
found, the facts as to probable guilt may be inquired into on an

application for bail.®

2 Stra. 1242; Rex v. Dalton, 2 Stra.
911; where the same distinction is also
drawn. As to which, see post, § 257.

1 Ex parte Tayloe, 5 Cow. 39; People
v. Van Horne, 8 Barb. 158; Summerfield
v. Commonwealth, 2 Rob. Va. 767; Rex v.
Carter, W. Kel. 159; Rex v. Massey, 6 M.
& S. 108; Rex v. Jones, 1 B. & Ald. 209;
The State v. Mairs, Coxe, 335; Ex parte
Andrews, 19 Ala. 582; Dunlap v. Bartlett,
10 Gray, 282; Anonymous, Lofft, 554;
Rex v. Baltimore, 4 Bur. 2179; Rex v.
Booth, 2 Keny. 172; Tyler v. Greenlaw,
5 Rand. 711; The State v. McNab, 20
N. H. 160.

2 Ante, § 256, note; Rex v. Pepper,
Comb. 298, where it is said: “‘ We ought
to have the examinations [before the
coroner’s inquest] before us; and, if it
appear to be a case of hardship, we may
‘pail.’ See also The State v. Dew, Taylor,
142.

8 Rex v. Horner, Cald. 295, 1 Leach,
4th ed. 270. In this case, the court, ac-
cording to the report in Leach, observed
as follows: “The court in such a case
never form any judgment whether the
facts amount to felony or not, but merely
whether enough is charged to justify a
detainer of the prisoner and put him upon
his trial. The practice of this court is,
.... that, even where the commitment
is regular, the court will look into the

depositions to see if there be a sufficient

ground laid to detain the party in cus-

tody ; and, if there be not, they will bail
him. So, also, where the commitment is
irregular, if it appear that a serious of-
fence has been committed, they will not
discharge or bail the prisoner without
first looking into the dépositions, to see
whether there is sufficient evidence to
detain him in custody.”

# Ante, § 256, note.

5 Post, § 857-859.

6 Lumm v. The State, 3 Ind. 293;
Commonwealth v. Rutherford, 5 Rand.
646; Ex parte Tayloe, 5 Cow. 39; Ex
parte Bramer, 87 Texas, 1; Lynch v.
People, 38 Ill, 494; Street v. The State,
43 Missis. 1. But see Hight v. United
States, Morris, 407. In South Carolina,
ona motion for leave to give bail in a
criminal case, the court may hear and
consider affidavits, although they go to
contradict the finding of a jury. The
State v. Hill, 1 Tread. 242. The same is
held in New York in cases where the
prisoner has been committed by a coro-
ner; but this would be so even in Eng-
land. People v. Beigler, 8 Parker C. C.
316. Stillit was held, that, after indict-
ment found, the depositions taken before
the committing magistrate cannot be
looked into. People v. Dixon, 4 Parker
C. C. 651. And see People v. Hyler,

155 ©
[Book 1.

§ 259 PREPARATORY AND AUXILIARY.

§ 258. Other Considerations : —

Needless Delay in Prosecution. — Natural justice forbids that a
man arrested for crime should be detained a needless time await-
ing trial. Therefore it was early held, that, even in felony, if the
prosecutor does not bring on the trial as soon as he might, this is
a strong reason for allowing bail to the defendant.1 And one
committed as accessory after the fact in high treason was bailed ;
‘“‘ because, though the commitment was for high treason, yet there
was no prosecution, and a sessions was past.” But the lapse of
a single term, when no oppression attends it, will not alone move
the court to allow bail ;? nor, a fortiort, will the continuance of
the case for want of witnesses. But, in a particular case, such a
circumstance may move the court to allow bail, or even discharge
the prisoner, or set him at large on his own recognizance. But
a postponement at the prisoner’s request is no ground for bail.§

§ 259. Sickness of Prisoner. — Though the prisoner is sick,’ yet,
if the confinement does not aggravate his sickness, bail will not
therefore be allowed him, especially in a very high crime® But
if his life is in danger from the imprisonment,® or in some cases
if his health is poor or is injured thereby,” or if there is a famine
in the jail," this will be reason, more or less strong according

to the circumstances, for admitting him to bail.

2 Parker C. C. 570; The State v. Wicks,
R. M. Charl. 189.

1 Rex v. Bell, Andr. 64,

2 Fitzpatrick’s Case, 1 Salk, 103. So,
where the party had lain in prison, with-
out prosecution, a year. Rex v. Wynd-
ham, 1 Stra. 2, 4. Also, where he had
thus lain two terms. Crosby’s Case, 12
Mod. 66. A woman under indictment for
the murder of her husband was admitted
to bail, where it appeared by the “ affida-
vits of the fact that it was a malicious
prosecution; and there being nothing
done either upon the indictment or coro-
ner’s inquest, or at the assizes; and the
man being dead above a year.” Barney’s
Case, 5 Mod. 8238. And see The State v.
Hill, 8 Brev. 89. For the like doctrine,
in some instances aided by statutes,
see Ex parte Croom, 19 Ala. 561; Ex
parte Stiff, 18 Ala. 464; Aylesbury’s
Case, 1 Salk. 103.

% The State v. Abbot, R. M. Charl.

156

244; Logan v. The State, 8 Brev. 415.
And see Anonymous, 2 Lewin, 260; Rex
v. Parish, 7 Car. & P. 782; Reg. v. Orbell,
6 Mod. 42.

4 United States v. Jones, 3 Wash.
C. C. 224; Ex parte Campbell, 20 Ala.
89.

5 Rex v. Osborn, 7 Car. & P. 799;
Rex v. Crowe, 4 Car. & P. 251; Reg. v.
Hibburd, 1 Car. & K. 461; Common-
wealth v. Phillips, 16 Mass. 428.

® United States v. Stewart, 2 Dall. 848.
And see People v. Hartwell, 2 Parker
C. C. 82. :

7 Ante, § 256.

8 Rex v. Wyndham, 1 Stra. 2, 4.

® Aylesbury’s Case, 1 Salk. 108, Holt,
84; United States v. Jones, 3 Wash. C. C.
224; ante, § 258, 256.

1 Rex v. Aylesbury, Holt, 84; Har-
vey’s Case, 10 Mod. 834.

11 Herbert’s Case, Latch, 12.
CHAP. XVI.]_ DOCTRINE AND METHODS OF BAIL. § 261

§ 260. Misdemeanor distinguished from Felony. —In misde-
meanor, differing from felony, the common-law doctrine allows
bail to prisoners, not in the mere discretion of the court, but, at
least in ordinary cases, as of right.1 Hence —

Guilt in Misdemeanor. — One held to answer for a misdemeanor
may give bail equally whether he is guilty or not. But still the
question of his probable guilt may be inquired into as presenting
or not a motive to fly from justice, in fixing the amount of bail.?
Hence, also, —

Discretion as to Sureties. — If, in these cases, sureties pecuniarily
sufficient present themselves, the magistrate has no right to reject
them out of dislike to their politics or personal character.

§ 261. Constitutional and Statutory Modifications : —

Excessive Bail.— The Constitution of the United States pro-
vides that ‘‘ excessive bail shall not be required.” * This provi-
sion does not bind the States ;® yet, in spirit, it is expressive of
the general doctrine.

In all Cases except. — By the Mississippi Constitution: “ All
prisoners shall, before conviction, be bailable by sufficient sure-
ties, except for capital offences where the proof is evident or the
presumption great.”® In Kentucky, the language is somewhat
different ; being “that all prisoners shall be bailable, by sufficient
sureties, unless for capital offences when the proof is evident or

presumption great.” 7

! Reg. v. Badger, 4 Q. B. 468, 7 Jur.
216, 6 Jur. 994; People v. Kennedy, 2
Parker C. C. 812; People v. Johnson, 2
Parker C. C, 822; Dunlap »v. Bartlett, 10
Gray, 282, with which compare Ex parte
Andrews, 19 Ala. 682. Although it is
not necessary to state in a warrant of
commitment on a charge of felony that
the act was done “feloniously,” yet, un-
less it sufficiently appears to the court
that a felony has been committed, they
are bound to bail the defendant. Rex v.
Judd, 2 T. R. 255. In this case, Ashhurst,
J., said : “ However improper the defend-
ant’s conduct appears to have been upon
the proceedings before the justices, yet,
unless it appears upon the face of the
commitment itself that the defendant is
charged with a felony, we are bound by
the habeas corpus act to discharge him;
taking such bail for his appearance to

And similar to the latter is the clause in

take his trial as we in our discretion shall
think fit, according to the circumstances
of the case.” p. 256, 8. c. 1 Leach, 4th ed.
484, 2 Kast P.C. 1018. But a statute,
creating an offence, may be in such terms
as to preclude bail. Rex v. Dunn, 6 Bur.
2640.

2 Reg. v. Scaife, 9 Dowl. P. C. 553, 5
Jur. 700.

3 Reg. v. Badger, 4 Q. B. 468, Dav. &
M. 875. The Sureties.— See further, as
to who shall be accepted as sureties,
People v. Ingersoll, 14 Abb. Pr. n. 8. 23;
Boren v. Darke, 21 Ohio State, 311.

4 Const. U. S. amendm. art. 8.

5 Commonwealth v. Hitchings, 5 Gray,
482, 485.

8 Ex parte Wray, 30 Missis. 673 ; Street
v. The State, 43 Missis. 1.

7 Ullery v. Commonwealth, 8 B.

Monr. 3.
157
§ 263-4 PREPARATORY AND AUXILIARY. [Book Im.

the Missouri Constitution. A like provision exists either in the
Constitution or statutes of various other States.2 Bail, therefore,
becomes in these States a right.of the accused in all cases not
capital ; and, in capital cases, it is either a right or permitted in
the discretion of the court whenever the proof is not evident or
the presumption great. ‘

§ 262. Proof evident, Presumption great. — The grand jury is a
part of the court, and the judge after it has found an indictment
should assume that it had evident proof; so that, in a capital case,
prima facie the indicted defendant is not entitled to bail. But,
in reason, and on the better authorities, the facts may be inquired
into on an application for bail, and the action of the bailing officer
will be governed by what thus appears.® If there has been a
trial before a petit jury failing to agree, and especially if there
have been two such trials, that will be a strong fact moving to
the granting of bail.®

§ 263. Refusal and Second Application.— A refusal of bail may
justify the court in declining to look into the question a second
time ; but it is not an adjudication absolutely barring another

application,’ though in one case it was so regarded.8

Pending. — While the question is pending before one competent
tribunal, another should not interfere.®

§ 268 a. Bail forfeited — (Rearrest). — One who, on bail, has
forfeited his recognizance, is liable, even after it is paid, to be re-
arrested and tried for his crime, whether felony or misdemeanor.”
But, this being in the nature of an escape, —

1 Shore v. The State, 6 Misso. 640.

2 Foley v. People, Breese, 81, 32; Ex
parte Banks, 28 Ala. 89.

8 Kx parte Wray, supra; Ex parte
Banks, supra; Ex parte Fortenberry, 58
Missis. 428; Thompson v. The State, 25
Texas, Supp. 395; McCoy v. The State,
25 Texas, 38; Drury v. The State, 25
Texas, 45; The State v. Summons, 19
Ohio, 189; People v. Perry, 8 Abb. Pr.
N. 8. 27; Ex parte Colter, 85 Ind. 109;
Ex parte Jones, 55 Ind. 176. See also
Ex parte Bryant, 84 Ala. 270; Moore v.
The State, 86 Missis. 137.

4 Ex parte Jones, 55 Ind. 176; Ex
parte Vaughan, 44 Ala. 17; People v.
Tinder, 19 Cal. 689; Ex parte White, 4
Eng. 222.

5 Street v. The State, 43 Missis. 1;

158

Ex parte Jones, supra; Lynch v. People,
88 Ill. 494. And see Ex parte Heffren,
27 Ind. 87.

® In re Alexander, 59 Misso. 599;
People v. Perry, 8 Abb. Pr. n. 8. 27;
People v. Cole, 6 Parker C. C. 695; The
State v. Summons, 19 Ohio, 139. For
other considerations, see Ex parte Moore,
80 Ind. 197; Beall v. The State, 39 Mis-
sis. 715; Ex parte Miller, 41 Texas, 213;
The State v. Summons, supra; The State
v. Davidson, 20 Misso. 212; Newton wv.
Bailey, 86 Ga. 180.

1 Ex parte Campbell, 20 Ala. 89.

8 People v. Cunningham, 8 Parker C.
C. 681.

® Ex parte Kittrel, 20 Ark. 499.

10 Ex parte Milburn, 9 Pet. 704.
a

CHAP. XVI.] DOCTRINE AND METHODS OF BAIL. § 264

Insufficient Sureties — (Fraud).— It does not. follow that, if
sureties fairly tendered and taken turn out to be worthless, the
principal who has been in no default can be rearrested. It seems
sufficiently plain in legal reason that he cannot,! and so it has
been held.? But if the bail were given by him in fraud, the
analogies of the law, in cases both civil and criminal, indicate
that it may be treated as void and he may be rearrested. More-
over, one who has given bonds before the committing magistrate
to answer to an indictment may be arrested on a bench warrant

after the indictment is found. And, however this may be, —
Second Arrest as to Sureties.— If a second arrest is made before
forfeiture, the sureties are discharged ;° if afterward, they are

not.§

II. The Forms of Bail.

§ 264. Deposit of Money. — Money deposited in security is not
bail, and under the common-law rules an officer has no authority

to receive it.’
statute.®

But in some of our States this is permitted by

Recognizance — Bond of Record. — The common method of bail
is by recognizance,° or in some of our States by a bond of record,”

which is essentially a recognizance.

A recognizance proper is

not signed," though what is called such in some of our States

1 See and compare McQueen v. Heck,
‘1 Coldw. 212; Housin v. Barrow, 6 T. R.
218; Wilson v. Hamer, 8 Bing. 54, 1
Moore & S. 120, 1 Dowl. P. C. 248; Doyle
v. Russell, 80 Barb. 800; Redman v. The
State, 28 Ind. 205.

2 Post, § 1386.

3 Bulson v. People, 31 Ill. 409; Brad-
ley v. Gompertz, 1 Man. & R. 567; Sut-
cliffe v. Eldred, 2 Dowl. P. C. 184; Ward
v. Levi, 2 D. & R. 421, 1 B. & C. 268;
Wilson v. Hamer, supra; Puckford v.
Maxwell, 6 T. R. 52; Bronson v. Noyes,
7 Wend. 188; Commonwealth v. Hastings,
9 Met. 259.

4 Smith v. Kitchens, 51 Ga. 158. See
Chappell v. The State, 30 Texas, 613.

5 Smith v. Kitchens, supra; Medlin v.
Commonwealth, 11 Bush, 605; Peacock
v. The State, 44 Texas, 11. And see
Henry v. Commonwealth, 4 Bush, 427;
Commonwealth v. Bronson, 14 B. Monr.

361.

6 The State v. Emily, 24 Iowa, 24.

1 The State v. Lazarre, 12 La. An. 166.

8 Wash v. The State, 3 Coldw. 91;
Dean v. Commonwealth, 1 Bush, 20;
Morrow v. The State, 6 Kan. 222.

9 1 Chit. Crim. Law, 90; Bishop Con.
§ 39-45; Shattuck v. People, 4 Scam.
477; The State v. Weatherwax, 12 Kan.
463; Pugh v. The State, 2 Head, 227;
Bengough v. Rossiter, 4 T. R. 505, 2 H.
Bl. 418; Hicks v. The State, 3 Pike, 3138;
Laturner v. The State, 9 Texas, 451.

10 The State v. Emily, 24 Iowa, 24;
The State v. Badon, 14 La, An. 783; The
State v. Cravey, 12 La. An. 224; The
State v. Ansley, 138 La. An. 298; The
State v. Houston, 74 N. C. 649; People v.
Mellor, 2 Col. Ter. 705; Shattuck v. Peo-
ple, 4 Scam. 477.

111 Chit. Crim. Law, 90; Common-
wealth v. Mason, 3 A. K. Mar. 456; Madi-
son v. Commonwealth, 2 A. K. Mar. 181.

159
§ 2644

PREPARATORY AND AUXILIARY.

[Book III.

is,! and a signature to a proper recognizance does no harm to it.?
Nor is a seal essential ;? nor, being a record,‘ is it within the
inhibition of the Statute of Frauds.®

§ 264 a. Follow the Law. — The recognizance or bond must be
taken before an officer duly authorized, and in its form and attend-
ing formalities it must fill the requirements of the statutes and
unwritten law of the particular State, or it will be void. They
differ in some degree. But though such is the general rule, there

1 Cunningham v. The State, 14 Misso.
402; Shattuck v. People, 4 Scam. 477.

2 Commonwealth v. Emery, 2 Binn.
431, 434.

3 The State v. Foot, 2 Mill, 123; Sla-
ten v. People, 21 Ill. 28; Hall v. The State,
9 Ala. 827.

4 Bishop Con. § 48, 44; McElwee v.
People, 77 Ill. 498; Barkley v. The
State, Meigs, 93; Pugh v. The State, 2
Head, 227; Welborn v. People, 76 Ill. 516;
People v. Van Eps, 4 Wend. 887.

5 Grinestaff v. The State, 53 Ind. 238.

6 Alabauma.— Lloyd v. The State,
Minor, 34; Howie v. The State, 1 Ala. 113;
Badger v. The State, 5 Ala. 21; Ellison
v. The State, 8 Ala. 278; Hall v. The
State, 9 Ala. 827; Antonez v. The State,
26 Ala. 81; Vasser v. The State, 32 Ala.
586; Barnett v. The State, 34 Ala. 260;
Tolison v. The State, 39 Ala. 103; Avery
v. The State, 52 Ala. 340.

Arkansas. — Hicks v. The State, 3 Pike,
818; The State v. Williams, 17 Ark. 871.

California. — People’ v. Penniman, 87
Cal. 271; Los Angeles v. Babcock, 45
Cal. 252. ‘

Colorado. — Chase v. People, 2 Col. Ter.
528; People v. Mellor, 2 Col. Ter. 705.

Connecticut. — Darling v. Hubbell, 9
Conn. 350; Treasurer v. Burr, 1 Root,
892; Kingsbury v. Clark, 1 Conn. 406;
Waldo v. Spencer, 4 Conn. 71.

Georgia. — Adams v. The Governor, 22
Ga. 417; Nicholson v. The State, 2 Kelly,
863.

Idaho. — People v. Sloper, 1 Idaho Ter.
183. :

Illinois. — People v. Slayton, Breese,
257; Shattuck v. People, 4 Scam. 477;
Solomon ». People, 15 Ill. 291; Vancie v.
People, 16 Ill. 120; Lawrence v. People,
17 Ill. 172; Waugh v. People, 17 Ill. 661;
Jack v. People, 19 Ill. 67; People v. Wat-

160

kins, 19 Ill. 117; Vipond v. Hurlburt, 22
Ill. 226; Combs v. People, 39 Ill. 183;
People v. O’Brien, 41 Ill. 803; Stokes v.
People, 63 Ill. 489; Bloomington v. Hei-
land, 67 Ill. 278; Mooney v. People, 81
Ill. 134.

Indiana.—McCarty v. The State, 1
Blackf. 338; Andress v. The State, 8
Blackf. 108 ; Lang v. The State, 8 Blackf.
344; Wellman v. The State, 5 Blackf.
848 ; Davis v. The State, 5 Blackf. 874;
Ross v. The State, 6 Blackf. 815; Bur-
ton v. The State, 6 Blackf. 839; Lorance
v. The State, 1 Ind. 359; The State v.
Hamer, 2 Ind. 371; Trimble v. The State,
8 Ind. 151; Holtzclaw v. The State, 4 Ind.
597; Patterson v. The State, 10 Ind.
296; Patterson v. The State, 12 Ind. 86;
Votaw v. The State, 12 Ind. 497; Kiser
v. The State, 13 Ind. 80; Tucker v. The
State, 13 Ind. 8332; McClure v. The State,
29 Ind. 859; Adams v. The State, 48 Ind.
212 (overruling Urton v. The State, 37
Ind. 389); Griffin v. The State, 48 Ind.
258; Harris v. The State, 54 Ind. 2,

Iowa.— The State v. Carr, 4 Iowa,
289; The State v. Cannon, 34 Iowa, 322;
The State v. Wells, 86 Iowa, 238; The
State v. Wright, 37 Iowa, 522.

Kansas. — Morrow v. The State, 5 Kan.
563; Gay v. The State, 7 Kan. 394; In-
gram v. The State, 10 Kan. 630; Jennings
v. The State, 18 Kan. 80. :

Kentucky, — Adams v. Ashby, 2 Bibb,
96; Commonwealth v. Littell, 1 A. K.
Mar. 566; Fowler v. Commonwealth, 4
T. B. Monr. 128; Commonwealth v. Lee,
8 J.J. Mar. 698; Frishe v. Commonwealth,
6 Dana, 318; Ready v. Commonwealth, 9
Dana, 88; Adams v. Commonwealth, 1 B.
Monr. 70; Hostetter +. Commonwealth,
12 B. Monr. 1; Commonwealth v. Fisher,
2 Duvall, 876; Commonwealth v. Ram-
say, 2 Duvall, 385; Dean v. Common-
CHAP. XVI. ] DOCTRINE AND METHODS OF BAIL.

§ 2644

are statutory provisions merely directory in their nature,! —as,
that there shall be two sureties,? that the sureties shall be resi-

,

wealth, 1 Bush, 20; Branham v. Com-
monwealth, 2 Bush, 8; Wallenweber v.
Commonwealth, 3 Bush, 68; Covington
v. Commonwealth, 3 Bush, 478; Creek-
more v. Commonwealth, 5 Bush, 312;
Commonwealth v. Ball, 6 Bush, 291;
Dugan v. Commonwealth, 6 Bush, 305;
Commonwealth v. O’Daniel, 9 Bush, 551 ;
Morgan v. Commonwealth, 12 Bush, 84.

Louisiana.— The State v Smith, 12
La. An. 849; The State v. McKeown, 12
La. An. 596; The State v. Ansley, 13 La.
An. 298; Taliaferro v. Steele, 14 La. An.
656; The State r. Fuller, 14 La. An. 726;
The State v. Whitaker, 19 La. An. 142;
The State v. Gibson, 23 La. An. 698.

Maine.— The State v. Smith, 2 Greenl.
62; The State v. Berry, 8 Greenl. 179;
The State v. Magrath, 81 Maine, 469;
The State v. Lane, 33 Maine, 536; The
State v. Hatch, 59 Maine, 410.

Maryland. — Coleman v. The State, 10
Md. 168; Tucker v. The State, 11 Md.
822; Parrish v. The State, 14 Md. 238.

Massachusetts. — Commonwealth — v.
Downey, 9 Mass. 520; Commonwealth
v. Loveridge, 11 Mass. 387; Common-
wealth v. Otis, 16 Mass. 198; Common-
wealth v. Daggett, 16 Mass. 447; Com-
monwealth v. Canada, 13 Pick. 86;
Commonwealth v. Harley, 7 Met. 467;
Commonwealth v. Baird, 9 Met. 407;
Commonwealth v. McLane, 4 Gray, 427 ;
Commonwealth v. Nye, 7 Gray, 316; Un-
derwool v. Clements, 16 Gray, 169;
Commonwealth v. Greene, 13 Allen, 251;
Commonwealth v. Sholes, 13 Allen, 896.

Michigan. — People v. Dennis, 4 Mich.
609; Daniels v. People, 6 Mich. 381. ;

Mississippi.—Dean v. The State, 2
Sm. & M. 200; Butler v. The State, 12
Sm. & M. 470; The State v. Brown, 32
Missis. 275; Kellogg v. The State, 43
Missis. 57.

Missouri. —'Todd v. The State, 1 Misso.
666; The State v. Randolph, 22 Misso.
474; The State v. Randolph, 26 Misso.
213.

Nevada.—The State v. Birchim, 9
Nev. 95.

1 Stat. Crimes, § 255.

VOL. I. 11

New Hampshire. —The State v. Buf-
fum, 2 Fost. N. H. 267; The State cv.
Fowler, 8 Fost. N. H. 184; The State v.
Benton, 48 N. H. 651.

New York.— People v. Van Eps, 4
Wend. 387; People v. Kane, 4 Denio,
630 (overruling, in part, People v. Koeber,
7 Hill, N. Y. 89, and People v. Young, 7
Hill, N. ¥.44); People v. Leggett, 5 Barb.
360 ; Gildersleeve v. People, 10 Barb. 35;
People v. Oyer and Terminer, 7 Hun,
114; People v. Main, 20 N. Y. 434; Peo-
ple v. Welch, 47 How. Pr. 420; People
v. Graham, 1 Parker C. C. 141; People v.
Mack, 1 Parker C. C. 567; People v.
Shaver, 4 Parker C. C. 45.

North Carolina. — The State v. Mills, 2
Dev. 555; The State v. Edney, 4 Dev. &
Bat. 378.

Ohio. — The State v. Wellman, 3 Ohio,
14; The State v. Clark, 15 Ohio, 595;
Sargeant v. The State, 16 Ohio, 267; The
State v. Crippen, 1 Ohio State, 399; The
State v. West, 3 Ohio State, 509; Milli-
kin v. The State, 21 Ohio State, 635.

Oregon. — Williams v.. Shelby, 2 Ore-
gon, 144.

Pennsylvania. — Commonwealth v. Em-
ery, 2 Binn. 481; Bodine v. Common-
wealth, 12 Harris, Pa. 69; Hosie v. Gray,
23 Smith, Pa. 502.

Rhode Island. — The State v. McCarty,
4 R. I. 82.

South Carolina.—The State v. Rowe,
8 Rich. 17; The State v. Ahrens, 12 Rich.
498.

Tennessee. — The State v. Sullivant, 3
Yerg. 281; Grigsby v. The State, 6 Yerg.
854; The State v. Rye, 9 Yerg. 386; The
State v. Cherry, Meigs, 232; The State
v. Austin, 4 Humph. 213; The State »v.
Edwards, 4 Humph. 226; Scott v. The
State, 1 Head} 433.

Texas. — Dailey v. The State, 4 Texas,
417; Cotton v. The State, 7 Texas, 547;
Laturner v. The State, 9 Texas, 451; Pal-
vadore v. The State, 12 Texas, 230; Willi-
ford v. The State, 17 Texas, 653; Manes
v. The State, 20 Texas, 38; Hodges ».
The State, 20 Texas, 493; Gay v. The

2 The State v. Benton, 48 N. H. 551.
161
§ 2645 PREPARATORY AND AUXILIARY. [Book III.

dents of the State,! or shall not be lawyers,? and the like,3—a
non-compliance with which does not render the recognizance or

bond void if in other respects it conforms to the law.

And it

may be good at common law while void as a statutory obligation
by reason of a departure from statutory forms.*

§ 264 6. Full in its Terms. — The entire obligation intended to be
assumed must be expressed, or be in some way derivable from
the words employed ;° as, for example, —

Time and Place — (Change in the Laws).— The time and place of
appearance must be manifest ;® and, if the day named is one on

which by law there is no court,

State, 20 Texas, 504; Davidson v. The
State, 20 Texas, 649; Brite v. The State,
24 Texas, 219; The State v. Russell, 24
Texas, 505; Wilcox v. The State, 24
Texas, 544; Grier v. The State, 29 Texas,
95; Ferrill v. The State, 29 Texas, 489;
The State v. Hotchkiss, 830 Texas, 162;
Horton v. The State, 30 Texas, 191;
Payne v. The State, 30 Texas, 397; Ben-
nett v. The State, 30 Texas, 446; Tierney
v. The State, 81 Texas, 40; Gonzales v.
The State, 31 Texas, 205; Davis v. The
State, 30 Texas, 352; Robinson v. The
State, 30 Texas, 437; Adler v. The State,
31 Texas, 61; Breeding v. The State, 31
Texas, 94; Thompson v. The State, 31
Texas, 166; Goldthwaite v. The State,
82 Texas, 599; Barrera v. The State, 32
Texas, 644; Doughty v. The State, 33
Texas, 1; The State v. Glavecke, 33
Texas, 53; Montgomery v. The State,
83 Texas, 179; Stroud v. The State, 33
Texas, 650; Moore v. The State, 34
Texas, 188; The State v. Brown, 84 Tex-
as, 146; Rainbolt v. The State, 34 Texas,
286 ; Brown v. The State, 34 Texas, 524;
Patton v. The State, 35 Texas, 92; Smith
v. The State, 36 Texas, 317; The State
v. Rhodius, 37 Texas, 165; Gorman ».
The State, 88 Texas, 112; Ishmael v.
The State, 41 Texas, 244; The State
v. Becknail, 41 Texas, 319; The State v.
Gordon, 41 ‘Texas, 510; Turner v. The
State, 41 Texas, 549; Vanwey v. The
State, 44 Texas, 112; Sively v. The State,
44 Texas, 274.

Vermont.— Treasurer v. Pierce, 2 D.
Chip. 106; Treasurer v. Cook, 6 Vt. 282;
Treasurer v. Woodward, 7 Vt. 529; Chit-

162

the recognizance will be void.7

tenden v. Mitchell, 23 Vt. 131; Treasurer
v. Brooks, 23 Vt. 698.

Virginia. — Hamlett v. Commonwealth,
3 Grat. 82; Saunders v. Commonwealth,
83 Grat. 214; Archer v. Commonwealth,
10 Grat. 627; Gedney v. Commonwealth,
14 Grat. 318.

United States. — Dillingham v. United
States, 2 Wash. C. C. 422; United States
v. Dennis, 1 Bond, 103; United States v.
Goldstein, 1 Dillon, 418; United States
v. Horton, 2 Dillon, 94; United States v.
George, 3 Dillon, 481.

1 Commonwealth v. Ramsay, 2 Du-
vall, 385.

2 Jack v. People, 19 Ill. 57.

3 Rainbolt v. The State, 34 Texas, 286;
Doughty v. The State, 833 Texas, 1; Dy-
ches v, The State, 24 Texas, 266.

4 Reg. v. Ewer, Holt, 612; Phelps v.
Parks, 4 Vt. 488; Nicholson v. The State,
2 Kelly, 868; The State v. Cannon, 34
Towa, 322.

5 Grigsby v. The State, 6 Yerg. 354;
The State v. Crippen, 1 Ohio State, 399;
Commonwealth v. Emery, 2 Binn. 431;
Reg. v. Hodgson, Dears. 14, 7 Exch. 915,
14 Eng. L. & Eq. 456; Reg. v. Hawdon,
1 Q B. 464, 1 Gale & D. 185; Rex »v.
Teal, 18 East, 4.

® The State v. Allen, 83 Ala, 422;
People v. Carpenter, 7 Cal. 402; Wheeler
v. The State, 21 Ga. 153; Mooney v. Peo-
ple, 81 Ill. 184; Brite «. The State, 24
Texas, 219; The State v. Bradley, 1
Blackf. 88; Henry v. Commonwealth, 4
Bush, 427; Sheets v. People, 63 Ill. 78.

7 The State v. Sullivant, 8 Yerg. 281;
Butler v. The State, 12 Sm. & M. 470;
Thurston v. Commonwealth, 8 Dana, 225.
.

CHAP. XVI.] DOCTRINE AND METHODS OF BAIL. § 264d

When it is to appear in court on a day certain, and the leg-
islature simply changes the day of holding the court, so that
there is none on that day, this act of the law renders perform-
ance impossible,! and it is in effect void, though perhaps it would
be good if the statute provided for the appearance on the new
day. If the stipulation is to appear at the next term of the
court, and the day of holding the court is changed, the cognizors
will be required to conform to the altered law.? After breach, it
will not be affected by a change in the law.*

Description of Offence. — In the words of a learned judge, “it is
impossible to reconcile the American cases on this subject ” ;® but
something may be given helpful to the practitioner while examin-
ing the statutes and decisions of his own State. Plainly enough
there may be such circumstances, and such a jurisdiction, as will
justify the court or magistrate in requiring one to recognize for
his appearance to answer to whatever may be alleged against
him. In such a case, it would be idle to require the recogni-
zance to specify the offence,’ or to make the specification accurate.8
The recognizance may be as broad as the power.? But, in gen-
eral, a magistrate with us is authorized to require a recognizance
only on a charge of some individualized offence, to which, and
not to all the wrongful acts of a lifetime, the party is to answer.
Hence the recognizance must, in some form, indicate what the
offence is ; though it need not descend to particulars, like an
indictment." For example, the words ‘stealing from a store,”
&c.,” or “resisting process,” 8 have been held sufficient. But if
what the words import does not amount to a crime, the recogni-

1 Bishop Con. § 628.

2 The State v. Melton, Busbee, 426;
The State v. Stephens, 2 Swan, Tenn.
808. See Price v. White, 27 Misso. 275;
Commonwealth ». Cayton, 2 Dana, 138.

3 Walker v. The State, 6 Ala. 350.

4 The State v. Boies, 41 Maine, 344.

5 Leonard, J.,
dolph, 22 Misso. ‘474, 479.

6 Reg. v. Ridpath, 10 Mod. 152.

7 The State v. Randolph, supra; The
State v. Rye, 9 Yerg. 386.

8 The State v. Loeb, 21 La. An. 599;
The State v. Ansley, 13 La. An. 298;

9 Sturges v. Sherwood, 15 Conn. 149.

10 Goodwin v. The Governor, 1 Stew. &

in The State v. Ran-

P. 465; Simpson v. Commonwealth, 1
Dana, 523 ; Sturges v. Sherwood, 15 Conn.
149; Dillingham v. United States, 2 Wash.
C. GC. 422.

11 United States v. Dennis, 1 Bond,
103; The State v. Weaver, 18 Ala. 293.

2 Young v. People, 18 Ill. 536. And
see People v. Baughman, 18 Ill. 152;
Hampton v. Brown, 82 Ga. 251; Chase v.
People, 2 Col. Ter. 528; Wood v. People,
16 Ill. 171; Fowler v. Commonwealth, 4
T. B. Monr. 128; People v. Dennis, 4
Mich. 609; Daniels v. People, 6 Mich. 381.

13 Browder «. The State, 9 Ala. 58.
And see The State v. Eldred, 31 Ala. 393,

168
§ 264 d PREPARATORY AND AUXILIARY. (BOOK III.

zance will be void.! And so it will be if the thing alleged is not
within the cognizance of the magistrate.?

§ 264 ¢. Binding Principal, or not. — A recognizance entered into
by one or more for the appearance of another, who is not bound,
is good.2 Hence, —

Married Women — Infants. — “If the party accused,” says
Chitty, ‘be an infant, or in jail, or a married woman, then the
recognizance is taken only from the sureties.” * At common law,
not speaking now of the powers of equity when the wife has a
separate estate, she cannot bind her person by contract even for
necessaries.» Hence, being absolutely destitute of the power of
contract, she probably cannot enter into a valid recognizance.® But
an infant may be bound by contract for necessaries ;7 and, though
not every sort of recognizance will be valid against him,§ one for
so necessary a thing as to procure his personal liberty should be,
and, at least by the better doctrine, it is.2 More properly, there-
fore, the infant who is to appear should join his sureties in the
recognizance.

§ 264d. Joint, Several, &c. — How many. — From the doctrine
that the sureties may be bound without the principal, it follows
that a recognizance may be several as well as joint,” or it may be
joint and several." And if several, it may be enforced by suit
against the sureties without regard to the principal. There are
considerable varieties of form in the recognizance and conse-
quently of the suit upon it, depending in part on, common-law
principles and in part on the statutes, as will be seen in the
cases hereto cited. And the same may be said of the number

1 Badger v. The State, 5 Ala. 21; The
State v. Gibson, 28 La, An. 698.

2 The State v. Forno, 14 La. An. 450.
And see Billings v. Avery, 7 Conn. 236.

3 Minor v. The State, 1 Blackf. 236;
People v. Dennis, 4 Mich. 609; Smith »v.
Villars, 1 Salk. 3. See Combs v. People,
89 Ill. 183.

+ 41 Chit. Crim. Law, 104; Anonymous,
7 Mod. 63; Commonwealth v. Semmes,
11 Leigh, 665.

5 1 Bishop Mar. Women, § 39, 842.

6 Bennet v. Watson, 8M. & S. 1.

7 Bishop Con. § 266.

8 Randal v. Wale, Cro. Jac. 69; Patchin
v. Cromach, 18 Vt. 330.

164

® The State v. Weatherwax, 12 Kan.
463; Weatherwax v. The State, 17 Kan.
427; McCall v. Parker, 13 Met. 372; Ex
parte Williams, McClel. 498, 18 Price, 673.
See Starr v. Commonwealth, 7 Dana, 243.

10 Hildreth v. The State, 6 Blackf. 80.

11 Ellison v. The State, 8 Ala. 273.

12 Madison v. Commonwealth, 2 A. K.
Mar. 181; Reg. v. Thornton, 4 Exch. 820.

13 Dean v, The State, 2 Sm. & M. 200;
Parrish v. The State, 14 Md. 288;. Gay v.
The State, 20 Texas, 504; Gedney v. Com-
monwealth, 14 Grat. 318; Caldwell v.
Commonwealth, 14 Grat. 698; Robinson
v. The State, 5 Ala. 706; Scott v. The
State, 1 Head, 483; Ishmael v. The State,
CHAP. XVI.] DOCTRINE AND METHODS OF BAIL.

§ 264 f

of sureties, the accepting of too many or too few, and the
like.t

§ 264. Returning and Estreating.——- When a recognizance is
taken, as it commonly is, by some officer out of the court in
which it is to be of record, it does not become a perfected instru-
ment until it is returned, or “certified,” 2 to such court. In:
England, if the condition is broken, and it is to be sued, it is
estreated — that is, “extracted or taken out from among the
other records” *— into the exchequer for the purpose; but,
though we estreat recognizances in the sense of separating them
from the other records to be sued,® the removing of them to
another court is, while known with us, less practised.7

IV. Charging, Discharging, and otherwise Relieving and Binding
the Sureties.

§ 264 f. Must be called. — No one forfeits his recognizance,
however the time may have elapsed without his appearance, until
he is called in court, fails to appear, and the failure is entered of
record. But, —

41 Texas, 244; Brown v. The State, 34
Texas, 525; Minor v. The State, 1 Blackf.
236; Adair v. The State, 1 Blackf. 200;
The State v. Stout, 6 Halst. 124; Brown
v. The State, 40 Texas, 49.

1 Ingram v. The State, 10 Kan. 630;
Mussulman v. People, 15 Ill. 51; Com-
monwealth v. Porter, 1 A. K. Mar. 44;
Rex v. Knowles, Comb. 278, 278; Rex v.
Shaw, 6 D. & R. 154; Rex v. Dunn, 8
T. R. 217.

2 4 Bl. Com. 253; Commonwealth vo.
McNeill, 19 Pick. 127, 138.

3 Darling v. Hubbell, 9 Conn. 850;
Sargeant v. The State, 16 Ohio, 267;
Anonymous, Comb. 3; The State v. Rich-
ardson, 28 Ark. 846; Conner v. People,
20 Ill. 381; Noble v. People, 4 Gilman,
433; Slaten v. People,:21 Ill. 28; Com-
monwealth v. Dunbar, 15 Gray, 209;
Commonwealth v. Baird, 9 Met. 407;
The State v. Walker, 56 N. H. 176.

44 Bl. Com. 253; Rex v. Shackell,
McClel. & Y¥. 514, 528; Ex parte Hodg-
son, 2 Y. & J. 142; Rex v. Tomb, 10 Mod.
278. i

5 United States v. Santos, 6 Blatch.
104; Starr v. Commonwealth, 7 Dana,
243; People v. Winchell, 7 Cow. 160.

§ Commonwealth v. McNeill, supra.
See The State v. Kinne, 39 N. H. 129;
Blackwell v. The State, 3 Pike, 320.

7 And see People v. Hainer, 1 Denio,
454; People v. Van Eps, 4 Wend. 387;
People v. Petry, 2 Hilton, 523.

8 Eubank v. People, 50 Ill. 496 ; Banta
v. People, 63 Ill. 434; Park v. The State,
4 Ga. 329; The State v. Grigsby, 3 Yerg.
280; White v. The State, 5 Yerg. 183;
Dillingham v. United States, 2 Wash. C.
C. 422; Alley v. People, 1 Gilman, 109;
Kennedy v. People, 15 Ill. 418; Thomas
v. People, 18 Ill. 696; People v. Witt, 19
Ill. 169; People v. Petry, 2 Hilton, 523;
Chambless v. The State, 20 Texas, 197;
Schultze v. The State, 48 Md. 295; The

‘State v. Gorley, 2 Iowa, 52; Cable v.

People, 46 Ill. 467; Mishler v. Common-
wealth, 12 Smith, Pa. 55. See as ex-
planatory, and more or less to the con-
trary, Wallenweber v. Commonwealth, 3
Bush, 68; The State v. Walker, 66 N. H.

165
§ 2649 PREPARATORY AND AUXILIARY. [BooK II.

Time for Appearance gone by.— Suppose the time for appear-
ance passes, and neither the party appears nor the prosecuting
officer has him called, —is the recognizance practically made
void, or may he be called at a subsequent time or term? There
is abundant authority to the proposition, that it is then too late
to hold the sureties ;! though there is also authority that they
may be charged by calling the principal at a subsequent term, yet
not without notice.? In legal reason, if the State, that by its offi-
cers takes the respective first steps in criminal proceedings, does
not call for its prisoner at the time when it is agreed he shall be
present, how can it demand his delivery at a time not agreed?
But —

Differing Statutes and Practice — Forms of Recognizance. — This
sort of question, with various other questions pertaining to the
appearance, the forfeiture, the extent of the obligation incurred
by the principals and sureties, and the like, depends so much
upon the differing statutes and practice of the States, and the
special terms of the particular recognizance, that the subject will
not be pursued further here. Some helpful authorities will be

found in the note.®
§ 264 g. Respite. — There is
though forfeited, should be put

176; Adair v. The State, 1 Blackf. 200;
Leeper v. Commonwealth, Litt. Sel. Cas.
102; Ingram v. The State, 10 Kan. 630.

! People v. Derby, 1 Parker C. C. 392 ;
The State v. Houston, 74 N.C. 174; Kiser
v. The State, 18 Ind. 80; Swank v. The
State, 3 Ohio State, 429; The State v.
Mackey, 55 Misso. 51. And see Barton
v. The State, 24 Texas, 250; Rex v.
Adams, Cas. temp. Hardw. 237; Sarto-
rius v. Dawson, 13 La. An. 111; The
State v. Foster, 2 Iowa, 559; The State
v. Cooper, 2 Blackf. 226; Lyons v. The
State, 1 Blackf. 809.

2 Moss v. The State, 6 How. Missis.
298, 302. See also Norfolk v. People, 43
Il. 9; The State v. Young, 20 La. An.
897.

3 Brewer v. Commonwealth, 8 Bush,
550; People v. Blankman, 17 Wend. 252;
Adair v. The State, 1 Blackf. 200; Mc-
Guire v. The State, 5 Ind. 65; Wallen-
weber v. Commonwealth, 8 Bush, 68;
Redman v. The State, 28 Ind. 205; Com-

166

no need that a recognizance,
instantly in suit, or that a suit

monwealth v. Blincoe, 8 Bush, 12; Bry-
ant v. Commonwealth, 8 Bush, 9; The
State v. Thompson, 18 Texas, 526; Bar-
ton v. The State, 24 Texas, 250; People
v. Blackman, 1 Denio, 632; Champlain
v. People, 2 Comst. 82; People v. Clary,
17 Wend. 874; Wilson v. The State, 6
Blackf. 212; Marr v. The State, 26 Ark.
410; The State v. Butler,.88 Texas, 560;
The State v. Wilson, 14 La. An. 446;
Chase v. People, 2 Col. Ter. 528; Henry v.
Commonwealth, 4 Bush, 427; People v.
Felton, 86 Barb. 429; Weaver v. The
State, 43 Texas, 886; Ringgold v. Ross,
40 Iowa, 176; Billings v. Avery, 7 Conn.
236; The State v. Cole, 12 La. An. 471;
Bolanz v. Commonwealth, 24 Grat. 31;
The State v. Smith, 66 N. C. 620; Shore
v. The State, 6 Misso. 640; The State v.
Pepper, 8 Misso. 249 ; People v. Winchell,
7 Cow. 160; Starr v. Commonwealth, 7
Dana, 243; Griffm v. Commonwealth,
Litt. Sel. Cas. 31; Hall v. The State, 21
Ga. 148.
CHAP. XVI.]_ DOCTRINE AND METHODS OF BAIL. § 264A

when begun should be prosecuted without pause ; so that, if one
on bail does not duly appear, it is competent for the court simply
to take the forfeiture of his recognizance, and then respite it —
that is, delay the estreat, or delay a suit already commenced on it
— to another time or term; and, on the defendant appearing, re-
verse the order of forfeiture! This course is sometimes taken to
avoid the trouble of receiving bail which would otherwise expire.?
But this sort of arrangement should be made with the consent of
bail, or in such form without it as not to vary to their prejudice
the terms of their undertaking, else they will be discharged.

§ 264. Setting aside and .mitigating Forfeiture. — We see, there-
fore, that in proper circumstances an adjudication of forfeiture may
be reversed. One ground for reversal is the subsequent appear-
ance of the party and taking his trial; and, in some of our States,
this, accompanied by a payment of costs, expressly authorizes it
by statute But the mere appearance, or the mere submitting
to a trial, does not have the effect without an order of court.5
Also, in England, at the time when we derived thence our un-
written law, the Court of Exchequer in which these recognizances
were sued, had the jurisdiction to remit or reduce the forfeiture
in proper cases, though there was no reversal of the estreat.®
And however the common law of our States may be, we have
statutes under which the same thing is done by our courts.’ Bail,
asking relief, must not themselves be in fault.

1 Newdigate’s Case, 7 Mod. 17; Anony-
mous, 7 Mod. 97; Reg. v. Drummond, 11
Mod. 200; Rex v. Tomb, 10 Mod. 278;
In re Fridlington, 9 Price, 658; People
v. Hainer, 1 Denio, 454, 456; People v.
Clary, 17 Wend. 374; Commonwealth v.
Craig, 6 Rand. 731; United States v.
Feely, 1 Brock. 255; Woodall v. Smith,
51 Ga. 171.

2 Keefhaver v. Commonwealth, 2 Pa.
940. See The State v. Smith, 66 N.C.
620; Reg. v. Tracy, 6 Mod. 178.

3 Reese v. United States, 9 Wal. 13.
See Swank v. The State, 3 Ohio State,
429.

4 The State v. Brown, 13 La. An. 266;
The State v. Schmidt, 13 La. An. 267;
Commonwealth v. Davidson, 1 Bush, 1338;
Riggen v. Commonwealth, 8 Bush, 493;

8 The State v. McAllister, 54 N. H

The State v. Rollins, 52 Ind. 168; Miller
v. The State, 8 Blackf. 77; Wray v. Peo-
ple, 70 Ill. 664; The State v. Warren, 17
Texas, 283; Commonwealth v. Craig, 6
Rand. 731; Smith v. The State, 17 Ga.
462; The State v. Saunders, 3 Halst. 177.

5 Guice v. Stubbs, 13 La. An. 442;
The State v. Schmidt, 13 La. An. 267;
Commonwealth v. Johnson, 3 Cush. 454;
Chambless v. The State, 20 Texas, 197.

6 Bishop Con. § 44, 756-758; Rex v.
Tomb, 10 Mod. 278; 2 Burn Just. 28th
ed. p. 889; In re Hooper, McClel. 578.

7 Chase v. People, 2 Col. Ter. 481;
The State v. Shideler, 51 Ind. 64; The
State v. Moody, 74 N. C. 73; Chambless
v. The State, 20 Texas, 197; Potter v.
Sturdivant, 4 Greenl. 154; Common-
wealth v. Thornton, 1 Met. Ky. 380;

. 156; People v. Petry, 2 Hilton, 523.
167
§ 2647 . PREPARATORY AND AUXILIARY. fBOooK III.

§ 2647. Impossibilities Excusing.— A change in the law, ren-
dering performance of the undertaking by the principal impos-
sible,! or his death before forfeiture 2? or even after forfeiture and
before final judgment on the seire facias, in those States in which
the right of surrender during this period exists,? but not afterward,*
or the inability produced by sickness ® to the degree which in law
is deemed an impossibility proceeding from the act of God, will
discharge the bail. This is like any other contract, performance
of which is excused by the act of the law or of God or of the
public enemy, yet by no difficulties of an inferior kind.’ Im-
prisonment of the principal for crime, therefore, will generally
release the bail, the State having taken him out of their posses-
sion ;® and so will the surrendering of him to the authorities of
another State as a fugitive from justice.2 But if they permit him
to go into another jurisdiction, and there he is arrested and im-
prisoned, they will not be released ; for they should have kept him
within his and their own State. In just principle, and for rea-
sons stated elsewhere," his confinement on civil process, where,
as on criminal, the State takes possession of him, not indeed to
its own use but to the use of a private person, will have the same
effect on the liability of bail as a confinement for crime.

§ 2647. Liability from Terms of Recognizance. — A particular
undertaking in a recognizance may be void, because not author-
ized by law.” But if all the stipulations are valid, the obligation

Commonwealth v. Coleman, 2 Met. Ky.
882; Harres v. Commonwealth, 11 Casey,
Pa. 416; Commonwealth v. Dana, 14
Mass. 65; The State v. Burnham, 44
Maine, 278. See Steelman v. Mattix, 9
Vroom, 247; Doniphan v. The State, 50
Missis. 54; Stevens v. Hay, 61 Ill. 399;
People v. Coman, 49 How. Pr. 91.

1 Ante, § 264 2. See Bishop Con.
§ 628.

2 Merritt v. Thompson, 1 Hilton, 550.

3 Mather v. People, 12 Ill. 9; Wool-
folk v. The State, 10 Ind. 582; The State
v. Cone, 32 Ga. 663.

4 The State v. McNeal, 3 Harrison,
833.

5 People v. Tubbs, 37 N. Y. 586. But
see The State v. Edwards, 4 Humph. 226;
Alguire v. Commonwealth, 3 B. Monr.
849.

6 Bishop Con. § 619-621, 628.

7 People v. Tubbs, supra; People v. -

168

Bartlett, 8 Hill, N. Y. 570; Caldwell v.
Commonwealth, 14 Grat. 698, 702.

8 Lacy’s Case, Sir F. Moore, 121; Way
v. Wright, 5 Met. 880; Kirby v. Com-
monwealth, 1 Bush, 113; Caldwell »v.
Commonwealth, supra; People v. Bart-
lett, supra; Canby v. Griffin, 8 Harring.
Del. 833. See Wheeler v. The State, 88
Texas, 173; Brown v. People, 26 Ill. 28;
Mix v. People, 26 Ill. 32.

® The State v. Allen, 2 Humph. 258;
Devine v. The State, 5 Sneed, 623, 626.

10 Devine v. The State, supra; The
State v. Burnham, 44 Maine, 278; Tain-
tor v. Taylor, 86 Conn. 242, 252; Taylor
v. Taintor, 16 Wal. 866; United States v.
Van Fossen, 1 Dillon, 406. And see The
State v. Reaney, 18 Md. 280.

11 Bishop Con. § 629.

12 Billings v. Avery, 7 Conn. 286. And
see ante, § 264 b.
CHAP. XVI.] DOCTRINE AND METHODS OF BAIL. § 264 1

of the parties to it will depend upon them. An undertaking to
appear at court means to appear in person, so that an appearance
by attorney will not suffice. If it is added, “and abide the judg-
ment of the court,” a mere appearance at the trial does not dis-
charge the obligation, where a judgment is rendered against the
defendant.? One who is to appear and answer to an accusation
does not fulfil the undertaking if he fails to appear and take his
discharge when no indictment is found. These are but illustra-
tions of the general doctrine, that, when the condition ‘of a recog-
nizance enumerates several things, it may be forfeited if any one
of them is left undone. But one who binds himself simply to
answer to a charge specified is not in default though he fails to
answer to some other,®5—a rule which requires only a substan-
tial, not a mere technical, identity in the offences.®

§ 264%. Indictment insufficient. —No such defect as that the
indictment is ill can be availed of in a way to permit the defend-
ant to escape and leave his sureties unharmed.’ They, when
sued, cannot question the sufficiency of the indictment. A mo-
tion to quash it, or other proceeding having the like effect, must,
as we shall see in the next chapter, be in the presence of the de-
fendant, and we have seen® that the court may hold him till he
recognizes to a fresh charge; or, if by the recognizance he is not
to depart without leave of court, it will bind him until permission
to depart is given.”

§ 264 1. Discharge of Recognizance, Quashing it, &c. — Questions,
not of much consequence, have sometimes been made as to

1 Commonwealth v. McNeill, 19 Pick.
127; People v. McCully, Edm. Sel. Cas.
270; Reg. v. Drummond, 11 Mod. 200;
Warren v. The State, 19 Ark. 214. See
Commonwealth v. Thompson, 3 Litt. 284.

2 The State v. Whitson, 8 Blackf. 178.
And see Dennard v. The State, 2 Kelly,
187.

3 People v. O’Brien, 41 Ill. 303; Gar-
rison v. People, 21 Ill. 685; The State v.
Cocke, 37 Texas, 155. And see Hendee
v. Taylor, 29 Conn. 448; Rex v. Spenser,
‘1 Wils. 315; The State v. Derosier, 14 La.
An. 736. See ante, § 264 f.

4 The State v. Cole, 12 La. An. 471;
The State v. Stout, 6 Halst. 124; Fitch v.
The State, 2 Nott & McC. 658; Archer
v. Commonwealth, 10 Grat. 627; Rex v.

Ridpath, Fort. 358 ; Anonymous, 11 Mod.
4; The State v. Ansley, 138 La. An. 298.

5 People v. Hunter, 10 Cal. 502; Gray
v. The State, 43 Ala. 41; Howie v. The
State, 1 Ala. 118; Graves v. People, 11
Ill. 542; People v. Lafarge, 3 Cal. 180.

6 Gresham v. The State, 48 Ala. 625;
The State v. Bean, 36 N. H. 122.

7 Commonwealth v. Skeggs, 3 Bush,
19.
8 The State v. Ake, 41 Texas, 166;
Williams v. The State, 20 Ala. 68; The
State v. Weaver, 18 Ala. 293.

9 Ante, § 229.

10 The State v. Poston, 63 Misso. 521.
And see on the subject of this section,
The State v. Boies, 41 Maine, 344; Peo-
ple v. Dennis, 4 Mich. 609; The State v.
Lockhart, 24 Ga. 420.

169
§ 2640

PREPARATORY AND AUXILIARY.

[Book III.

quashing! and discharging? the recognizance. A discharge of
it does not terminate the prosecution.®

§ 264m. Suit on Recognizance.— The duty of collecting the
forfeiture of recognizances devolves on the prosecuting officer. If
not paid voluntarily, they must be sued. The ordinary common-

law suit is scire facias,® but debt also will lie.”
States, there are also statutory remedies.®

In some of our
Some points relating

to the suit may be seen in cases cited in the note.®

§ 264. Sureties to keep Peace.— A recognizance to keep the
peace is not forfeited by a breach committed out of the State.
Drunkenness with disorderly conduct is not necessarily to be
deemed a breach of the peace ;" but a libel is such breach.”

1 The State v. Halloway, 5 Pike, 433;
The State v. Hopkins, 30 Misso. 404.

2 Rex v. England, Cas. temp. Hardw.
158; Rex v. Benn, Cas. temp. Hardw. 98.

8 The State v. Howard, 15 Rich. 274.

4 People v. Van Eps, 4 Wend. 387;
The State v. Gorley, 2 Iowa, 52.

5 Johnstons v. The State, 3 Pike, 524;
Pinckard v. People, 1 Scam. 187; People
v. Bugbee, 1 Idaho Ter. 96.

6 Rex v. More, T. Raym. 196; Gil-
mer v. Blackwell, Dudley, Ga. 6; Marr
v. The State, 26 Ark. 410.

7 Commonwealth v. Green, 12 Mass.
1; Commonwealth v. Gordon, 15 Pick.
193; People v. Van Eps, 4 Wend. 387;
The State v. Walker, 56 N. H. 176.

8 Schultze v. The State, 43 Md. 295;
The State v. Newton, 22 Wis. 5386; Gam-
ble v. The State, 21 Ohio State, 183;
Young v. Wise, 45 Ga. 81; The State v.
Boies, 41 Maine, 344; Baker v. United
States, 1 Minn. 207; Gildersleeve v. Peo-
ple, 10 Barb. 35.

9 The State v. Ahrens, 12 Rich. 493;
Commonwealth v. Boult, 1 Browne, 287 ;
Commonwealth v. Brown, 7 Gray, 319;
Commonwealth v. Thompson, 2 Gray,
82; Commonwealth v. Gordon, 15 Pick.
193; Cantaline v. The State, 33 Ala. 439;
Badger v. The State, 5 Ala. 21; Shreeve
v. The State, 11 Ala. 676; Reynolds v.
Harral, 2 Strob. 87; Shrader v. The
State, 30 Texas, 386; Commonwealth »v.
Miller, 4 B. Monr. 418 ; Downing v. Com-

170

monwealth, 4 T. B. Monr. 511; Common-
wealth v. Kimberlain, 6 T. B. Monr. 48;
Snowden v. The State, 8 Misso. 483;
People v. Hainer, 1 Denio, 454; Ditto v.
The State, 80 Missis. 126; Gresham v.
The State, 48 Ala. 625; Champlain v.
People, 2 Comst. 82; People v. Black-
man, 1 Denio, 682; Commonwealth »v.
Haines, 2 Va. Cas. 184; Commonwealth
v. Walton, 1 Va. Cas. 142; The State v.
Littlepage, 30 Misso. 8322; The State v.
Thompson, 18 Texas, 526; The State v.
Warren, 17 Texas, 283 ; Waughhop v. The
State, 6 Texas, 837; Rietzell v. People,
72 Ill. 416; The State v. Foster, 2 Iowa,
659; Lyons v. The State, 1 Blackf. 309;
Crandall v. The State, 6 Blackf. 284;
Andress v. The State, 8 Blackf. 108; The
State v. Heed, 62 Misso. 559; Glass v.
The State, 89 Ind. 205; Gachenheimer v.
The State, 28 Ind. 91; Norfolk v. People,
43 Ill. 9; Richardson v. The State, 31
Ala. 847; The State v. Weaver, 18 Ala.
293; Hannah v. Wells, 4 Oregon, 249;
Waldo v. Spencer, 4 Conn. 71; The State
v. Johnson, 13 Ohio, 176; Leeper v. Com-
monwealth, Litt. Sel. Cas. 102.

10 Key v. Commonwealth, 8 Bibb, 495.

1 Rankin v. Commonwealth, 9 Bush,
558.

12 Respublica v. Cobbet, 8 Yeates, 93.
For other points, see Commonwealth v.
Braynard, 6 Pick. 113; Crump v. People,
2 Col. Ter. 316; Rex v. Benn, Cas. temp.
Hardw. 98; ante, § 183, 207, 229,
CHAP. XVII.] PRESENCE OF PRISONER IN COURT. § 267

CHAPTER XVII.
THE PRESENCE OF THE PRISONER IN COURT.

§ 265. In General. — The reasons for the prisoner’s appearance
in court are two, — first, to enable the prosecuting power to iden-
tify him, and to inflict on him any punishment which may be
pronounced ; secondly, to secure to him full facilities for defence.
It has therefore become general doctrine, that, after indictment
found, he shall be present whenever any thing essential is done
against him.) Still, —

§ 266. Differing Cases and Circumstances. —- These reasons are
more forcible in some cases and as to some steps than others ;
and, especially in the higher felonies, is the personal presence
deemed more essential than in the lower misdemeanors. More-
over, —

Waiver. — Both in reason and practice, the right, to some ex-
tent, may be waived by the prosecuting power on the one hand,
and the prisoner on the other.”

Course of the Discussion. — In this chapter, instead of attempt-
ing to proceed in any philosophical way, we shall call to mind
various questions, and see what the courts have held upon them.

§ 267. Original Appearance essential.—In criminal procedure,
the courts are not permitted to summon defendants, and then, if
they do not appear, render judgment on their default. “In in-
formations and indictments,” said Eyre, J., ‘‘no judgment can be
given unless the defendant appears. . . . Some acts of Parlia-
ment, indeed, give justices of peace a power of proceeding upon
default; but exceptio probat regulam in rebus non exceptis.”®

1 Hooker v. Commonwealth, 13 Grat. Cas. 264; Rolls v. The State, 52 Missis.
763; Fight v. The State, 7 Ohio, pt. 1, 391; The State v. Epps, 76 N. C. 55.
180; Dunn v. Commonwealth, 6 Barr, 2 Ante, § 117 et seq.; Waller v. The
884; The State v. Craton, 6 Ire. 164; State, 40 Ala. 325.

Sneed v. The State, 5 Pike, 431; People 8 Reg. v. Simpson, 10 Mod. 248, 250.
v. Genet, 59 N. Y.80; The State v. Al- And see Bigelow v. Stearns, 19 Johns.
man, 64 N. C. 364; Brown v. The State, 89; Sailer v. The State, 1 Harrison, 357 ;

24 Ark, 620; People v. Charles, Edm. Sel. Commonwealth v. Cheek, 1 Duvall, 26,
171
PREPARATORY AND AUXILIARY.

§ 269 [Book mt.

§ 268. Appearance Personal or not — (Arraignment). —In gen-
eral, the defendant must present himself at the arraignment and
plead personally to the indictment ; he cannot do it by attorney.!
The exception is, that, —

Waiver by Permission — Testimony. — For special cause shown,
and as a favor, he will be permitted to plead by attorney to a
misdemeanor punishable only by a fine, not including imprison-
ment; and, in such a case, the court may permit the trial to go
on in his absence.”

§ 269. On Motions. —It is impossible to state any rule, entirely
certain and uniform, as to the necessity of the personal presence
at the making and hearing of the various motions to the court,
connected with a criminal cause. But, —

Notice — (Continuance). — Whenever a motion is to be made, —
as, for example, by the prosecuting attorney for a continuance,
—there must, at least, be notice of it given to the counsel or the
party.* Moreover, —

Escaped Prisoner.—If a prisoner has escaped, no steps should
be taken in his absence in his behalf; because he is now in con-

1 Younger v. The State, 2 W. Va. 579,

2 Ex parte Tracy, 25 Vt. 93; Warren
v. The State, 19 Ark. 214; United States
v. Leckie, 1 Sprague, 227; Steele v. Com-
monwealth, 8 Dana, 84. Contra, Sloco-
vitch v. The State, 46 Ala. 227. In Cali-
fornia, there is a statute giving force to
this doctrine, and perhaps extending it.
People v. Thompson, 4 Cal. 238. And see
United States v. Shepherd, 1 Hughes,
520; Luther v. The State, 27 Ind. 47;
Canada v. Commonwealth, 9 Dana, 304;
Bloomington v. Heiland, 67 Ill. 278; The
State v. Reckards, 21 Minn. 47. In a
case before one of the Circuit Courts of
the United States, Curtis, J., after confer-
ring with the District Judge, Sprague,
stated the following as the conclusion to
which the two judges had arrived on the
subject of pleading, in misdemeanors, by
attorney :

“1. To save his recognizance, even in
case of a misdemeanor, the defendant
must appear personally.

“2. He is liable to be called on his
recognizance at any time, either on the
motion of the District Attorney, or by
the order of the court on its own motion,
if it sees cause to direct it.

172

“3. It is in the discretion of the court
to allow one indicted for a misdemeanor
to plead and defend in his, absence, by
attorney. This discretion will be regu-
lated by the following circumstances:

“1. That it is not an offence for which
imprisonment must be inflicted.

“2. The court must be satisfied, that
the nature of the case, and its circum-
stances, are such that imprisonment will
not be inflicted.

“3. The District Attorney must con-
sent, or it must appear to the court that
he unreasonably and improperly with-
holds his consent.

“4, Sufficient cause must be shown,
on affidavit, to account for the absence
of the defendant.

“6, A special power of attorney, to
appear and plead and defend in his ab-
sence, must be executed by the defend-
ant, and filed in court by the attorney.”
United States v. Mayo, 1 Curt. C. C.
433, 434.

3 See post, § 276, 277.

4 Wheeler v. The State, 14 Ind. 578;
1 Chit. Crim. Law, 492. See Sutcliffe v.
The State, 18 Ohio, 469.
CHAP. XVII.] PRESENCE OF PRISONER IN COURT. § 271

tempt, because the ends of justice may require him to be held to
answer to some other proceeding? should this one be reversed,
and because if his objection is not sustained his presence will be
required for sentence or some other step.?

Change of Venue. — It has been held both that proceedings for
a change of venue may® and that they may not‘ be had in the
absence of the prisoner.

Motion to quash.— On a motion to quash an indictment for
felony, the presence of the prisoner has been adjudged neces-
sary.6 Even, —

Day for Trial. — In setting down a day for trial, in a capital case,
the Alabama court deems it the better practice to have him pres-
ent; not. deciding, however, whether or not this is in strict law
essential.®

Other Points. — The discussion in subsequent sections of this
chapter will enlighten us further upon the doctrines of this sec-
tion.”

§ 270. Counsel — Lower Misdemeanors. — Where, in the lower
misdemeanors, the presence of the defendant is dispensed with,
he has counsel present. And no one can be tried for any offence,
unless present at least by attorney. But the general authority
of an attorney does not extend to waiving his client’s presence ;
there must be given him, before trial, a special authority.®

Further of Counsel. — Under the statutes, a person defended by
a lawyer has certain rights to have him present, but they differ
from his own right of personal presence.”

§ 271. Waiver in Felony — (Verdict). — In felony, the power of
the prisoner to waive his right of personal presence during the trial
has been denied by some courts ; as, in Pennsylvania, where counsel
in a case of burglary and larceny agreed that the verdict might
be rendered in his absence, the judgment thereon was reversed.

1 Ante, § 229. 7 And see Kelly v. The State, 3 Sm.
2 Anonymous, 31 Maine, 592; Wilson & M. 518, 528; Jewell v. Commonwealth,
v, Commonwealth, 10 Bush, 526; Gresham 10 Harris, Pa. 94, 101; People v. Galvin,
v. The State, 1 Texas Ap. 458; The State 9 Cal. 115; post, § 276.
v. Rippon, 2 Bay, 99; Sailer v. The State, 8 Ante, § 268 and note.
1 Harrison, 2357; Commonwealth v. An- 9 People v. Petry, 2 Hilton, 528. And

drews, 97 Mass. 543. see Sweeden v. The State, 19 Ark. 205;
8 The State v. Elkins, 63 Misso. 159. Rex v. Fielder, 2 D. & R. 46; post, § 278,
4 Ex parte Bryan, 44 Ala. 402. 10 Martin v. The State, 51 Ga. 567;
5 Long v. The State, 52 Missis. 23. People v. Trim, 37 Cal. 274; Beaumont

6 Hall v. The State, 40 Ala. 698, 705. v. The State, 1 Texas Ap. 588.
173
[Book III.

§ 272 PREPARATORY AND AUXILIARY.

“It would be contrary to the dictates of humanity,” said Gibson,
C. J., “to let him waive that advantage which a view of his sad
plight might give him by inclining the hearts of the jurors to
listen to his defence with indulgence.” ! :

§ 272. During the Trial : —

Rendition of Verdict. — As just said, the prisoner’s right to be
present at the rendition of the verdict is perfect; at least, unless
he waives it.2 And —

Discharge of Jury. — He is also entitled to be present when, if
the jury cannot agree, the court therefore discharges them. To
discharge them in his absence is, in law, to acquit’: him. So the
Indiana court has held on the sound reason that, if present, he
might urge something why the jury should not be discharged ;3
but the practitioner cannot quite safely assume that the courts of
all the other States will concur.‘

Prisoner absconding. —If the prisoner absconds before the ver-
dict is rendered, the court may lawfully order a new trial, dis-
charge the jury, and hold him for trial before another jury But
in Ohio, where, on a trial for counterfeiting, the prisoner, who
was on bail, left the court room and went away, it was held that
the cause might properly proceed to verdict. He could not,
said Wood, J., “be deprived of his right to be present at all
stages of his trial; but that he must be, under all circumstances,
or the. proceedings will be erroneous, cannot, we think, be sus-
tained.”® Again, —

8 The State v. Wilson, 50 Ind. 487.
4 Crim. Law, I. § 1038-1036.
5 Crim. Law, I. § 998; The State ex

1 Prine v. Commonwealth, 6 Harris,
Pa. 1038, 104. To the like effect are
Waller v. The State, 40 Ala. 825, 333;

Jackson v. Commonwealth, 19 Grat. 656.
See post, § 272. The contrary doctrine
is held in Wisconsin. Hill v. The State,
17 Wis. 675. And see The State v.
Reckards, 21 Minn. 47.

2 Finch v. The State, 53 Missis. 363 ;
Stubbs v. The State, 49 Missis. 716;
Dougherty v. Commonwealth, 19 Smith,
Pa. 286; The State v. Ott, 49 Misso. 326;
Slocovitch v. The State, 46 Ala. 227;
Beaumont v. The State, 1 Texas Ap.
533; Stewart v. The State, 7 Coldw.
838; The State v. Bray, 67 N. C. 288;
The State v. Jones, 61 Misso. 232, 235;
The State v. Spores, 4 Oregon, 198; Rose
v. The State, 20 Ohio, 81; The State v.
Epps, 76 N, C. 65.

174

rel. Battle, 7 Ala. 259,

§ Fight v. The State, 7 Ohio, pt. 1, 180.
And see The State v. Wamire, 16 Ind.
357. In a Connecticut case of counter-
feiting, the defendant was out on bail
when the jury came in with their ver-
dict. The court said: “The defendant
must appear, or there will be no propriety
in receiving the verdict” ; and thereupon
declined to receive it in his absence. The
State v. Hurlbut, 1 Root, 90. To the like
effect is Sneed v. The State, 5 Pike, 481.
In Mississippi, in a case of misdemeanor,
a contrary doctrine was held, in accord
with the Ohio decision. Price v. The
State, 36 Missis. 631.
CHAP. XVII.] PRESENCE OF PRISONER IN COURT. § 274

Disorderly Conduct at Trial.— If the prisoner becomes so disor-
derly in his conduct that the trial cannot go on in his presence,
this has been held to justify the court in removing him, and pro-
ceeding in his absence.!

§ 273. During Entire Trial.— Subject to the foregoing real or
apparent exceptions, the doctrine is very broad, that, in a case of
felony or treason, the prisoner must be present during the whole
of the trial, including the giving in of the evidence, the charge to
the jury, special instructions during their deliberations, and the ren-
dition of the verdict, else no valid judgment can be pronounced on
the verdict.? It is not sufficient that his counsel are present, and.
are silent as to the objection.2 How far this doctrine extends to
misdemeanors punishable by imprisonment is not quite clear ; it
does not, we have seen,* extend into the lower ones, punishable
merely by fine.®

§ 274. Prisoner becoming I1.— Where, during a trial for mis-
demeanor, the prisoner became so ill that he was obliged to be
assisted, out of court, Park, J.,in an English case, refused to go
on, though counsel consented. ‘“ He doubted whether the consent
of his counsel would be sufficient,® this not being like the case of
a defendant who is absent when the judgment is given on him in
the Court of King’s Bench, as that is done with his own consent,
and generally on his own application.” 7

1 United States v. Davis, 6 Blatch.
464. And see McCorkle v. The State,
14 Ind. 39.

2 Rolls v. The State, 52 Missis. 391;
The State v. Alman, 64 N. C. 364; Dodge
v. People, 4 Neb. 220; Shapoonmash v.
United States, 1 Wash. Ter. 219; The
State v. Barnes, 59 Misso. 154; Graham
v. The State, 40 Ala. 659; Younger v.
The State, 2 W. Va. 579; The State v.
Blackwelder, Phillips, 88; Gladden v.
The State, 12 Fla. 562; People v. Miller,
88 Cal. 99; The State v. Bertin, 24 La. An.
46; People v. Stuart, 4 Cal. 218; Maurer v.
People, 43 N. Y. 1; The State v. Dooly,
‘64 Misso. 146, 149; The State v. Allen,
64 Misso. 67; Burley v. The State, 1
Neb. 885; Jackson v. Commonwealth, 19
Grat. 656; Holton v. The State, 2 Fla.
476; Clark v. The State, 4 Humph. 254;
Andrews v. The State, 2 Sneed, 550;

The State v. France, 1 Tenn. 484; Peo-
ple v. Perkins, 1 Wend. 91; The State v.
Cross, 27 Misso. 8382 ; Nomaque v. People,

‘Breese, 109; The State v. Hughes, 2 Ala.

102; The State v. Buckner, 25 Misso.
167, decided, however, on a statute; Peo-
ple v. Kohler, 5 Cal. 72; Cole v. The
State, 5 Eng. 818; Sneed v. The State, 5
Pike, 431. See Gandolfo v. The State, 11
Ohio State, 114; Crusen v. The State, 10
Ohio State, 258; People v. Bealoba, 17
Cal. 389.

3 Rose v. The State, 20 Ohio, 61; Mau-
rer v. People, 48 N. Y. I; Jones v. The
State, 26 Ohio State, 208.

# Ante, § 270. ;

5 Sawyer v. Joiner, 16 Vt. 497. And
see The State v. Shepard, 10 Iowa, 126.

6 Ante, § 270.

7 Rex v. Streek, 2 Car. & P. 418.

175
. PREPARATORY AND AUXILIARY. [Book Ut.

§ 275. The Sentence : —

Fine Only.— Where the offence is a misdemeanor of the kind
punishable merely by fine;? or, though by fine and imprison-
ment, where only a fine is to be imposed ;? the doctrine appears
pretty plainly to be that it is within the discretion of the court
to render judgment in the defendant’s absence. But, —

Imprisonment. —If there is to be imprisonment, or any other
punishment higher than a fine, whether in treason, felony, or
misdemeanor, the defendant must be personally present.? In the
language of Holt, C. J.: ‘‘ No judgment for corporal punishment
can be pronounced against a man in his absence; and no writ
can be granted to seize a man and set him in the pillory.”4

Even —

1 Reg. v. Templeman, 1 Salk. 55; Son
v. People, 12 Wend. 344.

2 People v. Taylor, 3 Denio, 98, note ;
Commonwealth v. Crump, 1 Va. Cas.
172; People v. Clark, 1 Parker C. C. 360.
In an English case, where the question
was upon the passing of sentence in the
absence of the prisoner, “The general
doctrine laid down by the court, and
agreed by the counsel on both sides,
was,” says the report, ‘that, though such
a motion was subject to the discretion of
the court either to grant or to refuse it
where it was clear and certain that the
punishment would not be corporal, yet it
ought to be denied in every case where
it was either probable or possible that the
punishment would be corporal.” Rex v.
Hann, 3 Bur. 1786. In a case of libel,
where, after verdict, the defendant was
in prison awaiting sentence, and it was
represented that the prosecutor refused
to bring him up for sentence, and he was
too poor to defray himself the charges
of this proceeding, the court, as a favor
to him, passed sentence in his absence.
But it does not appear what the sentence
was. Rex v. Boltz,8 D. & R. 65,5 B. &
C. 334.

3 Hamilton v. Commonwealth, 4 Har-
ris, Pa. 129; Safford v. People, 1 Parker
C. C. 474; People v. Winchell, 7 Cow.
525 and note; Anonymous, Lofft, 400;
Peters v. The State, 89 Ala. 681; Rolls v.
The State, 62 Missis. 891; Gibson v. The
State, 89 Ala. 698; Graham v. The State,
40 Ala. 659. See Reg. v. Simpson, 10
Mod. 841, 844.

176

* Rex v. Harris, 1 Ld. Raym. 267,
Comb. 447, 448, Holt, 399, Skin. 684;
Rex v. Harrison, 12 Mod. 156. In an-
other case, this learned judge said:
“ Judgment cannot be given against any
man in his absence for a corporal punish-
ment; he must be present when it is
done....If we give judgment that he
shall be put in the pillory, it might be
demanded when, and the answer would
be, when they can catch him. And there
never was a writ to take a man and put
him in the pillory; it is not like to a ca-
pias pro fine, which is to bring him into
court to pay the money. A defendant
may submit to a fine, though absent, if
he has a clerk in court that will under-
take for the fine.” Duke’s Case, Holt,
899. A justice of the peace, convicted of
a misdemeanor in his office, must be pres-
ent at the praying of judgment. Rex
v. Harwood, 2 Stra. 1088. Still, upon
affidavit of general infirmity, the court
will dispense with his persqnal presence.
Rex v. Constable, 7 D. & R. 663, 3 B. &
Ad. 659, note. In Iowa, by statute, judg-
ment in cases of misdemeanor may be
rendered in the absence of the defendant.
Hughes v. The State, 4 Iowa, 654. Ef
fect of Absence. — If the absence is only
at the sentence, a new trial will not be
granted, but the appellate court will re-
mand the case with directions to the
court below to render judgment accord-
ing to law. Cole v. The State, 5 Eng.
818.
CHAP. XVII.] PRESENCE OF PRISONER ‘IN COURT. § 27T

Abatement. — The judgment to abate a nuisance can be ren-
dered only when the defendant is present.

§ 276. Between Verdict and Sentence : —

New Trial. — It is perhaps impossible fully to reconcile the cases
on the question whether or not the defendant must be present on a
motion for a new trial. There is authority for saying, that, even
in a capital case, he need not be. ‘His counsel may ask for a
new trial in his absence.”? On the other hand, the cases, Eng-
lish and American, are numerous in which presence at this
motion has been deemed essential. Some distinctions will help
us; as, where the offence is punishable merely by fine, it is plain
that the personal presence may be dispensed with. And where,
in libel, there was a motion for ‘a new trial in the absence of the
prisoner, Abbott, C. J., said: “If the defendant is in custody
under a warrant of a judge of this court, as a consequence of the
conviction in this case, and he is not detained in prison for any
other cause, we think the motion for a new trial may be made
without his personal presence.”5 Upon this last distinction,® the
personal presence was held in Massachusetts not to be necessary

in a case of forgery, when the defendant was in custody.’
§ 277. Motion in Arrest. — In general, perhaps always, the per-
sonal presence is essential at a motion.in arrest of judgment.’

1 Reg. v. Chichester, 2 Den. C. C. 458,
8 Eng. L. & Eq. 294.

2 Jewell v. Commonwealth, 10 Harris,
Pa. 94, 101, 102; Commonwealth v. Cos-
tello, 121 Mass. 371. See ante, § 269.

3 Rex v. Fielder, 2 D. & R. 46; Rex v.
Gibson, 2 Barnard. 412, 2 Stra. 968, 7 Mod.
205; Rex v. Teal, 11 East, 307; Rex v.
Askew, 3 M. & S. 9; Rex v. Cochrane, 3
M. & S. 10; Howard v. Reg., 10 Cox C.C.
64; Rex v. Bembridge, 3 Doug. 327, 330;
Hooker v. Commonwealth, 13 Grat. 763;
Rex v. Scully, Alcock & N. 262.

4 Reg. v. Parkinson, 2 Den. C. C. 459,
6 Eng. L. & Eq. 352, 15 Jur. 1011.

5 Rex v. Boltz, 8 D. & R. 65, 66.

8 As to which see also Rex v. Holling-
berry, 6 D. & R. 345,4 B. & C. 329. A
defendant, sentenced to transportation,
yet not in custody under the sentence, was
not permitted to move by counsel for a
new trial while personally absent. Said
Lord Campbell, C. J.: “I have thought
it a hardship that one of several defend-
ants could not move unless all were before

VOL. I. 12

the court; but here there is only one de-
fendant; and it is peculiarly necessary
that he should be here, in order that he
may be forthcoming to meet his sen-
tence.” Reg. v. Caudwell, 17 Q. B. 503,
2 Den. C. C. 372, note, 6 Eng. L. & Eq.
352.

7 Commonwealth v. Costello, 121 Mass.
871. ‘When he is not in custody,” said
Gray, C. J., “the court will not entertain
such a motion in his absence, not because
he has a right to be present, but because
he has no right to be heard without sub-
mitting himself to the control of the court,
so that he may be committed in case the
motion should be overruled ; or, as was
said by Lord Hardwicke in a case which,
like this, was an indictment for forgery,
‘the court will be syre of him’ before
they intimate any opinion on his motion.”
p. 872. And see The State v. Coleman,
27 La. An. 691, 694.

8 Rex v. Spragg,2 Bur. 928; s.c. nom.
Rex v. Spragge, 1 W. Bl. 209.

177
§ 277 PREPARATORY AND AUXILIARY. [Book 11.

Rule to show Cause.— On a rule to show cause, it seems not to
be deemed necessary ;! but the contrary has been intimated.?

Writ of Error.— There is some confusion as to how the ques-
tion stands upon a writ of error; but, in general, and in the ab-
sence of any special occasion, the personal presence seems not to
be essential.2 The reasons which require the presence in some
other cases do not press so heavily in this.

1 People v. Van Wyck, 2 Caines, 388. from a conviction and fine before a jus-

2 People v. Freer, 1 Caines, 485. tice for assault and battery, and enters

8 Donnelly v. The State, 2 Dutcher, into the recognizance required by statute,
468, 601; People v. Clark, 1 Parker C. C. need not appear in person in the appel-
860. That the personal presence is neces- late court, and it is error to affirm the
sary, see Reg. v. Foxby, 6 Mod. 178. judgment upon his failure todo so. The
Appeal. — One who, in Missouri, appeals State v. Buhs, 18 Misso. 318.

178
CHAP. XVIII. ] COUNSEL PROSECUTING. § 279

CHAPTER XVII.
THE PROSECUTING COUNSEL OF THE GOVERNMENT.

§ 278. Distinguished from Private Prosecutor. — “In general,
every man is of common right entitled to prefer an accusation
against a party whom he suspects to be guilty” of crime.! He is
termed the prosecutor.2- Commonly he is some person particularly
aggrieved by the criminal act, but not so necessarily.2 In England,
the greater part of criminal prosecutions are set on foot by private
prosecutors, and conducted to the end by legal persons whom
they employ,‘ with only slight supervision by officers of the gov-
ernment. But, —

Public Prosecutor. —In the United States, alike under the
general government and the governments of the several States,
criminal prosecutions before the higher tribunals are, if not al-
ways instituted, with scarcely an exception carried on, by a public
prosecuting officer of the legal profession. He manages the cause
for the most part personally on the trial and in every stage of
it before the court, and in most of the States® before the
grand: jury also. He is known as District Attorney, State’s At-
torney, Attorney-General, and so on, according to the laws and
nomenclature of the particular State.

§ 279. Appointment and Grade — Vacancy. — The appointment
and grade of prosecuting officers are variously regulated by
the constitutions and statutes of the several States and of the
United States.6 And it is the same of the filling of a vacancy.’
Even, —

™ 1 Chit. Crim. Law, 1. 6 People v. Albany Common Pleas, 19
2 Post, § 690 et seq.; The State v. Wend. 27; People v. May, 3 Mich. 598;
Millain, 8 Nev. 409. See The State v. Collins v. The State, 8 Ind. 344; The
Gossage, 2 Swan, Tenn. 263; Bedford v. State v. Shufflebarger, 4 Ind. 632; Bark-

The State, 2 Swan, Tenn. 72. well v. The State, 4 Ind. 179; Parker v.
3 And see Rex v. Wood, 8 B. & Ad. Smith, 3 Minn. 240; Ex parte Bouldin, 6
657. Leigh, 689; Hyde v. Trewhitt, 7 Coldw.

4 Reg. v. Gurney, 11 Cox C. C. 414. 59.
5 The State v. Addison, 2 S. C. 356; 7 Hite v. The State, 9 Yerg. 198;
post, § 861. Staggs v. The State, 3 Humph. 872;

179
§ 281 PREPARATORY AND AUXILIARY. [Book III.

§ 280. In Absence. — Aside from statutory and constitutional
provisions, a court may appoint one of its officers— that is, an
attorney or counsellor of the court—to act for the prosecution
whenever the prosecuting officer fails to appear! Though by
the constitution the office of district attorney is elective, still in
his absence the court may appoint one pro tempore.2 And the
appointee is to consider himself as counsel for the people in all
respects, not merely as an assistant to the judge in examining
witnesses.?

§ 281. Assistance in Particular Cause. — The: prosecuting officer,
while conducting a’ cause, may, with the concurrence of the court,
be assisted by other legal persons.* That they are paid by the
party injured or his friends,° or appear at the request of the gov-
ernor of another State,® dges not render them incompetent. As
the office is statutory,’ and the statutes differ, the minor doctrines

on this subject may not be exactly alike in the several

But —

Commonwealth v. King, 8 Gray, 501;
Keithler v. The State, 10 Sm. & M. 192,
224, 286. Ex parte Diggs, 50 Ala. 78;
Diggs v. The State, 49 Ala. 311; The
State v. Lackey, 35 Texas, 857; People v.
Delaware, 45 N. Y. 196; Hackey v. The
State, 15 Ga. 400; Statham v. The State,
41 Ga. 507; Commonwealth v. McCombs,
6 Smith, Pa. 486; The State v. Manlove,
83 Texas, 798. By the Constitution of
Tennessee, “In all cases where an attor-
ney for any district fails or refuses to at-
tend and prosecute according to law, the
court shall have power to appoint an attor-
ney pro tempore.” This provision (not
speaking of the right which exists with-
out it, as see the next section) does not au-
thorize the appointment of an attorney pro
tem. merely because in the particular case
the district attorney is incompetent by
reason of having been counsel for the
prisoner. Pippin v. The State, 2 Sneed,
43. <A statutory provision, that, when-
ever the district attorney shall not attend,
the judge may appoint an attorney pro
tempore to prosecute on behalf of the
State, does not violate a constitutional
one by which district attorneys are to be
elected by the people. The State v. Bou-
dreaux, 14 La. An. 88; The State v. Bass,
12 La. An. 862. See post, § 280.

1 White-»v. Polk, 17 Iowa, 418, 414;

180

States.

Dukes v. The State, 11 Ind. 557; The
State v. Johnson, 12 Texas, 231; Tesh »v.
Commonwealth, 4 Dana, 522; Ex parte
Diggs, 50 Ala. 78; Reg. v. Page, 2 Cox C.
C. 221. See Collins v. The State, 8 Ind.
844; Mitchell v. The State, 22 Ga. 211,
232; The State v. Delesdenier, 7 Texas,
76, 96; Kouns v. Draper, 48 Misso. 225;
The State v. Gonzales, 26 Texas, 197.
According to the last cited case, the
powers and duties of the grand jury do
not cease by reason of there not happen-

‘ing to be a district attorney; and, if a

person not duly empowered acts as such
attorney, the indictment should not there-
fore be quashed. And see Diggs v. The
State, 49 Ala. 311.

2 Keithler v. The State, 10 Sm. & M.
192, 224, 235.

3 Reg. v. Littleton, 9 Car. & P. 671;
The State v. Lackey, 35 Texas, 357.

4 Hopper v. Commonwealth, 6 Grat.
684; Shelton v. The State, 1 Stew. & P.
208; People v. Blackwell, 27 Cal. 65. See
Beauchamp v. The State, 6 Blackf. 299.

5 The State v. Bartlett, 65 Maine,
200.

6 United States ». Hanway, 2 Wal.
Jr. 189.

T People v. Corning, 2 Comst. 9, 18.
CHAP. XVUI.] COUNSEL PROSECUTING.

§ 285

§ 282. Discretionary. — The permitting or refusing of such
counsel is perhaps everywhere discretionary with the court,
and so appear also to be the bounds within which they shall
act. But— '

Control. — The control of the cause should not be permitted to
pass out of the hands of the public attorney; hence, also, the
appointment itself should be made only with his concurrence.

§ 283. Argue the Cause.— The counsel who thus assists, may,
it has been held in Tennessee,? Georgia, and California,® be per-
mitted, at the request of the attorney for the State, to make the
closing argument. “The regulation of that matter,” said Reese,
J., “‘properly belonged to the Circuit Court. The discretion
which the judge of that court had, we have no reason to suppose
was indiscreetly exercised, and its exercise in the mode men-
tioned was, we take, no ground of error before us.” And—

§ 284. Try Cause alone. — It has even been held in Massachusetts,
that, though the attorney for the State is present, the court may,
on his motion, appoint another lawyer to take the entire conduct
of a particular cause before the jury.’

§ 285. Before Inferior Courts.— From what was shown at the
opening of this chapter, it is plain that a criminal prosecution
may be instituted and conducted to its close without the aid of a

1 Edwards v. The State, 47 Missis. 581.

2 Commonwealth v. Williams, 2 Cush.
682. And see Commonwealth v. Knapp,
10 Pick. 477; Commonwealth v. Knapp,
9 Pick. 496; Commonwealth v. King, 8
Gray, 501; Durr ». The State, 53 Missis.
425; Meister v. People, 31 Mich. 99.
After Verdict.— According to a Ken-
tucky case, the fact that a prosecution
was carried on without the aid of any
prosecuting attorney, or by one who, with
the assent of the court, prosecuted with-
out competent authority, is not material
after verdict; the party convicted can
take no advantage of it. Tesh v. Com-
monwealth, 4 Dana, 522. And see Durr
v. The State, supra. Counsel for Pris-
oner.— One who has been retained by
the prisoner in the case, should not be
allowed afterward to assist in the prose-
cution. Wilson v. The State, 16 Ind. 392.
Number. — In Massachusetts (it is not so
in all the States), only two counsel will
be allowed to conduct the cause, in be-

half of the prosecution, before the jury.
Commonwealth v. Knapp, supra.

3 Jarnagin v. The State, 10 Yerg. 529.

4 Griffin v. The State, 15 Ga. 476.

5 People v. Strong, 46 Cal. 802; People
v. Murphy, 47 Cal. 103.

6 Jarnagin v. The State, supra, at
p. 530. See further, as to the law in Ten-
nessee, Ex parte Gillespie, 3 Yerg. 325;
Douglass v. The State, 6 Yerg 525. As
to Ohio, see Martin v. The State, 16 Ohio,
364. As to Mississippi, The State vw.
Mayes, 28 Missis. 706. According to an
earlier Mississippi case, the proceedings in
bringing an indictment before the court
must be conducted by the prosecuting at-
torney in person, but other counsel may
manage the trial before the petit jury.
Byrd v. The State, 1 How. Missis. 247.
And see Durr v. The State, 58 Missis. 425.
See Shattuck v. The State, 11 Ind. 473.

7 Commonwealth v. Connecticut River
Railroad, 15 Gray, 447. And see The
State v. Russell, 26 La. An. 68.

181
§ 287 PREPARATORY AND AUXILIARY.

1

public prosecuting officer, except where the written law provides
otherwise. And it does not, in probably any of our States, pro-
vide otherwise as to proceedings before inferior magistrates.
Therefore it is the common course with us, that such proceed-
ings, on behalf of the State, are set on foot and managed by some
police officer, constable, or private person, and not by the State’s
Attorney; though the latter doubtless may, in most instances,
take them into his hands if he chooses.!

§ 286. Compensation. — The compensation of the prosecuting
officer is variously regulated in the different States. It is com-
monly by salary; in connection with which, or without it, he has
in some a special fee, or costs, or both.?, An assistant or substi-
tute is not necessarily, though he may be, entitled to compensa-
tion from the public.®

§ 287. Duties and Powers : —

Other Connections. — Most of the duties and powers of the pros-
ecuting officer are explained in other connections.

In General. — He is the attorney and agent of the government
in whatever concerns his office, and he should perform all acts
required by the situation; as, for example, cause witnesses to be
subpeenaed,* see that proceedings are regular,® and attend to

[BOOK M1.

various other things.®

But it is not his duty to act beyond his

own district or other limits of his jurisdiction.7
Whether prosecute. — A leading function is to determine whether

1 Ante, § 38; Treasurer v. Rice, 11
Vt. 339; Portland v. Rolfe, 87 Maine,
400; The State v. Roney, 37 Iowa, 30;
Santo v. The State, 2 Iowa, 165; Com-
monwealth v. Connecticut River Rail-
road, 15 Gray, 447.

2 Commonwealth v. Munn, 14 Gray,
861; The State v. Thompson, 39 Misso.
427; Blythe v. The State, 4 Ind. 525;
Stone v. Riddell, 5 Bush, 3849; Harris v.
Beayen, 11 Bush, 254; Leavenworth v.
Brewer, 9 Kan. 807; Ellis v. Jackson, 38
Iowa, 175; Vastine v. Voullaire, 45 Mis-
so. 604; The State v. Foss, 52 Misso. 416;
The State v. Peck, 51 Misso. 111; Char-
ter v. The State, 36 Missis. 75; Dent v.
The State, 42 Ala. 614; Pillsbury »v.
Brown, 45 Cal. 46; Pillsbury v. Brown,
47 Cal. 477; People v. Christerson, 59 Ill.
157; Williams v. Jefferson, 2 Mon. Ter.
26; Rawley v. Vigo, 2 Blackf. 355; People

182

v. New York, 1 Hill, N. Y. 362; Dyer v.
The State, 9 Yerg. 395; Videto v. Jack-
son, 31 Mich. 116; Robinson v. Smith, 57
Ga. 332; White v. Berry, 28 Ark. 198,

3 Kouns v. Draper, 43 Misso. 225.

* United States v. Durling, 4 Bis. 609.

5 Campbell v. People, 22 Ill. 234.

® Consult, for example, Hannah v.
Wells, 4 Oregon, 249; United States v.
Blaisdell, 3 Ben. 182; In re Attorney-
General, Mart. & Yerg. 285; Bennett v.
The State,8 Humph. 118; The State v.
Cross, 2 Humph. 301; People v. Tweed,
18 Abb. Pr. n. 8.25; The State v. South-
ern Pacific Railroad, 24 Texas, 80; Com-
monwealth v. Hipple, 19 Smith, Pa. 9;
People v. Ingersoll, 58 N. Y. 1; People v.
Miner, 2 Lans. 896; The State v. Tufts,
56 N. H. 187.

7 Leavenworth v. Brewer, 9 Kan. 307.
CHAP. XVIII. ] COUNSEL PROSECUTING.

§ 292
there shall be a particular prosecution or not. A law may be
technically violated under circumstances rendering the punish-
ment of the offender not beneficial to the public; when, there-
fore, he should not be punished.!_ But, in applying this doctrine,
the prosecuting officer should consider that —

§ 288. Pardoning Power.— The power of pardon is with the
executive department. Hence the prosecuting officer may deem
it his duty to pursue an offender whom still he thinks the gov-
ernor ought to pardon. Again, —

§ 289. Legislative Power.— The laws are made by the legisla-
ture. Therefore if the prosecuting officer deems a law, whether
new or old, statutory or unwritten, to be unwise, mischievous, or
in violation of natural right, still he is not therefore to decline
carrying on the prosecution. This consideration is for the legis-
lature, not for him. But—

§ 290. Discretionary with him.— There are circumstances in
which it is plainly discretionary with him to prosecute or not,
though the law and facts will sustain the proceeding. If, for
instance, a technical crime has been committed, where there was
no violation of the spirit and intent of the law, but by some slip
in its terms a man is caught in a net not spread for him, the
prosecuting officer, representing the public, should decline to in-
stitute or to carry on a prosecution. For if he carries it on, while
he wrongs the individual, he brings disgrace upon the law and
the community. Again, —

§ 291. Continued. — An offence may be so accidental and
trivial that it will be his duty to pass it by unnoticed ; as a right-
minded individual, who owns a piece of real estate, passes by
unregarded a trivial and accidental trespass upon it. These are
but illustrations of a discretion which will depend on many vary-
ing circumstances.

§ 292. By whom Controllable. —In England, the Queen prose-
cutes; and the Attorney-General is, in law, her attorney, who
represents her as any client, in a mere private matter, is repre-
sented by his attorney. In the United States, the prosecution is

1 Crim. Law, I. § 210. No Bargain.
— The prosecuting officer simply declines,
in proper cases, to institute or to carry on
the prosecution. He can make no valid
agreement not to prosecute. The State
v. Lopez, 19 Misso. 254, And see Ben-

nett v. The State, 2 Yerg. 472; ante,
§ 40. Nor can he make a bargain as to
the punishment, binding on the court.
The State v. Reininghaus, 43 Iowa, 149.
2 Opinion of the judges in Wilkes’s
Case, 19 Howell St. Tr. 1075, 1128.
183
§ 293 PREPARATORY AND AUXILIARY. [Book IIL.

by the people, who constitute the plaintiff, under the name of
The People, The State, The Commonwealth, or the United States.
Has, then, the President of the United States, in respect of na-
tional matters, or the Governor of a State, in respect of State
matters, or any legislative body, the power, with us, to control
a prosecuting officer in the exercise of his official discretion?!
This question may not require the same answer in all the States,
or the same under the government of the United States as under
a State government. Various things of this sort have been done
or attempted, but the books are nearly destitute of judicial views
upon the subject. ‘

§ 293. Tricks to convict. — It is neither the duty nor the right
of the prosecuting officer to gain advantage over the prisoner at
the trial by any deception,? or employ tricks to procure his con-
viction.2 Yet if the prisoner is defended by counsel, and the
prosecuting attorney deems that the question of guilt should be
submitted to the jury, it can hardly be required of him, or ordi-
narily proper, to argue both sides. The orderly course of busi-
ness in the tribunals, and the ends of justice, are, in most in-
stances, alike promoted by leaving it to the counsel equally of
the prisoner and of the people to present each the cause of his
client in its clearest light. But where the prisoner has no coun-
sel, or where his counsel makes some great slip in the manage-
ment of his cause, the counsel for the public should not press an
advantage to obtain an unjust conviction. Even the declining
to call witnesses who will testify favorably to the prisoner ig in
many circumstances inadmissible and a wrong. In the words of
Christiancy, J., “The prosecuting officer represents the public

1 And see United States v. Blaisdell,
3 Ben. 182.

cution, to be, to examine the witnesses
who would detail the facts to the jury,

2 March v. The State, 44 Texas, 64;
Curtis v. The State, 6 Coldw.9; Hurd v.
People, 25 Mich. 406, 415, 416.

3 See ante, § 40.

# In an English case for murder, where
the prisoner was defended by counsel, “in
opening the case,” says the report, “ Cor-
bett, for the prosecution, said, that he
should state to the jury the whole of
what appeared on the depositions to be
the facts of the case, as well those which
made in favor of the prisoner as those
which made against her, as he appre-
hended his duty, as counsel for the prose-

184

after having narrated the circumstances
in such way as to make the evidence,
when given, intelligible to the jury; not
considering himself as counsel for any
particular side or party. He then opened
the whole of the facts,” &c. Gurney, B.,
who presided at the trial, observed:
“The learned counsel for the prosecution
has most accurately conceived ‘his duty,
which is to be assistant to the court in
the furtherance of justice, and not to act
as counsel for any particular person or
party.” Reg. v. Thursfield, 8 Car. & P.
269.
CHAP. XVII.] . COUNSEL PROSECUTING. § 294

interest, which can never be promoted by the conviction of the
innocent.” Like the judge, he is not to be a partisan, but a
minister of justice.? .

§ 294. As to Questions of Law. —It is the same also as to ques
tions of law. If the prosecuting officer is clear that a point of
law is against him, he should not seek to have it decided other-
wise than correctly; nor should he conceal from the court his
doubts, if such he has.2 Still, as the law of a case is for the
' court, the same as the fact is for the jury, a counsel for the people
_may often find it consistent with his duty to argue in support of

that view of the law which will sustain the prosecution, contrary
to his own private judgment.

1 Hurd v. People, supra, at p. 416. 3 The State v. McBride, 26 Wis. 409,
2 Reg. v. Berens, 4 Fost. & F. 842; 410; Word v. Commonwealth, 3 Leigh,
Reg. v. Webb, 4 Fost. & F. 862; Rex v. 748, 758; The State v. Sanford, 1 Nott &
Thanet, 27 Howell St. Tr. 821, 952. McC. 512.
185
§ 298 PREPARATORY AND AUXILIARY. [Book m1.

CHAPTER XIX.

COUNSEL FOR THE DEFENDANT.

§ 295. Introduction.
296-302. Right to have Counsel.
303-306. Appointment and Compensation.
807, 808. Proceeding without Counsel.
809-318. Duty of Counsel.

§ 295. Course of the Discussion. — We shall consider, I. The
Right to have Counsel; II. Appointment and Compensation ;
III. Proceeding without Counsel; IV. Duty of Counsel.

I. The Right to have Counsel.

§ 296. Under the Old Law. — We have already alluded to the
rules of the ancient common law respecting the limited right of
prisoners to be defended by counsel. On no trial before a jury
for treason or felony could they have this help in their defence,
yet counsel were employed against them. By a fiction, the judges
were deemed their counsel in those cases where they had none,
not in trials for misdemeanor where céunsel: defended for them.
But counsel would always be assigned to‘argue a question of
law.?

§ 297. Continued. — Yet upon a collateral issue, —as, for ex-
ample, to plead a pardon,’ — counsel were allowed; nor, on such
an issue, was any assignment of counsel necessary.*

§ 298. Continued. — In misdemeanor, counsel appear always to

L Ante, § 14-22. ; 3 2 Hawk. P. C. c. 89, § 5.

21 Chit. Crim. Law, 407; 2 Hawk. * Rex v. O’Carny, T. Jones, 180; Rex
P. C. c. 39, § 1, 4; Withipole’s Case, v. Davis, 1 Bur. 638; Rex vw. Johnson, 2
Cro. Car. 147; Charnock’s Case, 12 Stra. 824; Burgess’s Case, Cro. Car. 865;
Howell St. Tr. 1877, 1882; Pantaleon Sa’s Ratcliffe’s Case, Foster, 40; Harvey’s
Case, 6 Howell St. Tr. 461 and notes; Case, Foster, 51.

Rex v. Thomas, 2 Bulst. 147; Fulwood’s
Case, Cro. Car. 482.

186
CHAP. XIX. ] COUNSEL FOR DEFENDANT. § 802

have been allowed.! And it was the same in the now obsolete
proceeding by appeal.?

§ 299. How at Present in England. — These rules of the common
law have, in England, been modified by subsequent legislation
and judicial decision, until there is believed to remain no case in
which the assistance of counsel is denied. Still, —

§ 800. License.— Even at the present time in England, “the
Attorney and Solicitor General, a Queen’s sergeant, or a Queen’s
counsel cannot appear in a case against the Crown, even if the
Crown be a nominal party only, without a license under her
Majesty’s sign manual.” But “sergeants and counsel, who have
patents of precedency, may appear in cases against the Crown
without any such license.”* And, where the license is required,
it appears to be granted as of course.®

§ 301. with us.—In this country, the denial of counsel to
prisoners is unknown. And the right is expressly secured to
them, as to trials in the national tribunals, by the Constitution of
the United States. There is a corresponding provision in many
or most of the State constitutions.’ Still, with us, —

§ 302. Prosecuting Officer as Counsel. — As no lawyer can act
on both sides of the same case, plainly a prosecuting officer can-
not, within his jurisdiction, be retained by a defendant. But
outside the limits of his district it seems that he may be, if the
duties of his office do not claim a monopoly of his time.’ Where,
however, one in office has instituted criminal proceedings, and
then his term of service expires, he cannot suffer himself to be
retained by the same defendant as counsel in the same cause;
and, if he does, the court will not permit him to appear at the
trial. To suffer this, would violate public policy.?

11 Chit. Crim. Law, 409; ante, § 18, 5 1 Chit. Crim. Law, 411; Reg. v.

20. Jones, supra.
2 2 Hawk. P. C. c. 39, § 3. 6 Const. U. S. Amendm. art. 6; Story
3 But as to the examination before the Const. § 1792. :
magistrate, see Rex v. Borron, 3 B. & Ald. 7 See ante, § 76; Hunt v. The State,
432; Cox v. Coleridge, 2 D. & R. 87,1 B. 49 Ga. 255; Roberts v. The State, 14 Ga.
& C. 87. 18; The State v. Miller, 75 N. C. 78;

4 Note to Reg. v. Jones, 9 Car.&P.401; The State v, Arlin, 89 N. H. 179.
Reg. v. Bartlett, 2 Cox C. C. 245. In Ire- 8 Sharp v. Kirkendall, 2 J. J. Mar.
land, the license is obtained from the Lord 160. ‘
Lieutenant, 2 Hayes Dig. 871. ® Gaulden v. The State, 11 Ga. 47.

187
§ 304 PREPARATORY AND AUXILIARY. [Book m1.

II. Appointment and Compensation.

§ 308. Appointing. — Under the old English practice, counsel,
when permitted in treason and felony to appear for prisoners in
issues other than collateral, were assigned by the court! The
practice is probably not quite uniform in our States, but gener-
-ally, in cases not capital, counsel are employed by prisoners and
appear as:of course much as in civil causes. In capital cases, the
usage of assigning counsel is more known. A sane prisoner will
not have counsel thrust upon him against his remonstrance ; or,
it appears, without his affirmative consent.2- But the doctrine in
reason should be, and it probably is, that, if there is ground to
doubt the sanity of the prisoner, and the question is to be raised,
an insane objection by him will not prevent the court from assign-
ing counsel. And the rule that a party may control or discharge
his counsel will be so far relaxed, as, at least, to permit evidence
of insanity to be introduced against his will The court, though
requested by the prisoner, will not assign as counsel one whose
competency there is just ground to doubt, or, ordinarily, one not
an officer of the court, over whom therefore it has not control.6

§ 304. Compensation.— If the prisoner has the means of pay-
ment, he may lawfully execute while in confinement any proper
instrument to transfer them;® or, if the arresting officer has
taken from him money not necessary to be held for the purposes
of the trial, and if it is his own, the court will order it to be
restored, that he may fee counsel.’

Unable to pay. — Probably everywhere in capital cases, and in
‘some of the States in cases not capital, counsel will be assigned
even to poor persons unable to pay. In Ireland, the learned
Chief Baron, after some consultation, expressed the “opinion
that a judge might with propriety call on a barrister to give his
honorary services to a prisoner who was unable to employ one,
but he thought the case different as regarded an attorney.” Yet

1 Ante, § 296-298, and the places there 496,498. See, also, Donnelly v. The State,
referred to. 2 Dutcher, 463; Brown v. The State, 7
2 Reg. v. Yscuado, 6 Cox C. C. 386. Eng. 623; Reg. v. Southey, 4 Fost. & F.
3 In re Paschal, 10 Wal. 483, 496; 864.
Carver’s Case, 7 Ct. Cl. 499. ® Rex v. Coxon, 7 Car. & P. 651.
4 The State v. Patten, 10 La. An. 299. 7 Rex v. Rooney,7 Car. & P. 615;
5 Commonwealth v. Knapp, 9 Pick. ante, § 212.

188
CHAP. XIX.] COUNSEL FOR. DEFENDANT. § 306

he “could not compel counsel to act.” In this case, an attorney
volunteered, and the barrister named by the judge served. The
judge said he should certainly recommend that the fee be paid by
the Crown. In some of our States, this work is distributed by
the courts among the competent lawyers, who perform it without
pay ;? in others, they are paid from public funds.?

§ 305. Compelling Service without Compensation— The County.
—If the true doctrine is, as some deem, that the court can re-
quire lawyers to act in these cases without pay, it is because they
are officers of the court, bound therefore to perform official duties,
and for these the law has provided no compensation. We have
seen that, by the Irish ruling, counsel cannot be compelled.’
The constitution of Indiana provides that “no man’s particular
services shall be demanded without just compensation ” ;. still the
court has held, that counsel can be required to render their ser-
vices in these cases, for they are a necessary part of the adminis-
tration of justice, yet, being thus necessary, they can enforce -
compensation from the county.6 This doctrine has been main-
tained also in Wisconsin? and Jowa,® and not improbably in. some
other States.2 On the other hand, —

§ 306. Continued. —In Illinois, California," Pennsylvania,”
Georgia,® Alabama, Arkansas, and Montana, the cotnty is
held not to be liable in these cases.

1 Reg. v. Fogarty, 5 Cox C. C. 161.

2 It is so in Massachusetts. And see
Nabb’s Case, 1 Ct. Cl. 173; Wright »v.
The State, 3 Heisk. 256.

3 As to California, see People v. Moice,
15 Cal. 8329; Rowe v. Yuba, 17 Cal. 61;
post, § 306. In Iowa, there is a statu-
tory provision for the payment of counsel
defending pauper criminals, and fixing
their compensation. It is held to be con-
stitutional. Samuels v. Dubuque, 13 Iowa,
536. And see cases cited to the next two
sections.

4 Nabb’s Case, 1 Ct. Cl. 173; Arkan-
sas v. Freeman, 81 Ark. 266; Johnston v.
Lewis, 2 Mon. Ter. 159; Vise v. Hamil-
ton, 19 Ill. 78, 79.

5 Ante, § 304.

6 Webb ». Baird, 6 Ind. 13, 18; Blythe
v. The State, 4 Ind. 525. And see further,

as to this State, Fountain v. Ward, 35
Ind. 70; Gordon v. Dearborn, 52 Ind.
322. ‘

7 Carpenter v. Dane, 9 Wis. 274; Dane
v. Smith, 138 Wis. 585.

8 Hall v. Washington, 2 Greene, Iowa,
473. See Samuels ». Dubuque, 13 Iowa,
536.

9 See Commissioners v. Hall, 7 Watts,
290. But see the next section as to Penn-
sylvania.

10 Vise v. Hamilton, 19 Ill. 78, 79.

11 Rowe v. Yuba, 17 Cal. 61.

12 Huntingdon v. Commonwealth, 22
Smith, Pa. 80.

18 Elam v. Johnson, 48 Ga. 348.

14 Posey v. Mobile, 50 Ala. 6.

35 Arkansas v. Freeman, 81 Ark. 266.

16 Johnston v. Lewis, 2 Mon. Ter. 159.

189
§ 309 PREPARATORY AND AUXILIARY. [Book Il.

III. Proceeding without Counsel.

§ 807. Capital. — Even in a capital case, the trial may proceed
without counsel; as, for example, if the prisoner refuses their
assistance.1 And, —

Not Capital. — In cases not capital, where no lawyer volunteers,

this is in some of our States a common occurrence, if the prisoner
is unable to pay.
_ How. —In such cases, the principles brought to view in this
chapter and the last teach us, that, in a manner not inconsistent
with the duties of the bench, the judge should counsel and assist
the prisoner, and the prosecuting officer should avoid whatever
might lead to an unjust conviction.2 Again, —

§ 308. Amicus Curie.— In these criminal cases, the same as
in civil, but, it would seem, more appropriately than in civil, any
counsellor of the court may, as friend of the court, direct the
attention of the judge to points of law, or to errors in the pro-
ceedings. In England, one who had appeared for the prisoner
at his trial, but was not instructed to appear for him in the Court
of Appeal, was, in the latter court, permitted as amicus curie,
to cite authorities for the information of the court, but not to
argue.*

t

IV. Duty of Counsel.

§ 309. Decline or accept Retainer. — Numerous considerations
may properly influence a practitioner under this head ; but, prima
facie, he will deem it, when applied to, his duty —

To accept. A man does not lose his rights because accused
of crime, or even because known to be guilty of it. Therefore
no right-minded lawyer will refuse a defence, on the ground
that he deems the defendant guilty, or that the public has pro-
nounced against him, or that excellent people think he should
not be defended, or that the crime is specially odious, or that
the particular defence required is unpopular, or that making it

1 Reg. v. Yscuado, 6 Cox C. C. 386. * Post, § 759; 4 South. Law Rev. N.s.
And see Reg. v. Southey, 4 Fost.& F. 178.

864. . 4 Reg. v. Thomas, 12 W. R. 108, 83
2 And see ante, § 40. Law J. n. 8. M. C. 22, 26,9 Law T.n. 8.
488,

190
OHAP. XIX.] COUNSEL FOR DEFENDANT. § 311

will injure his professional standing or private reputation. There
is no higher obligation than that which sometimes compels a
practitioner to use his legal powers in behalf of one whose course
of life he loathes, and whom he deems guilty of the very crime
whereof he seeks to obtain an acquittal. The right of every
person to go unpunished until, not only the crime has been com-
mitted, but he has been formally convicted of it, after making
every defence to which any other person is entitled, is one of
the main pillars whereon rest our liberty and security in the
pursuit of happiness. Anda lawyer whose practice lies in this
department, yet refuses in these circumstances, does thereby
what he can to take away this principal pillar of public liberty
and security.2 Still —

§ 310. Not always. — The seca circumstances of a case may
render it equally a duty to decline. If, for example, persons
combine to commit crime, and it is in their plan to obstruct the
courts with numerous and frivolous defences, while they or a
part of them continue to break the laws, the lawyer who aids in
this becomes a criminal conspirator also, as well as commits a
contempt of the court of which he is an officer.’ Or, if it is the
business of the single defendant to violate the law in the partic-
ular concerning which he is indicted, and he seeks an acquittal
avowedly that he may resume a life of law-breaking, the lawyer
who helps him becomes in morals, and probably also in law,‘ a
partaker in the crime with him. Therefore, under circumstances
like these, a right-minded and considerate lawyer will decline
rendering any assistance in the still-continuing course of con-
certed or habitual crime.

§ 311. Expressing Belief of Prisoner's Innocence. — No lawyer
ought to undertake to be a witness for his client, except when
he testifies under oath, and subjects himself to cross-examination,
and speaks of what he personally knows. Therefore the prac-
tice, which seems to be tolerated in many courts, of counsel for
defendants protesting in their addresses to the jury that they
believe their clients to be innocent, should be frowned down and
put down, and never be permitted to show itself more. If a

1 Ante, § 40, 89-94. 8 Crim. Law, I. § 895; IL. § 219-226,
2 And see Crim. Law, L § 876, note, 254.
par. 12. ¢ Crim. Law, I. § 895.

191
§ 313 PREPARATORY AND AUXILIARY. [Book m1.

prisoner is guilty, and he communicates the facts fully to counsel,
in order.to enable the latter properly to conduct the defence;
then, if the counsel is an honest man, he cannot say he believes
the prisoner innocent; but, if he is a dishonest man, he will as
soon say this as any thing. Thus a premium is paid for profes-
sional lying. Again, if the counsel is a man of high reputation,
a rogue will impose upon him by a false story, to make him an
“innocent agent” in communicating a falsehood to the jury.
Lastly, a decent regard for the orderly administration of justice
requires, that only legal evidence be produced to the jury; and
the unsworn statement of the prisoner's counsel, that he believes
the prisoner innocent, is not legal evidence. It is the author's
cherished hope, that he may live,to see the day when no judge,
sitting where the common law prevails, will ever, in any cir-
cumstances, permit such a violation of fundamental law, of true
decorum, and of high policy, to take place in his presence, as is
involved in the practice of which we are now speaking.!
§ 312. Testifying as Witness. — At common law, a counsel may
testify as witness, though practically it is not often wise for
“one to serve in this double capacity. In Georgia, the statute of
1850, rendering attorneys in certain cases incompetent to be wit-
nesses for their clients, is held not to prevent the Attorney-Gen-
eral testifying for the State.?
§ 313. Right to argue. — The right to be represented by counsel
includes the right to have them argue the case. But this is one

of the rights which may be waived.!

1 Judge Taschereau, in his excellent
book collecting and commenting upon
the Canada Criminal Law Acts, deems
these suggestions so important that he
copies this section of my text in full.
Vol. II. p. 240. His industry next dis-
covers a passage “on the same subject,”
written by another author since this sec-
tion appeared in the first edition of the
present work, and copies it also. Ib. p.
241. This eche differs from most others
in being more distinct and practical than
the original. “To intrude,” it says, “on
the jury statements not legal evidence is
an interference with public justice of such
a character that, if persisted in, it be-
comes the duty of the court, in all cases
where this can be done constitutionally,

192

The court may limit the

to discharge the jury and continue the
case.” So that, if a lawyer for the de-
fence finds his client about to be con-
victed, his course is to profess to the jury
his belief in the unfortunate man’s inno-
cence; then, on the court interposing,
“persist” therein; then “it becomes the
duty of the court [not to commit the law-
yer for contempt, but] to discharge the
jury and continue the case!” Perhaps
this method of defence is worth trying
by some enterprising “ornament” of our
profession. Who knows ?

2 Hines v. The State, 26 Ga. 614.

8 People v. Keenan, 18 Cal. 681; Word
v. Commonwealth, 8 Leigh, 743.

4 Palmer v. People, 4 Neb. 68,
CHAP. XIX.] COUNSEL FOR DEFENDANT. | § 318

time of argument reasonably, yet not so as to preclude a full
hearing.?

1 People v. Keenan, supra; Lee v. Cal. 686. By force of a statute in North
The State, 51 Missis. 566; The State v. Carolina, the court cannot restrict counsel.
Linney, 52 Misso. 40; Weaver v. The The State v. Miller, 75 N. C. 78. And
State, 24 Ohio State, 584; Hunt v. The see Commonwealth »v. Porter, 10 Met.
State, 49 Ga. 265; Peoplev. Tock Chew,6 263; Lynch v. The State, 9 Ind. 541.

VOL. I. 13 193
§ 314 PREPARATORY AND AUXILIARY. [Book I.

CHAPTER XX.
THE COURT.

§ 314. The Jury.— The branch of the court! known as the
jury will be treated of further on.?

The Judge. — The judge must be appointed and qualified in
due form of law ;? though there may be a judge de facto, who
is not such de jure, and whose acts will be good as to third
persons. He must be competent to sit, not only in general, but
in the particular case ;5 as, for example, he must not be himself
a party,® or otherwise interested in the cause,’ or of disqualifying
relationship to a party. And if one occupies the bench who is
disqualified to be judge, either in the particular case or in general,
the defect cannot be removed by consent or agreement of the
parties.29 Various means have been devised by statutes in the
different States to supply the want of a judge in a case of special
disqualification. The court and judge are distinguishable, so

1 Ante, § 85.

2 Post, § 849-1016.

3 Rheinhart v. The State, 14 Kan. 318;
The State v. Phillips, 27 La. An. 663;
People v. Metzker, 47 Cal. 524; Kennard
v. Louisiana, 92 U. 8. 480; Biggerstaff v.
Commonwealth, 11 Bush, 169; Billy v.
The State, 2 Nott & McC. 356; Jeter
v. The State, 1 McCord, 233 ; The State v.
Lylies, 1 McCord, 238.

4 Crim. Law, I. § 464; post, § 316;
Griffin’s Case, Chase, 364; Rheinhart v.
The State, supra; The State v. Phillips,
supra; People v. Mellon, 40 Cal. 648;
Case v. The State, 5 Ind. 1.

5 Mathis v. The State, 3 Heisk. 127;
Turner v. Commonwealth, 2 Met. Ky.
619; Shropshire v. The State, 7 Eng. 190.

6 Anonymous, 1 Salk. 396; Derby’s
Case, 12 Co. 114; Wood v. London, Holt,
896; London v. Wood, 12 Mod. 669, 672,

690.
194

7 Jordan v. Henry, 22 Minn. 215; Reg.
v. Meyer, 1 Q. B. D. 173; Stockwell v.
White Lake, 22 Mich. 841; People v. Ed-
monds, 15 Barb. 529. See, as to the
limits of the doctrine, Commonwealth v.
Worcester, 3 Pick. 462, 465; Kilbourn v.
‘The State, 9 Conn. 560; Davis v. The
State, 44 Texas, 523; Commonwealth v.
Tuttle, 12 Cush. 502. ‘

8 Fort v. West, 53 Ga. 584; Deupree
v. Deupree, 45 Ga. 414; Oakley v. Aspin-
wall, 83 Comst. 547; Chambers v. Clear-
water, 1 Abb. Ap. 341; The State v.
Thomas, 56 Maine, 490.

9 Oakley v. Aspinwall, supra; Murray
v. The State, 34 Texas, 331. See The
State v. Bishop, 7 Conn. 181.

10 Ante, § 71; Case v. The State, 5
Ind. 1; Ex parte Skeen, 41 Ind. 418;
Dukes v. The State, 11 Ind. 557; Peter
v. The State, 6 How. Missis. 826; Ken-
nedy v. The State, 53 Ind. 542; The State
CHAP. XX.] THE COURT. § 314a@

that one judge may try a prisoner and another sentence him.1
And in some circumstances and to some degree there may be
changes in the incumbents of the bench while a cause is pending
or perhaps even during a trial ; but these questions, and questions
as to the number of judges, depend much upon differing statutes.”
That a court is held by more of the competent judges than the
law requires, does not render its acts invalid.3 The bench must
be occupied by its incumbent or incumbents while judicial pro-
ceedings are going on, for judicial powers cannot be delegated.*
§ 314 a. Particular Tribunals. — Multitudes of questions have
arisen as to the organization, constitutionality, and jurisdiction
in criminal causes of particular tribunals; but they depend mainly
upon the changing written laws of the various States, so that a

discussion of them is not desirable here.

At the same time, the

references in the note will be helpful in emergencies.®

v. Phillips, 27 La. An. 663; Klaise v. The
State, 27 Wis. 462; Lerch v. Emmett,
44 Ind. 331; The State v. Thomas, 56
Maine, 490; The State v. Houser, 28
Misso. 283; Hamilton v. The State, 3
Ind. 552.

1 Pegalow v. The State, 20 Wis. 61;
Charles v. The State, 4 Port. 107.

2 People v. White, 22 Wend. 167;
Stevens v. People, 1 Hill, N. Y. 261;
Commonwealth v. Hardy, 2 Mass. 308;
The State v. Bryant, 21 Vt. 479; Rex v.
Carlile, 4 Car. & P. 415; The State v.
Abram, 4 Ala. 272; United States v. Gor-
don, 5 Blatch. 18; Bescher v. The State,
82 Ind. 480; The State v. Lautenschlager,
22 Minn. 514; People v. Barbour, 9 Cal.
230; People v. Eckert, 16 Cal. 110; Peo-
ple v. Henderson, 28 Cal. 465; Blend v.
People, 41 N. Y. 604; People v. Dohring,
59 N. Y. 874; People v. Shaw, 63 N. Y. 36.

3 McFarlan v. People, 18 Ill. 9. See
People v. White, 22 Wend. 167.

4 The State v. Jefferson, 66 N. C. 309;
Waller v. The State, 40 Ala. 825; Hayes
v. The State, 58 Ga. 85; People v. Brad-
well, 2 Cow. 445.

5 Alabama. —Patilla v. The Governor,
5 Port. 232; The State v. Abram, 4 Ala.
272; Ex parte Sam, 51 Ala. 84; Wilson
v. The State, 52 Ala. 299.

Arkansas. — Dunn v. The State, 2 Pike,
229; The State v. Cox, 8 Eng. 486; Gooch

~ y, The State, 3 Eng. 448; The State v. Cha-

pin, 17 Ark. 561; Collier v. The State, 20
Ark. 36; Jackson v. The State, 29 Ark.
62; Watson v. The State, 29 Ark. 299.

California. — People v. Daniels, 1 Cal.
106 ; People v. Peralta, 3 Cal. 379; Caul-
field v. Hudson, 3 Cal. 389; People v. Ah
King, 4 Cal. 307; People v. Applegate, 5
Cal. 295; People v. Freeland, 6 Cal. 96;
People v. Shear, 7 Cal. 1389; People v.
Fowler, 9 Cal. 85; People v. Carabin, 14
Cal. 488; People v. Apgar, 35 Cal. 389;
In re Waring, 50 Cal. 30.

Connecticut. — Scot v. Turner, 1 Root,
163; Chapin v. The State, 24 Conn. 236;
The State v. Brown, 24 Conn. 316; The
State v. Beecher, 25 Conn. 539 ; The State
v. Clegg. 27 Conn. 593; The State v. Da-
vidson, 40 Conn. 281.

Florida. —— Kennedy v. The State, 15
Fla. 635.

Georgia. — Anthony v. The State, 9
Ga. 264; Reich v. The State, 58 Ga. 73;
Porter v. The State, 68 Ga. 236; Clifton
v. The State, 53 Ga. 241.

Iilinois. — Laswell v. Hickox, 4 Scam.
181; Perry v. People, 14 Ill. 439; Bicker-
dike v. Dean, 21 Ill. 199; Hamilton v.
Carthage, 24 Ill. 22; Mapes v. People, 69
Til. 528.

Indiana. — Wilson v. The State, 1
Blackf. 428; Cook v. The State, 7 Blackf.
165; Nelson v. The State, 2 Ind. 249;
Smith v. The State, 2 Ind. 251; Lind-
ville v. The State, 3 Ind. 680; Smith v.

195
§ 815

PREPARATORY AND AUXILIARY.

[Book UI.

§ 815. Concurrent Jurisdiction. — Two or more courts may

The State, 4 Ind. 500; The State v. No-
lan, 4 Ind. 608; Lichtenstein v. The State,
5 Ind. 162; Wakefield v. The State, 5
Ind. 195; Spencer v. The State, 5 Ind.
41; Simington v. The State, 5 Ind. 479;
Lawrie v. The State, 6 Ind. 525; Miller
v. Snyder, 6 Ind. 1; Foley v. The State,
9 Ind. 363; Ulmer v. The State, 14 Ind.
52; Dougherty v. The State, 20 Ind. 442;
Hunter v. The State, 29 Ind. 80; Dailey
v. Indianapolis, 53 Ind. 483.

Lowa.— Sharp v. The State, 2 Iowa,
454; Ellis v. The State, 8 Iowa, 217;
White v. The State, 4 Iowa, 449; Wal-
ters v. The State, 5 Iowa, 507; The State
v. Moran, 7 Iowa, 286 ; The State v. Smith,
7 Iowa, 244; The State v. Church, 8 Iowa,
252; The State. v. Burdick, 9 Iowa, 402;
The State v. Shepard, 10 Iowa, 126; The
State v. Carpenter, 23 Iowa, 506; Green
v. Talbot, 36 Iowa, 499 ; Jaquith v. Royce,
42 Iowa, 406.

Kansas. — The State v. Thoman, 10
Kan. 191; The State v. Lofland, 17 Kan.
890.

Kentucky.— Commonwealth v. Als-
man, 5 J. J. Mar. 28; Commonwealth »v.
Martin, 6 J.J. Mar. 616; Commonwealth
v. Hopkinsville, 7 B. Monr. 88; Ashlock
v. Commonwealth, 7 B. Monr. 44; Cor-
nelius v. Commonwealth, 15 B. Monr.
589; Commonwealth v. Crump, 18 B.
Monr. 469; Tesh v. Commonwealth, 4
Dana, 522; Duncan v. Commonwealth, 6
Dana, 295; Commonwealth v. Mills, 6
Bush, 296.

Louisiana. — The State v. Brunetto, 18
La. An. 45; The State v. Peter, 14 La.
An. 521.

Maine.— The State v. Stinson, 17
Maine, 154; Osborne v. Sargent, 23
Maine, 527; The State v. Furlong, 26
Maine, 69; The State v. Pierre, 65 Maine,
293.

Maryland.— Horsey v. The State, 8
Har. & J. 2; Rawlings v. The State, 2
Md. 201; The State v. Bogue, 5 Md. 852;
Davis v. The State, 7 Md. 151.

Massachusetts. —Commonwealth  v.

Leach, 1 Mass. 59; Commonwealth v.-

Knowlton, 2 Mass. 530; Commonwealth
v. Holmes, 17 Mass. 336; Commonwealth
v. Pindar, 11 Met. 539; Webster v. Com-
monwealth, 5 Cush. 886; Commonwealth

196

‘

v. Roark, 8 Cush. 210; Jones v. Robbins,
8 Gray, 829; Commonwealth v. O’Con-
nell, 8 Gray, 464; Commonwealth vw.
Byce, 8 Gray, 461; Commonwealth »v.,
Intoxicating Liquors, 103 Mass. 448;
Commonwealth v. Intoxicating Liquors,
105 Mass. 176; Commonwealth v. Mac-
Lellan, 121 Mass. 31.

Minnesota. — The State v. Bilansky, 3
Minn. 246.

Mississippi.— The State v. Holmes,
Walk. Missis. 415; Byrd v. The State, 1
How. Missis. 168; Young v. The State, 2
How..Missis. 865; Dowell v. Boyd, 3 Sm.
& M. 692; Jordan v. The State, 32 Missis.
382.

Missouri. — Clay v. The State, 6 Misso:
600; Cunningham »v, The State, 14 Misso.
402; The State v. Huffschmidt, 47 Misso.
73; The State v. Dougher, 49 Misso. 409;
The State v. Barada, 49 Misso. 504; The
State v. Lipscomb, 52 Misso. 32; The
State v. Schuermann, 62 Misso. 165, 429;
The State v. Wister, 62 Misso. 592; Ex
parte Snyder, 64 Misso. 58; The State v.
Sutton, 64 Misso. 107.

New Hampshire. — The State v. Tay-
lor, 16 N. H. 477; The State v. Berritt,
17 N. H. 268; The State v. Arlin, 7 Fost.
N. H. 116; The State v. Bean, 36 N. H.
122; The State v. Shattuck, 45 N. H. 205;
The State v. Towle, 48 N. H. 97.

New Jersey.—The State v. Morris
Canal and Banking Co.,1 Green, N. J.
192; The State v. Dilloway, 2 Vroom,
42; Howe v. Plainfield, 8 Vroom, 145.

New York.— People v. Youngs, 1
Caines, 87; People v. Chenango, 1 Johns.
Cas. 179; Sweet vu. Clinton, 8 Johns. 23;
People v. Goodwin, 18 Johns. 187 ; People
v. Vermilyea, 7 Cow. 108, 141; People v.
Tracy, 9 Wend. 265; People v. Gay, 10
Wend. 509; Gay v. General Sessions, 12
Wend. 272; People v. Abbot, 19 Wend.
192; People v. White, 22 Wend. 167; Peo-
ple v. General Sessions, 83 Barb. 144; In
re Wakker, 3 Barb. 162; People v. Ber-
berrich, 20 Barb. 224; People v. Fisher,
20 Barb. 652, 2 Parker C. C. 402; People
v. Morgan, 65 Barb. 478; People v. Wayne
Sessions, 1 Parker C. C. 869; People v.
Henries, 1 Parker C. C. 579; People v.
O’Brien, 4 Parker C. C. 208; Real v.
People, 42 N. ¥. 270; Huber v. People,
CHAP. Xx.]

have concurrent jurisdiction of

49 N. Y. 1382; People v. Daniell, 50
N. Y. 274; People v. Dohring, 59 N. Y.
874; Gardner v. People, 62 N. Y. 299;
People v. Shaw, 63 N. Y. 36.

North Carolina. — The State v. Adam,
3 Hawks, 188; The State v. Allen, 3
Hawks, 614; The State v. Daniel, 3
Hawks, 617; The State v. Patterson, 1
Murph. 448; The State v. Hart, 4 Ire.
222; The State v. Bill, 13 Ire. 873; The
State v. Harriet, 4 Jones, N. C. 264; The
State v. Prince, 63 N. C. 529; The State
v. Jarvis, 68 N. C. 556; The State v. Dun-
lap, 65 N. C. 491; The State v. Verming-
ton, 71 N. C. 264; The State v. Cherry,
72 N.C. 123; The State v. Buck, 73 N.
C. 266, 630; Washington v. Hammond,
76 N. C. 33; The State v. Graham, 76 N.
C. 195.

Ohio. — Wightman v. The State, 10
Ohio, 452; Parks v. The State, 3 Ohio
State, 101; Gates v. The State, 3 Ohio
State, 293; Stevens v. The State, 3 Ohio
State, 453; Miller v. The State, 8 Ohio
State, 475; Kelley v. The State, 6 Ohio
State, 269; Robbins v. The State, 8 Ohio
State, 181; Cole v. The State, 29 Ohio
State, 226.

Pennsylvania. — Kroemer v. Common-
wealth, 3 Binn. 577; Commonwealth v.
Lennom, 1 Browne, App. 40; Common-
wealth v. Gross, 1 Ashm. 281; Common-
wealth v. Flanagan, 7 Watts & S. 68;
Commonwealth v. Simpson, 2 Grant, Pa.
438; Hackett v. Commonwealth, 3 Har-
ris, Pa. 95; Holmes v. Commonwealth,
1 Casey, Pa. 221; Kilpatrick v. Common-
wealth, 7 Casey, Pa. 198; Commonwealth
v. Ickhoff, 9 Casey, Pa. 80; Foust v.
Commonwealth, 9 Casey, Pa. 338;
Dougherty v. Commonwealth, 19 Smith,
Pa. 286; Commonwealth v. Swank, 29
Smith, Pa. 154; Commonwealth v. Potts,
29 Smith, Pa. 164; Myers v. Common-
wealth, 29 Smith, Pa. 308.

South Carolina. —The State v. Hun-
tingdon, 1 Tread. 325, 3 Brev. 111; Ex
parte Richardson, Harper, 3808; The
State v. Walker, 14 Rich. 86; The State
v. Moore, 15 Rich. 67; The State v.
Shumpert, 1 8S. C. 85; The State v. Sim-
mons, 4S. C. 72; The State v. Harper, 6
S. C. 164.

Tennessee. — Grisham v. The State, 2

THE COURT.

§ 815

an offence ;! in which case, the

Yerg. 589; Nelson v. The State, 10
Humph. 518; Ann v. The State, 11
Humph. 159; Carter v. The State, 6
Coldw. 537; Pope v. Phifer, 8 Heisk.
682.

Texas.— Yarbrough v. The State, 2
Texas, 519; Gaines v. The State, 89
Texas, 606; Neil v, The State, 48 Texas,
91; Tuttle v. The State, 1 Texas Ap.
864; Lawrence v. The State, 1 Texas Ap.
392; Crutchfield v. The State, 1 Texas
Ap. 445; Long v. The State, 1 Texas
Ap. 709.

Vermont.—The State v. Campbell, 1
D. Chip. 218; The State v. Whitney, 15
Vt. 298; Ex parte Tracy, 25 Vt. 93; The
State v. Nutt; 28 Vt. 598; The State »v.
Peck, 32 Vt. 172. ,

Virginia. — Peter v. Commonwealth, 2
Va. Cas. 330; Abrahams v. Common-
wealth, 1 Rob. Va. 675; Cropper uv
Commonwealth, 2 Rob. Va. 842; Com-
monwealth v. Reynolds, 4 Leigh, 663;
Commonwealth v. Young, 9 Leigh, 638;
Commonwealth v. Nix, 11 Leigh, 636;
Commonwealth v. Jennings, 3 Grat. 624;
Bill v. Commonwealth, 7 Grat. 201;
Whitehead ». Commonwealth, 19 Grat.
640.

West Virginia. — Eckhart v. The State,
5 W. Va. 615.

Wisconsin. — Allen v. The State, 5 Wis.
829; Hauser v. The State, 38 Wis. 678.

United States. —United States v.
Bevans, 8 Wheat. 3836; United States v.
Palmer, 8 Wheat. 610; United States uv.
Wiltberger, 5 Wheat. 76; United States
v. Pirates, 6 Wheat. 184; United States
v. Holmes, 5 Wheat, 412; Benner v. Por-
ter, 9 How. U. S. 235; Forsyth v. United
States, 9 How. U. S. 571; Simpson o.
United States, 9 How. U. S. 578; Cotton
v. United States, 9 How. U. S. 579; Unit-
ed States v. Holliday, 3 Wal. 407; Unit-
ed States v. Mann, 1 Gallis. 3, 177;
United States v. Tarlton, 4 Cranch C. C.
682; United States v. Morris, 1 Curt. C.
C. 23; United States v. Rhodes, 1 Abb.
U. S. 28; United States v. Seveloff, 2
Saw. 811; United States v. Carr, 8 Saw.
802; The State v. Dunlap, 65 N. C, 491;
Gaines v. The State, 39 Texas, 606.

1 The State v. Billington, 33 Maine,
146; Jaquith v. Royce, 42 Iowa, 406,

197
§ 316 PREPARATORY AND AUXILIARY. [Book mI.

one wherein proceedings are first instituted will retain it to the
end, and the other is not authorized to interfere! If jurisdiction
over an offence is in one court, and then a statute simply confers
jurisdiction over the, same offence on another court, this leaves
it concurrent, unless the contrary intention appears.2. And —

Presumptions, &c. — The presumptions and doubts are in favor
of jurisdiction ;3 nor can it ordinarily be taken away except by
express words.*

§ 316. Effect of no Jurisdiction. The sentence and all the
proceedings where there is no jurisdiction are void. The court
will discharge them at any time, and without plea, and will
release the prisoner on habeas corpus.5 And — .

Consent. — No consent of a party can give to a court jurisdic-
tion over his offence. Hence, among other consequences, if the
objection of the want of jurisdiction is waived, still it may be
taken even in another tribunal.?’ But, —

Judge de Facto. — As already intimated’ a sentence pronounced
by a judge de facto, not de jure, is good.® For, if a judge is
holding a court, the question of his competency to hold it cannot

1 Ex parte Robinson, 6 McLean, 855;
Burdett v. The State, 9 Texas, 43; Clep-
per v. The State, 4 Texas, 242; In re
Leland, 5 Bankr. Reg. 222; Mapes v.
People, 69 Ill. 523; 1 Bishop Mar.
Women, § 634.

2 Cooke v. State National Bank, 52
N. Y. 96; The State v. Gordon, 60 Misso.
883 ; Allen v. The State, 5 Wis. 829; The
State ». Wister, 62 Misso. 592. If a stat-
ute creates a new offence and provides a
tribunal, no other court has jurisdiction.
Aldrich v. Hawkins, 6 Blackf. 125.

3 Smith v. People, 47 N. Y. 830.

* The State v. Falkinburge, 3 Green,
N. J. 320.

5 Cropper v. Commonwealth, 2 Rob.
Va. 842. See also Benner v. Porter, 9
How. U. S. 235; Forsyth v. United States,
9 How. U. S. 571; Simpson vc. United
States,9 How. U. S. 578; Rice v. The
State, 8 Kan. 141; The State v. Garner,
14 Rich. 148; Kansas City, &c., Railroad
v. Campbell, 62 Misso. 585; Nazro v. Cra-
gin, 8 Dillon, 474; Hoye v. The State, 39
Ga. 718; People v. Durell, 1 Idaho Ter.
80; Matthews v. Commonwealth, 18 Grat.
989; Chambers v. Clearwater, 1 Abb.
Ap. 341; Osgood v. Thurston, 28 Pick.

198

110; Mail Co. v. Flanders, 12 Wal. 130;
Reich v. The State, 63 Ga. 73; Ex parte
Snyder, 64 Misso. 58.

6 Mills ». Commonwealth, 1 Harris,
Pa. 627; Ballance v. Forsyth, 21 How.
U. S. 889; Batchelder v. Currier, 45 N.
H. 460; People v. Granice, 50 Cal. 447;
Oil City v. McAboy, 24 Smith, Pa. 249.
On this principle, a criminal cause cannot
be brought into the appellate court by
agreement, before a final judgment below.
Rutter v. The State, 1 Iowa, 99; People
v. Myers, 1 Col. Ter. 508. And sce Peo-
ple v. Hodges, 27 Cal. 340; Bird v. Bird,
23 La. An. 262. The distinction between
this class of cases and another will appear
from the further proposition, that, where
a court has jurisdiction of the cause of
action, the defendant by appearing gives
jurisdiction over the person. Graydon v.
Barlow, 15 Ind. 197; Choteau v. Rice, 1
Minn. 192; Loomis v. Wadhams, 8 Gray,
657.

7 Jackson v. Commonwealth, 13 Grat.
795, 801.

8 Ante, § 814,

§ The State v. Bloom, 17 Wis. 521;
Crim. Law, I. § 464; Blackburn v. The
State, 3 Head, 690.
CHAP. Xx.] THE COURT. § 317

be raised on a plea between parties to a suit instituted for another
purpose.}

§ 817. Local Limits. — A judge has no authority if sitting
beyond the local limits which the law has assigned him.?

Court in Wrong Place. — In Iowa, a record showed that the
court-house was in an unfit condition, in consequence of which
the court adjourned to another place; and this, it was adjudged,
was sufficient to justify the removal, within those provisions of
the Code on which the question depends.’

1 Spradling v. The State, 17 Ala. 440. 3 The State v. Shelledy, 8 Iowa, 477,
2 Ex parte Parker, 6 S.C. 472; Peo- 609, 610.
ple v. O'Neil, 47 Cal. 109.

199
§ 320 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

,

BOOK IV.

THE INDICTMENT AND ITS INCIDENTS.

CHAPTER XXI.
IN GENERAL OF THE INDICTMENT.

§ 818. In What the Difficulties. — The difficulties in criminal
pleading, to one who understands civil, are found -practically to
lie in their greatest measure in ignorance of the law itself. Still
there are, relating to the indictment, various rules which usage,
natural reason, and positive law have combined to render essen-
tial, and which, like every thing else, must, to be known, be
learned. The pleadings subsequent to the indictment present
less peculiarities; but in some measure they differ from the
corresponding pleadings in civil causes, and they will need to be
explained in their proper place.

§ 319. Why in Writing. —In early ages of the world, when
writing was unknown, men were still liable to be tried for their
crimes and punished. It was then true, the same as it is now,
that impossibilities are not required of a prosecutor, but such
distinctness of charge, and only such, as the circumstances per-
mit.) Thus, in the early Roman law, if a thing was in contro-
versy, it was brought manually into the presence of the magistrate
when practicable; and, when it was of a sort not admitting of
this, as near an approach to it as possible was made.2 But now
the written allegation stands in the stead of the manual presence.
And it must be as distinct and direct as the nature of the case, in
reason, will permit.

§ 320. Criminal Pleading and Civil compared. — It is often said,

1 Post, § 498 et seq.

2 Just. Inst. Sand. ed. 64 et seq., in the Editor’s Introduction.
200
CHAP. XXI.] INDICTMENT IN GENERAL. .§ 822

that the rules of pleading are the same in criminal causes as in
civil, so that what suffices in the latter will be adequate also in
the former.’ But actual observation shows that this is not so
in every particular; if it was, still we could not know, until
we had learned, how the common rules are applied in criminal
causes. And —

§ 321. Heavy or Light Consequences — (Felony — Misdemeanor).
— It is not in the nature of man to hold the pleader to precisely
the same rules when charging one with a civil wrong to be com-
pensated by the payment of a little money, as with a crime in-
volving the loss of liberty or of life. Therefore, though the
language just mentioned is in a degree correct, the actual course
of the courts does require greater strictness in criminal pleadings
than in civil; and, in criminal, greater strictness in indictments
for felonies and other high crimes, especially capital ones, than
for the ordinary misdemeanors. -And so the judges not unfre-
quently say.?

§ 322. Adherence to Old Rules and Forms. — Though, as we have
seen, the practice in criminal causes has a good deal changed
in modern times,? still, “in indictments,” except as modified
by statutes, the judges have generally deemed it incumbent
on them, as observed by Lord Ellenborough, C. J., ‘to adhere to
old forms, even if it were only for the sake of uniformity of pro-
ceeding.”® In a few cases, it is said that the ancient authorities
are, as far as they require nice distinctions in the indictment,
judicially disregarded now.® But, in truth, the common course
in our courts is, on this subject as on others, to follow as well
the ancient authorities as the. modern; while, on all subjects,
to the extent allowed by the rules of stare decisis, mere judicial
absurdities are cast aside.

1 Rex v. Lawley, 2 Stra. 904; Sherban
v. Commonwealth, 8 Watts, 212; United
States v. Brown, 3 McLean, 288. And
see The State v. Nutwell, 1 Gill, 54. But
see Rex v. Marsden, 4 M. & S. 164, 168.

2 “ We have repeatedly decided,” said
Turley, J., in Martin v. The State, 6
Humph. 204, 206, “that in indictments
for misdemeanors we will not require as
great certainty as in indictments for felo-
nies.” To the like effect, see United States
v. Lancaster, 2 McLean, 431; Gallagher
v. The State, 26 Wis. 423, 425. So in

United States v. Davis, 5 Mason, 356,
861, Story, J., said: “In criminal cases,
courts of law are not at liberty to make
intendments and inferences to support
indictments, in the same manner as they
may do to support civil actions.” See
also Ike v. The State, 23 Missis. 525.

8 Ante, § 18.

4 Cain v. The State, 18 Texas, 387;
The State v. Callendine, 8 Iowa, 288.

5 Rex v. Marsden, 4 M. & S. 164, 168.

6 The State v. Pearce, Peck, 66; Mc-
Kinney v. People, 2 Gilman, 540.

201
§ 824 INDICTMENT AND ITS INCIDENTS. [Book Iv.

§ 828. The Doctrine of Certainty : —

In General — Defined. — Every pleading, on whatever subject,
must be, to the degree required by the occasion, specific, distinct,
and complete in outline and filling up. Or, in technical phrase,
it must be certain.

Three Degrees of Certainty — (Of each in General).— Lord Coke
says: “‘ There be three kinds of certainties, — first, to a common
intent, and that is sufficient in a bar, which is to defend the party
and to excuse him. Secondly, a certain intent in general; as in
counts, replications, and other pleadings of the plaintiff, that is
to convince the defendant; and so in indictments, &c. Thirdly,
a certain intent in every particular.”? This language is not very
“certain” in meaning; but we gather from it, and from other
things in the books, that three distinct degrees of certainty are
recognized in pleading. The middle certainty, and no more, is
required in the indictment; the extreme certainty, in dilatory
pleas; and the lowest certainty will suffice in both general and
special pleas in bar, like former jeopardy, pardon, and not guilty,
showing that there should be no prosecution for what is alleged
against the party pleading.

§ 824. Highest and Lowest contrasted. — When, therefore, a
party answers a charge by matter not going to its merits, and
precluding inquiry into it, he must make the allegation in the
extreme degree certain; that is, “in every particular.” For it
is just that he who would ward off an investigation into his con-
duct by a technicality should be required himself to stand very
technically erect. Nor shall he defeat what is attempted of

1 Rex v. Griffith, 3 Mod. 201. Cer- ticular. The first intent is sufficient in

tainty “may be defined a clear and dis-
tinct setting down of facts, so that they
may be understood both by the party
who is to answer the matters stated
against him, the counsel who are to ar-
gue them, the jury who are to decide
upon their existence, and the court who
are the judges of the law arising out of
them.” Lawes Pl. 53.

2 Co. Lit. 803 a. He adds here, in illus-
tration of this third kind of certainty,
“as in estoppels.” In Long’s Case, 5 Co.
119 b, 120 a, 121 a, it is said: “ There are
three manner of certainties: 1. to a com-
mon intent; 2. to a certain intent in gen-
eral; 3, to a certain intent in every par-

202

bars which are to defend the party and
excuse himself; the second is required in
indictments, counts, replications, &c., be-
cause they are to accuse or charge the
party; the third is rejected in law.”
But Lord Coke cannot here mean, that
there are no cases in which this third
kind of certainty is required; for thus
the passage would be in direct conflict
with what has been cited from him in the
text. The true proposition is, that this
third kind of certainty is not required in
any defence or pleading which the law
favors, but that it is required where any
thing is set up which the law does not
favor.
CHAP. XXI.] INDICTMENT IN GENERAL.

§ 825

inquiry without disclosing how the defect may be cured on a
new proceeding. Also, this extreme certainty is required in
estoppels, because the law does not favor them. It is likewise
said to be required in the plea of alien enemy, and for the same
reason. When, on the other hand, a party puts his defence
directly on the merits, and it is of a nature not odious in the
law, he is properly in favor, even more than is the party who
brings the accusation, in respect to the pleadings; he, therefore,
is held only to the lowest kind of certainty, being the certainty
to 4 common intent.!

§ 825. The Middle Certainty, in Indictments. — The middle cer-
tainty —to “a certain intent in general” — which, we have
seen,” is required in the indictment, is not very distinctly defined
in the books, yet the adjudications on points relating to it are
multitudinous. An attempted definition is —

How defined. — As a rule for the indictment it is, that every
fact in law essential to the punishment® shall be plainly and
directly stated, in terms sufficiently minute and technical to
identify the offence and the offender, disclosing prima facie

guilt, but not necessarily anticipating any defence.*

Thus, —

Fact omitted. — The omission of any fact or circumstance
necessary to the constitution of the offence —in other words,

1 The several propositions in this sec-
tion are plainly sustained by the authori-
ties, yet it would not be easy to cite, after
each clause, a passage from an approved
source upholding it in exact words. For
example, there is nothing more “certain”
to one familiar with the course of adjudi-
cation on the subject than that the ex-
treme certainty is necessary in those de-
fences which go simply to defeat the
particular action, — as, for instance, that
it is brought in the wrong county, — but
do not. reach the merits; yet, after some
searching, I have not met with a passage
in precise words to this proposition,
though Ido not mean to say that such
may not be found; unless, indeed, some
language by our American Gould may be
deemed, as I think it is, sufficiently to the
point. Gonld Pl. ¢.8, § 51-59. Many of
the best established rules of our law —
established in actual adjudication — have
never been announced either by judge or

by text writer. And see, on the doc-
trines of the text, Rex v. Horne, Cowp.
672, 682; Dovaston v. Payne, 2 H. BL.
527, 580; Rex v. Lyme Regis, 1 Doug.
149, 159; Deriemer uv. Fenna, 7 M. & W.
439, 440; Barker v. Thorold, 1 Saund.
Wan. ed. 47, 49, and note; Com. Dig.
Plead. C. 17, E. 7; Steph. Pl. 353, 880;
1 Chit. Pl. 288-235; post, § 327.

2 Ante, § 223.

3 Ante, § 77 et seq.

4 And see Jane v. Commonwealth, 3
Met. Ky. 18; The State v. Gary, 36 N.
H. 359; Commonwealth v. Dean, 109
Mass. 849, 852; United States ». Cruik-
shank, 92 U.S. 542, 658; Keller +. The
State, 61 Ind. 111; The State v. Dough-
erty, 4 Oregon, 200; The State v. Wat-
rous, 138 Iowa, 489; Gallagher v. The
State, 26 Wis. 423; The State v. Roch-
f rde, 62 Misso. 199; McLaughlin v. The
State, 45 Ind. 338; Rex v. Stevens, 5
East, 244.

203
§ 826 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

made by law essential to the punishment — renders the indict-
ment bad.! Again, —

Equivocal. —If it is equivocal what is meant, —as, if the. alle-
gation is that the defendant did one or the other of two criminal
things,? or the language may equally well be construed to charge
a civil wrong as a criminal one,?—it is insufficient. Moreover, —

Direct and Positive — (Belief). — It must be. direct and posi-
tive; 4 as, if it states the facts as a mere legal conclusion from
other facts alleged,® or as a “belief” of the alleging party,® it
will be inadequate.? And —

Specific. —It must be sufficiently specific and descend suffi-
ciently into detail to define the particular offence, transaction,
and thing; in other words, to render them certain. No general
words can inform the reader how specific and how much in detail
it must be; this is matter to be gathered from the minuter dis-
cussions which will follow in their various appropriate places
throughout these volumes, and from one’s general reading of the

cases.8

§ 326. Matter of Defence. — Matter of defence need. not be
anticipated and negatived in the indictment, which, if it makes

a prima facie case, is sufficient.?

™ Post, § 509; The State v. Verrill, 54
Maine, 408; The State v. Barrett, 42 N.
H. 466; Braswell v. Commonwealth, 5
Bush, 544; The State v. Runyan, 26 Missp.
167; The State v. Andrews, 26 Misso. 169;
Sauser v. People, 8 Hun, 302; Cearfoss v.
The State, 42 Md. 403; Rex v. Upton-on-
Severn, 6 Car. & P. 1338; Deckard v.
The State, 38 Md. 186; Harne v. The
State, 39 Md. 552; The State v. Phil-
brick, 31 Maine, 401, 408. And see Peo-
ple v. Gates, 18 Wend. 311, 817.

2 Post, § 585 et seq.; The State v.
Green, 3 Heisk. 1381; The State v. Wood-
ward, 25 Vt. 616.

3 People v. Williams, 35 Cal. 671; The
State v. Parker, 43 N. H. 83.

* Post, § 508, 554 et seq.; Rex v. Moor-
house, Cald. 554, 4 Doug. 388; The State
v. Powell, 28 Texas, 626.

5 Fouts v. The State, 8 Ohio State, 98;
Drake v. The State, 19 Ohio State, 211;
Commonwealth v. Dean, 110 Mass. 64.
And see Lasindo v. The State, 2 Texas

Ap. 69.
204

The observation occurs in many

6 Vannatta v. The State, 31 Ind. 210.

7 The State v. Dooly, 64 Misso. 146.

8 See, especially, the chapter beginning
post, § 505. And see Commonwealth v.
North Brookfield, 8 Pick. 463 ; Potter v.

‘The State, 39 Texas, 388; Shepherd v.

The State, 54 Ind. 26; The State v. Mus-
ton, 21 La. An. 442; White v. Common-
wealth, 9 Bush, 178; The State v. Brown,
3 Murph. 224; Neal v. The State, 53 Ala.
465; Kerr v. People, 42 Ill. 807; The
State v. Marshall, 47 Misso. 378; The
State v. Wilson, 67 N. C, 456; Common-
wealth v. Hall, 15 Mass. 240; The State
v. MeMurrin, 1 Ind. 44; People v. Rust,
1 Gaines, 188; The State v. Halifax, 4
Dev. 845; The State v. Lemay, 13 Ark.
405 ; The State v. Kroeger, 47 Misso. 530;
The State v. Murray, 41 Iowa, 580; Unit-
ed States v. Claflin, 13 Blatch. 178; The
State v. Blythe, 1 Dev. & Bat. 199; Unit-

‘ed States v. Bettilini, 1 Woods, 654. *

® Post, § 613; Bass v. The State, 29
Ark, 142; The State v. Fuller, 83 N. H. 259;
United States v. Jenther, 18 Blatch. 335.
CHAP. XXI.] INDICTMENT IN GENERAL. § 328

cases, that, in the language of a learned judge, “if all the facts
alleged in an indictment may be true, and yet constitute no
offence, the indictment is insufficient.” 1 If the meaning is, that
the indictment is insufficient when all the facts charged in it,
assuming them to be true, do not complete the sum of a crime,
the observation is correct. Butin the common form of the ex-
pression it is liable to be misunderstood, and it should not be
repeated. The necessity of anticipating the answer of the opposite
party is believed to be known in criminal pleading only in —

§ 327. Dilatory Pleas. — In these,? such as pleas in abatement
and the like, it is necessary to employ the —

Extreme Certainty. — In an excellent work on Pleading‘ is the
following: “Certainty of the third sort, or ‘to a certain intent
in every particular,’ requires the utmost fulness and particularity
of statement, as well as the highest attainable accuracy and
precision ; leaving, on the one hand, nothing to be supplied by
intendment or construction; and, on the other, no supposable
special answer unobviated.6 The rule requiring this degree of
certainty is a rule, not of ‘construction’ only, but also of ‘ addi-
tion ;’ that is, it requires the pleader, not only to answer. fully
what is necessary to be answered, but also to anticipate and
exclude all such supposable matter as would, if alleged on the
opposite side, defeat his plea. This last requisite affords a clear
and marked distinction between this and the two former kinds
of certainty.” Again, —

§ 328. Continued. — This extreme certainty requires, as already
intimated,’ that, if the party relies on some fact known specially
to himself, to defeat proceedings against him, not only must he
state it, but add what will enable the other party to make them
right: ‘for example,” says the author last quoted,’ “if the
defendant is misnamed in the writ or declaration (as if A is sued
by the name of B), it is not sufficient for the defendant to allege

1 Tenney, J., in The State v. Godfrey, Newman v. The State, 14 Wis. 393, 399;
24 Maine, 232. To the like effect see ob- United States v. Hammond, 2 Woods,
servations in Rex v. Lyme Regis,1 Doug. 197, 201. See post, § 745.

149, 158, 159; Rex v. Wheatly, 2 Bur. 4 Gould Pl. p. 84, § 57.
1125, 1127; Rex v. Johnson, 2 Show. 1, 5 Co, Lit. 852 5, [808].
2; The State v. Seay, 8 Stew. 123. And 6 Evans v. King, Willes, 654; Lawes

see post, § 519 and note. Pl. 55.
2 Thompson v. Lyon, 14 Cal. 39, 42; 7 Ante, § 324,
ante, § 324 and note. 8 Gould Pl. p. 86, § 59.

3 Dolan v. People, 64 N.Y. 485, 492;
205 .
§ 331 INDICTMENT AND ITS INCIDENTS. [Book Iv.

in his plea that his name is not B; he must also show in his plea
that his true name is A, and must aver that he was, at the time of
the writ purchased,! known and called by the latter name; and
must, moreover, subjoin a traverse, that he was known or called
by the name of B,? thus excluding, by anticipation, every supposi-
tion which could justify the plaintiff in giving him the name of B.”

§ 329. How the Allegation as to the Distinction between Law
and Fact : —

Law known — Facts not. —It is familiar doctrine, that, with
such exceptions as foreign laws,? private statutes,* and municipal
by-laws,® the courts take cognizance of the law they administer ;
which, therefore, need not be specially brought to their attention,
and need not be proved. On the other hand, there is no judicial
knowledge of facts, and they must be alleged and established in
evidence. Hence, —

Allege Pacts, not Law. —In the language of Buller, J.: “It is
one of the first principles of pleading, that you have only occa-
sion to state facts; which must be done for the purpose of in-
forming the court, whose duty it is to declare the law arising
upon those facts, and to apprise the opposite party of what is
meant to be proved, in order to give him an opportunity to an-
swer or traverse it.”® The law need not be alleged. How it is
on private statutes and municipal by-laws is explained in another
connection.? Again, —

§ 330. Facts judicially Cognizable.— There are facts judicially
cognizable;® these, therefore, need not be alleged. They are
in general of a public nature, affecting private litigants only
incidentally. Hence, —

§ 831. What in Indictment. — The indictment must embrace
a statement of all the facts in the case whereof the judges do not
take cognizance, and it need contain nothing more. But these
must be, in a certain sense, the primary facts. For example, if
it charges simply, that the defendant committed larceny, it dis-

1 Holman v. Walden, 1 Salk. 6; Bac. 4 Ib. § 421, note; Stat. Crimes, § 396
Abr. Pleas, &c. F. 3, et seq.

2 Evans v. King, Willes, 654; 1 Lill. 5 Stat. Crimes, § 405.
Ent. 6; 2 Chit. Pl. 418; Hixon v. Binns, ® Rex v. Lyme Regis, 1 Doug. 149,
8 T. R. 185; Roberts v. Moon, 5 T. R. 169; The State v. Murray, 41 Iowa, 580.
487; Com. Dig. Abatement, I. 11; Lawes And see, for illustrations, Reg. v. Harvey,
Pl. 107; Dovaston v. Payne, 2 H. Bl.527, 8 Cox C. C. 99, 103.
630. T Stat. Crimes, § 894407.

3 1 Bishop Mar. & Div. § 410, 418-421. ® 1 Greenl. Ey. § 4-6,

206
CHAP. XXI.] INDICTMENT IN GENERAL. § 333

closes only a secondary fact, produced by a combination of
primary facts and law; or, in other words, it is a conclusion of
the law upon the facts. And this is not a fit statement upon
which to put the accused person on his trial. The pleader should
set out the primary facts, disconnected from the law; and then
the court, applying the law to them, will deduce the legal result.!

§ 332. Two Methods of alleging Fact — (Outward Form — Legal
Import). — Facts have both an outward form and a legal import ;
in some, the difference being palpable, in others not. And it is
a general rule, subject perhaps to exceptions, that the pleader
may set out the facts according to their legal import, or their
outward form, at his election; the indictment being equally good
either way.2. Thus, —

What is done through Agent. — What a man does by his agent,
he does in point of law by himself; therefore, if James, as the
agent of Samuel, pays money to Richard, this is in law a payment
from Samuel to Richard ; and, in a pleading, it may, if the pleader
chooses, be so alleged, and the name of James need not even be
mentioned.2 Or, if a sale is made to one acting as agent for
‘another, the indictment may charge it as made to the latter. Yet
it may equally well set out the transaction according to its out-
ward form, introducing the name of the agent; or, in the latter
case, charge the sale as made to the agent.* So, —

Written Instrument. — If an instrument in writing is introduced
into a pleading, it may, except where special reasons forbid, be
equally well described by its legal effect as by its words.’ In
like manner, —

Principles of First and Second Degrees. — Where several persons
are committing a crime in one another’s presence, the act of one
is the act of all; and it may, if the pleader chooses, be so alleged,
or, of course, it may, if he chooses, be alleged according to the
outward fact.® :

§ 333. Concerning the Election. — An indictment may be prac-

1 And see The State v. Murray, 41 442. And see Commonwealth v. Call,
Iowa, 580; Lasindo v. The State, 2 Texas 21 Pick. 515.
Ap. 59; post, § 514. 5 United States ». Keen, 1 McLean,

2 Rex v. Healey, 1 Moody, 1. 429. See post, § 559-6562.

* Commonwealth v. Bagley, 7 Pick. 6 Vol. II. § 8; Crim. Law, I. § 648;
279, See also The State v. Brown, 31 Reg. v. Tracy, 6 Mod. 30, 82; Brister v.

Maine, 520. The State, 26 Ala. 107; Commonwealth
4 The State v. Wentworth, 85 N. H. v. Chapman, 11 Cush. 422; Reg. v. Tyler,
8 Car. & P. 616.

207
.

§ 335 INDICTMENT AND ITS INCIDENTS. [Book Iv.

tically objectionable while legally good.1_ So, between these two
methods, the ground of choice is in some circumstances very dis-
tinct. In others, it is matter of indifference.

Outward Form. — Where the question was upon an indictment
against a principal of the second degree in murder, Powell, J.,
said: “I think it is more prudent and safe to draw the indict-
ment upon the special matter; for otherwise it might be difficult
to persuade the lay gents [who are the jurors], that procuring,
inciting, commanding, &c., would make one a principal.” And,
for various cases in which the outward form. is simple and dis-
tinct, and the legal import would be confusing to the jury, this
suggestion is important. But, —

§ 334, Legal Import. —In the majority of cases, the legal
import is practically better. First, the legal is usually the short
way; and, when an indictment is short, the liability to entangle-
ments of variance and the like on the hearing is less than when
itis long. It is also drafted with less manual labor; therefore
the combined labor, mental and manual, is likely to be less.
Next, if, without discrimination, the pleader pursues the plan of
setting down the outward forms of the facts, rather than their
legal effect, he will find that sometimes the court will not sustain
him ; for there are limits here beyond which he cannot pass. The
outer line, indeed, may be uncertain, and-one cannot well define
where it lies. Thus, —

§ 335. Technical Words. There are commonly employed, in
setting out some crimes, certain vtechnical words, for which, it is
believed, there are no substitutes. These will be mentioned in
their proper places, but the following are specimens: “malice
aforethought,” and “murder,” in the indictment for murder ;*
‘‘ravish,” in the indictment for. rape ;° “‘ common scold,” in the
indictment for this last offence.6 So the doctrine is usually
stated in the books; but the reason of it in most cases is, that
either the offence is now or it was in its origin statutory, and
the statutory term must be employed to identify it, such being
the rule for all indictments on statutes.’ For example, murder,

1 Ante, § 28 a; Rex v. Galloway, 1 ington, 1 Saund. Wms. ed. 358 c; People

Moody, 234. v. Urias, 12 Cal. 325.
2 Reg. v. Tracy, 6 Mod. 80, 82. 5 Gouglemann v. People, 8 Parker C.
3 Rex v. Stevens, 5 East, 244. C. 16.

4 See in the notes to Toomes v, Ether- 6 Rex v. Foxby, 6 Mod. 11.
7 Post, § 615-618,
208
CHAP. XXI.] INDICTMENT IN GENERAL. § 337

as distinguished from manslaughter, is a statutory crime ;1 and
hence the necessity for the technical words just mentioned. The
author, however, is not aware that “common scold” comes
within this reason. Under modern statutes in different language
from the old common-law and statutory definitions, the use of
the same technical words is not always essential.?

§ 8386. Some Miscellaneous Views : —

Following Precedents. — It is, in most instances, practically best
to follow the approved precedents from the books, “instead,”
said Pollock, C. B., “of making experiments to see with how
small amount of legal averment an indictment can be sus-
tained.” And it results, from what has been said,‘ that a right-
minded prosecuting officer will make the allegation for a few
of the offences more full than the precedents absolutely demand.
But —

Useless Averments. — The rubbish — those useless averments
which impart no valuable information to the accused and are not
required by law to be proved — should be discarded by every
enlightened pleader.® It is not only silly, but repugnant to all
proper ideas of a solemn duty, for grand jurors to declare on
their oath, without a particle of proof, that the defendant was
“instigated by the devil,” that he had not the “fear of God
before his eyes,” or that the party injured was “in the peace of
God” when more likely he and the divine commands were at
war; or, contrary to the evidence, that a cheat was committed
“with force and arms.” Surely, in an age claimed to be en-
lightened, grand jurors, impanelled in the interests of good
morals and law, should not be asked to violate their consciences
and their oaths.

§ 337. Parchment or Paper. — In England, the indictment must

1 Vol. II. § 498-500, 544-548; Crim.
Law, II. § 624-628.

2 The State v. Robinson, 29 La. An.
864; People v. McDonald, 9 Mich. 150;
Tully v. Commonwealth, 4 Met. 387.
And see Davis v. The State, 42 Texas,
226.

3 Reg. v. Webb, 1 Den. C. C. 338, 344;
The State v. Williams, 86 Texas, 352.
Chitty says: ‘“ Where there has been a
long established form of pleading, appli-
cable to the facts of the particular case,
it should in general, for the sake of cer-

VOL. I. 14

tainty and uniformity, be adopted; and
the courts censure any unnecessary devia-
tion from it. As observed by Lord Coke,
it is safer to follow good precedents ; for
nihil simul inventum est, et perfectum; and
there are cases where, although the court
have overruled a demurrer, yet they have
directed the plaintiff to amend, so that no
deviation from the usual form shall ap-
pear to have been sanctioned.” 1 Chit.
Pl. 282.

4 Ante, § 26, 298, 883.

5 As, see post, § 601, 602.

209
§ 838 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

be engrossed on parchment,! and so must be a coroner’s inquisi-
tion. But in all our States paper is used instead, though doubt-
less parchment would be equally good in law.

Ink or Lead Pencil. — It is usually written with ink, and prac-
tically it ought to be. But a lead pencil would seem to fulfil the
strict requirements of the law ;? though, if an indictment were
wholly written in this way, there is grave reason to believe that
the court ought to quash it. In Ohio, a prosecuting officer,
discovering that in his draft of a bill for forgery the word prom-
ise, in the copy of the forged instrument, required an added s,
making it promises, inserted it with a lead pencil; and, in this
form, the indictment was found by the grand jury. The court
sustained it; Wood, C. J., observing, that a whole indictment in
pencil might not be tolerated “because it is more liable to be
effaced and obliterated than if drawn with ink; but there is no
statute in Ohio, nor any rule of common law, nor any principle
of ordinary sense, that will avoid an indictment merely because
one letter in the whole indictment is added to some one word in
pencil, and that letter making no difference, neither in sound,
sense, nor effect, in the word to which it is joined. An indict-
ment is usually written, but it may be printed; and is, never-
theless, valid. It is commonly drawn with black ink; but if
written in red, blue, or yellow, who is bold enough to say, that it
is such a departure from usage that vitiates the indictment? We
apprehend no one.” 5

§ 338. Legibility — Brasures — Interlineations — Quotation Marks.
— The court, and not the jury, is to decide what are the words
of an indictment or other pleading. If there is doubt which or
two words is meant, the sensible rendering will be accepted.’
Bad handwriting, if legible, is not a ground of legal objection ;8
but, if the court cannot read the indictment, it will be insufficient.
Erasures and interlineations will not necessarily render it bad ;9

1 1 Chit. Crim. Law, 316; Archb. New
Crim. Proced. 98.

2 Rex v. Beavers, 1 East P. C. 383.

8 Bishop Con. § 165, 178.

4 Post, § 761 et seq.

5 May v. The State, 14 Ohio, 461, 465.

6 Commonwealth v. Davis, 11 Gray,
4,8; Commonwealth v. Riggs, 14 Gray,
876. And see Commonwealth v. Galligan,
118 Mass. 203; post, § 792, note.

210

7 Williams v. The State, 83 Heisk. 876.
See post, § 510.

8 The State v. Morris, 48 Texas, 872.

9 Rex v. Davis, 7 Car. & P. 319; Com-
monwealth v. Fagan, 15 Gray, 194. In-
terlineations in an indictment will be
presumed, in the absence of contrary in-
dications, to have been made before it
was indorsed by the foreman. French v.
The State, 12 Ind. 670, 671.
CHAP. XXI.] INDICTMENT IN GENERAL. § 339

and, if a caret is wrongly located, or if there is no caret, the
court will read the interlineation in its place to make sense.
Quotation marks will not help out an otherwise insufficient
averment.?

§ 889. Changeable and Stable. — “The substantial rules of
pleading,” said Lord Mansfield, “‘are founded in strong sense,
and in the soundest and closest logic; and so appear when well
understood and explained ; though, by being misunderstood and
misapplied, they are often made use of as instruments of chi-
cane.” The substantial rules, therefore, as properly explained
and applied, are unchangeable. But around and connected with
them are misinterpretations which the courts ought to be em-
ployed in correcting, and technicalities the correction whereof
when mischievous is a duty of legislation. Hence, —

Statutes. — In those States in which statutes have made changes
in the indictment, even the most radical, the study of the com-
mon law of the subject has not become, therefore, unimportant.

The substantial requisites do and must remain.

1 The State v. Daniels, 44 N. H. 383.

2 Commonwealth v. Wright, 1 Cush.
46,64. Said Forbes, J.; “If these marks
should be held sufficient to sustain an
indictment, they might also be held suf-
ficient to defeat it, whenever a slight mis-
take is made in the use of them; and the
accidental omission to include a single
word of the libel in inverted commas, or
the including within them of a word
which was not in the libel, would be a
fatal variance. It sometimes happens
that the change of a single comma will
give an: entirely different meaning to a
sentence; suppose a pleader to have oc-
casion to set out a sentence of this descrip-
tion, would the misplacing or the omission
of a comma, thereby leaving the meaning
equivocal, be fatal to the indictment ?
Had we power to do it, we should doubt
the expediency of introducing a new rule
in pleading, the probable effect of which
would be to throw additional embarrass-
ments in the way of the pleader, and to

increase the chances of escape, by means
of purely clerical mistakes or technical
errors. The practice of arraignments is
to read the indictment to the prisoner,
and then to receive his plea. His knowl-
edge of the charge against him is derived,
ordinarily, from hearing the indictment
read, and not from the inspection of it.
But these indications of the meaning of
the pleader are addressed to the eye;
they are not perceptible by the ear; and,
if the rule of construction contended for
be correct, this well-established practice
is clearly wrong.” p. 65. And see post,
§ 354,

8 Robinson v. Rayley, 1 Bur. 316, 319.

4 Ante, § 89-112; The State v. Rea-
key, 62 Misso. 40; Kersh v. The State,
24 Ga. 191; The State v. Coulter, 46
Misso. 564; The State v. Eason, 70 N. C.
88; Dillon v. The State, 9 Ind. 408, 411;
Commonwealth v. Magowan, 1 Met. Ky.
368,

211
§ 341 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

CHAPTER XXII.

THE LANGUAGE OF THE INDICTMENT AND THE EXACTITUDE
AND PURITY REQUIRED.

§ 340. Pleadings anciently Oral.— Anciently, all pleadings in
court! were delivered orally, and the substance of them was
entered of record by the clerk.

In what Language. — From the time of William the Conqueror
downward, these oral pleadings, and all the discussions before
the judge and by him, were in Norman French; but the record,
made by the clerk, was in Latin, — not, indeed, in the classical
Latin, but in a corruption of it, sometimes called law Latin.
Thereupon, —

English — Record in Latin. — This was changed, in 1362, by the
statute of 86 Edw. 3, stat. 1, c. 15, which required, “that all
pleas which shall be pleaded in any courts whatever, before any
of his justices whatsoever, or in his other places, or before any of
his other ministers whatsoever, or in the courts and places of
any other lords whatsoever within the realm, shall be pleaded,
showed, defended, answered, debated, and judged in the English
tongue, and that they be entered and enrolled in Latin.” 2 Con-
sequently, —

§ 841, Pleadings in Latin. — By interpretation and necessary
practice, ‘“‘on the introduction of proper pleadings,” says Ste-
phen, “ they followed, in the language as well as in other respects,
the style of the record, and were therefore drawn up in Latin.” 3
Thus when the colonies now composing the older States of our
Union were settled, all indictments, declarations, pleas, and the
like, and all judicial records, were, in England, in Latin.

1 Ante, § 2,

2 Blackstone and some others have
fallen into what is now understood to be
the error of supposing, that, previous to

this statute, even the records were in.

French. Actual inspection has shown
that they were in Latin. See, on this

212

general matter, Tomlins Law Dict. tit.
Pleading; 3 Bl. Com. 317 et seq.; 8 Co.
Thom. ed. Pref. xxxviii.; Dug. Orig. 8d
ed. 95, 96; Barrington Stat. 4th ed. 290;
Stephen P). 4th ed. App. xxiv.; 2 Reeves
Hist. Eng. Law, 449.

8 Stephen Pl. 4th ed. App. xxiv.
CHAP, XXII] THE LANGUAGE AND HOW EXACT. § 344

§ 842. Latin with us — English. — This requirement of the
English law, it is believed, was never adopted as common law
in any of our colonies ; though, on this point, the author cannot
cite authorities covering the entire ground. Kilty says, of Mary-
land, that “the proceedings, which were not very formal, were
always in English.” In some of our States there are statutes
expressly excluding all languages but the English, and such is
clearly the general American law.

§ 343. Latin and Court Hand abolished in England — (Abbrevia-
tions and Figures). — In England, the statute of 4 Geo. 2, c. 26,
which took effect in 1738, abolished Latin, and provided that
pleadings, records, and various other things, “shall be written
in such a common legible hand and character as the acts of
Parliament are usually engrossed in, and the lines and words
of the same to be written at least as close as the said acts usually
are, and not in any hand commonly called court hand, and in
words at length and not abbreviated.” This provision was
slightly modified by 6 Geo. 2, c. 14, § 5, declaring that they
may “be written or printed in a common legible hand and char-
acter, and with the like way of writing or printing, and with the
like manner of expressing numbers by figures, as have been
heretofore or are now commonly used in the said courts respect-
ively, and with such abbreviations as are now commonly used in
the English language,” &c. But, —

Not Common Law with us. — Though these statutes are impor-
tant helps to an understanding of the modern English decisions,
by express language they did not extend to the colonies; and
they are not generally deemed a part of our common law.?

§ 344. Figures and Numerals in England. — “ Figures to express
numbers,” says Lord Hale, “are not allowable in indictments,
though sometimes literal numbers be allowable in returns; but,
in indictments, the numbers, whether cardinal or ordinal, must
be expressed in Latin.”? Though the mention of “literal num-
bers” casts some obscurity on this passage, it plainly expresses
the idea that the reason why figures were inadequate was because
they were not Latin. The Roman numerals, being Latin, were
for many purposes sufficient in pleadings and in records ;* but

1 Kilty Rep. Stats. 249. 4 Hawkins v. Mills, 2 Lev. 102; and
2 The State v. Reed, 35 Maine, 489; see the discussion and authorities cited
The State v. Hodgeden, 3 Vt. 481. in Berrian v. The State, 2 Zab. 9.

3 2 Hale P. C. 170.
213
§ 346 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.
a learned judge, who has examined the question as to the indict-
ment, deems that on it the adjudications have not spoken! As,
before the statutes of Geo. 2,? figures were inadequate, they re-
mained so afterward, — a result apparent on a comparison of the
two statutes.2 Hence, —

§ 345. With us.— The English authorities do in no manner
control the question in our country; it depends here on different
reasons. Our indictments must be in the English language. Are
figures English? It has been laid down in some of our States
that they are; and, on the whole, the American doctrine is pretty
plainly, that, at least, they are adequate. They have been held
to be insufficient in New Jersey * and Indiana,® under their com-
mon law; though, in both States, legislation afterward deter-
mined the other way.’ And in yet other States the doctrine of
their sufficiency has been aided by legislation.’ Still it is prac-
tically best that the pleader should write out his dates in words;
and this consideration has had its influence with those judges
who have deemed it to be also necessary in law.?

§ 346. Further as to. alleging Dates. — Where a complaint (the
principle being the same in an indictment) charged the offence
to have been committed “on the fifteenth day of July, 1855,”
this was held to be fatally defective; because, observed the
judge, “there should, at all events, have been words, or at least
letters, which have acquired an established use in the English
language, so added to or connected with the figures contained in
it, as to describe or indicate with certainty the era to which it
was intended that they should refer.’ But the abbreviation

1 See the opinion of Greene, C. J., in
Berrian v. The State, supra.

2 Ante, § 343.

8 The State v. Reed, 85 Maine, 489.

* The State v. Reed, 35 Maine, 489;
Kelly v. The State, 3 Sm. & M. 518; The
State v. Seamons, 1 Greene, Iowa, 418;
Winfield v. The State, 3 Greene, Iowa,
339; The State v. Raiford, 7 Port. 101;
The State v. Smith, Peck, 165; The State
v. Hodgeden, 3 Vt. 481; Rawson v. The
State, 19 Conn. 292; The State v. Tuller,
84 Conn. 280.

5 Berrian v. The State, 2 Zab. 9. See
Covenhoven v. The State, Coxe, 258.

6 The State v. Voshall, 4 Ind. 589;
Finch v. The State, 6 Blackf. 538.

214

7 Hampton v. The State, 8 Ind. 336;
Hizer v. The State, 12 Ind. 330; John-
son v. The State, 2 Dutcher, 318.

8 Lazier v. Commonwealth, 10 Grat.
708; Cady v. Commonwealth, 10 Grat.
776.

® And see United States v. Prescott, 2
Abb. U. S. 169, 172.

10 Commonwealth v. McLoon, 5 Gray,
91, 98, opinion by Merrick, J. See Com-
monwealth v. Penniman, 8 Met. 519. On
the other hand, just such a complaint was
held sufficient in Connecticut. Rawson
v. The State, 19 Conn. 292. So was such
an indictment in Minnesota. The State
v. Munch, 22 Minn. 67. And see post,
§ 389.
CHAP. XXII] THE LANGUAGE AND HOW EXACT. § 348

A. D. placed before the figures is sufficient;1 so are the words
Anno Domini, written in full;? also the words “in the year,”
without adding “of our Lord,” will be referred to the Christian
era: therefore they are adequate.?

§ 347. Words made English by Adoption. — Our language is
being constantly augmented by words taken from other lan-
guages, and what is foreign to-day may be English to-morrow.
In New York, alias has been held to be English. In a Vermont
case, Redfield, J., after saying that the words Anno Domini
“have become literally English by adoption,” added: “The
same is true of a very considerable number of terms in the lan-
guage. Most of these adopted terms have changed their costume,
while others have not. Phenomenon and memorandum are as
strictly English as any terms of the most purely Saxon deriva-
tion. Others are not the less so because they still retain their
foreign dress ; for example, pro tempore, sine die, nemine contra-
dicente, bona fide, Anno Domini; as well as ennui, sang froid,
beaux, cap-a-pie, tete-d-tete, and thousands of others, which are
well understood by mere English readers.”5 Yet —

Mathematical Signs. — The mathematical signs, such as °! for
degrees and minutes, have been adjudged inadequate as not
being English.®

§ 348. Impurities and Inelegancies of Language : —

False Latin. — While the language was Latin, the doctrine be-

®

1 The State v. Hodgeden, 3 Vt. 481.

2 The State v. Gilbert, 13 Vt. 647.

3 Hall v. The State, 3 Kelly, 18, 22;
Engleman v. The State, 2 Ind. 91. In
the latter of these cases, Perkins, J., ob-
served: “It is a fact, historically known,
that Christian nations have generally
adopted the Gregorian calendar, number-
ing the years from the birth of Christ.
This is a Christian State, and has adopted
the same.” See also post, § 889. Ina
Massachusetts case, where the allegation
was that the defendant committed the
offence “on the fourteenth day of De-
cember in the year one thousand eight
hundred and fifty-eight,” omitting the
words “of our Lord,” it was held to be
sufficient. Dewey, J., observed: “In
England there might be more reason for
adhering to the use of the words ‘year

of our Lord,’ inasmuch as they have two
modes of alleging the time of an offence;
the one, that of the year of the king’s
reign, and the other that of the year of
our Lord. The former has been the
more usual mode. Hence the word
‘year’ might not certainly indicate the
time intended. In this Commonwealth,
in our pleadings, criminal and civil, we
use no other era in alleging time but the
Christian era; and it seems quite reason-
able therefore to hold, that, when an of-
fence is alleged to have been committed
‘in the year eighteen hundred and fifty-
seven,’ it means that year in the Christian
era, and it means nothing else.” Com-
monwealth v. Doran, 14 Gray, 37, 38, 39.

4 Kennedy v. People, 89 N. Y. 245.

5 The State v. Gilbert, 13 Vt. 647, 651.

6 The State v. Jericho, 40 Vt. 121.

215
§ 354 [Book Iv.

INDICTMENT AND ITS INCIDENTS.

came established, that no impurities or inelegancies — no false
or imperfect Latin — would vitiate the indictment if the mean-
ing was palpable.1 But there were some distinctions, as, —

§ 349. Singular for Plural.— By Hawkins it is deemed “that
an indictment against two or more, laying the fact charged against
them in the singular number, is insufficient.”? He adds: “ As
to Fulwood’s Case,’ wherein Croke reports the contrary to have
been resolved, it is certain that the verb in the record is in the
plural number. . . . And as to the case in Bulstrode’s Reports,*
wherein it is said to have been resolved that an indictment of
felony against more than one in the singular number was amended,
and thereupon the defendants were adjudged to be hanged, it
may be answered, that it doth not appear in what part of the
indictment the singular number was put for the plural; neither
is the said resolution, in whatsoever sense it be taken, reconcila-
ble with the later authorities.” >

§ 350-853. Other Distinctions as to Latin Indictment. — The dis-
tinction thus mentioned is fine, and various other nice distinc-
tions of a like nature were drawn while the indictment was in
Latin. But let us pass from them to what is established as
to —

§ 354, Bad English. — In a previous chapter,’ there were men-
tioned some things of this general sort. If the indictment is in
false grammar ;° or, if the spelling is wrong,® as where the word
“two” is spelled *too,’#° or “assault” is spelled “ assalt,” #! or
“twelfth ” is spelled “ tweflth,” the f and J taking the places of
each other ;! or, if there is any other clerical error which cannot

1 2 Hawk. P. C. c. 25, § 86-88; Long’s v. The State, 41 Texas, 570; Thomas v.

Case, 5 Co. 119 6, 121; Reg. v. Fenton,
Yelv. 27, 28.

2 See post, § 471-476.

8 Fulwood’s Case, Cro. Car. 4887

4 Odington v. Darby, 2 Bulst. 35.

5 Hawk. P. C. ut sup.

6 In the first two editions of this work
is a quotation from Hawk, P. C. ut sup.,
here omitted.

7 Ante, § 388.

8 Reg. v. Stokes, 1 Den. C. C. 807;
The State v. Hedge, 6 Ind. 880; The State
v. Wimberly, 3 McCord, 190; Ward v.
The State, 50 Ala. 120.

9 The State v. Molier, 1 Dev. 263; The
State v. Hub Earp, 41 Texas, 487; Koontz

216

The State, 2 Texas Ap. 298; The State
v. Karn, 16 La. An. 183.

10 The State v. Hedge, supra.

11 The State v. Crane, 4 Wis. 400.

12 The State v. Shepherd, 8 Ire. 195,
197. In this case, the defect, if such it
were, was cured by a statute; but Ruffin,
C. J., said: “ We are inclined to the opin-
ion that the indictment is good at com-
mon law; because, although the word
‘tweflth’ is spelt wrong, by transposing
the letter fand placing it before instead
of after J, yet it is impossible to mistake
the meaning. The false spelling makes
no other word that could mislead.”
CHAP. XXII] THE LANGUAGE AND HOW EXACT. § 3855

mislead,! or an error in the punctuation ;2 it will not be held ill
for the defect. The omission or substitution of a word will be
fatal or not, according to its effect in weakening or changing or
not the allegation to what in meaning is inadequate.2 An awk-
ward construction of a sentence will not necessarily render it
legally ill in allegation.

§ 855. Nearest Antecedent or not. — According to some old
authorities, a relative pronoun in an indictment shall be referred
to the nearest antecedent, not to a remote one; because, it is
assumed, such is the rule in grammar. Said Jeffreys, debating
the indictment in Rosewell’s Case: “The relative must go to
the last antecedent, or else Dr. Busby (that so long ruled in
Westminster School) taught me quite wrong, and who had tried
most of the grammars extant, and used to lay down that as a
positive rule in grammar, that the relative must refer to the next
antecedent.” ® But as bad grammar does not and never did ren-
der an indictment ill,’ this sort of argument could never have
any just force. The relative ‘“ must,” in the language of Morton,
J., “be referred to that antecedent to which the tenor of the
instrument and the principles of law require that it should relate ;
whether exactly according to the rules of syntax or not.”® And
the like observation applies to such words as “it” and “ then

and there.” 29 And —

1 The State v. Wimberly, supra; The
State v. Thompson, Wright, 617; post,
§ 357.

2 Ward v. The State, 50 Ala. 120.

3 The State v. Hub Earp, 41 Texas,
487; Koontz v. The State, 41 Texas, 570;
Shay v. People, 22 N. Y. 317, 4 Parker
C. C. 853; Edmondson v. The State, 41
Texas, 496; The State v. Daugherty, 30
Texas,360; The State v. Whitney, 15 Vt.
298; Ewing v. The State, 1 Texas Ap.
362; The State v. Williamson, 43 Texas,
500; The State v. Rinehart, 75 N. C. 58.
In South Carolina, an indictment for
bastardy was adjudged ill because it al-
leged that defendant was the “farther,”
instead of “father,” of the bastard child.
The State v. Caspary, 11 Rich. 356.
But this was splitting the matter fine,
since ‘‘farther,” though it is a word in
the language, could not have its legiti-
mate meaning here, and, as an indict-
ment is addressed to the ear, not to the
eye (ante, § 338, note), every person who

heard this one read would know that
“father” was the word meant. And
plainly contrary to the general doctrine
is a judgment by the majority of the
court in North Carolina, where, in an in-
dictment for murder, the word “breast,”
as the place on which the wound was
inflicted, was spelled “ brest,”” —a matter
not at all cognizable by the ear, therefore,
on principle, not to be regarded, — yet
the indictment was pronounced insuf-
ficient. The State v. Carter, Conference,
210; Anonymous, 2 Hayw. 140.

4 Dawson v. The State, 33 Texas, 491.

5 See ante, § 15-19.

§ Rosewell’s Case, 10 Howell St. Tr.
147, 299.

7 Ante, § 354.

8 Commonwealth v. Call, 21 Pick. 516,
621,

® Goodson v. The State, 32 Texas,
121. ;
10 Jeffries v. Commonwealth, 12 Allen,
145, 152. And see post, § 612.

217
§ 358 INDICTMENT AND ITS INCIDENTS. [Book Iv.

§ 356. Reasonable Meaning — Favorable to Indictment. — The
doctrine is general, that the. court will consult sound sense, to
the disregard of captious objections, in looking for the meaning
of allegations in an indictment. Moreover, of two permissible
constructions, it will adopt the one sustaining the proceeding
Thus, — :

“ Beat.” — Where the indictment was for cruelty to an animal,
“it is suggested,” said Chapman, C. J., “that the word ‘beat’
does not of itself describe with sufficient certainty the alleged
act, because it may refer to a race or some other act of contest.
But there can be no doubt that the beating of a horse by a man
refers to the infliction of blows. There is no danger that the
defendant, or the witnesses, or the jury, or the court will mis-
understand it.” ?

§ 857. Clerical Errors. — It is in effect but repeating what has
been said to add, that clerical errors, if not of a character to mis-
lead a person of common understanding, will not as a general
rule vitiate the indictment.’

§ 858. Words of Legislative Meaning — (Constitutional — “ Intox-
icating Liquors”). — If a statute creating a crime employs a word
in a novel sense, plainly an indictment on it may, and ordinarily
must, make use of the same word. A like question arose where
the sale without license of * intoxicating liquors” was forbidden
by a statute which added, that “ale, porter, strong beer, lager beer,
cider, and all wines shall be considered intoxicating liquors within
the meaning of this act, as well as all distilled spirits.” An indict-
ment which charged a sale of ‘‘ intoxicating liquor” was held to
be sustained by proof of the sale of “lager beer,” nor was evi-
dence admissible to disprove its assumed intoxicating quality.

1 Post, § 509, 510.

2 Commonwealth v. McClellan, 101
Mass. 34, 35.

cannot be supplied by intendment. The
State v. Hutchinson, 26 Texas, 111. To
the like effect, see Edmondson v. The

3 The State v. Raymond, 20 Iowa, 582.
In an indictment for an assault, the omis-
sion of the word “did” before the words
“assault, beat, and maltreat,” was sup-
plied by intendment; and the words
“with intent’ were rejected as surplus-
age. The State v. Edwards, 19 Misso.
674. And see various cases referred to by
the court. In another case, which seems
opposed to this, but perhaps is not, it is
laid down that the omission of the word
“did,” in charging a malicious mischief,

218

State, 41 Texas, 496; The State »v.
Daugherty, 30 Texas, 360; Ewing v. The
State, 1 Texas Ap. 362. Contra, as to
“did,” The State v. Whitney, 15 Vt. 298.
The omission of “with,” in charging
the intent in homicide, is not fatal.
Shay v. People, 22 N. Y. 817. See ante,
§ 354.

* Commonwealth v. Anthes, 12 Gray,
29; Commonwealth v. Bubser, 14 Gray,
83.
‘CHAP. XXII.] THE LANGUAGE AND HOW EXACT. § 859

The question how far legislation can unsettle the meaning of
words without violating constitutional rights is not easily an-
swered. But there is a limit.?

§ 859. Conclusion. — Other illustrations of the doctrines of this
chapter will appear in their appropriate places as we proceed.
The law, in its language, seeks to be useful, rather than please
the taste: it first adopted a barbarous Latin for its records,
that they might be permanent and exact; it afterward, when
it thought the English could be trusted, cast off its first love
and took the later flame, that it might render itself still more
serviceable to the present time, and the better transmit its image
to posterity.

1 Noles v. The State, 24 Ala. 672; Bishop First Book, § 455, 456.
219
§ 862 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

CHAPTER XXIII.
THE ALLEGATION AND PROOF OF THE PLACE OF THE OFFENCE.

§ 360. What already. — The local nature of crime and where
it is to be prosecuted have already been considered.!

‘What for this Chapter.— In this chapter we shall inquire what
and how minute must be the allegation and proof of place; the
doctrine being, that the place must be alleged and proved, else
neither any offence cognizable by the court nor any jurisdiction
of the indictors appears.”

§ 361. Subject obscure. — Simple as this doctrine would thus
seem to be, it is in some particulars, as taught in the books,
obscure. Therefore we shall be obliged, in this chapter, to de-
scend, a little more than we sometimes do, into the principles
which underlie the adjudged law; and ascend, a little more, the
stream of history. Let us direct our attention to the last, first.

§ 862. Historical View : —

Petit Jury, and Course of Trial formerly. — The course of a crim-
inal trial, in early times, was very different from now. “ When,”
it is said by Reeves, writing of the period of Edward I., “ the
oath was put [to the second inquest; or, as it was afterward
called, the petit jury], they were to swear, one after another,
that they would speak the truth of what should be demanded
of them on the part of the king; but there was to be no men-
tion of their belief, in cases of life and limb, it being required

1 Ante, § 45 et seq.

2 Ante, § 49; post, § 875, 884; The
State v. Johnson, 32 Texas, 96; Burch »v.
The State, 43 Texas, 376; Field v. The
State, 34 Texas, 89; Carter v. The State,
48 Ga. 48; Clark v. The State, 46 Ala.
307 ; Jackson v. People, 40 Ill. 405; People
v. Gregory, 30 Mich. 871; Thompson »v.
The State, 51 Missis. 8353; The State v.
Meyer, 64 Misso. 190; McQuistian ».
The State, 25 Ark. 485; People v. Parks,

220

44 Cal. 105; Green v. The State, 41 Ala.
419; Gastner v. The State, 47 Ind. 144;
People v. Roach, 48 Cal. 882; The State
v. Chamberlain, 6 Nev. 257; Shadle v.

The State, 84 Texas, 572; Vance v. The

State, 32 Texas, 396; Sattler v. People,
59 Ill. 68,70; Clem v. The State, 81 Ind.
480; Baker v. The State, 84 Ind. 104;
Mullinix v. The State, 48 Ind. 511; Terri-
tory v. Freeman, McCahon, 56; Anony-
mous, 1 Bulst. 205.
CHAP. XXIII.] ALLEGATION AND PROOF OF PLACE. § 364

that in matters of so high concern they should speak upon their
knowledge only.” Hence, no evidence was produced before
them. They were to confer together in seclusion ; and, “if they
should not agree, they were to be separated, and interrogated
why they could not. . . . If they all declared, upon their oaths,
that they knew nothing of the fact, others were to be put in
their place who did know it... . If the prisoner, finding the .
verdict was likely to pass against him, would say, that some of
the jurors were about to procure his condemnation at the instiga-
tion of the lord of whom he held his land, to obtain an escheat,
or from any other motives, then the justices were carefully to
question them and make strict examination and inquiry how they
were satisfied of their verdict. They perhaps might say, one of
their fellow-jurors told it them, and he! perhaps might say, that
he heard it asserted for a truth at a tavern, or some other place,
by one of the rabble, or such a one as nobody ought to give
credit to. If it appeared to the justices that one of the jurors
was influenced or was intreated or procured by the lord, or by
the enemies of the indicted, to get him condemned, they were to
cause the procurers to be taken and punished by imprisonment
and fine. Britton lays it down as a rule, that, should the jurors
be doubtful of the matter, and nothing certain could be made
out, they should, in such case, always find for the defendant.” ?

§ 363. Jurors the Witnesses. — This author further observes, that
these “jurors were considered as witnesses, the same as in other
juries, and in assizes; and to call witnesses before them would
have been absurd, and not at all consonant with the notion enter-
tained of this proceeding. They were sworn to speak the truth ;
to discharge which duty they must speak from their own knowl-
edge, and not from the testimony of others; and, as they came
from the vicinage where the fact was committed, none, it was
thought, could be better able to perform the office than them-
selves. It was many years after this reign, and when the second
(since called the petty) jury began to be considered rather as
judges of the presumption raised by the finding of the presentors
than as witnesses of the fact, that a kind of evidence used to be
exhibited to them.” ?

§ 864. How Jury obtained. — The method of obtaining the

1 Referring to Britton, Kelham’s trans- 2 2 Reeves Hist. Eng. Law, 269, 270.
lation, p. 34-45. 8 2 Reeves Hist. Eng. Law, 270, 271.

221
§ 366 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

jury, at this time and long afterward, was for the sheriff to bring
them in, under a scire facias from the court. But, —

Record to show the Place.— Since they were to be the wit-
nesses, he could not know where to look for them unless the
record disclosed the place of the offence. Nor was it sufficient
that the county was stated; the neighborhood must be also.
Therefore it became the early law, that both the county, and the
particular locality in it where the offence was committed, should
be set down in the indictment.

§ 865. What Minor Locality within County. — “ If the truth will
bear it,” says Hawkins, writing of the now obsolete proceeding
by appeal, it is safest to lay the act as having been done “ina
town, as the statute of Gloucester! directs. But if it were done
out of a town, it seems that you may lay it in any other place
from whence a visne may come”; that is, whence a jury may be
summoned as living in the neighborhood wherein the offence
was committed.2. And so, in criminal cases generally, he says,
‘a visne may come from any place which is of so small compass
that all who live in or near it may reasonably be presumed to
have some knowledge of the persons living in it”; as, “ not only
from a town, but from a ward, parish, hamlet, burgh, manor,
castle, or even from a forest, or other place known, out of a
town.” 3

§ 866. Alleging wrong or Non-existing Vill, Parish, Ward, &c. —
This old author proceeds: “ Yet if in truth there be no such
town, nor hamlet, nor place known out of town; or if a fact
alleged in a forest were done in some vill in the forest not men-
tioned in the record; the defendant may plead it in abatement.

1 Statute of Gloucester, c. 9. 2 Hawk.
P. C. c. 28, § 86.

2 “Visne. A neighboring place, or
place near at hand.” Jacob Law Dict.

8 2 Hawk. P. C. c. 23, § 92.

£ See also Rex vr. Woodward, 1 Moody,
823. In accord with this doctrine is Stat.
7 Hen. 5, extended by 9 Hen. 5, stat. 1, ¢.
1, and made perpetual by 18 Hen. 6, c. 12.
This Statute might seem to apply only to
the county palatine of Lancaster; but,
viewed in connection with 18 Hen. 6, c.
12, it is doubtless correctly understood,
as it is by Williams in his Digest of Stat-
utes, to have a general application. I
copy it from this Digest, p. 109, where it

222

is slightly shorn of redundant words:
“ Forasmuch as divers have caused to be
indicted and appealed divers liege people
of treasons and felonies, pretending that
the treasons or felonies were committed
in a certain place, where of truth no such
place is to be found in the county; it is |
ordered, that every justice which hath

power to hear and determine such trea-
sons and felonies by the oath of twelve,
men, of whom every one shall have free-
hold in the county to the yearly value
of 100s. before the exigent be awarded,
without allegations of the party, as well
in the party’s absence as in his presence,
shall inquire of office, whether any such
CHAP. XXIII.] ALLEGATION AND PROOF OF PLACE. § 367

Also if a fact done in a vill, within a parish which contains divers
vills, be in the count in an appeal alleged generally in the parish,
or a fact done in a city which contains divers parishes be in the
count in an appeal alleged generally in the city, it seems that
the defendant may plead such matter in abatement; for other-
wise he could take no advantage of the insufficiency of the alle-
gation, because the place named, as it stands on the record, must,
till the contrary be shown, be intended to contain no more than
one town or parish, on which supposition a visne may well come
de vicineto civitatis, which does not exclude the city, but takes
in the city and its neighborhood within its jurisdiction, whether
such city be within a county, or be a county of itself; excepting
only the city of London, from whence it seems that no visne can
come, not only by reason of the largeness of its extent, but also
because it hath been the constant usage of pleading to show the
ward and parish in which the fact alleged in London was done.” !

§ 367. Modifications of Doctrine under Changed Reason. — The
reader perceives, that, at the time Hawkins wrote, the jury had
ceased to be the witnesses; yet he states substantially the old
doctrine as present law. And —

Further of Particular Place. — Hale, who wrote earlier, though
his great work was not published till later, speaking of the
venire facias to the sheriff to bring in the petit jury, says: It
“ commands him to return duodecim liberos et legales homines de
vicineto. .. . They are to be de vicineto, but this is not neces-
sarily required; for they of one side of the county are by law
de vicineto to try an offence of the other side of the county.”?
Hence —

Purpose of alleging Minor Locality. — The requiring of the par-
ticular place within the county to be alleged was merely to assist
the sheriff in the exercise of his discretion in selecting the persons
to be summoned as jurors.

In General. — The foregoing historical statement is believed to
be substantially correct, though there are in the books passages
qualifying or varying it somewhat.’
place be in the county or not; and, if it before such inquisition of office be taken,
be found that there is no such place, then the exigent shall be likewise void.”
such appeals and indictments shall be 1 2 Hawk. P. C. ¢. 28, § 02.
void. And in such case the indictors 2 2 Hale P. C. 264.

shall be punished by imprisonment, fine, 3 For example, in 1 Chit. Crim. Law,
and ransom. And if exigent be awarded 177, it is said: “It seems that until very

223
§ 369 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

§ 368. The Modern Law : —

Change in England. — Thus, long after the reasons for the old
law had departed, down to 1825, when the statute of 6 Geo. 4
c. 50, was passed, the practice seems to have remained in Eng.
land.! That statute provided in § 13, “ that every writ of venire
facias juratores- for the trial of any issue, &c., shall direct the
sheriff to return twelve good and lawful men of the body of his
county, qualified according to law, and the rest of the writ shall
proceed in the accustomed form, &c., and shall not require the
same to be returned from any hundred or hundreds, or from any
particular venue within.” In 1851, it was further provided by
14 & 15 Vict. c. 100, § 23, that the venue need not be stated “in
the body of any indictment, but the county, city, or other juris-
diction 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 in-
dictment 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.”

§ 369. Effect of Statute. — Plainly, in principle, the statute —
6 Geo. 4, c. 50, § 18 —requiring the jurors to be drawn from
the county at large must have rendered unnecessary any allega-
tion of the minor locality, except when some other reason de-

recently, the right to challenge for want
of hundredors existed ;—Co. Lit. 125;
Arundel’s Case, 6 Co. 144; Scott v. Brest,
2 T. R. 288, 240; 2 Hale P. C. 163; —
and, although the practice had fallen into
disuse, the right was not actually abro-
gated until the act of 6 Geo. 4, c. 50, by
which it was taken away.” And see 1
Chit. Crim. Law, 196.

1 The second and last English edition
of Chitty’s Criminal Law, the first three
volumes of which constitute the English
part of the American Chitty in common
use, was published in 1826, the preface
being dated on the first of March. This

224

was eight months after the enactment of
6 Geo. 4, c. 50; but, in the first volume,
where he treats of this subject, there is
no allusion to the statute, and it appears
only in the Appendix. So we have here
(Vol. I. p. 196-198) Chitty’s understand-
ing of the English law on the eve of the
enactment of this statute. ‘“ In general,”
he says, “it is essential to lay every
issuable and triable fact to have hap-
pened at some particular parish, vill,
hamlet, or place, within the county, to
which a venire may be awarded, and
it will not suffice merely to state the
county.” p. 196.
CHAP. XXIII.] ALLEGATION AND PROOF OF PLACE. § 3871

manded. And thus, with the proper exceptions, the doctrine
appears to have been generally held. As observed by Williams,
J.: “Ata period when the jury came from the immediate neigh-
borhood, it was necessary to allege a parish; but now that they
come, not de vicineto, but de corpore comitatus, I cannot think it
necessary.” 1

§ 370. How with us — (County only). — In none of our States,
it is believed, are the jurors summoned de vicineto; but in all
they come de corpore comitatus — from the body of the county,
not from the immediate neighborhood in which the offence was
committed. Hence, in reason, the question stands with us as
it was put in England by the statute of 6 Geo. 4.2 And, in
authority, it is the general rule in our States that the indictment
need not allege the particular township, or other minor locality
within the county, where the offence was committed. It-may
simply charge that the criminal thing was done within the
county, without more words. Such is the common form in a
part of our States; while in others the pleader generally names,
in connection with the county, the town or city?

§ 371. Mistake in alleging Minor Locality. —If the indictment
sets out the minor locality, where it need not, proof of the offence
in any other place within the county will be adequate Yet if
the setting out is by way of local description, there is a rule of
evidence ® which requires it to be proved as laid. An instance

1 Reg. v. Gompertz, 9 Jur. 401, 14 Law
J.n.s.M.C.118. See 3 Burn Just. 28th

Conference, 88, 51; Dean v. The State,
Mart. & Yerg. 127; Sullivant v. The State,

ed, 419; Archb. Crim. Pl. 13th Lond. ed.
41; Ware v. Boydell, 3 M. & S. 148,

2 There are States in which something
like the before-mentioned statute of 14 &
15 Vict. c. 100, § 23, has been adopted.
See ante, § 106; post, § 885; Wickham
v. The State, 7 Coldw. 625.

8 Covy v. The State, 4 Port. 186, 191;
Wingard v. The State, 138 Ga. 396; Stud-
still v. The State, 7 Ga. 2; The State v.
Warner, 4 Ind. 604; Dillon v. The State,
9 Ind. 408; Barnes v. The State, 5 Yerg.
186; The State v. Goode, 24 Misso. 361;
The State v. Smith, 5 Harring. Del. 490;
The State v. Lamon, 8 Hawks, 175; Has-
kins v. People, 16 N. Y. 344; Evarts v.
The State, 48 Ind. 422; The State v.
Click, 2 Ala. 26; Steedman v. The State,
11 Ohio, 82; The State v. Chamberlain,
6 Ney. 257, 260; The State v. Glasgow,

VOL. 1. 15

3 Eng. 400; The State v. Shaw, 35 Iowa,
575; People v. Robinson, 17 Cal. 363;
The State v. Watrous, 13 Iowa, 489;
Corley v. The State, 3 Texas Ap. 412.

4 Heikes v. Commonwealth, 2 Casey,
Pa. 518; Carlisle v. The State, 32 Ind. 55.
Thus, an indictment for an assault in one
town is supported by proof of it in an-
other town in the same county and with-
in the jurisdiction of the court. Com-
monwealth v. Tolliver, 8 Gray, 386;
Commonwealth v. Creed, 8 Gray, 387.
See also The State v. Godfrey, 3 Fairf.
861; Rex v. Taylor, Holt, 534; Common-
wealth v. Heffron, 102 Mass. 148, 150;
The State v. Verden, 24 Iowa, 126.

5 Post, § 485.

° The State v. Crogan, 8 Iowa, 528;
Moore v. The State, 12 Ohio State, 387.

225
§ 3872 INDICTMENT AND ITS INCIDENTS. [BooK Iv.
of this occurred where, in an indictment for arson, the house
burned was described as being in the sixth ward, New York,
while the proof showed it to be in the fifth: the variance was
held to be fatal.+

§ 872. To what Cases the Rule that only the County need be
alleged is applicable, and to what it is not : —

Local Nature. — We read in the books that all cases which are
of a “local nature’’? constitute an exception to the general
rule, and require an allegation of the minor locality within the
county. But every crime is in its nature local. And the true
meaning is, that, in some cases, a special reason requires the
allegation of a place within the county, of less dimensions.
Thus, —

Place Element in Offence. — Often the offence can be committed
only in some place less than a county, and then this minor place
must be alleged. It is so in common-law burglary, which must
be charged to have been committed in a dwelling-house, for it is
not possible elsewhere. And the like rule applies to various
statutory offences in buildings and other like places.* So if a
statute makes it punishable to kill or abuse an animal “in an
enclosure not surrounded by a lawful fence,” this minor locality
must be stated, and it was held inadequate simply to charge it
as “the field” of another.6 In these cases, or some of them,
something further is also necessary by, way of identifying the
offence ;® as, in burglary, the ownership is to be alleged.’ But,
in addition, a simple allegation of county suffices; such minutie
as street, number, and the like being unimportant unless the
other is omitted.®

Proceedings to follow at Place. — If, on an indictment for forci-
ble detainer, the injured party is to ask for a restitution of the
premises by order of the court,? it must contain a sufficient de-

1 People v. Slater, 5 Hill, N. Y. 401.

2 Archb. Crim. Pl. 18th ed. 41.

8 Vol. II. § 186.

4 Holtzclaw v. The State, 26 Texas,
682; McElreath v. The State, 65 Ga. 562;
Hagan v. The State, 4 Kan. 89; Miller v.
The State, 8 Ohio State, 475. See Com-
monwealth v. Stowell, 9 Met. 569; The
State v. Heldt, 41 Texas, 220; O’Keefe v.
The State, 24 Ohio State, 175; Werneke
v. The State, 49 Ind. 202.

226

5 The State v. Staton, 66 N. C. 640.

8 Ante, § 825; post, § 505 et seq.;
Lamkin v. The State, 42 Texas, 415.

7 Vol. IL. § 187.

8 Olive v. Commonwealth, 5 Bush,
876; Lamkin v. The State, supra ; Schwab
v. People, 4 Hun, 520; The State v. Shaw,
85 Iowa, 575. See The State v. Verden,
24 Towa, 126; Commonwealth v. Dono-
van, 16 Gray, 18.

9 Crim. Law, II. § 514.
CHAP. XXIII.] ALLEGATION AND PROOF OF PLACE. § 373

scription of them to enable the sheriff to make restitution; the
mere allegation that the detainer was in the county not being
enough.’ So, also, if a nuisance is to be abated by a process
from court, or if any other proceeding is to be had against the
place, a local description of it, “sufficiently specific to point it
out with reasonable certainty,” is necessary in the indictment.?
Again, —

§ 873. Local Variations in Law. = Suppose, in a city within a
county of larger dimensions, there is required a kind of license
to sell intoxicating liquors differing from the license to sell in
other parts of the county, or suppose the penalty for selling in
the one place differs from that in the other; in these circum-
stances, the indictment must distinguish the locality in which
the offence was committed.2 Moreover, —

Booth, &c. — It is but little more than repeating what has
already been said to add, that, if the offence consists of selling
in a booth or other like place named in the statute, the indict-
ment must specify it, and a mere allegation of a sale in the county

will not suffice. :

1 1 Russ. Crimes, 8d Eng. ed. 311.

2 Norris’s house v. The State, 3 Greene,
Towa, 513, 519, 520. See Jenks v. The
State, 17 Wis. 665; Commonwealth »v.
Rumford Chemical Works, 16 Gray, 231.

3 Legori v. The State, § Sm. & M. 697;
Botto v. The State, 26 -Missis. 108. In
the former of these cases, the indict-
ment was for retailing liquors in less
quantities than a gallon, in the city of
Vicksburg, without a license; and it was
held that the defendant was wrongly. con-
victed on proof of a sale at a place four
miles out of the city. For the statute
had appropriated to Vicksburg all moneys
accruing from the granting of licenses,
and fines for violations of the statute,
within the city; so that the particular
place of the offence became material.
In the latter case, it was held that an in-
dictment charging a selling in the county
generally, is not sustained by proof of a
sale in Vicksburg; because a sale is jus-
tified by a different license in the general
locality from what it is in the special;
and, on conviction, the fine goes differ-
ently. The allegation should have been
of a sale in Vicksburg.

* Grimme v. Commonwealth, 5 B. Monr.
263. This case holds, that a presentment
for retailing spirits, without designating
any place other than the county, is not
good; “for,” said Marshall, J., “first, in
the description of the offence contained
in various statutes, place is always intro-
duced as a part of the definition; as in
the 4th section of the act of 1793, if any
person shall sell, &c., in any house, booth,
arbor, &c.; and, in the 5th section of the
act of 1820, any person who shall sell,
&e., in any booth, arbor, &c. So that if
the place did not affect the grade of the
offence, it might still be material to its
proper specification. But second, there
is a difference in the penalty inflicted
for selling by retail in different places.
The first of the sections above referred
to subjects the offence of selling in the
places therein referred to, to a penalty of
81. or $10. The second imposes a penalty
of $20,” &c. Under the Gaming Act of
Alabama of 1826, which prohibits gaming
“on the premises ” of any person, an in-
dictment charging one with permitting
gaming to be carried on in his house is
good; “for there can be no doubt that

227
[Book Iv.

§ 375 INDICTMENT AND ITS INCIDENTS.

Other Cases — (Essential Description — Nuisance). — Thus far we
have found the doctrine plain and clear. But there are other
classes of cases whereof one can speak only uncertainly and
doubtingly. For example, it has been said, that, where the par-
ticular place is matter of essential description, it must be truly
alleged, and proved as laid.1 But what is essential description,
other than the foregoing paragraphs have pointed out? Under
some circumstances, the offence of nuisance may, as we have
seen, be in the limited sense local,? yet it is not necessarily.?

§ 3874. Instances of Particular Place unnecessary. — Some of the
instances in which the allegation of the county, without more,
is held sufficient are the following: For murder,} affray,® disturb-
ing public worship,® purchasing goods from a slave without the
master’s consent,’ gaming.®

§ 875, Jurisdictional Locality less than County — Greater. — If
the jurisdiction of the court extends over less space than the
county, a mere alleging that the offence was committed within
the county is insufficient ; because, in spite of what is thus dis-
closed, the tribunal may be without jurisdiction.® For the doc-
trine is general, that the place of the offence must be so set out

a man’s premises may include his house.””
Covy v. The State, 4 Port. 186. And
see Rex v. Upton-on-Severn, 6 Car. & P.
133.

1 The State v. Cotton, 4 Fost. N. H.
143. In The State v. Smith, 5 Harring.
Del. 490, the court observed: “ Unless
time or place enter into the crime itself,
it is not material to state or prove it.
The locality of a road enters into the
charge of obstructing it.”

2 See, yet with caution, such cases as
Commonwealth v. Heffron, 102 Mass. 148;
Commonwealth v. Bacon, 108 Mass. 26;
Commonwealth v. Logan, 12 Gray, 136,
138; Commonwealth v. Crowther, 117
Mass. 116.

3 The State v. Shaw, 35 Iowa, 575;
Miller, J., observing, “The indictment
being against the defendant as an indi-
vidual and not against the house, it was
sufficient to charge the offence as com-
mitted within the county.” p. 578.

4 Studstill v. The State, 7 Ga. 2; Dil-
Ion v. The State, 9 Ind. 408; The State v.
Lamon, 8 Hawks, 175; The State v.
Bowen, 16 Kan. 475. :

228

5 The State v. Warner, 4 Ind. 604.

% The State v. Smith, 5 Harring. Del.
490.

7 The State v. Goode, 24 Misso. 361.

8 Covy v. The State, 4 Port. 186;
Drummond v. The Republic, 2 Texas,
156.

® McBride v. The State, 10 Humph.
615. So in Chitty on Criminal Law we
have the following: “If the indictment
be preferred to a jury returned only for
a special division, or precinct, or part of
a county,—as in Yorkshire and Lincoln-
shire, where there are different districts
and distinct juries, and in the Cinque
Ports at Dover (part of Kent), — it must
be shown in the body of the indictment
that the offence was not only committed
in a parish and the county, but within
the particular district.” 1 Chit. Crim.
Law, 197, referring to Thorney’s Case,
Cro. Jac. 276; 2 Hawk. P. C c, 25, § 84;
2 Hale P. C. 166; Keilw. 89, &. And
see, as to our own law, Commonwealth v.
Richards, 1 Va. Cas. 1; Taylor v. Com-
monwealth, 2 Va. Cas. 94.
CHAP. XXIII.] ALLEGATION AND PROOF OF PLACE. § 378

as to show jurisdiction in the court.!_ It must not, as alleged, be
larger than that over which the court has jurisdiction; or, on
the other hand, larger than that from which the jury comes. In
most cases, therefore, as the jury is from the whole county, and
. the jurisdiction of the court is as wide or wider, the indictment
should state in what county the offence was committed? But, —

In United States Courts.— In the courts of the United States,
the jury does not come from the body of the county, and the
jurisdiction of the court extends over the entire district, there-
fore the indictment need not mention the county.?

§ 876. Form of the Allegation of Place : —

Reasonably Precise — Not Repugnant. — There is no exclusive

form for this allegation; it should be reasonably precise, and the
facts showing the county not contradictory to one another.
- § 877. Stating County in Margin. — It is common practice to
write the name of the county in the upper or side margin. And,
says Chitty: ‘‘The county is stated in the margin, thus, —
* Middlesex,’ or ‘ Middlesex to wit,’ but the latter method is the
most usual.”® In some of our States the “ to wit” is abbreviated
by “ss.” If this,® or the county itself, is omitted from the margin,
no harm will follow, provided the venue is sufficiently laid in the
body of the indictment.’ We shall see, further on,® that, in some
localities, the venue in the margin, with no mention of it in the
body, is made sufficient by statute.

§ 878. Alleging Minor Locality without County.— In England,
under the common-law rules, a simple allegation that the offence
was committed in a parish, vill, or other like locality, not men-
tioning the county, is inadequate ;9 because, in the language of
Holt, C. J., “the court cannot know where it lies.” But an

1 Ante, § 860; The State v. Cotton,
4 Fost. N. H. 143.

2 The State v. Williams, 4 Ind. 284;
Halsey v. The State, 1 Southard, 324;
The State v. Welker, 14 Misso. 898; Reg.
v. O’Connor, 5 Q. B. 16; Searcy v. The
State, 4 Texas, 450; The State v. Warren,
14 Texas, 406.

3 United States v. Wilson, Bald. 78;
United States v. Reyburn, 6 Pet. 352;
United States v. Quincy, 6 Pet. 445.

4 The State v. Hardwick, 2 Misso. 226 ;
Jane v. The State, 3 Misso. 61; Cain v.
The State, 18 Texas, 391.

5 1 Chit. Crim. Law, 194.

6 United States v. Grush, 5 Mason, 290,
302.

7 2 Hale P. C. 180; Tefft v. Common-
wealth, 8 Leigh, 721; Commonwealth v.
Quin, 5 Gray, 478, 480. See Reg. v. Stow-
ell, Dav. & M. 189, 5 Q. B. 44.

8 Post, § 885.

91 Chit. Crim. Law, 194. And see
Rex v. Hart, 6 Car. & P. 123.

10 Rex v. Griepe, 1 Ld. Raym. 256,
258.

229
§ 878 INDICTMENT AND ITS INCIDENTS. — [BOOK Iv.

offence was held to be well laid in the town of Cambridge, with-
out adding the name of the county; ‘for, Cambridge being men-
tioned in several acts of Parliament, the court must take notice
of such acts, and upon such a return will intend that Cambridge
isin the county of Cambridge.” ! Thus we have the principle
on which the question depends with us. In most of our States,
the names of these minor localities, such as townships, cities, and
the like, and the counties in which they are located, :are parts
of the public law;? and, where they are, the allegation of the
place, omitting the name of the county, carries with it that of

the county.’

1 Rex v. Journeymen Tailors, 8 Mod.
10, 12.

2 Ross v. Reddick, 1 Scam. 73; The
State v. Tootle, 2 Harring. Del. 541;
Goodwin v. Appleton, 22 Maine, 453;
Wood v. People, 3 Thomp. & C. 506, 1
Hun, 381. Contra, in Indiana, Bragg v.
Rush, 34 Ind. 405. :

8 The State v. Powers, 25 Conn. 48;
Vanderwerker v.. People, 5 Wend. 530;
People v. Lafuente, 6 Cal. 202. Says
Parsons, C. J.: “In England, the limits
of the several counties and parishes are
not ascertained by public acts of Parlia-
ment, the records of which are remain-
ing; but they are determined by ancient
usage, of which the judges cannot judi-
cially take notice. The case is different
in Massachusetts. Our county limits,
and also the boundaries of our several
towns, are prescribed by public statutes,
of which we are bound judicially to take
notice. When from these limits or boun-
daries it appears that every part.of any
town is in the same county, of that fact
we can judicially take notice.” Com-
monwealth v. Springfield, 7 Mass. 9, 12.
And see The State v. Palmer, 4 Misso.
463. According to a Tennessee case,
while the record should show the offence
to have been committed in the proper
county, yet, if it states that it was com-
mitted in-a town, which a public law
recites to be in a county, this is sufficient ;
‘but if, since the passage of the law, the
boundaries of the county have been
changed, and the:statute changing them
does not show whether the town is left
within the old county or is in the part
taken off, the court cannot judicially

2380

If the place is not designated by public law, the

know in which county the town is situ-
ated. Hite v. The State, 9 Yerg. 357.
If, it was held in Maine, the indictment
charges that the offence was committed
in a town named, and that the town be-
longed to a county where the bill was
found, this, will suffice without setting.
forth in what county the town was when
the offence was committed. The State
uv. Jackson, 89 Maine, 291. In Common-
wealth v. Springfield, supra, Parsons, C.
J., intimates a doubt, whether, in capital
felonies, the doctrine of our text will pre-
vail. He says: ‘‘In indictments for capi-
tal offences, the strictness of requiring
the indictment to allege the offence as
committed, not only in a certain town,
but also in a certain county, has always
been adhered to; and, in favor of life,
the court perhaps would not feel author-
ized to depart from the ancient rule. In-
deed, in‘all cases it would be prudent [see
ante, § 371] for those who draw. indict-
ments to adhere to the old practice; be-
cause there are towns which do not lie
wholly in one county, and also unincor-
‘porated plantations, the locality of which
we cannot judicially know.” p. 13. In
Tennessee, the courts deem it nct essen-
tial that the indictment should lay the
venue so strictly in misdemeanors as in
felonies. Taylor v. The State,6 Humph.
285; Sanderlin v. The State, 2 Humph.
315; Thompson v. The State, 5 Humph.
138. It is believed, however, that, upon
the points discussed in the text, there is
no difference between the indictment for

‘felony, whether capital or not, and for

misdemeanor; and that, while the advice
of Parsons, C. J., is good, an indictment
CHAP. XXIII.] ALLEGATION AND PROOF OF PLACE. § 879

other consequence follows. And, said Parsons, C. J., “ when,
from the terms of the location of a town or district. by the act
of incorporation’ we cannot conclude that the whole town or dis-
trict 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 it is found. And in places unincorporated a sim-
ilar certainty will be expected.” }

“at” or “In.”— The allegation is equally well, that the de-
‘fendant committed the act “at” the county, or “in” it?

§ 379. County “ Aforesaid” — “There.” — If the county is stated
in the margin, or in the caption or commencement, then, if the
allegation is, that the offence was committed “in the county afore-
said,” this is sufficient, without repeating the name of the county.?
Or, if there are more counts than one, and the place is mentioned
in the first count,.a like reference in the subsequent counts will
suffice.t* But, —

Antecedent uncertain. —If two counties have been mentioned,
whether in the body or margin of the indictment, the like refer-

for a capital felony drawn in disregard of
it, is also good. And see, as to this dis-
tinction, ante, § 55, 321.

1 Commonwealth v. Springfield, supra,

p.12. The Massachusetts court has held
the very nice point, that, if a complaint
to a magistrate lays the offence as com-
-Initted “at West Brookfield,” instead of
“at the town of West Brookfield,” not
mentioning the county, it was insuf-
ficient ; because, said the judge, “it does
not appear in this complaint that West
Brookfield . . . is either a town or a place
within the county of Worcester.” Com-
monwealth v. Barnard, 6 Gray, 488. See
Commonwealth v. Quin, 5 Gray, 478;
Commonwealth v. Cummings, 6 Gray,
487.

2 Angustine v. The State, 20 Texas,
450.

31 Chit. Crim. Law, 194; Rex v. Kil-
derby, 1 Saund. Wms. ed. 308 and note ;
Barnes v. The State, 6 Yerg. 186; The
State v. Wentworth, 37 N. H. 196; The
State v. Ames, 10 Misso. 743 (in the ear-
lier case of McDonald v. The State, 8
Misso. 283, and the still.earlier of The
State v. Cook, 1 Misso. 547, the contrary,

ficiently to designate the county.

where the county was named only in the
margin, was distinctly held); The State
v. Alsop, 4 Ind. 141; The State v. Shull,
3 Head, 42. See The State v. Conley, 89
Maine, 78. So, where an indictment for
forcible trespass had the name of the
county in the margin, and it alleged that
the dwelling-house on which was com-
mitted the trespass was “ there situated
and being,” these words were held suf-
The
State v. Tolever, 5 Ire. 452. The word
“there,” where the county has been men-
tioned in the margin, will be understood
as referring to it. The State v. Bell, 3
Ire. 506. See Kennedy v. Commonwealth,
8 Bibb, 490. It will not sustain a motion

in arrest of judgment for selling liquor

contrary to the New Hampshire statute,
that the indictment does not allege the
county more directly than by describing
the respondent as “of the city of Con-
cord, in said county,” and averring that
the sale was made at said Concord, —~

that being acity within the county. The
‘State v. Shaw, 35 N. H. 217. See The

State v. Hopkins, 7 Blackf. 494.
4 Noe v. People, 39 Ill. 96.

231
§ 881 INDICTMENT AND ITS INCIDENTS. [Book Iv.

ence by “aforesaid” or “there” will leave it uncertain which
is meant, consequently will be insufficient.!

§ 380. Other like Questions. — Originating in: the carelessness
of draughtsmen, other questions of the like sort with the fore-
going not unfrequently present themselves. But they must be
solved by comparing the particular words in controversy with
the law of the State at the time.?

§ 381. Indictment not in County of Offence. — Where the law
allows an indictment in a county other than that in which the
offence was committed,? still “ all the facts,” says Chitty, “should
be laid in the county where they actually happened. Thus, in

12 Hale P. C. 180; Rex v. Kilderby,
1 Saund. Wms. ed. 308 and note; Reg. v.
Rhodes, 2 Ld. Raym. 886, 888; Cain vw.
The State, 18 Texas, 891 ; Elnor’s Case,
Cro. Eliz. 184; Rex v. Moor Critchell, 2
East, 66; Reg. v. Gunn, 11 Mod. 66; The
State v. McCracken, 20 Misso. 411; Bell
v. Commonwealth, 8 Grat. 600; Jane v.
The State, 3 Misso. 61. An indictment
was entitled in the margin, “The State
of Alabama, Butler County,” and the com-
mencement was that the grand jurors, &c.,
of the county of Buter, upon their oath
present, &c. The name of the county
was not again repeated, nor was 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. Reeves v.
The State, 20 Ala. 38. Where an indict-
ment had, in the margin, the words
“Herkimer County, ss.,”’ then, in the
body, it described the defendant as late
of Utica, in the county of Oneida, and
lastly laid the offence at Frankfort, in
said county, the court held the locality
to be adequately stated. “Saying the
offence was committed in Frankfort, a
town which we know is in Herkimer, was
equivalent to an express allegation that
it was committed in Herkimer.” People
v. Breese, 7 Cow. 429, 480. And see
ante, § 878.

2 For example: in 1798, while, as we

282

have seen (ante, § 364), it was necessary
to set out both the county and the minor
locality, and the court did not take ju-
dicial cognizance of the parishes and other
like places composing a county, an indict-
ment alleging that the defendant, late of
Woolhampton in the county of Berks, at
the parish aforesaid in the county afore-
said, did the criminal act, was held to be
insufficient. The court could not judi-
cially know that Woolhampton was a
parish, and it had not been named in the
indictment as such; therefore there was
no sufficient allegation of the place, with-
in the county, where the offence was
committed. Rex v. Mathews, 5 T. R.
162, But we have seen (ante, § 378), that,
in our States, if Woolhampton were a
township or other like corporate locality,
the court would judicially know it ; hence
the indictment would be sufficient, even
if it were required to set out this minor
place; while, also, at the present day,
such minor place need not be stated in
the indictment, either in England or in
this country. Therefore what in 1798
was held to be bad in England, would
now be deemed in both countries to be
good. And see, as to the like questions,
Commonwealth v. Cummings, 6 Gray,
487; Reg. v. Albert, 5 Q. B. 37, Dav. & M.
89; Reg. v. St. John, 9 Car. & P. 40; Reg.
v. O'Connor, 5 Q. B. 16; Reg. v. Mitchell,
2 Q. B. 636; Graham v. The State, 1 Pike,
171; The State v. Jackson, 89 Maine,
291; The State v. Slocum, 8 Blackf. 815;
Sanderlin v. The State, 2 Humph. 315.
3 Ante, § 68.
CHAP. XXIII.] ALLEGATION AND PROOF OF PLACE. § 382

case of murder, if the stroke or poison be given in one county,
and the death occur in another, the facts should be stated accord-
ing to their actual existence. . . . And in an indictment against
an accessory, under the Statute 2 & 3 Edw. 6, c. 24, for procur-
ing the commission of a murder in another county, it should be
averred, according to the fact, that the principal committed the
murder in the county where it was actually perpetrated.”! In
addition to this, the further fact which gives the court jurisdic-
tion — as, for example, that, under a statute like 9 Geo. 4, c. 81,
§ 22, the defendant was first arrested in the county of the in-
dictment ?— should be stated.2 Still in some circumstances it
is held in England to be sufficient that the jurisdictional matter
appears in the caption, the body of the indictment being then

silent concerning it. And —

§ 882. Special Terms of Statute. — There are jurisdictional
statutes in such special terms as to prevent the laying of the
offence in the county of the trial, though in fact it was com-

mitted elsewhere.®

1 1 Chit. Crim. Law, 195. He goes on,
in this place, to say further: “Offences
committed in the county of a city or town
corporate, and indicted in the county next
adjoining under the 38 Geo. 3, c. 52,
should be laid to have been committed
in the county of the town; but it need
not be averred that the county where the
indictment is brought, is the next adjoin-
ing county. So indictments for offences
committed upon the high seas should al-
lege the crimes to have been committed
there, in order to show the admiralty ju-
risdiction. And an offence committed in
a foreign country should be stated to
have been committed ‘in parts beyond
the seas, without the realm,’ though it is
said that it may be laid to have been
committed in the county where the of-
fence is to be tried.”

2 The State v. Griswold, 68 Misso. 181;
Rex v. Fraser, 1 Moody, 407.

3 In California, if an offence is com-
mitted on an inland steamer, and the
trial is at the end of the route, the indict-
ment must state the facts which give
the court this special statutory jurisdic-
tion. “If,” said Murray, C. J., “these
allegations can be dispensed with, then
the defendant might be indicted, tried,
and convicted, in every county through

Thus, in Massachusetts, a statute provides,

which a vessel might pass in making her
voyage, and one conviction or acquittal
would be no bar to another prosecution,
as it would be impossible to determine
that they were for one and the same of-
fence.” People v. Dougherty, 7 Cal. 395,
898. With this, compare Steerman v. The
State, 10 Misso. 508. An indictment un-
der the English statute of 9 Geo. 4, c. 31,
§ 7, for the murder of a British subject
abroad, was required to aver, that the
prisoner and the deceased were subjects
of her Majesty. It ought not to state
the offence to have been committed at
“Boulogne, in the kingdom of France, to
wit, at the parish of St. Mary-le-Bow,
&c.;” and, it being so on a bill presented,
the court directed the London venue to
be struck out before the finding by the
grand jury. Rex v. Helsham, 4 Car. &
P. 394. See Reg. v. Serva, 2 Car. & K.
63; Rex v. Sawyer, 2 Car. & K. 101.

4 Reg. v. Whiley, 2 Moody, 186, 1 Car.
& K.150. And see Reg. v. Smythies, 4
Cox C. C. 94, 100, 1 Den. C. C. 498, 2
Car. & K. 878, where it appears that the
report of Reg. v. Whiley is wrong in
Moody but right in Car. & K.

5 Rex v. James, 7 Car. & P. 553, 556;
Steerman v. The State, 10 Misso. 508.

238
§ 384 ‘INDICTMENT AND ITS INCIDENTS. [Book Iv.

that “an offence committed on the boundary of two counties, or
within one hundred rods of the dividing line between them, may
be alleged in the indictment to have been committed, and may
be prosecuted and punished, in either county.” And where the
indictment was in the county of Worcester, and it charged the
offence as committed at Milford in said county, but the proof
was that it was at Holliston in the county of Middlesex, within
one hundred rods of the boundary line, the proceeding was sus-
tained.! ;

Next Adjoining. —If the trial may be by statute in the county
next adjoining the one in which the offence was committed, the
indictment need not allege that the county is next adjoining
For, since the court takes notice of the geographical divisions

of the State, it knows what county is next adjoining another:
this is a matter of law, and, as we have seen,’ the law is not

required to be set out in an indictment.*

§ 383. Some Remaining Questions : —

Allegation of State. — It is customary to write the name of the
State in the margin, in connection with the name of the county.
But the name of the State need not appear, either in the margin,
or in any other part of the indictment.®

§ 384. Proof of County. — The evidence, equally with the alle-

gation, must show the county of the offence.®

As in other issues,

the proof need not be in the words of the indictment; it is suffi-

1 Commonwealth v. Gillon, 2 Allen,
502. The statute was construed to apply
also to complaints before a magistrate.

2 Rex v. Goff, Russ. & Ry. 179.

3 Ante, § 829.

“ Perhaps Reg. v. Jones, 2 Car. & K.
165, 1 Den. C. C. 101, proceeded in part
on this principle. This case, decided
under a statute, holds it sufficient in an
indictment at the assizes for a felony
committed on the high seas, to allege that
it was committed on the high seas, with-
out adding that it was committed within
the jurisdiction of the admiralty.

5 The State v. Jordan, 12 Texas, 205;
The State v. Lane, 4 Ire. 118; Mitchell v.
The State, 8 Yerg. 514; Kirk v. The State,
6 Misso. 469; Commonwealth v. Quin, 5
Gray, 478; The State v. Wentworth, 37
N. H. 196; Evarts.v. The State, 48 Ind.
422; The State v. Walter, 14 Kan. 376. ©

8 Ante, § 860; Moody v. The State, 7

284

Blackf. 424; Gordon v. The State, 4
Misso. 875 ; The State v. Lamb, 28 Misso.
218; Henry v. The State, 86 Ala. 268;
Green v. The State, 41 Ala. 419; Yates
v. The State, 10 Yerg 549; Mitchum v.
The State, 11 Ga. 615; Brown v. The
State, 27 Ala. 47; Huffman v. The State,
28 Ala. 48; Spaight v. The State, 29
Ala. 82; Searcy v. The State, 4»Texas,
450; Huggins v. The State, 2 Texas Ap.
421; Logan v. The State, 2 Texas Ap.
408. This doctrine extends as well to
misdemeanors as to felonies. Snyder »v.
The State, 5 Ind. 194. A new trial may
be awarded for want of proper proof of
the venue. Holeman v. The State, 13
Ark. 105; Ewell v. The State, 6 Yerg.
864; Hoover v. The State, 1 West Va.
836. A special verdict, to sustain a judg-
ment, must find in what county the of-
fence was committed. Rex v. Hazel, 1
Leach, 4th ed. 368,
CHAP. XXUI.] ALLEGATION AND PROOF OF PLACE. § 385

cient that the jury are authorized in drawing this conclusion from
the evidence, beyond reasonable doubt.!

Precise Locality — (Law and Fact). — Whether or not a partic-
ular place is within the county or the State is an inquiry gen-
erally involving both law and fact, for the judge and for the jury.
The considerations connected with it will vary with the case and
the sometimes differing laws of the States.”

Place of Apprehension. — Where the jurisdiction depends on
the place of the defendant’s arrest, the warrant of arrest ought
to be produced.? According to a case in one of the circuit
courts of the United States, the government is not generally
called upon in the first instance for evidence of. his apprehension
in the district of the trial; and, if the offence is shown to have
been committed in a ship on a voyage to. the place of trial, and
he is there in custody, the jury may infer that he was first brought
there into the United States.4

Nationality. — The nationality of a ship may be shown orally,
— as, that she belongs to subjects of the country and sails under
its flag, — without the production of the register.®

§ 385.. Statutes dispensing with Allegation of Place. — We have
seen,® that, by the present statutory law of England, a statement
of the venue in the margin is all the allegation of place which,
as a general rule, is required in the indictment; and, in some
of our States, there are statutes more or less like this one.’ It
is believed that none of them attempt to dispense with the proof

1 People v. Manning, 48 Cal. 385; The
State v. Burns, 48 Misso. 488; The State
v. Horner, 48 Misso. 520; Croy v. The
State, 32 Ind. 884; Laydon v. The State,
52 Ind. 459; Commonwealth v. Costley,
118 Mass. 1; Gosha v. The State, 56 Ga.
86; The State v. Thompson, 19 Iowa,
299; The State v. New, 22 Minn. 76;
Van Dusen v. People, 78 Ill. 645; People
zv. McKinney, 10 Mich. 54; Rex v. Hob-
son, Russ. & Ry. 56; Rex v. Crocker, 2
Leach, 4th ed. 987, Russ. & Ry. 97; Rex
v. Pim, Russ. & Ry. 425; Rex »v. Parkes,
2 East P. C. 963, 992; Reid v. The State,
20 Ga. 681; Johnson v. The State, 35
Ala. 370; Henderson v. The State, 14
Texas, 503. There are, on this question,
various presumptions, as will be seen in
the foregoing cases. For modifications, in

Missouri, by statute, see The State v.
Grable, 46 Misso. 850.

2 Ante, § 67: The State v. Wagner,
61 Maine, 178; Goodwin v. Appleton, 22
Maine, 453; The State v. Dent, 6 S.C.
883; Cox v. The State, 41 Texas, 1;
Wagner v. People, 4 Abb. Ap. 509; Deck
v. The State, 47 Ind. 245; Wilder v. The
State, 29 Ark. 293.

3 Rex v. Forsyth, 2 Leach, 4th ed. 826.

4 United States v. Mingo, 2 Curt. C.C. 1.

5 Reg. v. Allen, 10 Cox C. C. 405.

6 Ante, § 368.

7 Ante, § 106, 370, note; The State v.
Simon, 50 Misso. 370; The State v. Keel,
64 Misso. 182. And see Guy v. The State,
1 Kan. 448; Foster v. The State, 19 Ohio
State, 416; Nichols v. People, 40 Ill. 395;
Stephen v. Commonwealth, 2 Leigh, 759.

: 285
,

§ 385 INDICTMENT AND ITS INCIDENTS. [Boox Iv.

of place ;! but in some the provision is distinct that it need not
be alleged. Thus, in Alabama, “It is not necessary for the in-
dictment to allege where the offence was committed, but the
proof must show it to have been within the jurisdiction of the
county in which the indictment is preferred.” ?

Whether Constitutional. — In some of the States, this sort of
provision has been adjudged constitutional. It is odd to di-
rect, by statute, that a thing need not be alleged, but it shall
be proved.* If the one can be dispensed with, why not the
other? Next, if the offence appears to have been committed in
another county, why may not this be made to suffice? In some
of the States it can be, if the other is permissible, but in other
States it cannot.6 One may, at least, question the wisdom of
crowding so hard against constitutional rights for the sake of
saving, to prosecuting officers, the trouble of writing a word.

1 Williams v. The State, 3 Heisk.37; 480; Alexander v. The State, 8 Heisk.
Wickham v. The State, 7 Coldw. 525; 475; The State v. Chamberlain, 6 Nev.

Noles v. The State, 24 Ala. 672, 679. 257; Foster v. The State, 19 Ohio State,
2 Noles v. The State, supra. 415.
8 Ante, § 106; Noles v. The State, 4 And see the chapter commencing

supra; Thompson v. The State, 25 Ala. ante, § 77; The State v. Grable, 46 Misso.
41; The State v. Quartermus, 8 Heisk. 350, 4
65. See Mayes v. The State, 8 Heisk. 5 Ante, § 50, 64,

236
CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 387

CHAPTER XXIV.
THE ALLEGATION AND PROOF OF THE TIME OF THE OFFENCE.

§ 386. In General. — The doctrine of this chapter is, that, ex-
cept as statutes have modified the common law, the time of the
offence must always be alleged, but it is mere form! unless some
special reason renders it important, and it need not in the ordi-
nary instance be proved as laid. The ensuing sections will more
exactly define and illustrate this doctrine, and show the manner
of the allegation and the proofs.

§ 387. allege Day.— Every indictment, therefore, must allege
aday and year on which the offence was committed? This is
the common-law rule prevailing in most of our States; though
there are States in which statutes have made the allegation of
time unnecessary, or permitted it to be less specific.*

Repugnant — Uncertain. — Where the common-law doctrine pre-
vails, any repugnancy or uncertainty as to the time renders the
indictment bad.6 Thus, if it states two days whereon a single
criminal act was done, leaving it doubtful which day is meant,
it is ill for uncertainty ; or, if plainly both days are meant, it is
equally so for repugnancy.® The allegation, therefore, that the

1 Kenney v. The State, 5 R. I. 385;
The State v. Wister, 62 Misso. 592.

2 1 Stark. Crim. Pl. 2d ed. 54; Turner
v. People, 83 Mich. 363.

3 Rex v. Holland, 5 T. R. 607; Rex
v. Mason, 2 Show. 126; Anonymous,
Lofft, 228; Roberts v. The State, 19 Ala.
526; The State v. Baker, 34 Maine, 52;
Erwen v. The State, 13 Misso. 306; The
State v. Hanson, 39 Maine, 337; The State
v. Beckwith, 1 Stew. 318; The State v.
Offutt, 4 Blackf. 855; The State v. Roach,
2 Hayw. 352; The State v. Johnson, 82
Texas, 96; The State v. Blaisdell, 49 N.
H. 81; United States v. Bowman, 2 Wash.
C. C. 828; People v. Gregory, 30 Mich.
371

4 The State v. Stumbo, 26 Misso. 306;
The State v. Magrath, 19 Misso. 678;
People v. Littlefield, 5 Cal. 355; People
v. Kelly, 6 Cal. 210; The State v. Sam, 2
Dev. 567; The State v. Shull, 3 Head, 42;
The State v. Hoover, 31 Ark. 676; Jones
v. Commonwealth, 1 Bush, 84; The State
v. Caudle, 63 N. C. 80; The State v. Wil-
coxen, 38 Misso. 370; post, § 390.

5 The State v. Hardwick, 2 Misso. 226;
Jane v. The State, 3 Misso. 61; Common-
wealth v. Adams, 4 Gray, 27.

6 For example, a complaint that the
defendant “on the 28d and 29th days of
July, 1852, did sell a quantity of spirit-
uous liquor, to wit, one gill of brandy,”
charges only one sale, and is insufficient

237
§ 388 INDICTMENT AND. ITS INCIDENTS. ‘[Book Iv.
criminal act was “on the thirtieth day of November, in the year
of our Lord one thousand eight hundred and one, and in the
XXV. [instead of XXVI.] year of the Independence of the
State,” is fatally defective! But, —

§ 888. Surplusage.— If there is ground for rejecting the allega-
tion of one of the two days as surplusage, the indictment may
rest on the other when sufficiently certain.? Thus, in a case of
apparent repugnance like the last, where the day and year were
alleged, and then the reign of the king, and the latter did not
agree with the former, it was rejected as surplusage; because,
the indictment being found in the first year of George IV., and
the alleged year of his reign being “the fourth,” “the words
‘against the peace of our lord the now king’ showed the mistake
was in the year, and not in the reign.” ®: Again, —

Defective Continuando. —If the offence is meant to be alleged
as continuing, and a day certain is adequately set down, but the
remainder of the allegation of time is inadequate, the indictment
may rest on the former, the latter being rejected as surplusage.!
Thus, the averment that the defendants, to use the words of the
report, on “such a day, et diversis aliis diebus et vicibus tam antea
quam postea, keep a common gaming house,” was held to be good
as to the one day particularized. True, for a continuing offence
like this, “more days might have been laid;® but the time is so
uncertain as to all but one day that only forty shillings are re-
coverable.”® And an allegation that the defendant sold liquors
without license on a day named, and at divers times between this
day and the finding of the bill, is sufficient; because the inade-

because it does not show on which of two
days the one act was done. Common-
wealth v. Adams, 1 Gray, 481. And see
The State v. Temple, 88 Vt. 37.

of June, and on each and every of said
days.” It was held sufficient; and proof
might be introduced of any sales within
that period. New York v. Mason, 4 E.

! The State v. Hendricks, Conference,
869. Penal actions are not governed by
the same rules as indictments. In New
York, to such an action for selling liquor
without license, the defendant objected,
said the judge, that “the complaint did
not specify the days upon which the al-
leged sales were made with sufficient pre-
cision to warrant the proof.” It alleged,
that the defendant sold the liquor “on
the 6th, 7th, 8th, and 9th days of June,
and for thirty days previous to said 6th

238

D. Smith, 142, 149.

2 Wells v. Commonwealth, 12 Gray,
826, 328.

8 Rex v. Gill, Russ. & Ry. 481.

4 People v. Adams, 17 Wend. 475;
Cook v. The State, 11 Ga. 58; Common-
wealth v. Pray, 18 Pick. 359; The State
v. Woodman, 3 Hawks, 884. See Nichols’s
Case, 7 Grat. 589. And see Burner »v.
Commonwealth, 13 Grat. 778.

5 See post, § 397.

® Rex v, Dixon, 10 Mod. 885, 387, 888,
CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 889

quate mention of other days may be rejected as surplusage.1
But where a count for incest was, that the defendant committed
it on the twentieth day of September, in a year specified, and on
divers other days and times between that day and the ninth day.
of December in a subsequent year specified, it was held to be
insufficient ;? because there were, at least, two distinct days ade-
quately set out, and, whatever might be said of: the rest, the
averment of neither of these could be rejected.?

§ 889. How set out the Day.— The orderly and full method
is, for example, ‘‘on the tenth day of June, in the year of our
Lord one thousand eight hundred and seventy.” We have seen
that some abridgments of this expression have passed with the
courts, others not; as, by some opinions, the words “the year,
of our Lord” may be omitted and they will be implied, by others
they must be retained, or at least the word “ year,” or.the letters
A. D., to indicate what is meant.4| In North Carolina, where the
expression was, “‘on the third day of August, eighteen hundred
and forty-three,” not even the word “year” or its equivalent
being used, it was held, that, although this defect would have
been fatal at the common law, it was cured by the act of Assem-
bly of 1811.5 Where the allegation was, that the offence was
committed on a specified “day of September now past,” it was
held to be insufficient ; because, neither by its terms, nor by any

1 The State v. Munger, 15 Vt. 290.
Questions of this sort sometimes present
nice distinctions; but the courts incline
to sustain the indictment whenever it can
be reasonably done. In one case the in-
dictment alleged, that the defendant, on
a day and at a place named, “and there
on divers other days and times, between
the first day of January last and the first
Monday of May, did presume to be and
was a retailer and seller of wine, rum,
brandy, and other spirituous liquor,” &c. ;
and went on to aver, that the defendant
“did then and there” make a particular
sale, which it specified. And the court
held, that the general allegation of time,
with what follows about being a seller,
&c., might be rejected as surplusage;
leaving a good separate charge of making
a particular sale on the day specifically
mentioned. Commonwealth v. Bryden, 9
Met. 187. See also, on rejecting the

words “divers days,” &c., as surplusage,
United States v. La Coste, 2 Mason, 129,
140; Stratton v. Commonwealth, 10 Met.
217; Commonwealth v. Gardner, 7 Gray,
494; Gallagher v. The State, 26 Wis. 423;
Commonwealth v. Foley, 99 Mass. 499;
Commonwealth v. Blake, 12 Allen, 188 ;
The State v. Temple, 88 Vt. 37; post,
§ 896, 397.

2 The State v. Temple, 38 Vt. 37.

3 Post, § 482.

4 Ante, § 846; Whitesides v. People,
Breese, 4; The State v. Tuller, 34 Conn,
280. é

5 The State v. Lane, 4 Ire. 118. And
see The State-v. Bartlett, 47 Maine, 388.
In England, the allegation of time being,
“Tn the tenth year of our Sovereign Lady
Queen Victoria,” the Court of Exchequer
Chamber held, that, by Stat. 7 Geo. 4,
c. 64, § 20, this was no ground of error.
Broome v. Reg. 12 Q. B. 884.

239
§ 391 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

reference to other things, did it specify the year, since every
September which has been, is now past.!

§ 890. “on or About.” — An allegation that the offence was
committed “on or about” a day named is, by the common law,
insufficient.2. Yet in some of the States this form becomes adequate
by force of statutes. And in Connecticut, contrary to the gen-
eral doctrine, it appears to pass with the courts without statutory
command. Yet, —

Time still Important. — Where the loose forms, like the above,
are permitted, still some sort of reasonable allegation of time is
generally necessary.®

§ 391. Collecting Time from Whole Allegation. — ‘“‘ But,” says
Starkie,® “ the indictment will be good if the day and year can be
collected from the whole statement, though they be not expressly
averred ;7 as where the time of the caption of’ the indictment is
stated,§ and the offence is laid to have been committed primo die
post Pasch., ult.2 So an indictment laying the offence on the
Thursday after the day of Pentecost, in such a year, is good. So
if it lay it to have been committed on the 10th of March last, if the
year can be ascertained by the style of the sessions before which
the indictment was taken.” A complaint to a magistrate
charged the offence as committed “on the third day of June,
instant.” It had no other date; but the jurat, indorsed on it, was
“ Bristol, ss. Received and sworn to on the fourth day of June,
A. D. 1855, before said court.” Here, as the year of making the
complaint did not appear, but only the year when it was received

1 Commonwealth v. Griffin, 3 Cush.
523. Where the day was mentioned as
the “first March,” instead of the “first
day of March,” the court observed, that
this “might be suffered to pass.” Sim-
mons v. Commonwealth, 1 Rawle, 142.

2 United States v. Crittenden, Hemp.
61; The State v. O’Keefe, 41 Vt. 691;
United States v. Winslow, 3 Saw. 337;
Clark v. The State, 34 Ind. 436.

3 Ante, § 387; Cokely v. The State,
4 Iowa, 477; People v. Aro, 6 Cal. 207;
Hampton v. The State, 8 Ind. 386; Harde-
beck v. The State, 10 Ind. 459; The
State v. Hill, 35 Texas, 848; The State v.
Elliot, 84 Texas, 148; The State v. Mc-
Mickle, 84 Texas, 676; Farrell v. The
State, 45 Ind. 371.

240

4, Rawson v. The State, 19 Conn. 292;
The State v. Tuller, 34 Conn. 280.

5 Bolton v. The State, 5 Coldw. 650;
King v. The State, 8 Heisk. 148; The
State v. Tandy, 41 Texas, 291. And see
Jeffries v. The State, 39 Ala. 655.

6 1 Stark. Crim. Pl. 2d ed. 55.

7 Gill v. People, 5 Thomp. & C. 808,
310.

8 Ante, § 379; Jacobs v. Common-
wealth, 6S. & R. 315.

’ ® Com. Dig. Indictment, G.2; 2 Hawk.
P. C. ec. 25, § 78.

10 7 IL. 6, 39.

11 Lamb. b. 4, « 5, f£. 491; 2 Hawk.
P. C. c. 26, § 78.
CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 398

and sworn to, there was nothing to which the words “ the third
day of June, instant,” could refer, and the allegation of time was
adjudged insufficient.1

§.392. Acts on Different Days. — Some offences are, or may be,
constituted of acts transpiring on different days. And, for such
an offence, the indictment may, or must, allege more days than
one. Thus, —

In Homicide. — There must be an allegation, in homicide, both
of the stroke and the death,? and they are generally laid on dif-
ferent days, for such is the more frequent fact. But, while each
must be distinctly alleged, both may be charged as having taken
place on one day.’ Moreover, the blows which produced a death
may in fact have been inflicted on different days, hence they may
be so laid in the indictment.

In Rescue. — “ Nor is it;” says Chitty,® “in homicide alone that
distinct periods must be laid for the commission of particular acts ;
for it has been holden that a sheriff’s return of a rescue, as well
as indictment for that offence, is bad without showing the day
and year both of the arrest and the rescue, and that the time of
the latter is not sufficiently shown by showing that of the former.
And where an indictment for a rescue sets forth, that a third
person at a certain time and place committed a felony for which
the officer took and arrested him, and in his safe custody then and
there had and kept him, it is doubtful whether it be not insuffi-
cient; because no time of the arrest is charged in the same sen-
tence, and it is not clear whether the time of the custody can,
by force of the conjunction, be applied to the arrest, but the con-
trary seems to be the better opinion.” ?

§ 393. Continuing Offences and Continuando — (Nuisance). —
Some offences are continuing from day to day; and, if they had
a beginning, they had not, when the indictment was found, an
end. Such, for instance, is a nuisance on a public way. The

1 Commonwealth v. Hutton, 5 Gray, 5 1 Chit. Crim. Law, 222.
89.- See Commonwealth v. Blake, 12 6 2 Hawk. P. C. c. 25, § 77; Foxe’s
Allen, 188. And see the discussion, ante, Case, 2 Dy. 1646. Contra, Rex ». Cram-
§ 3879. lington, 2 Bulst. 208.

21 Chit. Crim. Law, 222. 7 Foxe’s Case, 2 Dy. 164 b; and see

3 Vol. II. § 530-588; The State v. Rex v. Burridge, 3 P. Wms. 489, 484,
Haney, 67 N. C. 467; The State v. Sides, 497; Rex v. Forsyth, Russ. & Ry. 274,
64 Misso. 883; post, § 397. 276.

4 Commonwealth v. Stafford, 12 Cush.
619.

VoL. I. 16 241
§ 395 INDICTMENT AND ITS INCIDENTS. [Book Iv.

guilty person may be indicted for the single act of erecting it;
the indictment alleging, that he, on a day named, committed the
offence. But if, it still remaining, the prosecutor seeks judg-
ment for its abatement, he adds to the allegation of the day of
its erection what in legal phrase is termed a continuando. And,
without the continuando, there can be no judgment for the
abatement.1

§ 394. Continuando defined. — A continuando is an allegation,
in any appropriate form of words, that an offence whereof a day
of beginning is stated is continuing to another day stated.

Form. — A common form of it may be seen in one of Chitty’s
indictments for nuisance, which, after mentioning a specific day,
avers that the defendants, ‘‘from the said day until the day of
the taking of this inquisition, &e., unlawfully and injuriously
did keep, maintain, and continue, and still do keep, maintain, and
continue” the same.2 Or, with us, it will be oftener “from the
said day to the day of the finding of this indictment.” Or, it
may be, on such a day ‘and for six months next preceding said
day”’;* or, on such a day ‘“‘and continually from thence until”
another day named; or, “on, &c., and continually afterwards
until the day of the taking of this inquisition.”® And any other
form sufficiently conveying the idea will be permissible. But —

§ 895. “On Divers Days,” &c. — The allegation, on such a day
“and on divers other days and times between that day and”
some other, which was held good in civil pleadings, and in
them practically superseded the foregoing forms, is not a contin-
uando, though it is sometimes spoken of as such.8 In principle,
it is certain as to two days and uncertain as to the rest, therefore
void for repugnance where the offence is of a nature not contin-

1 Vol. IL § 866; Crim. Law, I. § 1079 Commonwealth v. Frates, 16 Gray, 236;

and note; Rex v. Stead, 8 T. R. 142, in
which case Lord Kenyon, C. J., observes,
that “it was so stated in Rex v. Pappi-
neau, 1 Stra. 686, et adhuc existit; and in
such cases the judgment should be, that
the nuisance be abated.” p. 144.

23 Chit. Crim. Law, 612. For the
like form, see Rex v. Russell, 6 B. & C.
566.

3 Commonwealth v. Wood, 4 Gray, 11;
Commonwealth v. Kendall, 12 Cush. 414;
Commonwealth v. Kingman, 14 Gray, 85;
Commonwealth v. Woods, 9 Gray, 131;

242

Commonwealth v. Hagarman, 10 Allen,
401; Commonwealth v. Shea, 14 Gray,
386.

4 Commonwealth v. Mitchell, 115
Mass. 141. :

5 Reg. v. Chandler, Dears. 458, 454;
Ashbank v. Commonwealth, 1 Bush, 189.
6 Rex v. Brooks, Trem. P. C. 195.

71 Saund. Wms. ed. 24, note; Gould
Pl. c. 8, § 86-96.

8 Wells v. Commonwealth, 12 Gray,
326.
‘

CHAP. XXIV.] | ALLEGATION AND PROOF OF TIME. § 396

uing,! and equally void for uncertainty where the continuance of
it during the intermediate period is required. Still, there are
so many cases in which this form has been suffered to pass,? and
it is so often confounded in the minds of the judges with the
continuando, that one can hardly say how the question stands in
well-considered authority.2 The form is not to be commended.
On a day named, “and on each day from that time until the
finding of this indictment,” is different; it is in no part uncertain,
and it has been sustained. There are precedents in which the
forms of both this section and the last are blended.®

§ 896. Between Two Days. — The allegation that the offence
was committed at some indefinite time between two days which
are specified, is, in principle, inadequate ;° for, if the two days
are as wide apart as the Statute of Limitations will permit, this is
equivalent to no allegation of time whatever. Yet the late Judge
Story sustained an indictment charging that the defendant, after
a day named, and at some time between such day and another
day named, caused a vessel to sail to be engaged in the slave
trade.’ And there is English authority for holding this form
to be adequate in convictions before magistrates. But, says
Starkie, ‘an information charging the defendant with having
been guilty of divers extortions, during a specified time, was
deemed to be insufficient on motion in arrest of judgment ;?
and the court said, it might as well be said an indictment for

1 Ante, § 387, 388.

2 2 Hawk. P.C.¢. 25, § 82; The State
v. Cofren, 48 Maine, 364; Commonwealth
v. Dunn, 111 Mass. 426 ; Commonwealth
v. Tower, 8 Met. 527; Stratton v. Common-
wealth, 10 Met. 217; People v. Gilkinson,
4 Parker C. C. 26.

3 See ante, § 388 and cases there cited.

4 The State v. Allen, 382 Iowa, 248;
The State v. Freeman, 27 Iowa, 333.

6 Thus, 3 Burn’s Jus@ce, 28th ed. 1104,
in a general form for nuisance has it, that
the defendant, on a day named ‘and
on divers other days and- times, as well
before as afterwards,” committed the nui-
sance, “and the same nuisance so as afore-
said done, doth yet continue and suffer to
remain.”

§ So it was held in appeals, which
were governed by the same rules as in-
dictments. 2 Inst. 818; 2 Hawk. P.C.

c. 28, § 88. See, however, observations
by Story, J., in United States v. Smith,
post.

7 United States v. Smith, 2 Mason, 143.
See Jeffries v. The State, 39 Ala. 655.

8 1 Stark. Crim. Pl. 2d ed. 55, 56, re-
ferring to Rex v. Chandler, 1 Ld. Raym.
581, and Reg. v. Simpson, 10 Mod. 248,
249, 341.

9 Referring to Rex v. Roberts, 4 Mod.
101, 8 Salk. 198, Comb. 198, Carth. 226,
1 Show. 389, Holt. 863. Starkie mentions
the report only as it is found in Modern.
I have added references also to the other
books in which it is contained. The pre-
cise words of the information are nowhere
given, but Carthew says, it was laid in it
“that Roberts, being the common ferry-
man, between 7 Septembris, anno 2, and
the day of exhibiting this information,

injuste,” &e.
248
§ 397 INDICTMENT AND ITS INCIDENTS. [Book Iv.

battery would be good, setting forth that the defendant beat so
many of the king’s subjects between such a day and such a day,
as that the principal indictment was good.” And Hawkins:
“Tf an indictment charge a man generally with several offences
at several times, without laying any one of them on a certain
day; as, with extorting divers sums of divers subjects for a pas-
sage over such a ferry, &c., between such a day and such a day;
it hath been adjudged that it is wholly void.” ?

§ 397. On One Day where More in Fact. —If an offence is of a
sort to be committed by acts done on more days than one, and
it is committed so,—and if, as we have seen,® the pleader has
therefore the option thus to allege it, — still, should he choose,
he may charge all as done on one day, where it is of a nature
admitting of being so performed ;* because, as we shall see,® the
proof of a thing done on one day will sustain the allegation that
it was done on another. Thus, —

Continuous Larceny. —If one steals gas, by inserting a pipe
on the street side of the metre,® and a continued asportation is
in this way carried on for years, he may be convicted of the whole
on an indictment charging him with larceny on a single day.’

Or, —

1 1 Stark. Crim. Pl. ut sup.

2 2 Hawk. P. C. c. 25, § 82. A North
Carolina judge of great learning stated
the matter in a way with which the fore-
going sections are in accord, as follows :
“As to the objection that the acts are
laid on the third day of March, and on
other days and times both before and
after, the distinction is between laying
them at several times without any certain
day as to any one of the acts, and laying
them, as here, on a day certain and others
uncertain. In the former, the indictment
is bad altogether; but in the latter, it is
void only as to the uncertain days, and
sufficient as to the parts to which the cer-
tain time is annexed.” Ruffin, C. J., in
The State v. Jasper, 4 Dev. 823, 327.

3 Ante, § 392.

4 Says Starkie: “Where an offence
is committed by the doing of several acts
at separate times, they may be stated to
have been done at the same time. Thus,
in a prosecution under the Stat. 7 Geo. 8,
ec. 60, § 1, against secreting letters con-
taining any bank notes, &c., it appeared

244

that a bank note had been cut into two
parts, that the parts had been sent in
separate letters at different times, and se-
creted at different times by the prisoner.
The indictment alleged, that the defend-
ant did secrete the said letters then and
there containing the said bank note. The
prisoner was convicted, and the judges,
upon a case reserved, were of opinion
that the conviction was proper. Rex v.
Moore, 2 Leach, 4th ed. 575, And in an
indictment for high treason, where the
overt act consists in levying war, it may
be charged to have been committed in
one day. Town]y’s Case, Foster, 7, 8.”
1 Stark. Crim. Pl. 2d ed. 57. See also
The State v. Moore, 11 Ire. 70; The State
v. Ransell, 41 Conn. 483 ; Townley’s Case,
18 Howell St. Tr. 329, 348, 349; 1 Chit.
Crim. Law, 225.
5 Post, § 400-402.
§ Crim. Law, IL. § 798.

_ 1 Reg. v. Firth, Law Rep. 1 C. C, 172,
11 Cox C. C. 234. And see Reg. v. Hen-
wood, 11 Cox C. C. 626, 628. ‘The rule
is otherwise where there are larcenies on
CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 398

False Pretences. — If one makes a connected false pretence on
different days, the indictment may charge it, should the pleader
choose, as being wholly made on a single day.!. Or, —

Embezzlement. — If one commits an embezzlement by a series
of connected transactions from day to day, a charge of embezzle-
ment on a single day will cover and admit evidence of the whole.?
Hence, —

Continuous Offences generally. — It appears that, in general, all
continuous offences which in their nature can be committed on
a single day, may, if the pleader chooses, be laid as on one day,
like offences not continuous, and sustained by proof of acts com-
mitted either on one day or on many. And, in these cases, nothing
can be gained by a continuando, other than to enable the court
to pass some special judgment, or impose a more aggravated pun-
ishment ;° as, in a case of nuisance, to abate itt Such appears
pretty plainly to be the doctrine, not only of reason, but of the
English and American books generally ;5 though distinctions are
made in Massachusetts not in every particular harmonious with
this view.

§ 398. Omission of Duty. — “‘ Where an indictment,” says
Hawkins, “charges a man with a bare omission, as the not
scouring such a ditch, &c., it is said that it need not show
any time.”’ The same doctrine is stated in other books;
“yet,” says Archbold, “if it be an indictable offence to omit
doing an act at a particular time or at a particular place, an
indictment for it should undoubtedly have shown that it was
not done at that time or at that place.”® The distinction be-
tween non-feasance and misfeasance is not now much regarded ;
and it is doubtful whether this old doctrine, uncertain in itself,

two or more days, constituting separate
offences. Fisher v. The State, 33 Texas,
792.

1 Reg. v. Welman, Dears. 188, 198.

° Brown v. The State, 18 Ohio State,
496,513. Ido not see it distinctly stated
in the report that only one day was al-
leged, but this seems plainly inferable.

3 The State v. Lemay, 13 Ark. 405.

* Ante, § 393.

5 Stat. Crimes, § 979.

6 See, as to Massachusetts, post, § 402;
Wells v. Commonwealth, 12 Gray, 326;

Commonwealth v. Gardner, 7 Gray, 494;
Commonwealth v. Keefe, 9 Gray, 290;
Commonwealth v. Snow, 14 Gray, 20;
Commonwealth v. Hart, 10 Gray, 465;
Commonwealth v. Langley, 14 Gray, 21.

7 2 Hawk. P. C. ¢. 25, § 79.

8 See 1 Chit. Crim. Law, 217; Com.
Dig. Indictment, G. 2; Buller, J., in Rex
v. Holland, 56 T. R. 607, 616; 1 Stark.
Crim. Pl. 2d ed. 57. ;

® Archb. Pl. & Ev. 18th Lond. ed. 89.

10 Crim. Law, I. § 401, 608, 520.

245
§ 399 INDICTMENT AND ITS INCIDENTS. [BOOK Ly.

and lacking judicial confirmation, could be safely relied upon in
a modern case.!

§ 899. Time material : —

In General. — The doctrine is general, that, where time is mate-
rial, it must, to the extent of such materiality, be alleged correctly
and proved as laid.2~ Thus, —

Hour. — It is generally of no legal consequence at what hour
of the day or night a criminal act was done, and the indict-
ment need mention only the day.2 “But,” says Lord Hale,
“where the time of the day is material to ascertain the nature
of the offence, it must be expressed in the indictment.” 4
Again, —

Day of the Week. — Generally it is unimportant on what, day
of the week a wrongful act.is done, and it need not be alleged.
But, if an offence consists, for instance, in doing a thing on Sun-
day, the indictment, in addition to the day of the month and
year,> must aver it was Sunday, and not merely. mention a
day found to be Sunday by the calendar. If the day of the
week is thus properly set out, the indictment will be good
though the day of the month given in it falls on some other
day of the week. And proof of a Sunday other than the par-
ticular one meant, as shown by the calendar, will Batiaty the
requirements of the law.’

Hour of Sunday. — While, in most cases for violating the Lord’s
day, the allegation of time. thus stated will suffice,’ there are
circumstances in which, under some statutes, it must descend
to some sort of mention of the part of the day or even of the
hour; the principle being, that, if the particular part of the

1 And see, as to charging neglect,
Commonwealth v. Sheffield, 11 Cush.
178.

2 Post, § 401; Dacy v. The State, 17
Ga. 439. And see The State v. Caverly,
51 N. H. 446; People v. Williams, 1 Idaho
Ter. 89.

8 Rex v. Clarke, 1 Bulst. 208.

4 2Hale P.C.179. For a fuller state-
ment of the doctrine, see Vol. II. § 181-
184.

5 Lehritter v. The State, 42 Ind. 388;
Effinger v. The State, 47 Ind. 235; The
State v. Land, 42 Ind. 311.

246

6 Megowan v. Commonwealth, 2 Met.
Ky. 3; The State v. Drake, 64 N. C. 589;
People v. Ball, 42 Barb. 324; and cases in
the next note. Contra, Werner v. The
State, 561 Ga. 426.

7 The State v. Eskridge, 1 Swan, Tenn.
413; Frasier v. The State, 5 Misso. 636;
Megowan v. Commonwealth, 2 Met. Ky.
8; Commonwealth v. Harrison, 11 Gray,
308.

8 Commonwealth v. Crowther, 117
Mass. 116; The State v. Roehm, 61
Misso. 82; The State v. Kock, 61 Miaso.
117,
‘CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 401

‘day or if the hour is an element in the crime, it must be alleged,
otherwise it neéd not be.}

§ 400. The Proof: —

How far correspond with Allegation. — It results from the fore-
going doctrines, that, in general, the proof of the offence need
not correspond in day of the month and year with the allegation.
Any day, before or after, within the Statute of Limitations, and
before the bringing of the prosecution, will suffice? Thus, where
there were several counts, charging different misdemeanors on
the same day, the prosecutor was permitted to give evidence of
thein as committed on different days. Even in a case of high
treason, the jury, under instructions from the court, found the
offence to have been committed ten years anterior to the time
laid in the indictment.

How Much Proof. — The evidence need not specify the partic-
ular day of the offence ;* but it must satisfy the jury, beyond a
reasonable doubt, that it was committed at some time within
the period of limitations, and before the indictment. was found.
still, —

§ 401. Limits of Doctrine. — As already shown,’ in those ex-
ceptional instances in which the law has made a particularized
day or hour‘an element in the offence, it must not only be al-
leged, but nearly enough proved as laid to satisfy the special pro-

1 Commonwealth v. Crawford, 9 Gray,
128; Commonwealth v. Newton, 8 Pick.
234; Commonwealth v. Wright, 12 Allen,
187; Kroer v. People, 78 Ill. 294.

2 Commonwealth v. Alfred, 4 Dana,
496; Johnson v. United States, 3 McLean,
89; Oliver v. The State, 5 How. Missis. 14;
The State v. Newsom, 2 Jones, N. C. 173;
Medlock v. The State, 18 Ark. 868; Lof-
tus v. Commonwealth, 3 Grat. 631; The
State v. Rundlett, 833 N. H. 70; The State
v. Gray, 89 Maine, 358; The State v.
Rollet, 6 Iowa, 585; Miazza v. The State,
86 Missis. 613; Charnock’s Case, Holt,
801, 802; The State v. Baker, 34 Maine,
52; Cook v. The State, 11 Ga. 58; Mc-
Bryde'v. The State, 34 Ga. 202; McCarty
v. The State, 87 Missis. 411; Common-
wealth v. Kelly, 10 Cush. 69 ; Common-
wealth v. Dillane, 1 Gray, 488; The State
v. Curley, 33 Iowa, 859; Commonwealth

v. Maloney, 16 Gray, 20; Chapman v.
The State, 18 Ga. 786; O’Connell v. The
State, 18 Texas, 343; People v. Hoag, 2
Parker C. C. 9; The State v. Porter, 10
Rich. 145; Dacy v. The State, 17 Ga.
4389; The State v. Munson, 40 Conn. 475;
Emporia v. Volmer, 12 Kan. 622; Win-
gard'v. The State, 13 Ga. 396; Miller v.
The State, 33 Missis. 356.

3 Rex v. Levy, 2 Stark. 458.

4 Vane’s Case, J. Kel. 16.

5 Chapman »v. The State, 18 Ga. 786 ;
Commonwealth v. Dacey, 107 Mass. 206;
Commonwealth v. Irwin, 107 Mass. 401;
Commonwealth v. Carroll, 15 Gray, 409.

6 Armistead v. The State, 43 Ala. 340;
Chapman »v. The State, supra; The State
v. Carpenter, 74 N.C. 280. See Common-
wealth v. Dillane, 1 Gray, 483.

7 Ante, § 399.

247
§ 402 INDICTMENT AND ITS INCIDENTS. [Book Iv.

vision of law on which the indictment was framed.! Thus, in
England, — .

Exhibiting Lights. — The statute of 6 Geo. 4, c. 108, § 52, having
made it a misdemeanor to exhibit lights to persons at sea, at cer-
tain hours of the day between September and April, an allegation
that the defendant, at the forbidden hour, on a day named in
March, exhibited the lights, was held sufficient ;? yet plainly
the proof must show, and it need show only, the forbidden act
at some forbidden hour of any day between September and April.
But, —

Variance.— Where time is alleged in a form descriptive of
the offence, — a method to be avoided when possible,’ — it must
be proved as laid, else there will be a variance. Thus, on an
indictment for perjury ‘in swearing,” says the report, “at a trial
before the Circuit Court of the United States, holden at Ports-
mouth on the 19th day of May, a. p. 1811,” the record showed
that “the Circuit Court was first holden in that year on the 20th
day of May, the 19th of May being Sunday,” and this. depart-
ure of proof from allegation was held to be fatal.4

§ 402. Continuing Offence — (Peculiar Massachusetts Doctrine).
— Another exception to the general rule is established by nu-
merous decisions in Massachusetts. It is, that, wherever a series.
of acts amounting to a practice or occupation constitutes the
offence, whether alleged as continuing or as committed on a
single day, time is of the essence of the charge, which will not
be sustained by proof varying from it in any degree in date.
On an allegation, therefore, that the defendant, in violation of a
statute, was “a common seller of wine, brandy, rum,” &c., on
a day of the month and year mentioned, no evidence can be
given of any act of selling on any other than the particular day
It is needless to say that, at least, the latter proposition is con-
trary to what is held and practised elsewhere.? But, —

1 1 Chit. Crim. Law, 224; ante, § 369;
Commonwealth v. Alfred, 4 Dana, 496;
Hubbard v. The State, 7 Ind. 160.

2 Rex v. Brown, Moody & M. 168.
And see Rex v. Napper, 1 Moody, 44.

.3 Post, § 485, 486.

4 United States v. McNeal, 1 Gallis. 387.

5 Commonwealth v. Gardner, 7 Gray,
494; Commonwealth v. Adams, 4 Gray,

248

27, 28; Commonwealth v. Pray, 13 Pick.
859, 364; Commonwealth v. Briggs, 11
Met. 573; Commonwealth v. Elwell, 1
Gray, 463.

6 Commonwealth v. Elwell, supra;
Commonwealth v. Gardner, supra; Com-
monwealth v. Traverse, 11 Allen, 260.

7 Ante, § 897; United States v. Riley,
5 Blatch. 204.
CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 402

Continued — (in and out of Massachusetts). — While, by the gen-
eral doctrine, resting equally in reason and the decisions, as already
shown,! if a continuing offence is laid as committed on one day,
in a case where such form of the allegation is adequate, the
proof of it may be by acts done on any number of other days,
the authorities are strangely silent as to how it is when the time
is stated as on two days and the period between. According to
the Massachusetts rulings, there may be proof of it on any or all
of the days covered by the allegation,? and so also there plainly
may be in the other States. But, as we have seen, proof of it
before or after is not admissible in Massachusetts.? In civil causes,
if the declaration thus lays a series of trespasses, the plaintiff is

1 Ante, § 897.

2 Commonwealth v. Mitchell, 115
Mass. 141; Commonwealth v. Connors,
116 Mass. 85; Commonwealth v. Shea,
14 Gray, 386; Commonwealth v. Wood,
4 Gray, 11; Commonwealth v. Armstrong,
7 Gray, 49.

3 I have searched to ascertain the
source of the peculiar Massachusetts doc-
trine, but not with marked success. The
first hint of it, which I can find, is in
Commonwealth v. Pray, 13 Pick. 359, 364.
This was an indictment for being a com-
mon seller of intoxicating liquors without
a license, on a day named and on divers
days between that day and another day
named. And Morton, J., not referring to
any authorities, uttered the dictum that,
“in this case, the time enters into the
essence of the offence, and with entire
certainty fixes the identity. The defend-
ant can never again be punished for be-
ing a common seller, &c., within the time
described in the indictment.” Next, in
Commonwealth v. Briggs, 11 Met. 578,
574, which was a case of the same sort,
Shaw, C. J., said: “‘We take the rule to
be well settled in criminal cases, that,
when a continuing offence is alleged to
have been on a certain day, and on divers
days and times between that and another
day specified, the proof must be confined
to acts done within the time.” But
neither did this learned judge refer to
any authorities. These cases are cited
in subsequent ones, and the latter in cases

still later; but I can find no references
to English decisions, or decisions in other
of our States, on the topic, or any pre-
tence that the doctrine is or is not held
elsewhere. The idea of the judges seems
to be, that, if one day is specified, the de-
fendant may still be indicted for the un-
lawful practice on any other day before
or after this one ; or, if several days are,
then for the unlawful practice on any
days before or after them. See Com-
monwealth v. Cain, 14 Gray, 7 (a liquor
case, this idea being aided by the special
terms of the statute); Commonwealth v.
Armstrong, 7 Gray, 49; Commonwealth
v. Connors, 116 Mass. 85; Commonwealth
v. Keefe, 7 Gray, 832. The cases on this
question are nearly all for commonly sell-
ing liquors without license, and some
special terms of the statutes may have
contributed more or less to the result.
But in our States generally a continuing
offence cannot be cut into pieces, each of
the length of a day, or of several days,
and a separate indictment for each main-
tained. Yet what if it could? It is uni-
versal doctrine that, if a man on each day
of his life commits a separate crime con-
sisting of a single act, the indictment for
any one day’s offence may lay it on any
other day, while the proof may corre-
spond to the real fact. I have looked
in vain through the Massachusetts cases
for a reason why there should be a differ-
ence when the offence consists in com-
bining' several acts.

249
§ 403 INDICTMENT AND ITS INCIDENTS.

not thus restricted in his proofs! And, in reason, if an offence
consists of several or of continuous acts, which are done on sepa-
rate days, and it is laid in a form in general accord with the
fact, proof of other days may with the same propriety be admitted
as where it is constituted by a single act on one day, and it is so
charged. That such has always been the understanding of the
profession explains, it is submitted, the barrenness of the books
on the question. So obvious and complete was the similitude
between the allegation of one day and of more days than one,
as to admitting proof of other days, that no lawyer out of Mas-
sachusetts ever deemed there could be a distinction, or such a
possibility of it as to justify urging it upon the court.

§ 403. How the Allegation of Time is regarded on a Question
of the Sufficiency of the Indictment : —

Assumed to be True Time. — From the proposition that every
indictment must, on its face, disclose a prima facie case against
the defendant,” it results, among other consequences, that, in
considering whether or not an indictment is sufficient, the court

[Book Iv.

will assume the time to be as stated therein.®

Consequently, —

Day Subsequent. — If it lays the offence on a day subsequent
to the finding by the grand jury ;* or, —
Same Day. — Ordinarily, if it lays it on the same day ;® or, —

1 The English text-books tell us, that,
in the words of Chitty, “where several
trespasses are stated to have been com-
mitted on divers days and times between
a particular day and the commencement
of the action, the plaintiff is at liberty to
prove a single act of trespass anterior to
the first day, though he cannot give in
evidence repeated acts of trespass unless
committed during the time stated in the
declaration.” 1 Chit. Pl. 258. It is so
laid down also in Williams’s notes to
Saunders, Vol. I. p. 24, note, referring
to Fontleroy v. Aylmer, 1 Ld. Raym. 239,
240. But I cannot find in this case the
restriction to the right thus stated. Lord
Ellenborough, however, adopted the re-
striction in the nisi prius case of Hume
v. Oldacre, 1 Stark. 851. I have seen no
other decision to the point; though, for
all that, there may be others. But, as I
understand the doctrine, it refers to dis-
tinct trespasses, such as would make an

250 .

indictment double, therefore the rea-
soning would enforce no restriction upon
an indictment. The proof of one offence
is all that would in any view be permis-
sible.

2 Ante, § 825, 326.

8 The State v. Norton, 45 Vt. 258;
Commonwealth v. Maloney, 112 Mass.
288 ; Commonwealth v. Hitchings, 5 Gray,
482, 485; Strawn v. The State, 14 Ark.
549; The State v. Bowling, 10 Humph.
52. ;
* The State v. Litch, 33 Vt. 67; The
State v. Noland, 29 Ind. 212; Common-
wealth v. McKee, Addison, 88; Common-
wealth v. Doyle, 110 Mass. 103; The State
v. Davidson, 86 Texas, 825; The State v.
Sexton, 8 Hawks, 184. See Reg. v. Fen-
wick, 2 Car. & K. 915, 4 Cox C. C. 139;
York v. The State, 8 Texas Ap. 15.

5 Joel v. The State, 28 Texas, 642.
One may, however, be indicted on the
day he commits an offence, and the true
CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 405

Impossible Day. — If it lays it on an impossible day,! — it will
be ill. And —

§ 404. In General. — The rule is that if, taking all the allega-
tions together, the time is so laid as to show the whole to be
absurd, or to disclose no crime, or otherwise no ground for the
prosecution, the indictment will be inadequate. Thus, —

Compounding. — Where the compounding of a felony was laid
on a day prior to the felony compounded, this was held ill, though
stated also to have been “afterwards.” The court observed:
“The indictment is absurd. It is impossible that. the defendant
could be guilty of the offence as charged.” 2 So, —

Resisting Process. — An indictment for resisting process is fatally
defective, if the time is laid as subsequent to the return day of
the process3 And —

Rescue.— An indictment for a rescue was adjudged ill, “be-
cause the arrest was not laid to be before return of writ.” 4
Again, —

No Offence. — If the day in the indictment is at a date when
the act alleged was no offence, it will be insufficient.6 Hence, ~

§ 405. Statutes of Limitations. — By some opinions, if, assuming
the offence to have been committed on the day alleged, it appears,
prima facie, to be barred by the Statute of Limitations, the indict-
ment will be inadequate. And this is plainly so where the stat-
ute is so general as to admit of no exception in the particular

instance.”

day may be laid, but the indictment should
be in terms showing that it was subse-
quent to the offence. The State v. Pratt,
14 .N. H. 456.

1 “Markley v. The State, 10 Misso. 291;
People v. Aro, 6 Cal. 207. See Conner »v.
The State, 25 Ga. 515; McMath wv. The
State, 55 Ga. 803; Jones v. The State, 55
Ga. 625. This defect and others of the
like sort are rendered unimportant in Eng-
land by Stat. 14 & 15 Vict. c. 100, § 24.

2 The State v. Dandy, 1 Brev. 395.
There is an Indiana case of Betting on
an Election — which seems contrary in
principle to this. It was deemed that
the indictment might be good, though
laying the bet at a date subsequent to the
election. ‘‘The day named,” said the
judge, “is not material, provided the
time stated be previous to the finding of

But, by other opinions, if, for aught that appears, the

the indictment.”
Blackf. 267.

3 McGehee v. The State, 26 Ala. 154.

4 Rex v. Hoskins, 12 Mod. 323.

5 See, and compare, post, § 622; Bol-
ton v. The State, 56 Coldw. 650; The
State v. Wise, 66 N. C. 120; The State
v. Norton, 45 Vt. 258; Jeffries v. The
State, 89 Ala. 655; Commonwealth v.
Maloney, 112 Mass. 288; Rex v. Tre-
harne, 1 Moody, 298; The State »v. Rol-
let, 6 Iowa, 5385; Huber v. The State, 25
Ind. 175.

6 McLane v. The State, 4 Ga. 335;
People v. Miller, 12 Cal. 291; Hatwood v.
The State, 18 Ind. 492. And see Molett
v. The State, 83 Ala. 408.

7 Anthony v. The State, 4 Humph. 83;
The State v. Rust, 8 Blackf. 195; Shelton
v..The State, 1 Stew. & P. 208; The State

251

The State v. Little, 6
§ 406 INDICTMENT AND ITS INCIDENTS. [Book Iv.

case may be within some exception to the statute, the indictment
will be good.! And where this latter doctrine is not accepted,
the indictment may still lay the offence as beyond the period of
limitations, if it contains also an allegation bringing it within

some statutory exception.?
§ 406. The Videlicet : —

Not Important. — Thus far we have assumed that the offence

is not laid under what is called a videlicet, or scilicet.?

It isa

form of alleging time, place, and some other things, once much
employed in pleadings, but less now, being attended with few

v. Hobbs, 89 Maine, 212; The State v.
Caverly, 51 N. H. 446. But see Thomp-
son v. The State, 54 Missis. 740; United
States v. Cook, 17 Wal. 168.

1 Thus, in New York, the court re-
fused to arrest judgment where the prose-
cution was apparently, but not necessa-
rily, barred. “If,” said Spencer, C. J.,
“an offender be not usually resident in
this State, our statute does not run in his
favor. Non constat, on this motion, but
that on its appearing in evidence that the
crime was perpetrated more than three
years previous to the indictment being
found, and on this being objected, as it
might be, on not guilty, the prosecution
then answered by proving that the pris-
oners were within the exception.” Peo-
ple v. Santvoord, 9 Cow. 655, 660. In
Mississippi, an indictment charging the
offence as committed eight hundred years
before its date was adjudged ill. Said
Smith, J.: “An allegation in an indict-
ment which substantially contradicts a
known law of nature, regulating the dura-
tion of human life, is clearly defective, and
cannot constitute the legitimate founda-
tion of a judgment ofa court... . An alle-
gation which presupposes the life of the
accused to have endured for upwards of
eight hundred years, as it contradicts the
experience of the whole world, must be
considered as impossible. Again, an of-
fence committed at that date, though not
barred by any Statute of Limitations, is
‘not an offence against the State of Mis-
sissippi.” Serpentine v. The State, 1
How. Missis. 256, 260. In Maine, judg-
ment under a penal statute, rendered on
a complaint made after the expiration of
the period of limitations, was arrested.

252

And so the court deemed the general doc-
trine to be, “unless,”’ said Shepley, C. J.,
“the statute contains an exception pre-
venting the operation of it upon a certain
class of persons; such, for example, as
those out of the State. In such case, the
judgment cannot be arrested; for there
may have been proof that the person
convicted came within the exception.
But if the complaint or indictment alleges
the offence to have been committed more
than two years before, and also that it
has been committed within two years of
the time of filing the complaint, or find-
ing the indictment, and the accused be
convicted, judgment cannot be arrested.
For the conviction may have been upon
proof of an offence within two years.
The principle upon which a judgment is
arrested, is, that all which has been al-
leged in the complaint or indictment may
be true, and may have been proved, and
yet the person convicted may not have
committed any offence.” The State v.
Hobbs, 39 Maine, 212, 216. See also
Brock v, The State, 22 Ga. 98; United
States v. Smith, 4 Day, 121; The State
v. Bowling, 10 Humph. 52; Clark v. The
State, 12 Ga. 350; People v. Miller, 12 Cal.
291; Riggs v. The State, 80 Missis. 635;
United States v. Ballard, 3 McLean, 469;
Johnson v. United States, 3 McLean, 89;
Commonwealth v. Ruffner, 4 Casey, Pa.
259; United States v. Cook, 17 Wal. 168;
Thompson v. The State, 54 Missis. 740.

2 Ulmer v. The State, 14 Ind. 52;
The State v Bryan, 19 La. An. 436;
The State v. Bilbo, 19 La. An. 76; The
State v. Peirce, 19 La. An. 90.

3 See, for a full explanation of its use
in pleading, Gould Pl. c. 8, § 85-41.
CHAP. XXIV.] ALLEGATION AND PROOF OF TIME. § 406
practical advantages. Its object is to escape positive averments
which must be proved, and avoid a variance.!

In General. — It will be sufficient to add what is said on the
subject in Chitty’s Criminal Law,? with his notes, and some notes
originally appended. ‘In setting forth the time when the facts
occurred, as well as place, number, quantity, &., it is very usual,
in criminal as well as civil proceedings, to introduce the state-
ment under what is termed a videlicet, or scilicet; as, ‘that
afterwards, to wit, &c., at, &c.,’ the defendant did, &c., or a fact
eccurred which it is thought proper to mention. Lord Hobart,
speaking of a videlicet, says, ‘that its use is to particularize that
which was before general, or to explain that which was before
doubtful or obscure; that it must not be contrary to the prem-
ises, 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 with-
out apparent injury.’* Respecting the use of this mode of state-
ment, it has been said, that, where the time when a fact happened
is immaterial, and it might as well have happened at another day,
there, if alleged under a seilicet, it is absolutely nugatory, and
therefore not traversable ; and, if it be repugnant to the prem-
ises, it will not vitiate, but the scilicet itself will be rejected as
superfluous and void;* but that, where the precise time, &c., is
material and enters into the substance of the description of the
offence, there the time, &c., though laid under a setlicet, is con-
clusive and traversable,é and it will be intended to be the true
time, and no other; and, if impossible or repugnant to the prem-

1 Brown v. Berry, 47 Ill. 175.

21 Chit. Crim. Law, 226, 227.

8 Stukeley v. Butler, Hob. 168, 172;
Rex v. Stevens, 5 East, 244, 252, See
also Knight v. Preston, 2 Wils. 332, 385.

* According to a Connecticut case, the
effect of a videlicet, where general words
are used before, and specific ones after, is
to restrict the general terms to the things
which are specified. Thus, where a com-
plaint and warrant under the liquor law
designated for seizure “ certain intoxicat-
ing liquors; to wit, several casks of
French brandy, containing twenty-five
gallons, more or less; several casks of
gin, containing twenty-five gallons, more
or less; and several casks of intoxicating

wines, containing twenty-five gallons,
more or less”; this was held not to jus-
tify a seizing of any “intoxicating
liquors” other than “French brandy,”
“gin,” and “intoxicating wines”; in
other words, the officer was a trespasser
when he seized, under the warrant, rum,
cider-brandy, and pale brandy. Mallett
v. Stevenson, 26 Conn. 428,

5 The State v. Freeman, 8 Iowa, 428;
The State v. Haney, 1 Hawks, 460. And
see McDade v. The State, 20 Ala. 81.

6 In a complaint for misdemeanor, the
defendant may traverse any material al-
legation, though made under a videlicet.
The State v. Phinney, 82 Maine, 439.

253
§ 406 INDICTMENT AND ITS INCIDENTS. [Book Iv.

ises, it will vitiate.1 Either the allegation must exactly corre-
spond with the fact, or it may vary; if the former, it will be laid
with a scilicet, which may be rejected; and, if the latter, though
the seilicet 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 act of
Parliament, though the sum be stated without a videlicet, it is
not necessary ‘to prove it with precision? 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.4 There are, however, authorities which afford
an inference that the adoption of a scélicet will, in the description
of a contract, excuse the party from strict proof, when, if it were
omitted, it would be otherwise.” 5

Practical Conclusion. — The practical conclusion is, that it is
best for the pleader, at the present day, when the pleadings
are being simplified, and minute defects are less regarded than
formerly, and plain and direct language is more favored, to have
nothing to do with the videlicet, unless in exceptional circum-
stances.

1 Bishop of Lincoln v. Wolferstan, 1
W. Bl. 490, 495; Dakin’s Case, 2 Saund.

trander, 1 Cow. 670, 676; Gleason v. Me-
Vickar, 7 Cow. 42, 48; Hastings v. Lov-

290 4, 291, note; Skinner v. Andrews, 1
Saund. 168, 169; Hayman». Rogers, 1 Stra.
232, 288; Knight v. Preston, 2 Wils. 832;
Grimwood v. Barrit, 6 T. R. 460, 462;
Bissex v. Bissex, 3 Bur. 1729, 1780; Pope
v. Foster, 4 T. R. 690; Harris v. Hudson,
4 Esp. 152; Rex v. York, 5 T. R. 66, 71;
Symmons v. Knox, 3 T. R. 65, 68; White
v. Wilson, 2 B. & P. 116, 118; Rex v. Poll-
man, 2 Camp. 229, 231; Rex v. Stevens,
5 East, 244. The American editors refer
here also to the following: Jansen v, Os-

254

ering, 2 Pick. 2d ed. 214, 223, note; Paine
v. Fox, 16 Mass. 129, 188.

2 Stark. Crim. Pl. 2d ed. 258, 254; and
see 1 Chit. Pl. 4th ed. 276, note.

3 Rex v. Gillham, 6 T. R. 265; 1 Chit.
PL. 4th ed. 276, note; Rex v. Gilham, 1
Esp. 285.

4 Grimwood v. Barrit, 6 T. R. 460,
462; Pope v. Foster, 4 T. R. 580; 1 Chit.
Pl. 4th ed. 276, note.

5 Symmons v. Knox, 8 T. R. 65, 67;
Arnfield v. Bate, 8 M. & S. 178, 175.

,
CHAP. XXV.] REPETITIONS OF TIME AND PLACE. § 408

CHAPTER XXV.
REPETITIONS OF TIME AND PLACE IN THE INDICTMENT.

-§ 407. In General. — The elements of time and place, and
consequently the allegation of them, pertain to no one part of
an offence and the accusation of it, but are essential in all. In
some way, the averment of every wrongful act must appear in
the indictment with time and place; but, when they have been
once set down, they will sometimes be applied by construction
to subsequent clauses, not always. Repetitions are generally
made by the words ‘“ then and there,” yet not in all circumstances
will they suffice. To give a more exact and minuter form to this
doctrine is the object of the present chapter.

§ 408. Every Issuable Fact. — The general doctrine is stated by
Chitty! to be, that time and place should ‘‘not merely be men-
tioned at the beginning of the indictment, but be repeated to
every issuable and triable fact.”2 They are not necessary to a
conclusion drawn from the facts;? and where, in an indictment
for wounding, they are laid to the stroke, they need not be added
to the wounding, its result.t There are also many cases, not
reducible to a rule, wherein the court will apply an allegation of
time and place to subsequent averments, rendering repetition
unnecessary.>

“Then and There.” — The usual form, in most cases, is, after
mentioning the time and place with certainty, not to repeat them,

11 Chit. Crim. Law, 219-222.

2 Rex v. Holland, 5 T. R. 607, 620;
Buckler’s Case, 1 Dy. 69a; Com. Dig.
Indictment, G. 2; Burn Just. Indictment ;
Williams Just. Indictment, IV. ; Denison
v. Richardson, 14 East, 291, 3800, 301;
The State v. La Bore, 26 Vt. 765; The
State v. Bacon, 7 Vt. 219, 222; The State
v. Kube, 20 Wis. 217; The State v. Ross,
26 Misso. 260.

3 The State v. Johnson, Walk. Missis.
892; Vol. IT. § 549, 550.

4 The State v. Freeman, 21 Misso. 481;
The State v. Bailey, 21 Misso. 484.

5 Post, § 418; Commonwealth v. Ke-
yon, 1 Allen, 6; Commonwealth v. Do-
herty, 10 Cush. 52, 54; The State v.
Dayton, 8 Zab. 49; The State v. Cherry,
8 Murph. 7; Rex v. Napper, 1 Moody,
44; Rex v. Nicholson, 1 East P. C. 846.

255
§ 411 INDICTMENT AND ITS INCIDENTS. [Book Iv.

but to prefix the words “then and there” to each subsequent
averment of fact.1 “Thus, —

In Robbery — Homicide. — “ In an indictment for robbery, these
words must be connected with the stroke or the robbery, and
not merely with the assault ;? and, in a case of murder, it is not
sufficient to allege that the defendant on a certain day made an
assault, and struck the party killed, but the words ‘then and
there’ must be introduced before the averment of the stroke.” ®

§ 409. “Immediately.” — The word “immediately ”’ is not ade-
quate as a substitute for “then and there.”4 “Therefore, —

In Highway Robbery. — ‘“ Where, on an indictment for a high-
way robbery, the special verdict found the forcible assault, and
then in a distinct sentence that the prisoners ‘then and there
immediately’ took up the prosecutor’s money, this was held to
be insufficient to fix the prisoners with the offence of robbery;
because the word ‘immediately’ has great latitude, and is not of
any determinate signification, and is frequently used to import
‘as soon as it conveniently could be done.’ ”’ §

“Instantly ” — is equally inadequate with “immediately.” 6

§ 410. “Being.” — “It is said, that the word being (existens)
will, unless necessarily connected with some other matter, relate
to the time of the indictment rather than of the offence; and,
therefore, an indictment for a forcible entry on land, being the
prosecutor’s freehold, without saying ‘then being,’ was held in-
sufficient.” 7

§ 411. “Then and There” to Averments more or less Material. —
It seems that, if “then and there” are omitted from the formal
part of an allegation, yet attached to what constitutes the gist of

the charge, it will be sufficient.

11 Chit. Crim. Law, 219, referring to
2 Hale P. C. 178; Rex v. Morris, 2 Stra.
901; Keilw. 100; 2 Hawk. P. C. c. 25, § 78,
c. 23, § 88; Bac. Abr. Indictment, G. 4;
Williams Just. Indictment, IV.; Attorney-
General v. Young, 2 Comyns, 423, 480.

2 Ib.; 2 Hale P. C. 178; 2 Hawk.
P. C. c. 23, § 88; Wingfield’s Case, Cro.
Eliz. 739.

32 Hale P. C. 178; Buckler’s Case, 1
Dy. 69a; 2 Hawk. P.C. c. 28, § 88; Cro.
C. C. 36.

4 The State v. Reakey, 1 Misso. Ap.
8; The State v. Sides, 64 Misso, 888.

256

Thus, —

5 1 Chit. Crim. Law, ut sup., referring
to Rex v. Francis, Cas. temp. Hardw.
118, 114, 115; s. c. nom. Rex v. Frances,
2 Comyns, 478, 480; Rex v. Williams,
1 Leach, 4th ed. 529; Rex v. Borthwick,
1 Dong. 207, 212.

6 Lester v. The State, 9 Misso. 666,
668.

71 Chit. Crim. Law, ut sup., referring
to Bac. Abr. Indictment, G. 1; Bridge’s
Case, Cro. Jac. 639; Rex v. Ward, 2 Ld.
Raym. 1461, 1467, 1468; 2 Rol. 226; Com.
Dig. Indictment, G. 2.
CHAP. XXV.] REPETITIONS OF TIME AND PLACE. § 413

In Homicide. — “If,” to borrow from Chitty, yet not proceed
to his somewhat different application, “ the indictment allege that
the defendant feloniously and of malice aforethought made an
assault, and, with a certain sword, &c., ‘then and there’ struck,
the previous omission will not be material.” }

§ 412. “Then and There” not supplied by Full Repetition. — There
are circumstances in which “then and there” must be used, in-
stead of repeating in full the allegations of time and place; as,
where the offence consists of a connected series of acts, which
must be done at the same time. ‘“ Thus, in an indictment upon the
6 Geo. 1, c. 28, for feloniously assaulting a person with intent
to spoil his clothes, where the assault and spoiling must be shown
to be continuous, the repetition of the day and place is insuffi-
cient, because it does not appear that the acts were not on differ-
ent hours of the day; but the words ‘then and there’ fix them
to have been effected together.” 2

§ 418. Misdemeanor distinguished from Felony. — We have seen
that indictments are not required to be so strictly nice and tech-
nical for misdemeanor as for felony. And Chitty observes, that
the rule requiring time and place to be repeated to the travers-
able averments,* is not so much regarded “in indictments for
inferior offences as in cases where the life of the prisoner is in
danger.”> Thus, — :

In Assault and Battery. — “It is sufficient to state that the de-
fendant, at a certain place and time, made an assault on the
prosecutor, and beat him, without inserting ‘then and there’;

1 Heydon’s Case, 4 Co. 41 a, 41 b;
Buckler’s Case, 1 Dy. 69 a; Godb. 65, 66;
1 East P. C. 346.

2 1 Chit. Crim. Law, 221, referring to
Rex v. Williams, 1 Leach, 4th ed. 529;
Rex v. Frances, 2 Comyns, 478, 480.
Shaw, C. J., in a Massachusetts case, ex-
pounds the doctrine thus: “ The words
‘then and there’ are relative, and refer to
some foregone averment, and their effect
must be determined by that allegation to
which they refer, If that is a single act
done, and it then avers that ‘then and
there’ another fact occurred, it necessa-
rily imports that the two were precisely
co-existent, and the word ‘then’ refers to
the precise time [whereas, to repeat the
day is merely to allege that the thing trans-
pired some time during the same day].

VOL. I. 17

But where the antecedent averment fixes
no precise time, and alleges no precise,
single, definite act, the word ‘then,’ used
afterwards, fixes no one definite time.”
Edwards v. Commonwealth, 19 Pick. 124,
126. Affirmed, as to the former branch
of the proposition, Commonwealth v. But-
terick, 100 Mass. 12.

3 Ante, § 821.

4 Ante, § 408.

5 2 Hale P. C. 178; Burn Just. Indict-
ment; Baude’s Case, Cro. Jac. 41; Cram-
lington’s Case, Cro. Jac. 845; Buckler’s
Case, 1 Dy.69 a. Under the Indiana stat-
ute, the venue need not be repeated to
evory material allegation in an affidavit
to support a prosecution, Thayer v. The
State, 11-Ind. 287.

257
§ 414 INDICTMENT AND ITS INCIDENTS. [Book Iv.

because the time and place named in the beginning refer to all
the subsequent averments.”! And, —

Forcible Entry. — “In an indictment for a forcible entry, it is
enough to state that the defendant entered and dispossessed, with-
out any second averment of time or venue.?- But, in such case,
the place unlawfully entered must be stated to have been ‘then
and there’ the property of the party complaining ; and the omis-
sion will be fatal.” 8 :

§ 414. Uncertain Antecedent. — Where the antecedent of “ then
and there ”’ is uncertain *— as, if more times or places than one
are first mentioned, then the allegation is that an act was “then
and there ” done — the indictment will be insufficient.6 So like-
wise it will be if no time or place is first stated.

1 Ib.; Commonwealth v. Bugbee, 4 5 The State v. Hayes, 24 Misso. 358;
Gray, 206; Commonwealth v. Doherty, Jane v. The State, 8 Misso. 61.

10 Cush. 52, 55. 6 The State v. Slack, 80 Texas, 854.
% Baude’s Case, Cro. Jac. 41. And see The State v. Johnson, 12 Minn.
§ Poynts’s Case, Cro. Jac. 214. 476.

4 United States v. Dow, Taney, 34,
258
CHAP. XXVI.] THE PARTICULAR CRIME. § 417

CHAPTER XXVI.
ASCERTAINING AND DESCRIBING THE PARTICULAR CRIME.

§ 415. Necessary.— It is impossible to frame an indictment
properly without knowing what is the particular crime to be
charged, and how it is defined and limited in the law. The
pleader, therefore, must first ascertain the facts, secondly the
law, and thirdly draw the indictment with reference to both.
But —

§ 416, Name of Crime. — The name of a crime is unimportant,
nor do all crimes have names. Hence, though in some of the
States the statutes regulating the indictment contemplate the
naming of the crime in it,? such is not the practice under
the common law; and, even under these statutes, the omission
of the name,® or the giving of a wrong name to it,* will not ren-
der the indictment invalid.é

§ 417. In General, of the Law’s Crimes. —In the volumes on the
“Criminal Law” and “Statutory Crimes,” the several offences
are defined and their limits drawn. And we there see how
transactions are cut up into specific offences. The learning of
this subject must be understood by him who would properly con-
struct an indictment. Now, —

Crime within Crime.— Under many circumstances, a charge of
one crime includes within itself and constitutes a charge also of
others. If, for example, it is murder, the indictment drawn in
due form contains an accusation of a simple assault, a simple
battery, an aggravated assault, manslaughter, and sometimes

1 Crim. Law, I. § 599, 776; Hall v. 4 Commonwealth v. Smith, 6 Bush,

The State, 3 Kelly, 18. 268; The State v. Davis, 41 Iowa, 311;
2 The State v. Eno, 8 Minn. 220; The Watson v. The State, 29 Ark. 299; The
State v. Anderson, 3 Nev. 254. State v. Shaw, 35 Iowa, 575.

3 The State v. Hessenkamp, 17 Iowa, 5 And see Wilson v. The State, 25
25; The State v. Baldy, 17 Iowa, 89; Texas, 169; Camp v. The State, 25 Ga.
The State v. Anderson, supra; People v. 689; The State v. Rigg, 10 Nev. 284.
Phipps, 39 Cal. 826.

259
§ 419 INDICTMENT AND ITS INCIDENTS. [Book Iv.

other offences, as parts of the murder.1 In these cases the con-
viction may be either for the whole, or for any smaller part
which is proved, and known to the law as an offence; except as
prevented by the common-law rule, now extensively abolished
by statutes, that one cannot be found guilty of a misdemeanor
on an indictment for felony.2. In contemplation of the rules of
pleading, there is but one crime charged, however numerous the
minor ones practically embraced within the allegation.®

§ 418. Charging One Crime to include All within it.— Yet there
can be no conviction for what is not alleged. Hence, as the
pleader cannot know what failure of proof or misapprehension
by the jurors there may be, he should give such form to the in-
dictment as will justify a conviction for any minor offence which
the law has included within the one meant.* Ordinarily the
form will be such as of course, but not always; so that in every
case some thought should be given to this. To illustrate, —

§ 419. In Rape — (Adultery — Fornication). — Carnal knowl-
edge is one of the elements of rape. It is equally an element
in each of the two statutory offences of adultery and fornication.
But it is no offence for a man to have carnal knowledge of his
wife. Now, here are three crimes, one within another; the
largest being rape, the smallest fornication, and adultery be-
tween. An indictment which alleges, first, the carnal knowl-
edge of a woman, secondly, her opposition of will, and, thirdly,
the force and violence, charges rape. But it does not charge
adultery, because it does not negative a marriage between the
parties, or allege a marriage between the defendant and a third
person ; and, on it, if all the elements of adultery are proved,
yet not the force which makes the carnal act rape, there can be
no conviction of rape because it is not proved, or of adultery
because it is not alleged; nor, where the indictment for forni-
cation must negative a marriage between the parties,® can there
be a conviction for this offence. But an indictment for rape is
not injured by an averment of the sort required in adultery and

1 Crim. Law, I. § 780, 794; Common- 2 Crim. Law, I. § 786-815.
wealth v. Lang, 10 Gray, 11; Orton v. 8 Post, § 483.
The State, 4 Greene, Iowa, 140; Roy v. * Crim. Law, I. § 794, 796-798, 803,
The State, 2 Kan. 405; Commonwealth 5 Crim. Law, II. § 1182.
v. Garland, 8 Met. Ky. 478; McPherson § Stat. Crimes, § 692, 693.
v. The State, 29 Ark. 225, 288; The State
v. Flannigan, 6 Md. 167.

260
CHAP. XXVI.] THE PARTICULAR CRIME. § 420

fornication ;1 consequently, in States where these are offences,
the judicious pleader will insert the averment. And then, if all
are felonies, or the State is one of those in which a defendant may
be found guilty of misdemeanor on an indictment for felony, there
may be a conviction for any one of the three offences proved.?
Again, —

§ 420. Committed in Different Ways. — If the crime is of the
numerous class which may be committed in different ways,* the
pleader should allege in his count as many of those ways as,
being legally permissible, may seem also to be practically best.
And —

Conclusion. — He should so manipulate his whole case, and
place in the indictment his facts in such relations to the law,
that practically the best results will proceed from the trial.

1 Commonwealth v. Squires, 97 Mass. And see The State v. Vadnais, 21 Minn.
: 882; Williams v. The State, 1 Texas
2 Commonwealth v. Murphy, 2 Allen, Ap. 90.

163; The State v. Sanders, 380 Iowa, 582. 3 Post, § 484 et seq.

261

59
§ 422 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

CHAPTER XXVII.
THE ARRANGING OF THE INDICTMENT IN COUNTS.

§ 421. Count definea. —In civil pleadings, the word “count”
was formerly a synonym for “declaration.”! Afterward it came
to mean, as generally employed, one complete statement of a
cause of action; several of which might, and practically in the
greater number of cases did, constitute together the declaration.”
In criminal pleadings, an entire indictment seems never to have
been called a count; at least, it is never now. The word is used
where, in one finding by the grand jury, the essential parts of
two or more separate indictments, for crimes apparently distinct,
are combined; the allegations for each being termed a count,
and the whole an indictment.®

§ 422. Twofold Purpose of more Counts than One. — An indict-
ment in several counts, therefore, is a collection of separate bills#
against the same defendant, for offences which on their face appear
distinct, under one caption, and found and indorsed collectively
as true by the grand jury. The object is either what it appears
to be, namely, in fact to charge the defendant with distinct
offences, under the idea that the court may, as often it will,
allow them to be tried together,® thus averting from both parties
the burden of two or more trials; or, in another class of cases, to
vary what is meant to be the one accusation, so as, at the trial,
to avoid an acquittal by reason of any unforeseen lack of har-
mony between allegation and proofs, or a legal doubt as to what
form of charge the court will approve.6 Explanations of the
former purpose will appear in a subsequent chapter.’ To illus-
trate the latter: —

1 3 BI. Com. 293. man v. The State, 48 Ind. 473; The State
2 Gould Pl. c. 4, § 2, 3. v. Bell, 27 Md. 675; Smith v. Common-
8 And see United States v. Davenport, wealth, 21 Grat. 809; Dill v. The State,

Deady, 264. 1 Texas Ap. 278; Griffith v. The State,
4 Ante, § 181. 86 Ind. 406; O’Brien v. Reg. 2 Cox C. C.
5 Post, § 444-462. 122.

§ 1 Chit. Crim. Law, 248 et seq. ; Hites- 7 Post, § 444 et seq.
262
CHAP. XXVII.] ARRANGING IN COUNTS.

§ 425

§ 423. Burglary and Larceny — Embezzlement and Larceny —
Differing Intents. —“‘ Where,” says Chitty, ‘circumstances ren-
der the evidence dubious, it is usual to join a count for feloni-
ously breaking out, with larceny in a dwelling-house. For the
same reason, it is usual to add to an indictment under the 89
Geo. 3, c. 85, for embezzlement, a count for stealing at common
law. And in an indictment for burglary, to insert one count
for a burglarious entry with intent to steal the goods of A
B, and stealing them, and another count for the same burglary
with intent to steal the goods of another person, and sometimes
a third or more for a burglary with intent to kill and murder.
And no doubt can now be entertained that this course is as legal
as it is advantageous.” 1

§ 424. No Joinder of Counts strictly Ilegal.— We have seen 2
that, in the criminal law, the pendency of one accusation against
a man can never be pleaded in bar or abatement of another.
Hence, in principle, and on abundant authorities to which very
little in the books is opposed, no piling of count upon count in
the same indictment, or incongruous or other ill joinder of counts,
is strictly illegal, so as to be demurrable, or subject the judg-
ment to be arrested, or reversed on writ of error.2 But, —

§ 425. Regulated by Judicial Discretion.— When the court, on
seasonable application, deems that the due order of judicial pro-
ceedings, or the interests of a party, will be prejudiced by the
multiplicity or ill joinder,* it will in its discretion quash a count
or the whole indictment,® or order separate trials on the counts,®
or compel the prosecutor to elect on which one he will ask for

1 1 Chit. Crim. Law, ut sup.

2 Crim. Law, I. § 1014.

3 Post, § 447-449 and note; 1 Stark.
Crim. Pl. 2d ed. 89; Reg. v. Holman,
Leigh & C. 177, 9 Cox C. C. 201; Jones
v. The State, 87 Ga. 51; Barnwell v. The
State, 1 Texas Ap. 745; Teat v. The State,
58 Missis. 489; Janeway v. The State,
1 Head, 130; Rex v. Jones, 2 Camp. 181,
182; People v. Garnett, 29 Cal. 622; Mil-
ler v. The State, 51 Ind. 405; Wall v.
The State, 51 Ind. 453; Wreidt v. The
State, 48 Ind. 579; Reg. v. Ferguson,
Dears. 427, 6 Cox C. C. 454; Hamilton v.
People, 29 Mich. 173; Hobbs v. The State,
44 Texas, 353; Rex v. Kingston, 8 East,
41; United States v. Stetson, 8 Woodb.
& M. 164; The State v. Nelson, 14 Rich.

169; The State ». Brown, Winston, No.
Il. 54; Henwood v. Commonwealth, 2
Smith, Pa. 424; Ketchingman v. The
State, 6 Wis. 426; The State v. Kibby, 7
Misso. 317; People v. Shotwell, 27 Cal.
894. But see Davis v. The State, 57
Ga. 66.

4 Hunter v. Commonwealth, 29 Smith,
Pa. 503.

5 Post, § 758 et seq.; Rex v. Kingston,
8 East, 41, 46; Hamilton v. People, 29
Mich. 178.

6 Reg. v. Barry, 4 Fost. & F. 389;
The State v. Hazard, 2 R. I. 474; Com-
monwealth v. Hills, 10 Cush. 530, 534;
Commonwealth v. Burke, 16 Gray, 82.
And see The State v. Fritz, 27 La. An,
860; post, § 450, 454.

263
§ 429 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

a verdict,! as the exigencies of the particular case and the time
and manner of making the objection may render most suitable.?
The fact that the court will interfere to prevent an abuse of the
right of joining counts is the justification of the various expres-
sions in the books to the effect, that. such or such a joinder is
permissible and such another is not.

§ 426. Hach to charge Separate Offence. — On the face of the
indictment, therefore, “every separate count should charge the
defendant as if he had committed a distinct offence, because it
is upon the principle of the joinder of offences that the joinder
of counts is admitted.” ? Hence, —

§ 427. Legal Fiction. — Where the purpose of the several counts
is to set out the same crime in various ways,‘ the formal allega-
tion which makes each appear to be for a separate offence is one
of the numerous fictions with which our law is burdened or
adorned, as we may choose to call it. If it was a fiction in
every instance, no practical embarrassment would come from it.
But, —

§ 428. Difficulties stated. — As sometimes there are as many
offences meant to be charged as the indictment contains counts,
sometimes a less number yet more than one, and sometimes only
one, and the methods of allegation are in all these instances pre-
cisely the same, perplexities often arise. . If the jury, for example,
bring in a verdict of guilty covering all the counts, shall the
judge sentence the prisoner as for so many distinct offences? If
there is a writ of error, and there appears to be a judgment as
for as many distinct offences as there are counts, will the judg-
ment therefore be reversed? These and various other questions,
growing out of the union of fact and fiction in the doctrine and
practice of separate counts, vex not a little the learning of our
criminal-law procedure. They will not be answered here, but in
their appropriate places further on.

§ 429. Form of Count — (Commencement — Conclusion). — The
orderly and full form is to put each count into one paragraph,
having a separate commencement (not caption) © and conclusion,
the same as though it constituted alone the indictment.6 But,
in strict law, the question of paragraphs is immaterial; and in

1 Post, § 454 et seq.; Boyd v. The 4 Ante, § 422,

, State, 7 Coldw. 69. 5 And see Davis v. The State, 19 Ohio
2 3 South. Law Rev. n. s. 64. State, 270.
3 1 Chit. Crim. Law, 249. § Ante, § 182 and note, 426;

264
CHAP. XXVII.] ARRANGING IN COUNTS.. § 431

practice the commencement is generally: abbreviated after the
first count to read, ‘* The jurors aforesaid, on their oath aforesaid,
do further present.” As a rule, any count from which the com-
mencement is omitted, is, therefore, bad.1 But in one case this
defect in a count was held to be obviated by the fact, that the
record showed the grand jury to have been sworn in open court,?
—a conclusion which appears to rest well on reasons to be
shown in a subsequent chapter. The same doctrine applies to
the concluding part of the several. counts; the words “ against
the peace,” &c., must be in each ;? likewise, if the indictment
is on a statute, the words “against the form of the statute.” 4
It has been laid down in broad terms, that “each count in an
indictment must be sufficient in itself, and averments in one can-
not aid defects in another.”® But—

§ 480. “Another” Offence. — There is no necessity to allege
in terms, in each count after the first, that the offence therein
set out is “another.” ® It was in one case intimated, that such
an express allegation would, where but one offence was really
meant, be improper.’

§ 431. Referring from One Count to Another.— To some extent
the pleader may avoid repetitions by referring from one count
to another ;8 “as,” says Chitty, “to describe the defendant [or
another person °] as ‘the said,’ &c.10 And though the first count
should be defective, or be rejected by the grand jury [or the
defendant should be acquitted on it "], this circumstance will not
vitiate the residue. But, if the other counts refer to a writ or
warrant improperly set forth in the first, the whole indictment
will be invalid.” 12 The reference must be so full and distinct
as, in effect, to incorporate the matter going before with that in

1 The State v. McAllister, 26 Maine,
374,

2 Huffman v. Commonwealth, 6 Rand.
685.

3 The State v. Cadle, 19 Ark. 613.

4 Reg. v. Purchase, Car. & M. 617,
620; The State v. Soule, 20 Maine, 19.

5 Worden, J., in The State v. Longley,
10 Ind. 482, 484; Keech v. The State, 15
Fla. 591; The State v. Lyon, 17 Wis. 287 ;
The State v. Phelps, 65 N. C. 450.

6 And:see Newman v. The State, 14
Wis. 393.

1 The State v. Rust, 35 N. H. 438, 441.
And see Lazier v. Commonwealth, 10
Grat. 708.

8 Evans v. The State, 24 Ohio State,
208. And see the civil case of Frazier v.
Felton, 1 Hawks, 231.

9 Reg. v. Dent, 1 Car. & K. 249. See
also The State v. Nelson, 29 Maine, 329.

10 Commonwealth v. Hagarman, 10
Allen, 401.

11 Commonwealth v. Clapp, 16 Gray, |
287.

12 1 Chit. Crim. Law, 250.

265
§ 431 INDICTMENT AND ITS INCIDENTS. [Book Iv,

the count in which it is made.1_ When, therefore, the first count
charged an assault on “ Esther Ricketts, an infant above the age
of ten and under the age of twelve years,” with intent to carnally
know her; and the second charged, in a different form, an attempt
to have carnal knowledge of “the said Esther Ricketts”; this
reference was held not to carry with it the allegation, that she
was “an infant above the age of ten and under the age of twelve
years.”2 So where the first count charged a larceny of goods
of a value mentioned, and the second alleged a receiving of the
“goods aforesaid,” this was held not to draw into the second
count the allegation of value contained in the first.®

1 The State v. McAllister, 26 Maine, 8 The State v. Lyon, 17 Wis. 287. See
874. Reg. v. Huntley, Bell, 288, 8 Cox C. C.
2 Reg. v. Martin, 9 Car. & P. 215. 260.

266
CHAP. XXVIII] DUPLICITY. § 483

CHAPTER XXVIII.
DUPLICITY.

§ 482. How defined. — Duplicity, alike in civil and criminal
pleadings, “consists in alleging, for one single purpose or object,
two or more distinct grounds of complaint or defence, when one
of them would be as effectual in law as both or all.”! In an
indictment, it is the joinder of two or more distinct offences in
one count.?

Wot permissible. — Though, as we saw in the last chapter, two
or more offences may in proper circumstances be joined in one
indictment, it must be in separate counts; they cannot be in
one.?

§ 433. What, within the Law of this Subject, is One Offence ? —

Crime within Crime. — Where crimes are included within one
another — that is, where an act in its simple form is liable to a
particular punishment, to a heavier when attended by a specified
circumstance of aggravation, to a still heavier when by another
circumstance, and so on, — as explained in other connections,‘
a charge of it in a larger form, which therefore includes the
smaller, is, in contemplation of our present rule, a charge of only
one offence, and the count is not double Thus, —

Assault and Battery. — Assault and battery are almost always
charged together as one offence; the battery being the culmina-
tion of the assault.6 And whatever may be its aggravations,
they, if added in the allegation, and even if the aggravated form

1 Gould Pl. c. 8, § 1. And see Ib. 4,
§ 99.

2 Weathersby v. The State, 1 Texas
Ap. 643.

3 Weathersby v. The State, supra;
People v. Wright, 9 Wend. 193; The
State v. Howe, 1 Rich. 260; Reed v. Peo-
ple, 1 Parker C. C. 481; United States v.
Sharp, Pet. C. C. 181; The State »v.
Bridges, 24 Misso. 853; Commonwealth

v. Symonds, 2 Mass. 163; Womack v.
The State, 7 Coldw. 508; Commonwealth
v. Powell, 8 Bush, 7.

4 Crim. Law, I. § 780, 794-797 ; ante,
§ 417.

5 See cases in the following para-
graphs; also Commonwealth v. Mills, 6
Bush, 296; People v. De la Guerra, 31
Cal. 459.

6 Vol. II. § 55.

267
INDICTMENT AND ITS INCIDENTS.

§ 436 [Book Iv.

constitutes an offence under another name, do not render the
count double.!

Murder. — A common illustration of this is an indictment for
murder, which includes a manslaughter, a battery, and an assault,
yet it is not therefore multifarious.”

§ 484. One Offence by Many Means. — An offence, and the
means by which it is committed, are distinguishable. If, there-
fore, a particular offence admits, as most do, of being perpetrated
in any one of several varying ways, a count is not double which
charges its commission by this means, and by this, and by this,
enumerating as many as the pleader chooses ;? and, at the trial,
it will be established by proof of its commission by any one of
them. Thus, —

Doing and Causing — (Malicious Mischief).— To cause a thing
to be done is in law the same as to do it;5 therefore one may
commit almost any crime in either of these two ways, — by caus-
ing it to be done, or by doing it. Hence, for example, an indict-
ment for malicious mischief is not double which charges, that the
defendant unlawfully, &c., destroyed and caused to be destroyed,
a quantity of potatoes. If we suppose that he did both to the
potatoes, he committed thereby only one offence.6 ‘ And, —

§ 435. In Libel — Forgery. — “It is the usual practice,” says
Starkie, “‘to allege offences cumulatively, both at common law
and under the description contained in penal statutes; as, that
the defendant published and caused to be published a certain
libel, that he forged and caused to be forged, &c.” ;7 a method,
however, the practical advantage of which is in this class of cases
questionable. Again, —

§ 436. In Indictments upon Statutes. — It is common for a statute
to declare, that, if a person does this, or this, or this, he shall be

1 Vol. II. § 63; People v. Ah Own, 89 tery.” Commonwealth v. Harney, 10
Cal. 604; The State v. Bradley, 34 Texas, Met. 422, 425.
95; Commonwealth v. Squires, 97 Mass. 8 For the limit of this doctrine, see
59; The State v. Dearborn, 54 Maine, post, § 453.

442; People v. Tyler, 35 Cal. 558.

2 The State v. Huber, 8 Kan. 447. “It
is not unusual,” said Dewey, J., “to find,
in a count properly framed, all the essen-
tial elements of a count for a minor of-
fence.... Thus, in an indictment for
murder or manslaughter, there is a full
and technical charge of an assaultand bat-

268 ©

4 See cases in the following para-
graphs; also The State v. Hanchett, 38
Conn. 35.

5 And see ante, § 332-384.

6 The State v. Kuns, 5 Blackf. 314.

71 Stark. Crim. Pl. 2d ed. 246. And
see Rex v. Fuller, 2 Leach, 4th ed. 790, 1
East, P. C. 92; The State v. Maupin, 57
Misso. 205.
CHAP. XXVIII. ] DUPLICITY.

§ 436

punished in a way pointed out. Now, if, in a single transaction,
he does all the things, he violates the statute but once, and in-
curs only one penalty. Yet he violates it equally by doing one
of the things.2 Therefore an indictment upon a statute of this
kind may allege, in a single count, that the defendant did as
many of the forbidden things as the pleader chooses, employing
the conjunction and where the statute has “or,” and it will not
be double, and it will be established at the trial by proof of any
one of them. Thus, —

In Liquor Selling. — Where the allegation was that the defendant
sold spirituous liquors, to wit, rum, brandy, whiskey, and gin, in
less quantities than one quart, without license, the court over-
ruled the objection that four offences were thereby charged in
one count, saying: “The selling of any of the liquors named
would be an offence; but there is no more reason why an of-
fender should be indicted separately for each, than there would
be to charge a thief, who had stolen a suit of clothes, in separate

counts for the coat, waistcoat, &c.” 4

1 Crim. Law, I. § 785; Commonwealth
v. Eaton, 15 Pick. 273, 275; Common-
wealth v. Thomas, 10 Gray, 483, 484;
The State v. Murphy, 47 Misso. 274; Reg.
v. Jennings, 1 Cox C. C. 115, 121.

2 Stat. Crimes, § 244.

3 Stat. Crimes, § 244; Crim. Law, I.
§ 799; Reg. v. Jennings, supra; The State
v. Myers, 10 Iowa, 448; The State v.
Cooster, 10 Iowa, 453; The State v. Har-
ris, 11 Iowa, 414; The State v. Hastings,
53 N. H. 452; United States v. Bettilini,
1 Woods, 654; The State v. Brown, 8
Humph. 89; Hart v. The State, 2 Texas
Ap. 89; McCarthy v. The State, 56 Ind.
203; United States v. Sander, 6 McLean,
698; The State v. Murphy, 47 Misso. 274;
Turnipseed v. The State, 6 Ala. 664. But
see Miller v. The State, 6 How. Missis.
250; post, § 586-588.

4 The State v. Whitted, 3 Ala. 102.
For various other like questions under
the liquor laws, see Rawson v. The State,
19 Conn. 292; Commonwealth v. Foss, 14
Gray, 50; Conley ». The State, 5 W. Va.
622. And see Tefft v. Commonwealth, 8
Leigh, 721. In like manner, Injuring
Register — Under the English Statute
j1 Geo. 4 & 1 Will. 4, c. 66, § 20, a per-
son may be charged with “destroying,

_K. 601.

defacing, and injuring” a register; for
here is but one offence, though the words
of the statute are “shall wilfully destroy,
deface, or injure,” &c. Reg. v. Bowen, 1
Den. C. C. 22,1 Cox C. C. 88,1 Car. &
See also The State v. Houseal, 2
Brev. 219; The State v. Nelson, 29 Maine,
329. Passing Counterfeit Money.— A
statute made punishable “‘ whoever utters,
or passes, or tenders in payment as true,”
any note, &c. And acount was held not
to be double which charged, that the de-
fendant “ did utter and pass as true,” &c.
“This language,” said Chapman, J., “ de-
scribes but a single offence, and the in-
dictment describes it in the usual form.”
Commonwealth v. Hall, 4 Allen, 205, 306.
Lottery Tickets.—It was by statute
made punishable “if any person shall
sell, or offer for sale, or shall advertise,
or cause to be advertised for sale” any
lottery ticket, &c. And a count was held
not to be double which charged, that the
defendant “did unlawfully offer for sale
and did unlawfully sell.” Commonwealth
v. Eaton, 15 Pick. 273. To the like effect,
see Commonwealth v. Nichols, 10 Allen,
199; Commonwealth v. Brown, 14 Gray,

‘419; Stevens v. Commonwealth, 6 Met.

241; Byrne v. The State, 12 Wis. 519;
269
§ 437 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

§ 437. Nature of Offence and Act.—In determining whether
or not a count is double, we should consider the nature of
the offence, as explained in “Criminal Law” and “ Statutory
Crimes,” and then compare with it what the defendant is charged
with having done. In this view, some further illustrations will
be helpful; as, —

Overt Acts in Treason — Conspiracy. — “ Laying,” says Arch-
bold,} “ several overt acts in a count for high treason is not duplic-
ity ;? because the charge consists of the compassing, &c., and
the overt acts are merely evidences of it; and the same as to con-
spiracy.2 .. . So—

Attempt. — “ A count in an indictment charging a man with
one endeavor to procure the commission of two offences is not
bad for duplicity ; because the endeavor is the offence charged.‘
.... And —

Injuries to Two or More — Battery — Libel — Murder. — “ It is:
now generally understood that a man may be indicted for the
battery of two or more persons in the same count;® or for a
libel upon two or more persons, where the publication is one
single act ;® without rendering the count bad for duplicity. In
felonies also, the indictment may charge the defendant, in the
same count, with felonious acts with respect to several persons,
— as, in robbery, with having assaulted A and B, and stolen
from A one shilling, and from B two shillings, —if it was all
one transaction.”’ So, also, where two commit a joint assault
with intent to murder, the one with a knife and the other with
a gun, a count in the indictment charging them jointly is not
objectionable for duplicity. And if a man shoots at two, mean-
ing to kill one, but regardless which, he may be convicted on a

Commonwealth v. Lufkin, 7 Allen, 579;
The State v. Bielby, 21 Wis. 204.

1 Archb. Pl. & Ev. 18th Lond. ed. 54.

2 Anonymous, J. Kel. 8.

3 And see, as to conspiracy, The State
v. Sterling, 34 Iowa, 448.

4 Rex v. Fuller, 1 B. & P.180. And
see Crim. Law, I. § 792.

5 Vol. II § 60; Rex v. Benfield, 2 Bur.
980, 984; see 2 Stra. 870; 2 Ld. Raym.
1572, contra. In the case in Burrow, the
question was pertinently asked, “Cannot
the king call a man to account for a

270

breach of the peace, because he broke
two heads instead of one? How many
informations have been for libels upon
the king and his ministers?” As sustain-
ing the text also, see Anonymous, Lofft,
271.

6 Rex v. Jenour, 7 Mod. 400; Rex ».
Benfield, supra.

7 Reg. v. Giddings, Car. & M. 684.
And see Wilcox v. The State, 81 Texas,
686.

8 Shaw v. The State, 18 Ala. 547.
CHAP. XXVIII.] DUPLICITY. § 489

single charge of assaulting both It has been held bad for
duplicity to lay a murder of three persons in one count;? but,
in reason, it cannot be so under all circumstances, as where one
discharge of a ball from a gun killed them.?

§ 488. Offence constituted of Many Acts. — Though an offence
is constituted of many acts, all may be charged in one count
without rendering it double. Hence, —

Selling Liquors to Drunkard. — It was not deemed ill to allege,
that, on a day named, the defendant A did sell, and did offer to
sell, by himself and by an agent, wines, spirituous liquors, and
other intoxicating beverage, to one B, addicted to habits of in-
toxication, said A knowing him to be so addicted, and B being
also a common drunkard. And Waite, J., said: “No matters,
however multifarious, will operate to make a declaration or
information double, provided that all taken together constitute
but one connected charge, or one transaction.”5 To make this
observation express the common doctrine, we should add “ pro-
vided also, that, in any view which the law will take of the one
transaction, it may be regarded as constituting but one offence.” ®

§ 439. Burglary. — This sort of doctrine is carried perhaps
to its full extent in burglary. The charge in a single count is
or may be, that the defendant broke and entered the dwelling-
house with the intent to commit therein a felony — as, for ex-
ample, a larceny 7— and committed it. Not necessarily is all

1 Commonwealth v. McLaughlin, 12
Cush. 615.

2 People v. Alibez, 49 Cal. 452.

3 Escape.— As to the escape of two
prisoners on one day, see Oleson v. The
State, 20 Wis. 58.

4 The State v. Edmondson, 43 Texas,
162. .

5 Barnes v. The State, 20 Conn. 232,
2365.

6 Thus, False Imprisonment, &c.—
A conviction on a charge of assault, bat-
tery, and false imprisonment is not bad
for duplicity; for, said Potts, J.: “The
assault, the battery, the false imprison-
ment, though in themselves separately
considered they are distinct offences, yet
collectively they constitute but one of-
fence.” Francisco v. The State, 4 Zab.
80, 32.

7 The State v. Colter, 6 R. I 195;

Breese v. The State, 12 Ohio State, 146;

Davis v. The State, 3 Coldw. 77; Wolf
v. The State, 49 Ala. 859; Speers v. Com-
monwealth, 17 Grat. 570; Shepherd v.
The State, 42 Texas, 501; The State v.
Ah Sam,7 Nev. 127; Wilcox v. The State,
81 Texas, 586; The State v. Brandon, 7
Kan. 106; Murray v. The State, 48 Ala.
675; The State v. Barker, 64 Misso. 282.
But see People v. Garnett, 29 Cal. 622.

8 Archb. Crim. Pl. 18th Lond. ed. 54.
In Reg. v. Bowen, 1 Den. C. C. 22, 28,
Parke, B., said to counsel : ‘ Your objec-
tion would apply to every case of a bur-
glary and a larceny. There would be,
first, the burglary ; secondly, the larceny ;
thirdly, the compound or simple larceny ;
fourthly, the stealing in a dwelling-house.”
And Tindal, C. J. added: “This is one
set of facts; it is all one transaction;
the prisoner could not have been embar-
rassed.””

271
§ 441 INDICTMENT AND ITS INCIDENTS. ' [BOOK Iv.

this one offence, but the prosecuting power may treat it as
such.}

§ 440. One of the Offences insufficiently alleged. — As surplusage
does not injure an indictment, if it charges two offences in a
single count, but one of them insufficiently, it is not therefore
double ;° to be so, it must set out each in adequate terms.*

§ 441. Mlustrations of Duplicity.— Having thus seen what is
not duplicity, let us look at some illustrations of what is.
Thus, —

Way. — An indictment against the overseer of a road was in
Tennessee adjudged ill for duplicity, averring, that the road was
Tuinous and out of repair, that it was not measured and mile-
marked, and that no posts of durable wood were set up at each
mile. The reason, as explained by Green, J., was: “ By the act
of 1804, c. 1, § 9, overseers of roads are made indictable for fail-
ing to keep the road in repair; and, as no specific penalty is
fixed, they may of course be punished as persons guilty of other
misdemeanors are punishable. By the act of 1819, c. 26, § 5, it
is provided, that the grand jury may present overseers of roads
for failing to mile-mark, and set up post-marks, &c., and that
on conviction he [they] shall be fined in a sum not exceeding
five dollars. These acts constitute the offence of failing to keep
the roads in repair, and the offence of failing to mile-mark the
road and set up posts at each mile, — entirely different and dis-
tinct offences ; the punishment of the one being limited to a fine
of five dollars, while the punishment of the other may be by a
fine as high as fifty dollars. The indictment is therefore double ;
and, for that reason, vicious.”5 Again, —

Disturbing Meeting. — An early statute in Massachusetts made
it punishable, in one section, ‘if any person shall, on the Lord’s
day, within the walls of any house of public worship, behave
rudely or indecently”; and, in a subsequent section, by another
penalty, “if any person or persons, either on the Lord’s day or

1 Crim. Law, I. § 1062.

2 Post, § 478.

8 Post, § 480; Jillard v. Common-
wealth, 2 Casey, Pa. 169; The State v.
Palmer, 85 Maine, 9; The State v. Rol-
lins, 55 N. H. 101; McKinney v. The State,
25 Wis. 378; Thompson v. The State, 30
Texas, 856; Henderson v. The State, 2
Texas Ap. 88; The State v. Coffey, 41

272

Texas, 46; The State v. Lawry, 4 Nev.
161; Commonwealth v. Frey, 14 Wright,
Pa. 245.

4 Commonwealth v. Tuck, 20 Pick.
856, 860; Dawson v. People, 25 N. Y.
899; Burchard v. The State, 2 Oregon,
78; Commonwealth v. Powell, 8 Bush, 7.

5 Greenlow v. The State, 4 Humph.
26, 26.
CHAP. XXVIII.] DUPLICITY. § 443

at any other time, shall wilfully interrupt or disturb any assem-
bly of people met for the public worship of God, within the place
of their assembling or out of it.” And a count was held double,

-as charging offences within both sections, alleging, that the de-
fendant, at a time and place mentioned, within the walls of the
public meeting-house, which is used and improved as a house
of public worship, did behave indecently and rudely, and then
and there did wilfully interrupt and disturb the people of, &c.,
then and there assembled in said meeting-house for publicly wor-
shipping God on said day.1

§ 442. How the Defendant is to take Advantage of Duplicity :—

Before Verdict. — If an indictment is bad for duplicity, —

Quashing. — The court may quash it on motion ;2 or, —

Demurrer. — It may be demurred to ;? or, —

Election. — At the trial, the prosecutor may be put to his elec-
tion on which charge to proceed.*

§ 443, Cured ‘by Verdict. — A verdict convicting the defendant
of one of the offences charged, and acquitting him of the other,
cures the defect.®

Cured by Nol. Pros. — So does a nolle prosequi, before verdict,
as to all but one of the offences.®

Objections after Verdict — (Motion in Arrest — Writ of Error). =
‘No authority has been cited,” said Mellor, J., in the English court,
“to show that duplicity is a fatal objection in a criminal case after

verdict ; but, whether that be so or not, Iam not aware of any

1 Commonwealth v. Symonds, 2 Mass.
163. For further illustrations, see Bur-
gess v. The State, 44 Ala. 190; The State
v. Wood, 18 Minn. 121; The State v.
Runnals, 49 N. H. 498; People v: Wright,
9 Wend. 193.

2 Archb. Crim. Pl. & Ev. 18th Lond.
ed. 54; Womack v. The State, 7 Coldw.
608 ; post, § 778.

3 Ib.; Reg. v. Hunt, 8 Cox C. C. 215;
People v. Weaver, 47 Cal. 106; People v.
Shotwell, 27 Cal. 894; People v. Burgess,
85 Cal. 116.

4 The State v. Fidment, 85 Iowa, 641;
People v. Shotwell, supra. Contra, The
State v. Miller, 24 Conn. 622, holding that
the objection is now too late, it should
have been made by demurrer or motion
to quash. The doctrine is laid down by

VOL. 1. 18

Archbold, who cites no authorities, as
follows: “In civil actions, the usual mode
of objecting to pleadings for duplicity is
by special demurrer; it is cured by gen-
eral demurrer, or by the defendant’s
pleading over. In criminal cases, the de-
fendant may object to it by special de-
maurrer, perhaps also upon general demur-
rer; or the court in general, upon appli-
cation, will quash the indictment. But
it is extremely doubtful whether it can
be made the subject of a motion in arrest
of judgment or of a writ of error; and it
is cured by a verdict of guilty as to one
of the offences, and not guilty as to the
other.” Archb. Crim. Pl. & Ey. ut sup.

5 The State v. Miller, 24 Conn. 522;
The State v. Merrill, 44 N. H. 624.

8 The State v. Merrill, supra.

273
§ 443 INDICTMENT AND ITS INCIDENTS. [BooK Ivy.

case that decides that the objection is open on a writ of error.” 1
And it is very widely, perhaps the prevailing, American doctrine
that the defendant cannot avail himself of the duplicity after
verdict.2 But in some of the States the motion in arrest of:
judgment has been adjudged available,’ and in others it has been
resorted to apparently without objection.t In principle, duplic-
ity would seem ordinarily to be a defect of such mere form as
ought not to be availuble after verdict; because the objection is
one which relates simply to the convenience of the defendant in
making his defence, while by not taking the objection he is
shown to have suffered no inconvenience and therefore to have
waived it. This observation refers to the ordinary case, where
it is just as plain what and how many offences are charged as
if separate counts were employed. But, where the number of
offences is uncertain, and perhaps in some other unusual circum-
stances, “the court must be greatly embarrassed in the sentence
to be pronounced” ;* and then the defendant ought to be per-
mitted to take the objection by motion in arrest of judgment, or

even by writ of error.

1 Nash v. Reg. 9 Cox C. C. 424, 429,
4B. &S. 985.

2 Coney v. The State, 2 Texas Ap.
62; People v. Burgess, 35 Cal. 115; Peo-
ple v. Weaver, 47 Cal. 106; The State v.
Holmes, 28 Conn. 230; The State v.
Brown, 8 Humph. 89; People v. Shot-
well, 27 Cal. 394; Shafer v. The State, 26
Ind. 191; Simons v. The State, 25 Ind.
831; Commonwealth v. Tuck, 20 Pick.
856, 8361. And see People v. Clark, 33
Mich. 112, 120.

3 People v. Wright, 9 Wend. 198; The
State v. Merrill, supra (a case, however,
in which this proposition is mere dictum,
the facts not raising the question); The
State v. Howe, 1 Rich. 260; overruling,
in effect, The State v. Johnson, 3 Hill, S.
C. 1, of which case the court seem not to
have been aware. They cite the passage
from Archbold quoted in a note to the
last section, observing that he refers to
no authority. They consider the two

274

cases of Rex v. Roberts, Carth. 226; and
Rex v, Clendon, 2 Stra. 870, the latter
not being weakened on this point. by
being overruled as to its main matter in
Rex v. Benfield, 2 Bur. 980, 984; to be
sufficient English authority on which to
rest their decision. I will observe, that,
in both of these cases, the question con-
cerning what seems to have been deemed
duplicity was raised by motion in arrest
of judgment, and that in both the motion
was sustained. They were brief, appa-
rently not much considered, and no point
was made as to whether this was the
proper method for taking advantage of
the duplicity.

4 Commonwealth v. Symonds, 2 Mass.
163; Barnes v. The State, 20 Conn. 232;
Greenlow v. The State, 4 Humph. 25;
The State v. Nelson, 8 N. H. 163; con-
firmed in The State v. Fowler, 8 Fost. N.
H. 184, 191.

5 The State v. Howe, 1 Rich. 260, 261.
CHAP. XXIX.]

JOINDER OF OFFENCES. § 446

CHAPTER XXIX.
JOINDER OF OFFENCES.

§ 444. Scope of this Chapter. — Having seen, in the chapter
before the last, what is the general doctrine of counts and their
joinder, and in the last chapter how a count is to ‘be framed so as
to charge only one offence, we shall now inquire what offences —
in other words, what counts — may be practically introduced
together into one indictment. We say practically; because, as
already shown,! there is in strict law no limit, the question being
regulated by judicial discretion.

§ 445. Felony and Misdemeanor under Old Rules. — In States
where the common law is unmodified by statutes or usage, there
can be no conviction for misdemeanor on an indictment for fel-
ony.? Consequently a count for misdemeanor in such an indict-
ment would be nugatory, and it should not be joined. But, —

§ 446. Under New Rules. — Where a conviction for misdemeanor
can be had on an indictment for felony, and the course of trial
is the same in the two grades of offence, the joinder is, in proper

circumstancés, permissible.*

1 Ante, § 424, 425.

2 Crim. Law, I. § 788, 789, 804.

8 Hilderbrand v. The State, 56 Misso.
548; Rex v. Gough, 1 Moody & R. 71.
And see Scott v. Commonwealth, 14 Grat.
687; Weathersby v. The State, 1 Texas
Ap. 648. Separate Indictments. — In
England, the court has even disapproved,
in strong terms, of the grand jury’s find-
ing separate indictments, the one for
felony and the other for misdemeanor,
founded on the same transaction. Rex
v. Doran, 1 Leach, 4th ed. 538. In one
such case Vaughan, B., said: ‘ The party
should consider his case, and know what
he ought to indict for, and not prefer two
bills at once, and take the chance of get-
ting a conviction upon one of them. I
shall hold him to elect which he will go

As in other cases of joinder, —

upon, and I shall direct an acquittal upon
the other.” Rex v. Smith, 3 Car. & P.
412. The court, however, will not quash
the indictments, though an affidavit shows
that the two were founded on one trans-
action. Reg. v. Stockley, 3 Q. B. 238, 2
Gale & D. 728. See also People v. Van
Horne, 8 Barb. 158. And see Tlie State
v. Whitmore, 5 Pike, 247; Rex v. Hand-
ley, 5 Car. & P. 565.

4 Hunter v. Commonwealth, 29 Smith,
Pa. 503; Wayne v. Commonwealth, 2
Casey, Pa. 154; Henwood v. Common-
wealth, 2 Smith, Pa. 424; Stevick vo.
Commonwealth, 28 Smith, Pa. 460; The
State v. Hood, 51 Maine, 863; The State
v. Lincoln, 49 N. H. 464, And see United
States v. Jacoby, 12 Blatch. 491; United
States v. Scott, 4 Bis. 29.

275
INDICTMENT AND ITS INCIDENTS. [Book Iv.

§ 448

Repugnancy, &c.—If the offences are repugnant, or the trial or
the judgment is incongruous and calculated to deprive the de-
fendant of rights or embarrass the court, it will not be permitted.!
It is allowed where the offences are in “a kindred line,” or
‘where several counts are introduced for the purpose of meeting
the evidence as it may transpire on the trial, all the counts being
substantially for the same offence.”? Thus, —

Rape and Assault with Intent. — A count for the felony of rape
and another for the misdemeanor of assault with intent to com-
mit it, may be joined?

§ 447. Consequences of misjoining Felony and Misdemeanor. —
It is believed that, by the better doctrine, an improper joinder
of felony and misdemeanor, like other misjoinders of counts,
does not render the indictment bad in law, but is only to be cor-
rected by an exercise of the judicial discretion.t Where the
conviction was for the felony only, and the objection was first
taken on a motion in arrest of judgment, the English judges
affirmed the proceedings, Lord Campbell, C. J., observing:
* There is not the smallest pretence for the objection that the
indictment also contained a count for misdemeanor, and it does
not admit of any argument.”5 And, in general, the motion in
arrest of judgment has been held not to lie for this defect.6 In
Georgia, the right to demur seems to be conceded,’ but this is
doubtful in general law. Of course, where the common-law
rules prevail, the court, if its attention is called to the misjoinder,
will not permit a verdict of guilty to be taken on the counts both
for felony and for misdemeanor.®

§ 448. Felony — Misdemeanor, distinguished. — Felony and mis-
demeanor are further distinguished in this, that, by the doctrine
prevailing in England and most of our States, there can be no such
joinder of felonies as includes separate transactions; while, by

1 Stevick v. Commonwealth, supra.

2 Commonwealth v. McLaughlin, 12
Cush. 612, 614; Commonwealth v. Carey,
103 Mass. 214. See The State v. Lincoln,
supra.

3 The State v. Sutton, 4 Gill, 494; Vol.
IL. § 975. And see Burk v. The State, 2
Har. & J. 426; The State v. Posey, 7
Rich. 484.

4 Ante, § 425, 426.

6 Reg. v. Ferguson, Dears, 427, 420,

276

6 Cox C. C. 454. To the like effect is Unit-
ed States v. Stetson, 8 Woodb. & M. 164.
This would be so, even if the two offences
were charged in one count. Ante, § 443.
® The State v. Nelson, 14 Rich. 169.
But see Stephen v. The State, 11 Ga. 225.
T Davis v. The State, 67 Ga. 66; Ste-
phen v. The State, supra.
_ § Reg. v. Jones, 8 Car. & P. 776, 2
ae 94; Rex v. Gough, 1 Moody & R.
CHAP. XXIX.] JOINDER OF OFFENCES. § 449

universal doctrine, there may be such joinder of misdemeanors,
under some circumstances.! Let us look at these two proposi-
tions, with their limitations, a little in detail.

§ 449. Joinder of Felonies : —

How far Permissible. — It is common practice, and not contrary
to rule anywhere, to join counts all of which are for felony in
one indictment.2 But, in England, and in most of our States,
this right is limited by the rule of judicial discretion, that, on
the trial, the evidence of the prosecutor will be confined to one
transaction ;* the differing counts being allowed only for the
purpose of describing it in varying ways. And, while the counts
are kept within this bound, technically they may charge two or
more distinct felonies; as, —

Embezzlement and Larceny. — If the pleader is uncertain whether
the transaction will appear in the proofs to be embezzlement or
larceny, and both are felonies, he may have a count or counts for
each.t So, —

Embezzlement and False Pretences. — Under like circumstances,
counts may be joined for embezzlement and false pretences.®

Burglary and Larceny. — Not only is it competent to charge a
breaking and entry with intent to steal and an actual stealing,
in one count as one burglary, in the manner already explained ;®
but, if the pleader chooses, he may add a separate count for
larceny.’ Such is the general doctrine, and there is respectable
authority for carrying it: to all lengths, but perhaps in principle
some qualifications may be required. Again, —

Forging and Uttering. — Counts for forging and for uttering the
forged paper as true (offences, however, which may not be every-
where felonies ®) are often and properly joined. So—

1 Young v. Rex, 3 T. R. 98 ; Common-
wealth v. Manson, 2 Ashm. 31; Kane v.
People, 8 Wend. 203.

2 Mershon v. The State, 51 Ind. 14;
Smith v. Commonwealth, 21 Grat. 809;
Dill v. The State, 1 Texas Ap. 278.

8 Post, § 457.

4 Griffith v. The State, 36 Ind. 406;
Rex v. Johnson, 3 M. & S. 539; Coats v.
People, 4 Parker C. C. 662; The State v.
Porter, 26 Misso. 201.

5 The State v. Lincoln, 49 N. H. 464.

6 Ante, § 489.

7 Speers v. Commonwealth, 17 Grat.

570; Lyons v. People, 68 Ill. 271; Com-
monwealth v. Birdsall, 19 Smith, Pa. 482.
And see Hobbs wv. The State, 44 Texas,
858; The State v. Turner, 63 Misso.
436.

8 Crim. Law, IT. § 609.

® Barnwell v. The State, 1 Texas Ap.
745; The State v. Nichols, 38 Iowa, 110;
Hoskins v. The State, 11 Ga. 92. Coun-
terfeiting and Having with Intent.—
An indictment contained a count for
counterfeiting coin; then, for having five
false pieces with intent to pass as true,
&c.; then, for having less than five such

277
§ 449 [Boox ‘Iv.

INDICTMENT AND ITS INCIDENTS.

Larceny and Receiving. — An indictment against two persons,
charging one with the larceny of goods and another with receiv-
ing them, as an accessory after the fact, is to be drawn in one
count.! But where a person is indicted alone, and there is doubt
whether his crime will appear at the trial to be that of a receiver
or a thief, it is proper to charge him, in separate counts, with
both

How Object. — Where counts for felonies are joined. contrary
to these rules, or in a way to prejudice the defendant, his remedy
is by an appeal to the discretion of the court, as already pointed
out, to quash the indictment, or put the prosecutor to elect on
which charge he will proceed ; but after verdict it is too late to

raise the objection.’

pieces with the same intent. And this
was held to be justifiable as intended to
meet every contingency ‘of the evidence ;
there being no proof that the counts re-
lated to different transactions. The State
v. McPherson, 9 Iowa, 53. ‘See, for other
cases, Stephen v. The State, 11 Ga. 225;
United States v. Peterson, 1 Woodb. & M.
305; Joy v. The State, 14 Ind. 189; Me-
Gregor v. The State, 16 Ind. 9; People v.
McKinney, 10 Mich. 54.

1 Vol. IL § 5, 7,8; Rex v. Hartall, 7
Car. & P. 475. See, as to California,
People v. Hawkins, 34 Cal. 181.

2 Rex v. Galloway, 1 Moody, 284, 236;
Rex v. Madden, 1 Moody, 277; Reg. v.
Huntley, Bell, 238, 8 Cox C. C. 260; The
State v. Hazard, 2 R. 1. 474; The State
v. Posey, 7 Rich. 484; O’Connell v. The
‘State, 55 Ga. 191; Owen v. The State, 52
Ind. 879; Rex v. Flower, 8 Car. & P. 418;
Maynard v. The State, 14 Ind. 427; The
State v. Stimpson, 45 Maine, 608; Hamp-
ton v. The State, 8 Humph. 69; Com-
monwealth v. Adams, 7 Gray, 43; The
State v. Daubert, 42 Misso. 242; The
‘State v. Hogan, R.-M. Charl. 474; The
State v. Baker, 70 N. C. 580; The State
v. Speight, 69 N. C. 72. But see The
State v. Johnson, 75 N.C. 1238. Acces-
sory Before and After. — Counts may be
joined charging one with being accessory
before the fact and after. Rex v. Black-
son, 8 Car. & P. 43.

3 Ante, § 424, 425, 442, 443, 447; Reg.
v. Hey wood, Leigh & C. 451; Anonymous,
2 Leach, 4th ed. 11065, note; Strawhern

278

v. The State, 37 Missis. 422; Thompson
v. People, 4 Neb. 524; Weathersby v.
The State, 1 Texas Ap. 643; The State
v. Kibby, 7 Misso. 817; The State v. Cole-
man, 5 Port. 32; Wash v. The State, 14
Sm. & M. 120; Baker v. The State, 4
Pike, 56; Johnson vu. The State, 29 Ala.
62; United States v. Pirates, 5 Wheat.
184, 201; The State v. Hooker, 17 Vt.
658, 669; The State v. Brown, Winston,
No. II. 54; Henwood v. Commonwealth,
2 Smith, Pa. 424; Ketchingman v. The
State, 6 Wis. 426; Rex v. Kingston, 8
East, 41,46. In a case in error before
the King’s Bench in England, Buller, J.,
stated the doctrine, in answer to the ob-
jection of misjoinder, as follows: ‘That
is founded on a point which once embar-
rassed me a great deal. Some years
have elapsed since I looked into it, but I
believe I can state pretty accurately how
it stands. In misdemeanors, the case in
Burrow shows that it is no objection to
an indictment that: it contains several
charges. ‘The case of felonies admits of
a different consideration; but, even in
such cases, it is no objection in this stage
of the prosecution. On the face of an
indictment, every count imports to be
for a different offence, and is charged as
at different times. And it does not ap-
pear on the record whether the offences
are or are not distinct. But if it appear,
before the defendant has pleaded or the
jury are charged, that he is to be tried
for separate offences, it has been the
practice of the judges to quash the in-
CHAP. XXIX.].-- JOINDER OF OFFENCES. § 450

§ 450. In some States Permissible. — There are States in which,
contrary to the doctrine thus laid down as mostly prevailing, dis-
tinct felonies, committed in separate transactions, are, within
limits not greatly different from those controlling in misde-
meanors, permitted to be joined in one indictment, followed by
a conviction and sentence for all. It is so in Massachusetts,
where “the long-established practice,” said Dewey, J., “has
been to present distinct larcenies in the same indictment, and
also distinct offences of receiving stolen goods in the same in-
dictment, in different counts. It has been considered to be no
objection to this practice that the charges were felonies, provided
that they were offences of the same general nature, requiring the
same mode of trial, and having the punishment annexed to them
of a like nature. . . . It is always open to the presiding judge
to order a separate trial on each distinct charge,! when there is
any reason for supposing that the defendant will be perplexed
in his defence, or unnecessarily embarrassed by. being. put on

dictment, lest it should confound the pris-
oner in his defence, or prejudice him in
his challenge of the jury; for he might
object to a juryman’s trying one of the
offences, though he might have no reason
to do so in the other. But these are only
matters of prudence and discretion. If
the judge who tries the prisoner does not
discover it in time, I think he may put
the prosecutor to make his election on
which charge he will proceed. I did it at
the last sessions at the Old Bailey; and
hope, that, in exercising that discretion,
I did not infringe on any rule of law or
justice. But if the case has gone to the
length of a verdict, it is no objection in
arrest of judgment. If it were, it would
overturn every indictment which contains
several counts.” - Young v. Rex, 3 T. R.
98, 105, 106; s. c. Rex v. Young, 1 Leach,
4th ed. 505. As strengthening more or
less the foregoing views, see The State v.
Fowler, 8 Fost. N. H. 184; Kane v. Peo-
ple, 8 Wend. 203; Cash v. The State, 10
Humph. 111; Storrs v. The State, 3 Misso.
9; The State v. Nelson, 29 Maine, 329;
Mayo v. The State, 30 Ala. 32; Dowdy
v. Commonwealth, 9 Grat. 727; The State
v. Palmer, 4 Misso. 458; Stone v. The
State, Spencer, 404; Walters v. The State,
6 Iowa, 507; Fisher v. The State, 33
Texas, 792. Yet if in consequence of

any kind of misjoinder the record shows
error of law, of course, under the com-
mon-law rules, the defendant may take
advantage of it by motion in arrest of
judgment or by writ of error. Within
this principle, where six persons were
indicted jointly for perjury, and four of
them were convicted, a motion in arrest
of judgment was allowed ; because it was
deemed that in matter of law perjury is
not an offence which can be committed
jointly. Rex v. Philips, 2 Stra. 921. And
there is now and then an isolated case to
be found in the books, wherein, whether
rightly or not, the like proceeding has
been successfully employed for a misjoin-
der of felonies. The State v. Cherry, 1
Swan, Tenn. 160. See also, to the like
effect, The State v. Fant, 2 Brev. 487.
Moreover, in South Carolina, a new trial
was granted the defendant on a general
verdict of guilty, where the indictment
contained two distinct charges of different
offences punishable differently ; the court
observing, — “ A general verdict of guilty
does not show of which offence he was
guilty.” The State v. Montague, 2 Mc-
Cord, 257, 258. See also The State v.
Anderson, 1 Strob. 455; The State v.
Priester, Cheves, 103.
1 Ante, § 425.

279
INDICTMENT AND ITS INCIDENTS.

§ 451 [BOOK Iv.

trial for two distinct offences. We see no good reason for hold-
ing that it is illegal to present in the same indictment felonious
offences of a similar character and having a like punishment.
In misdemeanors, it is admitted that this may be done, and the
distinction set up as to felonies as a class is by no means a satis-
factory distinction, or based on any sound principle; as many
petty offences, as for example larcenies of the most trifling
amount, have always heretofore, and until the very recent Stat.
of 1852, c. 4, been denominated felonies.”1 Consequently, —

As to Verdict and Sentence. — If, on such an indictment, there
is a general verdict of guilty, and a sentence to a longer im-
prisonment than is allowable for what is set out in any one
count, yet not longer than the ‘sum of the several periods allow-
able for all, the judgment is not erroneous? This is not the
place to inquire whether it is or should be so in other States.3

§ 451. Permissible, continued. — The like joinder of distinct
transactions in felony seems to be permitted also in Tennessee.
There it was held not erroneous to refuse to quash an indictment
charging, in the first count, that the defendant stole a slave
named A, the property of B; in the second, that he stole a slave
named A, the property of C; in the third, that he stole a gray
mare, the property of D; and, in the fourth, that he stole a bay

horse, the property of E.*

And the like doctrine is also held in

Connecticut,’ and perhaps in some of the other States.

1 Commonwealth v. Hills, 10 Cush.
530, 588, 584. See Sarah v. The State,
28 Missis. 267.

2 Carlton v. Commonwealth, 5 Met.
532.

3 And see post, § 457, 1827.

4 Cash v. The State, 10 Humph. 111.
Perhaps this decision does not so settle
the question as to preclude further agi-
tation of it. The learned judge who de-
livered the opinion, not having, it may
be, all the distinctions in his mind, said:
“The authorities referred to certainly
establish the principle, that a defendant
ought not to be charged with different
felonies in different counts of the same
indictment. It is calculated to confound
the prisoner in his defence, and to deprive
him of the full benefit of the challenges
allowed him by law; and the humanity
of the law will therefore induce the court,

280

in most cases of this kind, to quash the
indictment, or put the prosecutor to his
election on which count he will proceed.
But it may sometimes be proper to unite
in the same indictment different offences,
when they are of the same character, dif-
fering only in degree, as in the case of
the People v. Rynders, 12 Wend. 425,
where it was held, that a charge for forg-
ing a check, and also for publishing it as
true, knowing it to be false, were properly
united. There is therefore, in point of
law, no objection to the insertion of sev-
eral distinct felonies of the same degree,
though committed at different times, in
the same indictment, against the same
offender, and it is no ground either of
demurrer or arrest of judgment.” p. 113.
This case seems to be confirmed by Wo-
mack v. The State, 7 Coldw. 608.

5 The State v. Tuller, 34 Conn. 280, 299.
CHAP. XXIX.] JOINDER OF OFFENCES.

§ 458

§ 452. Joinder in Misdemeanor, with some Views of the Dis-
eretion to be exercised in Joinder generally : —

Distinct Transactions Permissible. — By the practice every where,
distinct transactions in misdemeanor may be joined in separate
counts of one indictment, to be followed by one trial for all, and
a conviction for each several offence, the same as though all were
charged in the same terms in separate indictments ;! subject,
however, to practical limitations imposed by judicial discretion.
Thus, —

In Libel — Assault — Fraud. — “It is the daily usage,” said
Lord Ellenborough, C. J., “to receive evidence of several libels,
and of several assaults, upon the same indictment; and here I.
see not the slightest objection to evidence of various acts of fraud
committed by the defendant in his office of commissary-general,
though ranged under different counts as distinct and substantive
misdemeanors.”2 Again, —

In Liquor Selling. — Where a statute makes it a misdemeanor
to sell intoxicating liquor without a license, and imposes a fine
for each sale, several counts for distinct sales may be joined in
one indictment, and the accumulated penalty imposed.®

Common Law and Statutes. — Counts at common law and under
statutes may be joined.*

One Transaction, &c. — As in felony,® so a fortiort in misde-
meanor, it is permissible to join counts founded on one transac-
tion,’ and for different degrees of the same offence.’

§ 453. Limits of the Doctrine. — The court, in its supervision
of a cause, will, by quashing a part of the counts, putting the

1. Ante, § 448; Kane v. People, 8 Wend.
203 ; Commonwealth v. McChord, 2 Dana,
242; Stone v. The State, Spencer, 404;
People v. Costello, 1 Denio, 83; People v.
Gates, 18 Wend. 311; The State v. Kibby,
7 Misso. 317; United States v. O’Calla-
han, 6 McLean, 596; Orr v. The State,
18 Ark. 540; Covy v. The State, 4 Port.
186; The State v. Bitting, 13 Iowa, 600;
The State v. Gummer, 22 Wis. 441; Unit-
ed States v. Devlin, 6 Blatch. 71; Reg. v.
Davies, 5 Cox C. C. 328; Kroer v. People,
78 Il. 294; Quinn v. The State, 49 Ala.
353; Waddell v. The State, 1 Texas Ap.
720.

2 Rex v. Jones, 2 Camp. 181, 182,

And see Commonwealth v. Malone, 114
Mass. 295.

8 Barnes v. The State, 19 Vt. 398;
Commonwealth v. Tuttle, 12 Cush. 505;
Smith v. Adrian, 1 Mich. 495; The State
v. Croteau, 28 Vt. 14; Mullinix v. People,
76 Ill. 211. See post, § 458 and note.

4 The State v. Thompson, 2 Strob. 12;
The State v. Williams, 2 McCord, 801.

5 Ante, § 449.

6 Harris v. People, 6 Thomp. & C. 206,
210; Oliver v. The State, 87 Ala. 134;
Dean v. The State, 43 Ga. 218.

7 The State v. Hood, 51 Maine, 363;
The State v. Randle, 41 Texas, 292.

281
»

§ 453 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

prosecutor to elect, or otherwise,! protect the accused from be-
ing prejudiced by the joinder, in any right of defence.? And it
will have a proper regard to its own convenience, and the due
administration of public justice. Hence in various cases it is
intimated that the joinder will not be allowed where the offences
are of a different nature, or especially where the punishment is
different. If the modes of trial are different, plainly they cannot
be joined. In some circumstances, the different natures of the
offences may require the trial of one only at a time, as matter of
convenience to the prosecutor or protection to the defendant; in
others, not. If the offences are distinct, it can be no embarrass-
ment that the punishments are different; for the sentence is, or
may be, separate on each count.® The joinder, therefore, is not
objectionable.6 Nor, as the form of. the verdict is under the
control of the court, is it objectionable where varying counts are
really for one transaction.’

Different Methods of Committing Offence. — We have seen, au
if an offence may be committed by different means, and the
pleader doubts which was employed in the particular instance,
he may in one count charge its commission by all, and proof of

1 Ante, § 425.

2 Hamilton v. People, 29 Mich. 173;
Van Sickle v. People, 29 Mich. 61.

8 Norvell v. The State, 50 Ala. 174,
178; The State v. Coleman, 5 Port. 32;
United States v. Scott, 4 Bis. 29; Teat
v. The State, 58 Missis. 439; Quinn v.
The State, 49 Ala. 353; Rex v. Kingston,
8 East, 41,

4 Cawley v. The State, 37 Ala. 152.

5 Post, § 1826, 1327; Martin v. People,
76 Ill. 499; Mullinix v. People, 76 Ill. 211.

6 And see Rex v. Johnson, 3 M. & S.
540, 549.

7 Reg. v. Fussell, 8 Cox C. C. 291;
Estes v. The State, 55 Ga. 181; Baker v.
The State, 4 Pike, 56; Johnson v. The
State, 29 Ala. 62; The State v. Hooker,
17 Vt. 658, 669. Archbold says: “ There
is no objection to stating the same offence,
in different ways, in as many different
counts of the indictment as you may
think necessary, even though the judg-
ment on the several counts be different,
Rex v. Galloway, 1 Moody, 234; see
Rex v. Powell, 2 B. & Ad. 75, — provided

282

all the counts be for felonies, or all for
misdemeanors.” Archb. New Crim. Pro-
ced. 98. In Rex v. Galloway, thus re-
ferred to, the question was raised at the
proper stage; and, on a case reserved, it
was unanimously held not to be an objec-
tion to the indictment in point of law, that
the punishment on one count was trans-
portation for life, and on the other trans-
portation for fourteen years; but the
judges were divided in opinion, whether,
after the evidence was in, the prosecutor
should have heen put to his election on
which count to ask for a verdict. In Reg.
v. Strange, 8 Car. & P. 172, tried before
Lord Denman, C. J., and Park, J., there
were three counts, the judgment on the
first of which was by statute capital, and
on the other two it was transportation,
and they would not compel the prosecu-
tor to elect on which of them to ask for
a conviction. Said Lord Denman, C. J.:
“These are all felonies in their nature,
and of course may be joined in the same
indictment. The jury must say to which
count the evidence applies.” p. 173.
CHAP. XXIX.] JOINDER OF OFFENCES. § 453

any one will sustain the allegation.1 The limit to this doctrine
is, that the means must not be repugnant.2 Still, whether re-
pugnant or not, the pleader may, if he prefers, employ a different
count for each varying set of means,’ and he must do so when
they are inconsistent with one another.*

1 Ante, § 434. See Hitesman v. The 3 Dill v. The State, 1 Texas Ap. 278;
State, 48 Ind. 473. O’Brien v. Reg. 2 Cox C. C. 122.

2 Post, § 489-492; United States v. 4 Smith v. Commonwealth, 21 Grat.
Pirates, 5.Wheat. 184, 201; Roberts v. 809; Commonwealth v. Fitchburg Rail-
The State, 2 Texas Ap. 4; The State v. road, 120 Mass. 372.

Murphy, 47 Misso. 274.
283
§ 455 INDICTMENT AND ITS INCIDENTS. [Book Iv.

CHAPTER XXX.

COMPELLING AN ELECTION BY THE PROSECUTOR OF A COUNT
OR TRANSACTION TO WHICH THE EVIDENCE OR VERDICT
WILL BE RESTRICTED. :

§ 454. Judicial Discretion. — We have already seen! that this
compelling of an election pertains, not to absolute law, but to
judicial discretion. Ordinarily, therefore, in most of our States,
the decision of the presiding judge granting or refusing it, is not
open to revision by the higher tribunal.? But in some of our
States it is, and possibly there are special circumstances in which
it would be everywhere.’

§ 455. Quashing, as Enforced Election. — What is equivalent to
the enforcing of an election is the quashing,* by the court, of a
part or all of the indictment, when the judge deems that counts
or offences have been joined to the prejudice of the prisoner on
his trial.6 The motion to quash, like that to compel an election,
is addressed to the judicial discretion, not ordinarily subject to
revisal by a higher tribunal.6 Or, —

Trying Counts Separately. — Where the judge deems best, he
orders separate trials of the several counts; or of the several
transactions, each, it may be, embraced in more counts than

one.” Or—

1 Ante, § 424, 425.

2 People v. Baker, 3 Hill, N. Y. 159;
The State v. Woodward, 21 Misso. 265,
266 ; The State v. Leonard, 22 Misso. 449;
Bailey v. The State, 4 Ohio State, 440;
Johnson v. The State, 29 Ala. 62; Wein-
zorpilin v. The State, 7 Blackf. 186; Nel-
son v. People, 23 N. Y. 2983; Common-
wealth v. Slate, 11 Gray, 60; Com-
monwealth v. Davenport, 2 Allen, 299;
Josephine v. The State, 89 Missis. 613;
The State v. Hood, 61 Maine, 363; The
State v. Jackson, 17 Misso. 544.

3 Post, § 761; Crim. Law, I. § 1041;
Rex v. Galloway, 1 Moody, 234, 236;

284

Cochran v. The State, 30 Ala. 542; and
cases cited in subsequent sections of this
chapter.

4 Post, § 758 et seq.

5 Ante, § 425, 442, 449; Mayo v. The
State, 30 Ala. 82; The State v. Smith, 8
Blackf. 489; Engleman v. The State, 2
Ind. 91; Weinzorpflin v. The State, 8
Blackf. 186; Sarah v. The State, 28 Mis-
sis. 267.

6 Ante, § 114, 451, note; post, § 761-
774; Cash v. The State, 10 Humph, 111,
114.

7 Ante, § 425, and cases there cited.
But see Flanagan v. The State, 19 Ala. 646.
CHAP. XXX. ]

COMPELLING ELECTION. § 457

§ 456. Nol. Pros. — The prosecuting attorney may, if he deems
best, enter his nolle prosequi to any count or part of a count be-
fore trial! In analogy. to which, —

Voluntarily Elect.— He may voluntarily proceed only on cer-
tain counts of the indictment.?

§ 457. Distinctions. — Returning to the election which the
court compels, there are various distinctions, which will appear
as we proceed. Thus, —

Felony and Misdemeanor. — There is a difference, on this ques-
tion, between felony and misdemeanor ;8 except in States wherein,
as already explained,‘ different felonious transactions may be
joined the same as in misdemeanor.

Electing Counts in Felony. — Except as above, the court will
permit the prosecutor to give evidence of only one felonious
transaction ;® yet, where the counts are for different felonies
really or supposed to be connected with the one transaction, —
as, for example, larceny and receiving stolen goods,® or embezzle-
ment and larceny,’ — and, a fortiori, where one felony is set out
in various ways in the different counts to meet the varying forms
of the proofs,® no election of counts will in ordinary circumstances
be required, but all will be left open for the jury to pass upon in

their verdict.®

1 Crim. Law, I. § 1014.

2 The State v. Jones, 5 Ala. 666; Burk
v. The State, 2 Har. & J. 426.

3 The State v. Kibby, 7 Misso. 317.

4 Ante, § 450, 451.

5 Rex v. Young, Russ. & Ry. 281; The
State v. Nelson, 14 Rich. 169; Reg. v.
Lonsdale, 4 Fost. & F. 56; post, § 459.

6 The State v. Hogan, R. M. Charl.
474; Reg. v. Beeton, 1 Den. C. C. 414, 2
* Car. & K. 960, 3 Cox C. C. 451; Hamp-
ton v. The State, 8 Humph. 69; Dowdy
v. Commonwealth, 9 Grat. 727. But see
Rex v. Flower, 8 Car. & P. 413.

7 The State v. Porter, 26 Misso. 201.

8 McGregg v. The State, 4 Blackf. 101,
103; Dill v. The State, 1 Texas Ap. 278;
Lanergan v. People, 39 N. Y. 39; The
State v. Jackson, 17 Misso. 644; O’Brien
v. People, 48 Barb. 274; People v. Sat-
terlee, 5 Hun, 167; Reg. v. Davis, 8 Fost.
& F.19; The State v. Cook, 20 La. An.
145.

9 In Mayo v. The State, 80 Ala. 82,

83, 84. Walker, J., after citing Baker v.
The State, 4 Pike, 56; Kane v. People, 8
Wend. 203; Roscoe Crim. Ey. 231, 282;
Archb. Crim. Pl. 95, note 1; Barb. Crim.
Law, 340; People v. Rynders, 12 Wend.
426; The State v. Nelson, 8 N. H. 168;
The State v. Coleman, 5 Port. 82, said:
‘“The principle to be extracted from these
authorities is, that the court should al-
ways interpose either by quashing the
instrument or by compelling an election,
where an attempt is made, as manifested
by either the indictment or the evidence,
to convict the accused of two or more of-
fences growing out of distinct and sepa-
rate transactions; but should never inter-
pose, in either mode, where the joinder is
simply designed and calculated to adapt
the pleading to the different aspects in
which the evidence on the trial may pre-
sent a single transaction.” To the like
effect, see Storrs v. The State, 8 Misso.
9; United States v. Dickinson, 2 McLean,
825; Rex v. Young, Peake Add. Cas.

285
§ 458 INDICTMENT AND ITS INCIDENTS. [BooK Iv.
x

§ 458. Election of Counts in Misdemeanor. — On what principle
misdemeanors committed in separate transactions may be joined
in distinct counts we have already seen. In the famous Tweed’s
case,? the right of such joinder was almost denied; the court
deeming it unjust to require a man to answer to more than one
offence — which, however, may be set out in different forms in
more counts than one —on a single trial. But the doctrine of
the English and most American courts is the direct reverse of
this; namely, that, if a man has been engaged in a course of un-
lawful conduct resulting in a hundred legally distinct, petty
offences, and the executive officers of the government have
determined to exercise their right, not controllable by the judi-
ciary, to bring him to trial for all, it is a piece of sheer oppres-
sion to him to compel them to find against him a hundred
indictments, and require him to stand’ his trial a hundred times,
instead of answering to all at once.2 Moreover, on broader

228; The State v. Canterbury, 8 Fost. N.
H. 195; The State v. Flye, 26 Maine, 312;
Engleman v. The State, 2 Ind. 91; The
State v. Fowler, 8 Fost. N. H. 184; The
State v. Davis, 29 Misso. 391; Bailey v.
The State, 4 Ohio State, 440; People v.
Austin, 1 Parker C. C. 154; The State v.
McPherson, 9 Iowa, 538.

1 Ante, § 452, 453.

2 People ex rel. Tweed v. Liscomb,
which, by the common method of cita-
tions, is simply People v. Liscomb, 60
N. Y. 559.

3 In the Southern Law Review for
April-May, 1877, Vol. III. wn. s. 50, is an
article, afterward published separately in
a pamphlet, wherein I express some views
concerning Tweed’s Case. I do not pro-
pose to repeat that article bodily here,
but some repetitions cannot be avoided.
Tweed had been charged, in two hundred
and twenty counts, for as many neglects
of official duty in violation of a statute, —
separate offences committed in one course
of criminal conduct,—and the jury had
found him guilty of two hundred and four
of these offences. The trial court im-
posed separate sentences for the several
offences ; for each of the first twelve, to
the full extent of the law, the rest being
graded down. After suffering the penalty
on one count, he brought a writ of habeas
corpus to be discharged from prison;

286

claiming that the trial court exhausted its
jurisdiction, not necessarily by punishing
him for one offence, but by inflicting on
him all the punishment provided by law
for one offence. The New York Court
of Appeals concurred in this view, and
set him at liberty. Its opinion through-
out is a novelty in the law. It does not
absolutely deny jurisdiction to try more
offences than one at a single hearing be-
fore a jury; but it claims that, after a
conviction, only one punishment can be
inflicted, which the court may impose on
one count, or divide among the counts,
as it pleases. I never saw any other case
—I do not believe anybody else ever
did—in which this exact distinction was
made. It rests on no statute, on no com-
mon-law usage: it is a pure deduction of |
reason. And a principal reason assigned
is the hardship, to the prisoner, of making
him stand his trial for more offences than
one at a time; the ordinary deduction
from which premise, if admitted, would
be, not that he can be made to sufter only
one punishment for all the offences, but
that he can be punished for only one.
Yet such is not the court’s deduction,
which is, to repeat, that he may be pun-
ished for all, but the sum of all shall not
exceed what is allowable for one. Now,
if the grand jury had found against
Tweed two hundred and twenty separate
CHAP. XXX. ]

COMPELLING ELECTION.

§ 458

views, it has seemed to some, and, the author submits, justly,
that the joinder of distinct misdemeanors in one indictment, to
be followed by the trial of all at a single hearing before a jury,
and the punishment of each offence as prescribed by law, is.

essential to the administration of justice.

indictments, and the State’s attorney had
compelled him to stand trial two hundred
and twenty times, consuming ten years
and upwards of constant attendance on
court, paying lawyers, and feeing wit-
nesses, this, we are to understand, would
have been, according to the New York
Court of Appeals, exact justice! This
would have been no oppression to the pris-
oner! It is justice not only to the guilty,
but to the falsely accused! There is no
escaping the proposition that this is the
exact justice of the law, if the court is
right. No court can refuse to entertain a
suit, criminal or civil, which the law-mak-
ing power has authorized. And wherethis
power has made two hundred and twenty
offences of what a man has done, and
fixed the punishment for each, a court
cannot both decline to punish him more
heavily for all than the law has: pro-
vided for one, and also refuse to enter-
tain two hundred and twenty separate
indictments. I need not say, that, else-
where than in New York, the doctrine of
this case, acted upon, would be a perver-
sion of justice not to be endured by civil-
ized man. Howis itin civil jurisprudence?
If a man gets from his butcher a leg of
mutton every Saturday for a year and
does not pay, the court does not tell the
butcher to bring fifty-two suits and re-
cover the value of a leg of mutton and
costs of court and of witnesses on each;
or, at his election, bring one suit, and
recover his costs and the value of one
leg. No; it suffers him to bring only
one suit, and in the one permits him to
have his full damages, yet only one bill
of costs. And this principle, which for-
bids one needlessly to harass another
whom he accuses of having neglected a
duty or done a positive wrong, pervades
our entire system of civil jurisprudence.
Turner v. Davies, 2 Saund. Wms. ed. 1489,
150 and note; Nutton v. Crow, 10 Mod.
171, 173; Guernsey v. Carver, 8 Wend.
492; Johnson v. Pirtle, 1 Swan, Tenn.

So plain is all this,

262, 264; Biddle v. Ramscy, 52 Misso.
158; Oelrichs v. Spain, 15 Wal. 211;
Moran v. Plankinton, 64 Misso. 387;
Commonwealth v. McCulloch, 15 Mass.
227. A Mississippi statute subjected a
neglect to put up the sign “ Look out for
the Locomotive” to the penalty of five
dollars. And when a man had incurred
the penalty thirty-two times, he was pro-
ceeded against in thirty-two separate suits.
The court refused to sustain this proceed-
ing; Peyton, C. J., saying: “The law
abhors a multiplicity of suits, and there-
fore the legislature cannot be supposed to
authorize a violation of this wise and salu-
tary maxim, by allowing many suits, when
one will subserve all the purposes of jus-
tice, give the plaintiff all he is entitled to,
and protect the defendant against un-
necessary litigation and onerous costs,
which would necessarily result from a
separate suit for each penalty, after all
had been incurred.” Mobile and Ohio
Railroad v. The State, 51 Missis. 187, 139.
Such is the principle which, in ordinary
circumstances, ought also to guide the
court on the question of enforcing an
election where the form of proceeding is
by indictment. As in civil procedure an
incongruous or prejudicial joinder of
causes of action will not be allowed, so it
should be and is in criminal. But where
the accusations in the several counts are
congruous, and especially where they
set out a series of related wrongs, and
more especially where the same evi-
dence is largely applicable to all the
counts, a considerate court will demand
that all be tried and punished together.
Even if separate indictments are found,
they should be consolidated into one
trial.

1 The State v. Tuller, 84 Conn. 280.
It is not a thing unknown in our country
for persons violating the law —as, for ex-
ample, by the sale of intoxicating drinks
without license — to band together, create
a common fund, and, with it, employ coun-

287
§ 459 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

that, by many of the judges, even the authority to compel an
election of counts in misdemeanor is denied,! while others say
that, in practice, it “is never done.”? The just view, however,
evidently is, that the authority exists, yet it should be exercised
cautiously and only in those special cases wherein otherwise some
right or interest will be put in peril. But, —

One Count at a Time. — Where the court is of opinion that the
defendant will be prejudiced by a trial on all the counts together,
the better way is ordinarily, it is submitted, to order it on one
at a time,‘ and not to take a step resulting in the practical
dropping of a part.

§ 459. Evidence distinguished from Counts. — When it is de-
termined on what counts the trial shall be, still an election
may be required as to the particular transaction to be proved.
Thus, — ,

Hlection of Transaction in Felony. — Where the English rule
prevails, permitting only one felonious transaction to be charged
in an indictment;® “if the prosecutor,” said Tindal, C. J.,
“should offer evidence tending to prove two distinct charges
of felony, he would be stopped immediately by the presiding

sel and defend every prosecution to the
utmost length, for the very purpose of so
occupying the time of the tribunals as to
block proceedings. In such circumstances,
if each individual sale must be charged
in a separate indictment and separately
tried, the courts, with all the interests
pertaining to public justice as adminis-
tered by them in every department, will
be at the mercy of conspirators, who can
throttle justice whenever and as often as
they choose.

1 People v. Costello, 1 Denio, 88, 90;
Commonwealth v. Manson, 2 Ashm. 31;
The State v. March, 1 Jones, N. C. 626;
The State v. Kibby, 7 Misso. 817; Rex v.
Jones, 2 Camp. 181; United States v.
Devlin, 6 Blatch. 71.

2 The State v. Kibby, 7 Misso. 817.
In another case, Wash, J., said: “In the
case of offences inferior to felony, the
practice of calling on the prosecutor to
elect on which charge he will proceed,
does not exist, and the prosecutor may
give evidence of several libels, assaults,
&c., upon the same indictment, whether
they be on the same or on different per-

288

sons.” Still the power to compel an elec-
tion was admitted, for he added: ‘“ The
rule is, that offences of a different char-
acter or degree, upon which the judg-
ments must necessarily be different, are
not to be joined.” Storrs v. The State, 3
Misso. 9.

8 Reg. v. Fussell, 3 Cox C. C. 291;
Boyd v. The State, 7 Coldw. 69; Reg. v.
Davies, 6 Cox C. C. 828; Commonwealth
v. Malone, 114 Mass. 295 ; Commonwealth
v. Edds, 14 Gray, 406; Cook v. People, 2
Thomp. & C. 404; Reg. v. Burch, 4 Fost.
& F. 407; Reg. v. Braun, 9 Cox C. C.
284; The State v. Nelson, 29 Maine, 329;
Cheek v. The State, 38 Ala. 227; Tomp-
kins v. The State, 17 Ga. 356. And see
Miller v. The State, 51 Ind. 405; Wall v.
The State, 51 Ind. 453; Teat v. The State,
63 Missis. 489.

4 Ante, § 455; Reg. v. Barry, 4 Fost.
& F. 889; The State v. Hazard, 2 R. 1
474,

5 Mills v. The State, 52 Ind. 187. And
see Joy v. The State, 14 Ind. 189,

§ Ante, § 449, 457,
CHAP. XXX. ] COMPELLING ELECTION. § 460

judge, and directed to make his election upon which single
charge of felony he intended to proceed.”! Consequently, —

Different Days — (Burglary and Larceny). — If, for example, on
a trial for burglary and larceny charged in distinct counts, the
prosecutor attempts to prove the burglary on a particular day
and fails, he cannot turn round and offer proof of the larceny on
another day.2 But, —

Several in One Transaction — (Arson). — Evidence may be
given of several felonies committed in one transaction,’ or so
mixed that they cannot well be separated. And where the in-
dictment was for the arson of five houses in a row, alleged in as
many counts to be the property of different owners, and it was
opened that all were burned by a fire set to one, Erskine, J.,
would not compel the prosecutor immediately to elect for which
house to proceed. “As it is all,” he said, “one transaction, we
must hear the evidence. . . . J shall take care, that, as the case
proceeds, the prisoner is not tried for more than one felony.”
Something more of this sort of election in felony will appear
under —

§ 460. Blection of Transaction in Misdemeanor. — There can be
no proof without allegation; hence there can be a conviction of
only so many misdemeanors as there are counts in an indictment,
nor can there be evidence of more.® If, for example, there is
one count, and one offence covering it is proved, the prosecutor
cannot add proof of another like offence committed in a separate
transaction.’ In a case of this sort, the election is presumed to
have been made. Not always or necessarily is the mere pro-
duction of evidence so significant; and the better practice is
believed to be to hold it conclusive of an electign by implication
only when full, or accompanied by words or conduct reason-

1 O’Connell v. Reg. 11 Cl. & F. 155,
241; Reg. v. Ward, 10 Cox C. C.42; The
State v. Daubert, 42 Misso. 242. See
ante, § 457; Gravatt v. The State, 26
Ohio State, 162.

2 Rex v. Vandercomb, 2 Leach, 4th ed.
708; 8. c. nom. Rex v. Vandercom, 2 East
P. C. 519.

3 Rex x. Thomas, 2 East P. C. 934.
And see Commonwealth v. Bennett, 118
Mass. 4438.

VOL. I. 19

4 Reg. v. Hinley, 2 Moody & R. 524;
Van Sickle v. People, 29 Mich. 61.

5 Reg. v. Trueman, 8 Car. & P. 727.
See also Reg. v. Bleasdale, 2 Car. & K.
765.

86 Hodgman v. People, 4 Denio, 285.

7 Reg. v. Gordon, 1 Cox C. C. 259;
Stockwell v. The State, 27 Ohio State,
668; People v. Jenness, 5 Mich. 805, 827;
People v. Hopson, 1 Denio, 574; Lovell
v. The State, 12 Ind. 18, 20. See also
The State v. Bates, 10 Conn. 872.

289
§ 461 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

ably inducing the belief in the prisoner that it was so meant.!
Consequently an election in terms is often ordered.2 And as
we shall by and by see, there are circumstances wherein, quite
independently of this doctrine of election, an offence not charged
may be shown as a part of the proofs of the offence charged?
Again, —

§ 461. The Time to elect. — Judges appear not to be quite
agreed as to how long they will permit a prosecuting officer to
fish with his witnesses for evidence, before selecting some trans-
action to which the future evidence will be confined. One
chief embarrassment has grown out of conflicting views as to
what will constitute an election by implication; some courts
holding, that any complete identifying of a transaction by testi-
mony will, others not. Where the former view of the law does

1 And see post, § 461.

2 Two defendants on trial for horse-
stealing were shown to be in joint posses-
sion of two horses; but it appeared also,
that the horses were originally stolen at
different times in an adjoining county.
Thereupon it was ruled, that, as each
original larceny was a separate felony,
the prisoner’s counsel must elect for
which he would proceed. Said Little-
dale, J.: “If you could confine your evi-
dence entirely to a single felony in this
county, you need not elect; but this you
cannot do; for you must prove that the
horses were originally stolen in another
county. The possession of stolen prop-
erty soon after a robbery is not in itself
a felony, though it raises a presumption,”
&c. Rex v. Smith, Ryan & Moody, N. P.
295. Where, on angindictment in one
count charging an embezzlement of a par-
ticular sum on a given day, it appeared

_that money which might have been em-
bezzled was received on different days,
the prosecutor was ordered to select some
one transaction on one day, and rely upon
it. Rex v. Williams, 6 Car. & P. 626. Of
a like sort is Commonwealth v. Bennett,
118 Mass. 443. But see, to the contrary,
Gravatt v. The State, 25 Ohio State, 162.
Two persons being jointly indicted for
obstructing a highway, and no joint act
appearing in the proofs, the prosecutor,
on closing his evidence, was directed to
elect against which of the prisoners he

290

would ask for a verdict. Rex v. Lynn, 1
Car. & P. 527. So, where two were jointly
indicted for a conspiracy and a libel, and
there was evidence of the conspiracy
against both, but against one there was
no evidence of the libel, the judges put
the prosecutor to elect, before the defence
was entered upon, on which charge he
would ask for a verdict. Reg.v Murphy,
8 Car. & P. 297. And the like was held
in New York. People v. Costello, 1 De-
nio, 83. If it is probable that all the goods
were not stolen at one time, but possibly
they were, the prosecutor will not be re-
quired to elect some particular articles.
Rex v. Dunn, Car. Crim. Law, 8d ed. 82.

3 Post, § 1121-1129.

4# The Michigan court is of the former
class. In a case of incest, charged as
committed on one day named, Chiris-
tiancy, J., said: “ Until evidence of some
such act had been given, the charge in
the information was floating and contin-
gent, aimed as much at one as another,
and at no one act in particular; and it
remained for the evidence to point the
charge to the particular act intended.
But when evidence had been introduced
tending directly to the proof of one act,
and for the purpose of procuring a con-
viction upon it, from that moment that
particular act became the act charged.
What had, till then, been floating and
contingent, had now become certain and
fixed. The prosecutor had made his elec-
CHAP. &XxX.]

COMPELLING ELECTION.

§ 461

not restrain a judge, he may suffer the prosecutor to go a little
way with his evidence; then, at what he deems a proper time,

tion, and could not elect again; nor could
he be allowed to prove any other act of
the kind as a substantive offence upon which
a conviction might be had in the cause.
The information could be used as a drag-
net only till the first act had been entan-
gled in its meshes: every other act must
be allowed to escape this throw of the
net; and thenceforward the evidence
must be aimed at this act. If others of
the same kind lie in the same range, they
can only be noticed for a secondary pur-
pose, as they may be connected with or
bear upon this.” People v. Jenness, 5
Mich. 805, 827. -Much to the same effect
are People v. Hopson, 1 Denio, 574; Lov-
ell v. The State, 12 Ind. 18; Mershon v.
The State, 51 Ind. 14; and some other
cases. In Alabama, where, under the
Code, but a single act of liquor selling
can be charged in one indictment, it was
held that the mere identifying of a trans-
action by a witness did not quite bind the
attorney for the State as an election.
“Some latitude,” it was said by the ma-
jority of the court, “must be allowed to
that officer while conducting the prelimi-
nary examination, that he may ascertain
the particular act or transaction to which
the witness refers. To require him to
elect, before he has learned enough to
enable him to individualize the transac-
tion, would, in many cases, work a denial
of justice. When, however, he has pur-
sued the inquiry until a particular act or
transaction has been brought before the
minds of the jury, —has become identi-
fied or individualized, — if he then prose-
cutes the inquiry with the view of learn-
ing the details and particulars of that act
or transaction, he must then be held to
have made his election.” Hughes v. The
State, 85 Ala. 351, 861, 362. See also
Elam v. The State, 26 Ala. 48, holding,
that, if the State makes its election, and
there is » verdict, then a new trial, the
same election will bind it on the second
trial. In an earlier Alabama case, for
gaming, almost the complete Michigan
doctrine was adopted. “The election of
the State,” said Rice, C.J., ‘is made by
introducing evidence of any act charged ;

and, after introducing evidence of any
such act, the State cannot give evidence
of any other act charged. Elam v. The
State, 26 Ala. 48; 2 Greenl. Ev. § 86;
Stanet v. Pricket, 1 Camp. 473; Gillon v.
Wilson, 8 T.B. Monr. 216. ‘If the prose-
cuting officer deems ‘it for the interest of
the State that evidence as to different of-
fences should be offered, he must frame
the indictment accordingly; which is in
every case very easily done.’ Elam v.
The State, 26 Ala. 48.‘ But under the
indictment in this case, the court below
erred in admitting the evidence as to the
playing in the bedroom of the defendant’s
shop, after the State had introduced evi-
dence as to the playing in the room over
the barber’s shop.” Cochran v. The State,
80 Ala. 542, 546, 547. And see Smith v.
The State, 52 Ala. 384. In Arkansas, if
the State in a case of gaming attempts to
prove a particular instance by one wit-
ness and fails, it may prove by another
witness another and different instance
within the period of limitation. The
State v. Czarnikow, 20 Ark. 160. There
is abundant authority for the contrary
doctrine to what is thus maintained in
Michigan and more or less fully in Ala-
bama and some other States. Thus, in
Vermont, on an indictment in three counts
for so many unlicensed sales of intoxicat-
ing liquor, it was held that the trial court
not improperly refused, after evidence
tending to prove three sales had been
given, to exclude evidence of still other
sales. “It was claimed,” said Bennett,
J., that the government had made their
election, for what sales they would pro-
ceed, the moment they had introduced
any evidence tending to prove three dis-
tinct sales, and that they could not aban-
don them and go for other sales; and, if
permitted so todo by the court below,
that it was error. But we think that this
doctrine of putting the prosecutor to his
election is matter of practice, and should
rest in the sound discretion of the court
below.... All that a prisoner can claim
from this doctrine of election, under a
sound exercise of the discretion of the
court, especially in a case of this kind, is,

291
§ 462

INDICTMENT AND ITS INCIDENTS.

[Book Iv.

but before all is in, require the election to be made.1 Another
method is to wait till the evidence is fully in, and then compel
the prosecutor to point out the count on which he asks for a
verdict.2, Another, is to have the election made‘ at the opening
of the cause; or, if not, to hold the prosecutor to have elected

the first transaction which his evidence tended to prove.

An-

other method is to order the election after the evidence on the
side of the government is in, and before the prisoner is called

on for his defence.*

It is believed, that, while there are doubt-

less some rules of absolute law controlling, the question of elec-
tion is in most circumstances properly and best left to the
discretion of the presiding judge, to be exercised with reference

to the special facts.

§,462. In Conclusion. — The doctrine of this chapter is less
distinct in the books than one could wish; partly because it is
“difficult to reduce discretion to rule, and partly because judicial
opinions on such a subject cannot in the nature of things be in
complete harmony. It is believed, that, in most cases, justice
is best promoted where the judge permits the witnesses to go

that it should be made before the prisoner
is called on for his defence.” The State
v. Smith, 22 Vt. 74, 76. The learned
judge referred to a case before Alderson,
J., in 1834, as follows: ‘‘ Where several
charges are included in an indictment, it
is not usual to put the prosecutor to his
election immediately upon the case being
opened. And semble, that, the reason for
putting a prosecutor to his election being
that the prisoner may not have his atten-
tion divided between two charges, the
election ought to be made, not merely be-
fore the case goes to the jury, as it is
sometimes laid down, but before the pris-
oner is called on for his defence, at the
latest.” Rex v. Wigglesworth, 2 Deac.
Crim. Law, Supp. by Hindmarch, 1683.
The Vermont court, in another case of
the same sort, re-affirmed this doctrine.
The State v. Croteau, 28 Vt. 14. And
see Commonwealth v. O’Connor, 107
Mass. 219, and cases cited in other con-
nections to this section.

1 See, for example, Hughes v. The
State, supra. In some localities this
method is in practice quite common, but
not many cases illustrating it are recorded
in the books.

292

2 Rex v. Galloway, 1 Moody, 234; Reg.
v. Braun, 9 Cox C. C. 284; Common-
wealth v. Pierce, 11 Gray, 447; Reg.'v.
Holman, Leigh & C. 177, 9 Cox C. C.
201.

3 See the first note to this section.
On an indictment for uttering a forged
bill, the judge will hear evidence of all
the facts of the one transaction relating
to the uttering, and will not compel an
election of the particular fact to be relied
upon as the uttering, till the case for the
prosecution is closed. Rex v. Hart, 7
Car. & P. 652. Where two assaults ap-
pear, the prosecuting officer will not be
required to elect on which he shall ask
for a verdict until after the evidence is
heard. Said Evans, J.: “The course
pursued in this case, of requiring the so-
licitor to elect after the evidence has been
heard, is the usual course pursued in like
cases. Indeed I do not well perceive how
an election can be made, until it is known
that two offences have been committed.”
The State v. Sims, 8 Strob, 187, 189.

_ * Stockwell v. The State, 27 Ohio
State, 663; The State v. Sims, supra.
CHAP. XXX.] COMPELLING ELECTION. § 462

far enough to identify a transaction before compelling the elec-
tion. The chief thing, down to the time when the defence is
called for, is to prevent prejudice to the defendant, in the eyes
of the jury, by bringing against him testimony tending to show
crimes for which he is not indicted, and to which he is not to
answer. But whatever is done at the early stages of the trial,
plainly, as a general rule, the election should be required before
the prisoner opens to the jury his defence.
293
§ 465 INDICTMENT AND ITS INCIDENTS. [Book Iv.

CHAPTER XXXI.
THE JOINDER OF DEFENDANTS.

§ 463. Doctrine defined. — The doctrine of this chapter is, that,
since all participants in a crime are severally liable the same as
if each had done the whole criminal thing alone,! all or any
number of them may be charged together, in one count of one
indictment, or each may be indicted separately, at the election
of the prosecuting power. Thus, —

Less than All Participants. — It cannot render an indictment
ill, that only a single participant in the crime, out of many, or
any number less than the whole, are made defendants. And
this rule is good equally whether the crime is of omission or of
commission.2 But —

§ 464. Crimes of Peculiar Nature. — There are crimes for which,
from their peculiar nature, the indictment must, at least, charge
guilt upon more persons than one; as, —

Conspiracy. —‘‘ An indictment for conspiracy,” says Starkie,
“cannot charge the offence against one only, for the very nature
and essence of the crime exclude the idea of its commission by a
single individual. But the indictment may allege, that the de-
fendant, together with other persons, committed the offence,” —
so that, even here, there is no legal necessity for proceeding
jointly against the two or more conspirators. And —

Riot. — “ The same observation is applicable to an indictment
for a riot,® where the offence must be alleged to have been com-
mitted by more than one.”

§ 465. More than All Participants. — As surplusage does not
vitiate an indictment,’ a charge of guilt upon persons not de-
fendants, or upon defendants not in fact guilty, does not render

1 Crim. Law, I. § 629, 954-958; The 4 Rex v. Kinnersley, 1 Stra. 193; Rex

>

State v. Brown, 49 Vt. 437. v. Sudbury, 12 Mod. 262; Com. Dig. In-
2 1 Stark. Crim. Pl. 2d ed. 31; Rex v. formation, D; Rex v. Heaps, 2 Salk. 593.
Holland, 6 T. R. 607. 5 Tb.; Co. Lit. § 481.
8 1 Stark. Crim. Pl. ut sup. 6 Post, § 478 et seq.

294
CHAP. XXxI.] JOINDER OF DEFENDANTS. § 468

it ill as to a guilty defendant.) But a good allegation against
one will be made bad by an added charge against another, ina
form to show that the one is not guilty; “as, —

Concealment of Death of Child. — “Where an indictment for
concealing the death of a bastard child alleged the presence of an
accomplice,” ? it was adjudged ill.3

§ 466. Statute as to Joining Defendants. — A Tennessee statute
provided, that, in “all indictments for criminal offences, the
Attorney-General shall include in the same bill of indictment
all persons engaged in the same offence; and the costs shall be
taxed as one suit, unless the defendants shall sever in their trials,
and, in that event, the costs shall be taxed as two or more suits,
according to the nature of the case.” And this was held to be
directory * only ; so that, if one of several offenders is indicted
alone, contrary to the statutory command, he cannot object.$
On the other hand, — :

§ 467. Who may be joined. — If the prosecuting power chooses,
all guilty participants in any crime may be joined as defendants,
in one count.6 The test has been stated to be, to consider
“whether each offender be guilty in some degree of the same
crime, so that he might be separately convicted even though
another was the actual perpetrator. If each may be so con-
victed, their guilt is joint; but otherwise it is several.”7 And, —

Principal and Accessory. — At common law, principal and acces-
sory, including the accessory after the fact as well as before, may be
and commonly are so joined. Though the guilt of the accessory is
stated after that of the principal, on which it is dependent, the whole
allegation constitutes but one count, having properly one com-
TMencement only and one conclusion.’ Of course, therefore, —

§ 468. Principals of First and Second Degrees — may be joined;
as, —

In False Pretences — Malicious Shooting. — “ In obtaining money

1 Post, § 472; Casily v. The State, 32 6 Ante, § 484, 487, 449; The State v.
Ind. 62; Clarke v. The State, 82 Ind. 67; Gay, 10 Misso. 440; Hess v. The State, 5
Weatherford v. Commonwealth, 10 Bush, Ohio, 6; Commonwealth v. Sampson, 97
196; The State v. Pugh, 2 Hayw. 65; Mass. 407.

The State v. Simmons, 66 N.C. 622; 7 Robertson, C. J., in Commonwealth

Fletcher v. People, 52 Ill. 895, v. McChord, 2 Dana, 242, 248. And see
2 Peat’s Case, 1 East P. C. 229. The State v. Edwards, 60 Misso. 490.
3 1 Stark. Crim. Pl. 2d ed. 31, 32. 8 Ante, § 449; Vol. II. the chapter be-
4 Stat. Crimes, § 255. ginning, § 1; Train & Heard Preced. 13-

6 The State v. Davis, 2 Sneed, 273. 19.
295
§ 470 INDICTMENT AND ITS INCIDENTS. [Book Iv..

under false pretences,’ says Starkie,! ‘if several defendants: act
in concert together, though the pretence be conveyed by words
spoken by one of them, yet they may all be jointly indicted
under the statute.2. So several persons have been convicted
under the Black Act for a shooting at the prosecutor by one of
them ; and, though they were all jointly charged with the single
act, the indictment was holden to be good by all the judges.” @
In like manner, he adds, —

Joinder in Conspiracy, Libel, &c. — ‘* Where several join in a
conspiracy to give an untrue verdict, or join in a suit in the
admiralty on a contract on land, or commit a joint trespass upon
two persons, or are jointly concerned in the publication of the
same libel,” they may be jointly indicted Again, —

§ 469. Selling Liquor — Unlicensed Ferry — Extortion — Assault.
—It is common to indict jointly for such minor offences as sell-
ing intoxicating liquor without license,® and the unlicensed keep-
ing of a ferry,® as well as for the heavier crimes. Extortion may
be joint ;7 so may assault and battery. Even husband and wife
may be jointly indicted for the latter offence.®

§ 470. Who may not be joined — (Offences Separate). — This
sort of joinder is not permitted where the offences are separate
and distinct, one not being guilty of the same thing which the
other is,’ except as shown further on. Thus, —

In Homicide. — Two persons cannot be charged together with a
homicide, through an injury done by one to the deceased on one
day, and another injury by the other on a different day ;? because,
in law, if the facts are so they are not jointly guilty. And,—

Nature of Offence. — Where the offence is of a nature to be
committed by one only, two or more cannot be charged with it
together.8 Thus, —

11 Stark. Crim. Pl. 2d ed. 33. 8 Anonymous, Lofft, 271; Rex v. Ben-

2 Young v. Rex, 8 T. R. 98, field, 2 Bur. 980, 984; The State »v. Pile,

3 Coalheavers’ Case, 1 Leach, 4th ed. 65 Ala. 72; White v. People, 82 N. Y. 465.
64; and see Young v. Rex, 3 T. R. 98, ®° Commonwealth v. Ray, 1 Va. Cas.
105. 262.

4 1 Stark. Crim. Pl. ut sup. 10 Reg. v. Dovey, 2 Eng. L. & Eq. 532,

5 Commonwealth v. Sloan, 4 Cush. 52; 15 Jur. 280; Lindsey v. The State,. 48
The State v. Simmons, 66 N. C.622; The Ala. 169. And see Reg. v. Hayes, 2
State v. Brown, 49 Vt. 487; Peterson v. Moody & R. 155, 156.

The State, 82 Texas, 477. 11 Post, § 478.
6 The State vu. Gay, 10 Misso. 440. 12 Reg. v. Devett, 8 Car. & P. 689;
7 Reg. v. Atkinson, 2 Ld, Raym. 1248, Archb. Pl. & Ev. 18th Lond. ed. 54.

1 Salk. 382, 11 Mod. 79. 13 United States v. Kazinski, 2 Sprague,

296
CHAP. XXXI.] JOINDER OF DEFENDANTS. § 472

Working at Trade —- Perjury — Common Scold — Barratry — Non-
repair of Way. —‘‘If,” says Starkie,! “several jointly work at a
trade within the statute of Elizabeth, they cannot be jointly
indicted ; for the want of qualification, by serving an appren-
ticeship, occasions the crime, and that defect is several in its
nature and confined to each.? So several cannot be jointly in-
dicted for the same perjury,? nor as common scolds,‘ nor for the
same barratry,® nor for the non-repair of the street before their
houses.6 And a misjoinder of this kind is fatal in arrest of
judgment,’ and would be equally objectionable on demurrer.”
But, according to modern views, not all these offences are nec-
essarily so; as, in reason, a barratry may be joint, though it
is not often in fact; and a perjury may be, where one commits
it with his own mouth, and another, who has suborned him, is
present to give him countenance and support. The same may
be said of the offence of common scold.

§ 471. Form of Joint Indictment. — The indictment need not
expressly aver that the defendants committed the offence jointly,?
or that they “acted together.”® The common method is simply
to name them, and add that they did so and so. Offences jointly
committed being in law several, such an allegation is equivalent
to saying that each defendant did the criminal act."

§ 472. The Trial on Joint Indictment. — Though persons are
jointly indicted, they are not necessarily to be tried together,’*—
a subject to be treated of further on.8 And where a joint defend-
ant is tried alone, if it appears in proof that he was the only one
concerned in the offence, still a verdict and judgment are good
against him, the same as though he were indicted alone,“ More-
over, —

7; United States v. McDonald, 3 Dillon, U The State v. Wadsworth, 30 Conn.
643; Rex v. Philips, 2 Stra. 921. 55. 7
1 1 Stark. Crim. Pl. 2d ed. 36. 12 The State v. Wise, 7 Rich. 412; Bix-
2 Reg. v. Atkinson, 1 Salk. 882; Rex be v. The State, 6 Ohio, 86; The State v.
v. Humphreys, 1 Vent. 302; 1 Rol. 81. Spencer, 15 Ind. 249.

3 Rex v. Philips, 2 Stra. 921. 13 Post, § 1017 et seq.

1 Ib. 144 The State v. Bradley, 9 Rich. 168;
5 Ib. Brown v. The State, 6 Yerg. 367; The
6 2 Hawk. P. C. c. 25, § 89. State v. Clayton, 11 Rich. 581; The State
7 Reg. v. Philips, supra. v. Thompson, 18 La. An. 515. But see

8 Commonwealth v. McChord, 2Dana, Johnson v. The State, 18 Ark. 684; Com-
242. : monwealth v. McChord, 2 Dana, 242.
9 Bell v. The State, 1 Texag Ap. 598. And see In re Dougherty, 27 Vt. 825;
10 Johnson v. The State, 18 Ark. 684. Elliott v. The State, 26 Ala. 78; ante,

§ 4665.
297
§ 474 INDICTMENT AND ITS INCIDENTS. [BooxK Iv.

Degree of Offence. — Persons jointly indicted may be found
guilty in different degrees.1

§ 473. Where the Offences are strictly Several, and the Guilt is
in no sense Joint : —

General Doctrine. — In a case of this kind, there can be no
joinder of the sort already discussed in this chapter.? Still there
is an old doctrine, seldom practised upon yet not quite unknown
in this country, stated by Starkie® as follows: “If, in the same
indictment, as found by the grand jury, several offences be alleged
to have been committed by several persons, no advantage it seems
can be taken, either upon demurrer or in arrest of judgment;
though the court will, in its discretion, either quash the indict-
ment altogether, or use such measures as shall obviate any in-
convenience‘ to the defendants which might otherwise arise.
For the charging the offences to have been committed severally
makes each such charge a separate indictment. And though
there are instances where indictments have been quashed for
charging several offences to have been committed by several
persons, as against several officers, quod colore offictorum suorum
separaliter,® extorsive ceperunt, &c.; yet there are a great num-
ber of authorities which show that an indictment charging
the offences to have been committed separaliter would be good.
Thus, —

§ 474. Unlawful Innkeeping — Disorderly House. — ‘‘ Though an
indictment against four persons for erecting four several inns,
and selling victuals to travellers ad commune nocumentum,§ was
quashed, yet it was for want of alleging that they did the acts
separaliter, which would have made the charges as several
indictments. And according to Lord Hale,’ ‘it is common ex-
perience at this day that twenty persons may be indicted for
keeping disorderly houses, and they are daily convict upon such
indictments; for the word separaliter makes them separate in-
dictments.’ But —

Offences of same Nature — Felonies, — “ It seems, that, to warrant
such a joinder in the same indictment, the offences must be of

1 Crim. Law, I. § 800; Mickey v. 5 2 Hale P. C. 174.
Commonwealth, 9 Bush, 598. % 2 Rol. 845; and per Lawrence, J., in
2 Ante, § 470. Rex v. Kingston, 8 East, 41, 47; 2 Hale
3 1 Stark. Crim. Pl. 2d ed. 48 et seq. P. C. 174.
4 Young v. Rex, 8 T. R. 98, 106; Rex 72 Hale P. C. 174; Young v. Rex, 3
v. Kingston, 8 East, 41, 46. T. BR. 98, 106.

298
CHAP, XXXI.] JOINDER OF DEFENDANTS. § 476

the same nature, and such as will admit of the same plea and
the same judgment.”! Proceeding to distinguish felony from
misdemeanor, he adds: “It does not appear to have been allow-
able to join charges of different felonies against different persons,
in the same indictment, unless such felonies arose out of the
same transaction.” 2

§ 475. In this Country.—TIt is not certain that this method
of pleading would be tolerated in practice by all our courts.
By some it has been recognized as sufficient in law.’ Yet the

court may in its discretion quash such an indictment.*
§ 476. Gaming. — An indictment in this form for unlawful
betting on a game was allowed, where the bets were uncon-

nected, and charged as done “severally.”

Yet still the court

deemed this method inconvenient, and not to be encouraged.®

1 An American judge expressed this
proposition thus: for several “ offences, —
all being of the same kind, admitting of the
same plea and the like judgment, and
being subject to the same punishment zn
kind, even though in different degrees, —
one indictment, charging the offenders
severally, may be maintained against all

of them.” Robertson, C. J., in Common-
wealth v. McChord, 2 Dana, 242, 243.

21 Stark. Crim. Pl. 2d ed. 44.

8 Commonwealth v. McChord, 2 Dana,
242; Johnson v. The State, 18 Ark. 684;
Lewellen v. The State, 18 Texas, 538.

4 The State v. Nail, 19 Ark. 563; Le-
wellen v. The State, supra.

5 Johnson v. The State, 18 Ark. 684.

299
§ 479

INDICTMENT AND ITS INCIDENTS.

[Book Iv.

CHAPTER XXXII.

SURPLUSAGE.

§ 477. Introduction.

478-481. Nature of Surplusage and when harmless.
482-484. When it vitiates the Indictment.

§ 477. How the Chapter divided. — We shall consider, I. The
Nature of Surplusage and when it is harmless; IJ. When it

vitiates the Indictment.

I. The Nature of Surplusage and when it is harmless.

§ 478. How defined. — Surplusage is any allegation without
which the pleading would be adequate in law. Hence, —

Not Vitiate. —In general, unnecessary averments in an indict-
ment may be treated as mere waste material, to pass unnoticed,

having no legal effect whatever.

They need not be proved, and

all things go on as though they were not in the record For

example, —

§ 479. Ageravating Matter. —If an indictment on a statute
covers in allegation all the statutory terms, thus showing a com-
plete offence, it will not be ill should it add something by way

1Clay, C. J., in Rose v. The State,
Minor, 28; People v. White, 22 Wend.
167; Commonwealth v. Scott, 10 Grat.
749; The State v. Elliott, 14 Texas, 423;
The State v. Harden, 1 Brev. 47; Dick v.
The State, 30 Missis. 631; Rex v. Sadi, 1
Leach, 4th ed. 468; Commonwealth vz.
Bennet, 2 Va. Cas. 235; Smith v. The
State, 8 Ohio, 294; United States v. Bur-
roughs, 8 McLean, 405; Rex v. May, 1
Doug. 198, 1 T. R. 287, note; People v.
Lohman, 2 Barb. 216; Lodano v. The
State, 25 Ala. 64; The State v. Stedman,
7 Port. 495; Wilson v. The State, 25
Texas, 169; People v. White, 22 Wend.
167; The State v. Killough, 32 Texas, 74;

800

Reg. v. Jennings, Dears. & B. 447, 7 Cox
C. C. 397; Warren v. The State, 1 Greene,
Iowa, 106; Commonwealth »v. Bell, Addi-
son, 156; Commonwealth v. Parmenter,
121 Mass. 354; The State v. Munch, 22
Minn. 67; The State v. Hutzell, 58 Ind.
160; The State v. Pratt, 44 Texas, 93;
The State v. Welch, 37 Wis. 196; The
State v. Coppenburg, 2 Strob. 273; Reg.
v. Turner, 2 Moody & R. 214; Olive v.
Commonwealth, 5 Bush, 376; The State
v. Webster, 89 N. H. 96; Commonwealth
v. Kneeland, 20 Pick. 206, 215; Mobley v.
The State, 46 Missis. 501; United States
v. Dickinson, Hemp. 1.

or
CHAP. XXXII. ] SURPLUSAGE. § 480

of making the offence appear more enormous; nor need the
latter be proved.!. And the same rule applies to all matter
aggravating the crime beyond what is simply necessary to con-
stitute it, whether under a statute or at the common law;? as, —

In Liquor Selling. —If the indictment for an unlicensed: sale
of liquor unnecessarily avers-that it was “the second glass,” this
may be wholly unnoticed in the proof.2 Or, —

In Rape. — If, in rape, it is alleged that the woman was be-
gotten with child, no notice need be taken of the needless

averment.!

§ 480. Defective Allegations. — An indictment containing de-
fective allegations is good, if, rejecting them, enough remains to
satisfy the requirements of the law ;° as, —

In Perjury. — If one assignment of false swearing is adequately
made, the indictment will be sustained though other assignments

And —

are inadequate.®

In Assault and Battery. — An indictment is good for assault and
battery, though it contains also inadequate allegations of an intent

to commit a heavier crime,’ or its actual commission.’

Also, —

In Libel — (Innuendo).— A needless innuendo, inadequate in
form, may be rejected as surplusage from an indictment for

libel.2 Again, —

As avoiding Duplicity — (Larceny). — A count charging two
offences is not, we have seen,” double, if the allegation of one

of them is inadequate.

1 The State v. Fleetwood, 16 Misso.
448; The State v. Cheatwood, 2 Hill, 8. C.
459; The State v. Cozens, 6 Ire. 82; Rex
v. Foot, 2 Show, 455.

2 Attorney-General v. Macpherson,
Law Rep. 3 P. C. 268, 281; 8. o. nom.
Reg. v. Macpherson, 11 Cox C. C. 604;
Young v. The State, 44 Texas, 98; John-
son v. The State, 1 Texas Ap. 130; Olive
v. Commonwealth, 5 Bush, 376; The
State v. Brown, 8 Humph. 89.

3 The State v. Staples, 45 Maine, 320.
See also Hodgman v. People, 4 Denio,
235; Butman’s Case, 8 Greenl. 118; Eagan
v. The State, 53 Ind, 162.

4 United States v. Dickinson, Hemp. 1.

5 The State v. Noyes, 10 Fost. N. H.
279; Rawlings v. The State, 2 Md. 201;
The State v. Noble, 15 Maine, 476; The
State v. Freeman, 8 Iowa, 428; The State

It may be rejected as surplusage.

It

v Ansaleme, 15 Iowa, 44. It is so though
the defective allegation is of matter which,
were it well alleged, would make the of-
fence heavier. Commonwealth v. Tuck,
20 Pick. 856; Commonwealth v. Hope,
22 Pick. 1, 8; Green v. The State, 23
Missis. 509; The State v. Barker, 28
Ohio State, 583; Page v. Commonwealth,
26 Grat. 945. But see Commonwealth v.
Atwood, 11 Mass. 98.

6 Commonwealth v. Johns, 6 Gray,
274.

7 Greer v. The State, 50 Ind. 267; Mc-
Guire v. The State, 60 Ind. 284.

8 The State v. Morrison, 2 Ire. 9.

® Commonwealth v. Snelling, 15 Pick.
821. See also Fitch v. Rempublicam, 8
Yeates, 49.

10 Ante, § 440.

801
§ 481 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

was so where the allegation was, that the defendant did “em-
bezzle, steal, take, and carry away” certain goods; there being
no sufficient setting out of embezzlement, the word ‘embezzle”
was rejected.1 But what is adequately alleged cannot thus be
disregarded.”

§ 481. Unnecessary Words and Phrases. — Subject to qualifica-
tions to be stated in our next sub-title, whenever the striking
out of a needless word or phrase would make the indictment
good, it may be treated as though done. For example, —

In Libel. — An allegation, in libel, that the libellous matter
was written “of and concerning the only daughter of Jane
Roach” was held to be adequate, under proof that the person
meant was a daughter of Jane Roach, but not her only one.*
Again, —

In receiving Stolen Goods. — An indictment against a receiver
ran: “that Francis Morris the goods and chattels above men-
tioned, so as aforesaid feloniously stolen, taken, and carried away,
feloniously did receive and have; he the said Thomas Morris then
and there well knowing the said goods and chattels last men-
tioned to have been feloniously stolen, taken, and carried away.”
And, to make the allegation of knowledge in Francis Morris
adequate, the words “the said Thomas Morris” were rejected
as surplusage ; for “the indictment would be sensible and good
without these words,” > while with them it was without meaning.
And, —

Meaningless Words. — As general doctrine, words which, in an
indictment, obstruct the sense, and render it meaningless, may
be rejected, if thereby it is made sensible.®

1 Commonwealth v. Simpson, 9 Met.
188. See The State v. Dooly, 64 Misso.
146.

2 United States ». Dow, Taney, 34, 45.

3 The State v. Bailey, 11 Fost. N. H.
621; The State v. Corrigan, 24 Conn. 286;
Commonwealth v. Bolkom, 8 Pick. 281;
United States v. Howard, 3 Sumner, 12;
Tifft v. The State, 23 Missis. 567; Reg.
v. Woolley, 4 Cox C. C, 261.

4 The State v. Perrin, 8 Brev. 152, 1
Tread. 446, 447, Brevard, J., observing:
“T think it was unnecessary to state, in
the innuendo, that she was an only daugh-
ter, as it would have been sufficiently
certain and complete without it. If this

802

was not necessary to support the indict-
ment, it was not necessary to be proved.”
Compare with post, § 485.

5 Rex v. Morris, 1 Leach, 4th ed. 109.

6 Rex v. Redman, 1 Leach, 4th ed.
477. For further illustrations, In As-
sault and Battery. — It was alleged that
the defendant assaulted Lucy Ann Keach,
and her did strike, with a ferule, “divers
grievous and dangerous blows upon the
head, back, shoulders, and other parts of
the body [of her the said Lucy Ann
Leach, whereby the said Lucy Ann Leach
was cruelly beaten and wounded, and
other wrongs to the said Lucy Ann Leach
then and there did and committed] to her
CHAP. XXXII. ] SURPLUSAGE.

§ 482

II. What Surplusage vitiates the Indictment.

§ 482. General Doctrine. — Matter unnecessarily stated in an
indictment will render it bad, if it shows that no offence was
committed, or that otherwise the prosecution is not maintainable ;
such surplusage cannot be rejected.1 Thus, —

Embezzlement and Larceny. — Where a count for embezzlement
was not supported ‘because the offence as proved was larceny,
and a count following for larceny stated it to have been com-
mitted “in manner and form aforesaid,” the court would not
reject these words as surplusage so as to make the count good,

and a conviction thereon was held to be bad.?

great damage.” And it was held that
words here enclosed in brackets might be
rejected as surplusage, leaving a sufficient
charge of an assault and battery on Lucy
Ann Keach. Commonwealth v, Randall,
4 Gray, 36. In an indictment charging
that the defendant, Alva Hunt, “in and
upon one Peddy Harvey did make an as-
sault, and her, the said Peddy Hunt, then
and there did beat, wound, and ill-treat,
with an intent, her the said Peddy Har-
vey, &c., to ravish”; the clause “and her
the said Peddy Hunt then and there,”
&c., was rejected as surplusage. Com-
monwealth v. Hunt, 4 Pick. 252. In
Larceny. — Where, in an indictment for
larceny, the ownership of property stolen
was laid in Richard Gaines, then it was
recited to be in Robert Gaines, the latter
was held to be surplusage; because, “ if
that member of the sentence in the indict-
ment were stricken out, it would appear
yet very manifest that the bank bills are
laid to be the property of Richard Gaines.”
Greeson v. The State, 5 How. Missis. 33,
42.

1 “Tf a man, by the allegation of a
thing not necessary, shows that he had
no cause of action, this, though surplus-
age, shall hurt; as, in assize, if the plain-
tiff makes a title, which he need not, and
the title is not good, the whole shall abate.”
Com. Dig. Pleader, C. 29. Again, Recit-
ing Statute.— ‘If, in declaring upon a
public statute, the plaintiff so counts upon
it as to confine himself to its terms as re-
cited (as by the words contra formam sta-
tuti preedicti), but misrecites it in a mate-

Again, —

rial part, the declaration is ill in substance.
For, though the recital of a public statute
is unnecessary, yet, it being thus recited
and counted upon, the plaintiff must re-
cover upon it, if at all, as recited. But,
as it must of necessity appear judicially
to the court that no such statute as that
recited exists, it must consequently ap-
pear, in the same manner, that the dec-
laration discloses no right of action.”
Gould PL. c. 8,§ 171. The same doctrine
applies to recitals of statutes in indict-
ments. 2 Hale P. C.172; 2 Hawk. P. C.
ce. 25, § 100-102; Anonymous, 4 Co. 48a;
Butler v. The State, 3 McCord, 383. Some
of the criminal law authorities seem to
hold the misrecital fatal in all cases, but
the better doctrine maintains the distine-
tion stated above. Thus Lord Hale, ut
sup. says: “If a general statute be re-
cited in an indictment, and be misrecited
in a point material, and conclude contra
Jormam statuti: predicti, it is fatal, and
the indictment shall be quashed; but it
seems, that, if it conclude generally, contra
formam statuti in hujusmodi casu edit. et
provis. it is good, for the court takes
notice of the true statute, and will reject
the misrecital as surplusaye.” See also
post, § 608; Commonwealth v. Unknown,
6 Gray, 489. As to reciting a private
statute, see Stat. Crimes, § 396-101. And
see, in further confirmation of the text,
ante, § 403-405; The State cv. Beasom,
40 N. H. 867; Dukes v. The State, 11 Ind.
667.

2 Rex v. Murray, 1 Moody, 276, 5 Car.
& P. 145. The point in the text appears

803
§ 484 INDICTMENT AND ITS INCIDENTS. [Book Iv.

§ 483. Creating Variance. — Not all surplusage can be rejected
to avoid a variance, —a question for the next chapter. For
example, —

Receiving Stolen Goods. — An indictment for receiving goods
known to be stolen need not state the name of the thief; but,
if it does, the evidence must correspond with the allegation.
So, —

§ 484. Disturbing Meeting. — If the charge is that the defend-
ant did such and such things to the disturbance of a public meet-
ing, sufficient of the particular things to constitute an offence
must be proved ; it not being permissible to show, instead, other
acts of disturbance which would have been adequate had they
been alleged.2. And, —

Liquor Selling — (“ or,” “and "), — Where a statute made it an
offence to sell “spirituous or intoxicating liquors” without
license, and the allegation was that the defendant thus sold
“spirituous and intoxicating liquors,” it was held that the liquors
must be proved to have been both spirituous and intoxicating
to satisfy the indictment, though the statute required only that
they should be either?

only in the latter report. And see Reg.
v. Woolley, 4 Cox C. C. 251.

1 Commonwealth v. King, 9 Cush. 284;
Rex v. Woolford, 1 Moody & R. 3884.
Wrong Name.— There are various other
cases in which, though the name of a per-
son connected with the offence need not
be alleged, yet, if it is, the proof must cor-

804

respond with the allegation.. The State
v. Johnston, 6 Jones, N.'C. 485; The State
v. Weeks, 30 Maine, 182; John v. The
State, 24 Missis. 569.

2 Stratton v. The State, 13 Ark. 688.

3 Commonwealth v. Livermore, 4 Gray,
18. See also Jackson v. The State, 4 Ind.
560; Iseley v. The State, 8 Blackf. 403.
CHAP. XXXII] VARIANCE.

§ 485

CHAPTER XXXIII.

VARIANCE.

§ 484a. Introduction.
485-487. Avoided by rejecting Allegation.
488-488 e. How where not rejected.

§ 484 a. Connected with Surplusage.— In the closing sections
of the last chapter, we saw something of variance as connected
with surplusage. But not all is so connected.

In Part with Evidence. — It pertains in part to the law of evi-
dence ; but, pertaining also to the allegation, its discussion here
becomes essential. .

How defined. — Variance may be either between two parts of
the pleadings in the same cause,! or between the allegation and
the proof? In the former sense, it rarely comes into notice
in the criminal law. In the latter, it is any such partial lack
of harmony between the formal allegation of what is essential,
and the proof, as renders the proof inadequate.’

How the Chapter divided. — We shall consider I. The Avoiding
of Variance by rejecting a surplus Allegation; II. How where
the Allegation is not rejected.

I. The Avoiding of Variance by rejecting a Surplus Allegation.

§ 485. Sometimes permissible. — Variance is sometimes avoided
by rejecting as surplusage an allegation to which the proof does
not conform.4 But—

1 Gould Pl. 269; Reeve v. Lee, 6 Wis.
80.

2 Stephen PI. 85. %

3 Greenleaf defines it as “a disagree-
ment between the allegation and the
proof, in some matter which, in point of
law, is essential to the charge or claim.”
1Greenl. Ev. § 68. This definition may
not be absolutely incorrect, but it makes

VOL. I. 20

almost every defect in proof a variance;
contrary, it seems to me, to common
usage in legal language.

4 Reg. v. Jennings, Dears. & B. 447, 7
Cox C. C. 897; The State v. Brown, 8
Humph. 89; Gabe v. The State, 1 Eng.
640; Peter v. The State, 6 Humph. 436.
See The State v. Scurry, 8 Rich. 68.

305
§ 486 INDICTMENT AND ITS INCIDENTS. [Book Iv.

‘When cannot reject. — Not every thing unnecessary can thus
be rejected. The rule is, that, if what is necessary in allegation
is made unnecessarily minute in description, the proof must sat-
isfy the descriptive as well as main part, since the one is essential
to the identity of the other! Or, as expressed by Story, J.:
“No allegation, whether it be necessary or unnecessary, whether
it be more or less particular, which is descriptive of the identity
of that which is legally essential to the charge in the indictment,
can ever be rejected as surplusage.”? Thus, —

§ 486. Surplus Adjective — (Malicious Mischief — Larceny). —
If to the name of a thing necessarily alleged is prefixed an un-
necessary adjective, — as, if trees are mentioned in an indictment
for malicious mischief to them as “ white-oak ” trees ;2 or a horse,
in an indictment for the larceny of it, is described by sex or color,*
or its brand,>— the word or phrase thus needlessly descriptive
of the needful thing cannot be rejected, and the variance will be
fatal.6 So —

Day of Publication in Libel. — An indictment for libel need only
allege its publication on a day specified, and proof of it on any
other day will support the charge ; yet, if it adds the date of the
newspaper containing it, this, though it need not have been men-
tioned, must be proved as laid.) So —

Termini — (Way — Post Route). — Though the termini of a way
need not be mentioned in an indictment for its non-repair, yet,
if they are, they must be proved, being inseparable matter of
description. And it is the same of the termini of a post route

1 Warrington v. The State, 1 Texas Car. & P. 549; Rex v. Owen, 1 Moody,

Ap. 168, 173; United States v. Keen, 1
McLean, 429; The State v. Jackson, 80
Maine, 29; United States v. Brown, 8
McLean, 2383; United States v. Howard,
8 Sumner, 12; The State v. Noble, 15
Maine, 476; Dick v. The State, 80 Missis.
631.

2 United States v. Howard, 3 Sumner,
12, 15; Hill v. The State, 41 Texas, 258;
Commonwealth v. Garland, 8 Met. Ky.
478. And see The State v. Smith, 31
Misso. 120; Rex v. Ford, 4 Nev. & M.
451; Rex v. Schoole, Peake, 112; Com-
monwealth v. Magowan, 1 Met. Ky. 368;
People v. Marion, 28 Mich. 255; Graves
v. The State, 9 Ala. 447; Rex v. Lee, 1
Leach, 4th ed. 416; Rex v. Capewell, 5

806

118; Dudney v. The State, 22 Ark.
251.

3 Commonwealth v. Butcher, 4 Grat.
544.

4 Turner v. The State, 8 Heisk. 452.
And see Conway v. The State, 4 Ind. 94;
Barclay v. The State, 55 Ga. 179.

5 Rangel v. The State, 1 Texas Ap.
461.

6 To the like effect, see Rex v. St.
Weonard’s, 6 Car. & P. 582. Such a vari-
ance is cured by statute in Ohio. Goo-
dall v. The State, 22 Ohio State, 203.

7 Commonwealth v. Varney, 10 Cush.
402. For a like principle, see Rex v.
Hucks, 1 Stark. 521.

8 Rex v. St. Weonard’s, 6 Car. & P.

ee
CHAP. XXXIII.] VARIANCE.

§ 488

over which a letter was to be carried, in an indictment for steal-
ing the letter.1 So, —

Mortgage Recorded — (Forgery). — If an indictment for the
forgery of a mortgage needlessly describes it as being recorded,
this, which is thus made a part of its identity, must be proved

§ 487. Limit of Doctrine. — The limit of the doctrine is, that,
if the entire averment, whereof the descriptive matter is a part,
is surplusage, it may be rejected, and the descriptive matter falls
with it and need not be proved.?

II. How where the Allegation is not rejected.

§ 488. In General. — Where no part of the allegation can be
rejected, but all must be proved, the minuteness with which
proof and averment must correspond, will depend upon the
particular form of the allegation and the law of the individual

offence or topic, viewed in combination.
is no one rule, but varying rules.

Descriptive Matter — must always be proved as laid.
just seen some illustrations of this.

The result, therefore,
The leading ones are —

We have
Thus, —

Name. — The name of a person, corporation, or firm must be

proved as laid; any material variation being fatal.®

582; Rex v. Great Canfield, 6 Esp. 136 ;
The State «. Northumberland, 46 N. H.
156. And see Harrow v. The State, 1
Greene, Iowa, 489; post, § 574.

1 United States v. Foye, 1 Curt. C. C.
864.

2 The State v. Clark, 3 Fost. N. H.
429. For other illustrations of the same
principle, see People v. Coon, 45 Cal.
672; The State v. Lytle, 64 N. C. 255;
Clark v. Commonwealth, 16 B. Monr.
206; Wertz v. The State, 42 Ind. 161;
Rex v. Leefe, 2 Camp. 134; Rex v. Sutton,
4M. &S. 532. Proof of forging a note
under seal will not sustain an allegation
of forging one not under seal. Hart v.
The State, 20 Ohio, 49.

3 The State v. Copp, 15 N. H. 212;
Gillespie v. The State, 6 Humph. 164;
Rex v. May, 1 Doug. 198, 1 T. R. 237,
note. And see The State v. Bailey, 11
Fost. N. H. 621.

4 Pickens v. The State, 6 Ohio, 274,
278; Rex v. Plestow, 1 Camp. 494; Com-
monwealth v. Hearsey, 1 Mass. 148; The

But the

State v. Hadley, 54 N. H. 224; Rex o.
Tanner, 1 Esp. 304; Commonwealth v.
Davidson, 1 Cush. 33; Commonwealth v.
McLaughlin, 105 Mass. 460; Common-
wealth v. Booth, 6 Rand, 669; Rex v.
Cooke, 7 Car. & P. 559; Rex v. Leech, 2
Man. & R. 119; Rex v. Hawkins, Peake,
8; Rex v. Eden, 1 Esp. 97; Common-
wealth v. Hickman, 2 Va. Cas. 323; The
State v. Groves, Bushee, 402; Smith v.
People, 1 Parker C. C. 317; Williams v.
The State, 7 Humph. 47; Groves v. The
State, 6 Blackf. 489; Merriman ec. The
State, 6 Blackf. 449; United States v.
Lakeman, 2 Mason, 229; Tucker v. The
State, 16 Ala. 670; Robb v. The State,
62 Ind. 216; Commonwealth v. Dole, 2
Allen, 165; Lindsay v. The State, 19 Ala.
660; Carter v. The State, 58 Ga. 326;
Reg. v. Roe, 11 Cox C. C. 554,

5 Ante, § 486.

® Post, § 562, 572; Martin v. The State,
16 Texas, 240; Thompson v, The State,
48 Ala. 165; Dawson v. The State, 38
Texas, 491; Hess v. The State, 5 Ohio,

807
§ 488 a INDICTMENT AND ITS INCIDENTS. [BOOK Iv.
; }

question of the name is more particularly considered in a future
chapter.

Instrument set out by Tenor.—If the indictment professes to
set out a written instrument by its tenor,? whether the law has
made so exact an averment necessary in the particular case or
not, the proof must conform thereto with almost the minutest
precision.3

Sex, Color, Name, &c., of Animal. — Not only as already shown,*
but in other circumstances, proof and allegation must correspond
as to the sex, the color, the name, &c., of an animal mentioned
in the indictment.6 There are some nice questions connected
with this topic, but such details as are deemed specially impor-
tant are considered in other connections.®

§ 488 a. Time. — If an allegation of time is in form descriptive,

it must be proved, like any other descriptive matter, as laid ;7
because otherwise averment and proof will not harmonize. But,
as we saw in a previous chapter,’ an indictment may simply
charge a crime to have been committed on any specified day,
or day and hour, which will show a liability to prosecution and
punishment;9 and proof of it on any other day and hour, from

which the like consequence appears, will suffice.

5; Commonwealth v. Pope, 12 Cush. 272;
Commonwealth v, Hull, 97 Mass. 570;
Zellers v. The State, 7 Ind. 659; Rex v.
Gregory, 8 Q. B. 508; Durham »v. People,
4 Scam. 172; Mathews v. The State, 33
Texas, 102; Commonwealth v. Terry, 114
Mass. 263; Rex v. Lookup, cited 1 T. R.
240; Reg. v. Carter, 6 Mod. 168; Daven-
port v. The State, 88 Ga. 184; Vaughan
v. Commonwealth, 2 Va. Cas. 273. See
The State v. Wolff, 46 Misso. 584.

1 Post, § 669 et seq.

2 Post, § 559.

* Post, § 562; United States v. Mason,
12 Blatch. 497; Cross v. People, 47 III.
152; Sharley v. The State, 54 Ind. 168;
The State v. Street, Taylor, 158; Com-
monwealth v. Adams, 7 Met. 50; Buck-
land v. Commonwealth, 8 Leigh, 7832; The
State v. Jay, 5 Vroom, 868; Rex vo. Aus-
tin, 2 East P. C. 602; The State v. Dour-
den, 2 Dev. 443; Zellers v. The State, 7
Ind. 659; Rex v. Watts, 6 Moore, 442, 8
Brod. & B. 197; The State v. Barrett, 8
Iowa, 5386; Butler v. The State, 22 Ala.
43; United States v. Hinman, Bald. 292;

808

And the same

Shirley v. The State, 1 Oregon, 269;
Commonwealth v. Ray, 3 Gray, 441; State
v. Caffey, 2 Murph. 820; Rex v. Dunn, 2
East P. C. 976; Commonwealth wv.
Stevens, 1 Mass. 203, 204.

* Ante, § 486.

5 Jordt v. The State, 81 Texas, 571;
Reg. v. Strange, 1 Cox C. C. 58; The
State v. Royster, 65 N. C. 639; Gibbs v.
The State, 34 Texas, 184; People v. Soto,
49 Cal. 67; The State v. Turner, 66 N.C.
618; Baldwin v. People, 1 Scam. 304;
Wiley v. The State, 3 Coldw. 862; Banks
v. The State, 28 Texas, 644; The State
v. Dunnavant, 8 Brey. 9; Gholston v.
The State, 38 Texas, 842; Shubrick v.
The State, 2S. C. 21.

8 And see, among other places, Stat.
Crimes, § 245-248, 440-448, 1112,

T Ante, § 486.

8 Ante, § 386 et seq.

§ And see Haggett v. Commonwealth,
8 Met. 457; Hopkins v. Commonwealth,
38 Met. 460; Hutchinson v. Common-
wealth, 4 Met. 859.

ae
CHAP. XXXII] VARIANCE. § 488 6

rule would seem also to be applicable to all other averments of
time, and the proofs sustaining them, when in a form not descrip-
tive. The allegation is not surplusage, but the proof of it need
establish only the —

§ 488 6. Substance of the Issue. — Subject to exceptions resting
on the form which the allegation either needlessly or necessarily
assumes, the doctrine seems to be almost universal, that, to
avoid a variance, the substance only of the issue need be proved.
Thus, —

Value. — Where the punishment is by law greater or less ac-
cording as the value of a thing is above or below a particular
sum, the indictment must show to which class the case belongs ;?
and the common method is to charge its value to be so many
dollars.2 But, in proof, the exact sum thus set down need not
appear; any value calling for the same punishment as that in
the indictment being adequate But —

Ownership — must be proved as laid ;5 because it is descriptive
of the identity of the offence, distinguishing it from all other
instances. Hence, even though needlessly alleged, proof of it
appears to be necessary,® though the authorities on this point

are not quite agreed.

Number — (Larceny). — Number. may be descriptive; and,

when so, it must be proved as laid.7

! Keator v. People, 832 Mich. 484; Rex
v. Coppard, 3 Car. & P. 59, Moody & M.
118; Logan v. The State, 24 Ala. 182;
The State v. Davidson, 12 Vt. 300; Pur-
cell v. Macnamara, 9 East, 157. I do not
deem that, in point of mere authority,
these cases quite establish the univer-
sality of the rule, yet they tend distinctly
toward it, and, in reason, the rule would
seem to be without bound.

2 Ante, § 77 et seq.

8 Post, § 540, 541; Vol. II. § 718-715;
Stat. Crimes, § 427, 444, 445, 457, 945,
949.

4 Williams v. People, 24 N. Y. 405;
Du Bois v. The State, 50 Ala. 189; The
State v. Andrews, 28 Misso. 17; Common-

wealth v. McKenney, 9 Gray, 114; Webb™

v. The State, 52 Ala. 422; Commonwealth
v. Lawless, 108 Mass. 425; The State v.
Harris, 64 N. C. 127; The State v. Smith,
75 N.C. 141; Commonwealth v. Garland,
8 Met. Ky. 478; Mason v. People, 2 Col.

But if, for example, one

Ter. 373; People v. Herrick, 18 Wend.
87. Contra, Reg. v. Jones, 1 Cox C. C.
105.

5 Ante, § 488; post, § 571, 582; Mce-
Gary v. People, 45 N. Y. 158; Graham »v.
The State, 40 Ala. 659; The State v.

Godet, 7 Ire. 210; People v. Hughes, 41

Cal. 234; Jones v. Commonwealth, 17
Grat. 563; Reg. v. Dent, 2 Cox C. C. 354;
Hensley v. Commonwealth, 1 Bush, 11;
Phereby v. The State, 16 Ala. 774; The
State v. McMillan, 68 N. C. 440; Unger
v. The State, 42 Missis. 642; The State
v. Taylor, 15 Kan. 420.

‘6 Rose v. The State, 1 Texas Ap. 400;
John v. The State, 24 Missis. 569. See
ante, § 488; Mulrooney v. The State, 26
Ohio State, 326, 329; Mobley v. The State,
46 Missis. 601. Contra, United States v.
Howard, 8 Sumner, 12.

7 People v. Coon, 45 Cal. 672; The
State v. Handy, 20 Maine, 81. And see
Commonwealth v. Lavery, 101 Mass. 207.

309
§ 488 e INDICTMENT AND ITS INCIDENTS. [Book Iv.

is charged with stealing so many, of an article mentioned, and
a less number is shown, this will not be deemed a variance.!
And —

Weight. — The like is applicable to weight; as, where the
charge was of receiving “one pound of iron,”’ it was sustained by
proof of “a cast iron top of an iron box.” 2

§ 488 c. Substance of Issue in other Cases. — The rules as to
what evidence will establish the substance of the issue vary with
the special form of the allegation and with the offence. Under
the title ‘““ Homicide,” we shall see how it is in murder and man-
slaughter.’ In like manner, under the proper title, we shall see
how it is in “perjury”* And how it is in the several other
issues will appear in the proper places. Again, —

§ 488 d. Legal Effect. — As already explained,® where a thing is
alleged according to its legal effect it is no variance to prove it
according to its outward form. Thus, —

By Agent. —If a man is charged with an act which in law is
a misdemeanor, proof that an agent did it through his direction
will suffice.6 So, —

Whole Instrument in Forgery.— In forgery, an averment that
the whole instrument is forged, is sustained by proof of the
forgery of any material part.’ And, as general doctrine, —

§ 488 e. Differing Forms of Words. — An allegation in one form
of words is sustained by proof in another form, where the sub-
stance and legal effect are the same,® unless the matter is descrip-

tive.2 Thus, —

1 People v. Wiley, 3 Hill, N. Y. 194.

2 The State v. Horan, Phillips, 571.

% And see Rodgers v. The State, 50
Ala. 102; Witt v. The State, 6 Coldw. 5;
Guedel v. People, 483 Ill. 226; The State
v. Lautenschlager, 22 Minn. 514; Real v.
People, 42 N. ¥Y. 270; Nelson v. The State,
1 Texas Ap. 41.

4 The State v. Alexander, 2 Dev. 470;
Reg. v. Southwood, 1 Fost. & F. 86 ; Reg.
v. Smith, 1 Fost. & F. 98; Taylor v. The
State, 48 Ala. 157; Rex v. Taylor, 1
Camp. 404; Rex v. Solomon, Ryan &
Moody N. P. 252; Rex v. Roper, 1 Stark.’
518, 6 M. & S. 327; Rex v. Powell, Ryan
& Moody, N. P. 101; Rex v. Windus, 1
Camp. 406, note; Rex v. Dudman, 7 D.
& R. 324, 4 B. & C. 850; Rex v. Israel, 3
D. & R. 234; Rex v. Grindall, 2 Car. &

310

P. 563; The State v. Horvell, 4 Jones,
N. C. 55.

5 Ante, § 832.

®§ Commonwealth v. Park, 1 Gray, 553.

7 Commonwealth v. Butterick, 100
Mass. 12, 18.

8 Rex v. Rowley, Ryan & Moody N.
P. 299, 802; Rex v. McCarther, Peake,
155; Rex v. Jones, Peake, 87; Edwards
v. The State, 49 Ala. 834; Hickey v. The
State, 23 Ind. 21; Oliver v. The State, 17
Ark. 508; Commonwealth v. Falvey, 108
Mass. 304; Commonwealth v. Bulman,
118 Mass. 456 ; Commonwealth vr. Jeffries,
7 Allen, 548; The State v. Rowley, Brayt.
76 ; People. Burroughs, 1 Parker C.C. 211.

® Ante, § 488, 488 a; Rex v. Fitzpat-
rick, Russ. & Ry. 512; People v. Jones,
5 Lans. 340. ‘
CHAP. XXXIII.] VARIANCE. § 488 e

Way.— A charge of obstructing “a common highway and
public street’ is, in Maine, sustained by proof of obstructing a
town way! So—

Fraud in Forgery. — An averment that the defendant committed
a forgery with intent to defraud a bank, is supported by proof
of a forged order drawn on the cashier ; for a fraud on the cashier
is a fraud on the bank.2 So—

In Burglary — (“Steal" —“Rob”).— A charge of breaking and
entering with intent to “steal” is made good by evidence of an
intent to “rob”; because robbery includes larceny.®

1 The State v. Beeman, 35 Maine, 242. 3 The State v. Cady, Winston, No. I.
2 The State v. Jones, 1 McMul. 2386. 197.
811
§ 491 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

CHAPTER XXXIV.
REPUGNANCY.

§ 489. How defined. — Repugnancy is two inconsistent allega-
tions in one pleading. And, —

Consequence. — As both cannot be true, and there is no means
of ascertaining which is meant, the whole will be as though
neither existed, leaving the pleading — as, for example, the in-
dictment — inadequate Thus,— —

§ 490. In Forgery. — A charge that the defendant forged a
bond binding one to another is repugnant, and therefore void ;
because the apparent maker is not bound by a forgery.2 And
an incompatibility between the purport and tenor clauses of the
indictment for this offence will make it inadequate. Or, —

In Forcible Entry. — Says Hawkins:® “If an indictment of
forcible entry set forth, that the defendant disseised J. 8. of
lands, wherein it appears by the indictment itself that he had
no freehold whereof he could be disseised; or that the defendant
entered peaceably on J. 8. and then and there forcibly disseised
him ; or that he disseised him of land then being and ever since
continuing to be his freehold; every such indictment is void, for
its manifest inconsistency and repugnancy.”

§ 491. Rejecting as Surplusage. — “ But,” says Chitty,® ““ where
the contradictory or repugnant expressions do not enter into the
substance of the offence, and the indictment will be good without
them, they may be rejected as surplusage.’? It is also laid down,

1 Gould Pl. 155; Steph. Pl. 377. Leach, 4th ed. 590; Rex wv. Gilchrist, 2
2 The State v. Hand, 1 Eng. 165; 2 Leach, 4th ed. 657; Roberts v. The State,
Hawk. P. C. c. 25, § 62; 1 Chit. Crim. 2 Texas Ap. 4.
Law, 281; Rex v. Gilchrist, 2 Leach, 4th 5 2 Hawk. P. C. c. 25, § 62.
ed. 657, 660; Henry v. The State, 83 6 j Chit. Crim. Law, 231.
Ala. 389. ™ The State v. Flint, 62 Misso. 393.
3 Rex v. , 3 Mod. 104; 5s. c. As to repugnant matter, and surplusage
nom. Rex v. Neck, 2 Show. 472; 2 Hawk. in general, see Rex v. Stevens, 5 East,
P. C. c. 25, § 62. See The State v. Kube, 244, 264, and 1 Chit. Pl. 4th ed. 196, 210,
20 Wis. 217. 211.
4 Vol. IL. § 416; Rex v. Reading, 2

312

 
CHAP. XXXIV.]. REPUGNANCY. § 492

that, where the repugnant matter is inconsistent with any pre-
ceding averment, it may be rejected as superfluous ;! but, where
the objectionable words are not contradicted by any thing which
goes before, but are merely irreconcilable with some subsequent
allegation, they cannot be thus rendered neutral.” ?

§ 492. As to the Several Counts. — The doctrine of this chapter,
as to the indictment, forbids any repugnancy in a count; counts
may be joined containing matter repugnant, the one to the other.®
But, even then, if they are for one offence, the verdict of guilty
by the jury should be*taken only on such one or more as are
not mutually repugnant.+*

1 Gilb. C. P. 131, 182; Co. Lit. 303 b. 2 Rex v. Stevens, 5 Hast, 244, 254, 255.
And see The State v. Beasom, 40 N. H. 3 Ante, § 453.
367. 4 Commonwealth v, Fitchburg Rail-
road, 120 Mass. 372.

813
§ 495 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

CHAPTER XXXV.
NECESSITY AS AFFECTING THE ALLEGATION.

§ 493. Doctrine in Brief. — Since, as shown in another connec-
tion, an act compelled by necessity is not a crime, a fortiori a
form of allegation which cannot be avoided is not a fault in
pleading. The pleader may depart from the rule which requires
him to be specific when the circumstances of the special case or
offence render this inevitable? But the necessity must either
be manifest from the nature of the case or be alleged.

§ 494. Nature of the Offence. — Though the rule binding where
it can be complied with requires the indictment to set out the
particular acts of which an offence is composed, 3 there are a few
offences made up of such numerous acts as are deemed to render
this impracticable, and they are permitted to be charged by gen-
eral words.4 Thus, —

Common Scold.— An indictment for this offence charges that
the defendant is “‘a common scold,” but does not descend into
particulars.®

Barratry. —In a form corresponding to this is the indictment
against “a common barrator”; but it has been sometimes ques-
tioned on principle. And —

Misconduct to the Poor. —It is intimated that an indictment
against overseers of the poor for criminal conduct toward several
paupers need not individualize them by name.’

§ 495. Incidental Thing unknown. — Undoubtedly a man should
not be charged by the grand jury with crime unless they know
or are reasonably informed of his guilt. But they may know

1 Crim. Law, I. § 346 et seq. monwealth v. Foley, 99 Mass. 497; Com-
2 Ante, § 319. monwealth v. McNamara, 116 Mass. 840.
8 Ante, § 325. 6 Vol. II. § 98,99; J’Anson v. Stuart,

4 Rex v. Cooper, 2 Stra. 1246; Rex v. 1 T. R. 748, 754; Rex v. Mason, 2 T. R.
Clayton, 2 Keb. 409. And see 1 Chit. 681, 586.
Crim. Law, 171. 7 Rex v. Wetherill, Cald. 482, 484.

5 Vol. IL § 199, 200. And see Com-

314
CHAP. XXXV.] NECESSITY AFFECTING ALLEGATION. § 498

it while ignorant of an identifying circumstance, of a sort which
ordinarily ought to appear in allegation. Then they may set
out the other and main facts of the offence, stating that this cir-
cumstance is unknown to them, and the indictment will be good.!
Thus, —

Name unknown. — If an identifying name is unknown to them,
the allegation may be in this form.2 And —

Circumstances of Offence. — This form may be adopted when
some circumstance as to the manner of committing the offence
is unknown to the grand jury. Again, —

§ 496. Obscenity of Record — (Libel).— The avoiding of ob-
scene allegations in the record, breeding corruption, is deemed
an adequate necessity to excuse the setting out of the words‘ of
an obscene libel. The indictment should give such a descrip-
tion of them as decency permits; then, if it states the reason for
omitting to recite them, it will be sufficient.6 Hence —

§ 497. Nature of Necessity. — The necessity which will excuse
an allegation need not be absolute and physical. ‘In many
cases,” says Coke, “the law doth allow general pleading, for
avoiding of prolixity and tediousness, and that the particulars shall
come on the other side.’’® And the doctrine would seem to be,
that, whenever the inconvenience to the defendant is not ex-
treme, a less minute form than the general rules require may
be adopted, if otherwise the indictment will be of confusing
length, or unreasonably difficult to be constructed, or needlessly
offensive to modesty; or, a fortior?, in the more absolute sense,
impossible. But, —

§ 498. vital to the Charge. — No excuse of this kind can justify
the omission of an essential element of the offence.’

1 People v. Bogart, 36 Cal. 245; Kelley N.H.92; The State v. Parker, 65 N.C.

uv. The State, 25 Ark. 392 ; Commonwealth
v. Sawtelle, 11 Cush. 142; Merwin v. Peo-
ple, 26 Mich. 298, 301; Pickett v. People,
8 Hun, 83, 84.

2 Post, § 546 et seq. ; 1 Chit. Crim. Law,
212; Anonymous, 1 Dy. 99 a; The State
v. Bell, 65 N. C. 318; The State v. Wil-
son, 80 Conn. 500; The State v..Adams,
14 La. An. 620.

8 Post, § 553; The State v. Burke, 54

453; The State v. Wood, 53 N. H. 484.

4 Ante, § 20; post, § 561; Common-
wealth v. Wright, 1 Cush. 46.

5 Commonwealth v. Tarbox, 1 Cush.
66; Commonwealth v. Holmes, 17 Mass.
886; People v. Girardin, 1 Mich. 90; Com-
monwealth v. Sharpless, 2S. & R. 100.

8 Co. Lit. 303 b.

7 Commonwealth v. Clancy, 7 Allen,

687; post, § 547.
315
§ 501 INDICTMENT AND ITS INCIDENTS. [Book Iv.

CHAPTER XXXVI.
AVERMENTS NEEDLESS AND MERELY FORMAL.

§ 499. Distinguished. — The distinction is broad and obvious
between averments which custom has rendered familiar while
decision has held them to be unnecessary, and mere formal ones
which still the courts have deemed essential. But those of the
latter class are constantly dropping into the former; so that, in
a work meant for all the States, it would be inconvenient to
attempt separating them by general titles.

§ 500. In other Connections. — “ Against the form of the stat-
ute,” 1 “to the damage” of the party, “in contempt of the law,”?
“against the peace” of the State,’ “in the name” of the State,#
“to the common nuisance,” ® and some other like formal phrases,
will be considered in their appropriate places further on.

§ 501. Not having Fear of God — Instigated by Devil. — In the
older forms for-treason and felony, it is generally charged that the
prisoner, ‘not having the fear of God before his eyes, but being
moved and seduced by the instigation of the devil,” did the crim-
inal act. But Chitty well deems that these words are not essen-
tial.6 They seem to have been originally employed to make the
accusation and fact correspond in form; for, as Cotton Mather
once observed, speaking of what he and others of his time be-
lieved: “When men do commit a crime for which they are to
be indicted, they are usually moved by the instigation of the
devil.”? Yet, even in this view, they never could have been
necessary ; because, in law, no “instigation” to crime justifies
the doer, so that the devil’s instigation is wholly immaterial.

1 Post, § 602-607. field says, they “signify nothing.” Rex
2 Post, § 647. v. Woodfall, 20 Howell St. Tr. 895, 901.
8 Post, § 648-651, 7 Wonders of the Invisible World,
4 Post, § 652. Lond. ed. of 1862, p. 54.

5 Vol. IL. § 862-864. 8 Crim. Law, I. § 628 et seq.

6 1 Chit. Crim. Law, 240. Lord Mans-
316
CHAP. XXXVI.] NEEDLESS AND FORMAL. § 502

§ 502, With Force and Arms — Clubs, Knives, &c. — Says
Chitty:1 “The words ‘with force and arms,’ anciently vi et
armis, were, by the common law, necessary in indictments for
offences which amount to an actual disturbance of the peace; -
or consist, in any way, of acts of violence;? but it seems to be
the better opinion, that they were never necessary where the
offence consisted of a cheat, or non-feasance, or a mere con-
sequential injury.2 ... But the Stat. 37 Hen. 8, c. 8,‘ reciting,
that several indictments had been deemed void for want of
these words, when in fact no such weapons had been employed,
enacted, ‘that the words vz et armis, videlicet, cum baculis, cul-
tellis, arcubus, et sagittis,’® shall not of necessity be put in any
indictment or inquisition.6 Upon the construction of this stat-
ute there seems to have been entertained very great doubts,
whether the whole of the terms were intended to be abolished
in all indictments, or whether the words following the videlicet
were alone excluded. Many indictments for trespass, and other
wrongs accompanied with violence, have been deemed insuffi-
cient for want of the words ‘with force and arms’;?’ and, on
the other hand, the court has frequently refused to quash the
proceedings where they have been omitted ;® and the last seems
to be the better opinion, for otherwise the terms of the statute
appear to be destitute of meaning. It seems to be generally
agreed, that, where there are any other words implying force,
as, in an indictment for a rescue, the word ‘rescued,’ the omis-
sion of vi et armis is sufficiently supplied.2 But it is at all times
safe and proper to insert them, whenever the offence is attended
with an actual or constructive force, or affects the interests of
the public.” In Vermont, their omission has been adjudged

1 1 Chit. Crim. Law, 240, 241.

2 Hart’s Case, Cro. Jac. 472, 478; 2
Hale P. C. 187; 2 Hawk. P. C. c. 25, § 90;
Bac. Abr. Indictment, G, 6; Cro. C. C. 48,

8 Rex v. Burks, 7 T. R. 4, 6; Spen-
cer v. Huson, 1 Keb. 652; Popham, 206;
2 Hawk. P. C. c. 25, § 90; Bac, Abr. In-
dictment, G. 6.

4 See post, § 648 and note.

5 A common form used to be, as in
Rex v. Giles, 7 Howell St. Tr. 1129, 1181,
“ with force and arms, that is-to say, with
swords, staves, and knives.”

6 This statute did not extend to infor-
mations. Rex v. Burks, supra, at p. 5,

7 Rex v. Mariot, 2 Lev. 221; 1 Sid.
140; Anonymous, 1 Bulst. 206; Rex ».
Gakes, 1 Keb. 101; Rex v. Singer, 2 Keb.
164.

8 Rex v. Sterling, 1 Lev. 125, 126; Rex
v. Cramlington, 2 Bulst. 208; Rex v. Bur-
ridge, 3 P. Wms. 489, 464, 498.

® Cramlington’s Case, Cro. Jac. 845;
8. 0.nom. Rex v. Cramlington, 2 Bulst.
208; Rex v. Burridge, 3 P. Wms. 439,
464; 2 Hawk. P. C. c. 25, § 90, note 16;
Bac. Abr. Indictment, G. 6; The State v.
Hanley, 47 Vt. 290.

10 Holmes’s Case, Cro. Car, 876, 878;
2 Hawk. P. C. c. 25, § 90; Bac. Abr. In-

817
§ 504 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

not fatal when there are other words implying force.! Other
American cases hold them to be unnecessary ;? and so, in most of
our States, it has been expressly ordained by statute.®

In Peace of God and State. —It is not uncommon for the in-
dictment to charge, that a person murdered or assaulted was,
according to the English form, “in the peace of God and the
king.” But this is unnecessary.*

§ 503. Unlawfully. — Chitty® proceeds: “The term ‘unlaw-
fully,’ which is frequently used in the description of the of-
fence, is unnecessary wherever the crime existed at common
law and is manifestly illegal. So it has been adjudged that
it need not be used in an indictment for a riot, because the
illegality is sufficiently apparent without being averred.’ But
if a statute, in describing the offence which it creates, uses the
word, the indictment founded on the act will be bad if it be
omitted ;* and it is, in general, best to resort to it, especially
as it precludes all legal cause of excuse for the crime.®

§ 504. Knowingly. — “‘ The word ‘knowingly,’ or ‘ well know-
ing,’ will supply the place of a positive averment that the de-
fendant knew the facts subsequently stated. It is absolutely
necessary to constitute guilt, as in indictments for uttering
forged tokens, or other attempts to defraud, or for receiving
stolen goods, and offences of a similar description ; but, if notice
or knowledge be unnecessarily stated, the allegation may be

rejected as surplusage.” 1
dictment, G. 6; Burn Just. Indictment,

4 Heydon’s Case, 4 Co. 41 a. See

IX. As to the words “force and arms,”
&c., see Rex v. Wilkes, 4 Bur. 2527, 2557,
2558 et al. And see 1 Saund. Wms. ed.
10, note, 81, note.

1 The State v. Hanley, supra.

2 The State v. Duncan, 6 Ire. 2386;
Taylor v. The State, 6 Humph. 285; The
State v. Elliott, 7 Blackf. 280; The State
v. Temple, 3 Fairf. 214; Rice v. The
State, 8 Heisk. 215, 221.

8 See Commonwealth v. Scannel, 11
Cush. 547; post, § 648 and note. Still
this form is practically common with us.
For example, an indictment for polygamy
charges, that, the defendant’s wife Sarah
being alive, he did, “with force and arms,
feloniously marry and take as his wife
one Jane.” Hayes v. People, 5 Parker
C. C. 326.

818

The State v. Denkins, 24 La. An. 29.

5 1 Chit. Crim. Law, 241.

6 2 Hawk. P. C. c. 25, § 96; Bac. Abr.
Indictment, G. 1; Cro. C. C. 88.

7 2 Rol. Abr. 82; 2 Hawk. P. C. c. 25,
§ 96; Bac. Abr. Indictment, G. 1; Cro.
C. C. 43.

8 2 Hawk. P. C. c. 25, § 96; Bac. Abr.
Indictment, G. 1; Cro. C. C. 48. Sed
quere,see 2 March. 862. And see Capps
v. The State, 4 Iowa, 502; post, § 522.

® See Rex v. Burnett, 4 M. & S. 272,
274,

10 Rex v. Lawley, 2 Stra. 904; Com.
Dig. Indictment, G.6. See Rex v. Rush-
worth, Russ. & Ry. 317, 1 Stark. 896.

11 Williamson v. Allison, 2 East, 446,
452,
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 506

CHAPTER XXXVII.

THE SUBSTANTIAL REQUISITES OF THE INDICTMENT.

§ 505. Introduction.
506-516 a. Elements of Charge of the Offence.
517-531. Information to Defendant how to defend.
682-537. To Court as to Course of Trial.
538-542. To Court as to Sentence.
548, 544. To Defendant against Second Prosecution.

§ 505. Considered already. —In preceding chapters, we have
brought to view much pertaining to the substantial part of the
indictment ; as, that it must allege every fact whereon depends
the punishment to be inflicted,1 — that it must fill the complement
of the law’s forms,? — that it must come within all constitutional
guaranties,? — that it must be in terms which will render prac-
tically available to the defendant every right.4 These requisites
not even necessity can override. And in a chapter not far back,
where we considered the indictment in a general way, the radi-
cal doctrines out of which those of this chapter proceed, were
stated.6

What for this Chapter and how divided. — We shall here con-
sider, I. Further of the Elements in the Charge of the Offence.
Then we shall inquire more minutely what information the in-
dictment must communicate, II. To the Defendant to enable
him to make Defence; III. To the Court to enable it to order
the Course of the Trial; IV. To the Court to guide it in the
Sentence; V. To the Defendant to enable him to plead the
Proceeding in Bar of Another.

I. Further of the Elements in the Charge of the Offence.

§ 506. Why Certainty in Allegation requisite. — We have already
seen what is the doctrine of certainty in the indictment.’ There

1 Ante, § 77 et seq. 5 Ante, § 493 et seq.
2 Ante, § 89 et seq. ; 6 Ante, § 823-835,
3 Ante, § 95 et seq. 7 Ante, § 825, 326,

4 Ante, § 113 et seq.
819
§ 507 INDICTMENT AND ITS INCIDENTS. [Book Iv.

are many reasons for requiring it, and they assist the mind to
comprehend its essential degree and forms. Said De Grey,
C. J.: “The charge must contain such a description of the
crime, that the defendant may know what crime it is which he
is called upon to answer; that the jury may appear to be war-
ranted in their conclusion of ‘guilty’ or ‘not guilty’ upon the
premises delivered to them; and that the court may see such
a definite crime that they may apply the punishment which the
law prescribes.”1 And propositions to which Lord Kenyon,
C. J., once assented are: “1st. That the party accused should
be apprised of the charge he is to defend; 2dly. That the court
might know what judgment was to be pronounced according to
law; and 3dly. That posterity might know what law is to be
derived from the record.” ?

§ 507. Another Statement of Reasons. — Starkie ° has drawn from
the old books the fuller reasons for the required certainty as fol-
lows: ‘It is necessary to specify on the face of the indictment the
criminal nature and degree of the offence, which are conclusions
of law from the facts; and also the particular facts and circum-
stances which render the defendant guilty of that offence.* Ist.
In order to identify the charge, lest the grand jury should find
a bill for one offence, and the defendant be put upon his trial
in chief for another, without any authority. And this.is further
necessary, 2dly. That the defendant’s conviction or acquittal
may enure to his subsequent protection, should he be again
questioned on the same grounds. The offence, therefore, should
be defined by such circumstances as will, in such case, enable
him to plead a previous conviction or acquittal of the same
offence.6 3dly. To warrant the court in granting or refusing
any particular right or indulgence which the defendant claims
as incident to the nature of the case.’ 4thly. To enable the
defendant to prepare for his defence’ in particular cases, and
to plead in all;® or, if he prefer it, to submit to the court by
demurrer, whether the facts alleged (supposing them to be true)
so support the conclusion in law as to render it necessary for
him to make any answer to the charge. 5Sthly. Finally and

1 Rex v. Horne, Cowp. 672, 682, 688. 6 Staunf. 181.

2 Rex v. Holland, 6 T. R. 607, 623. 7 Staunf. 181.

3 1 Stark. Crim. Pl. 2d ed. 68. 8 Rex v. Holland, 5 T. R, 607, 623;
4 See ante, § 825, 829-884. Foster, 194.

5 Staunf. 181. 9 8 Inst. 41.

820
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 510

chiefly, to enable the court, looking at the record after convic-
tion, to decide whether the facts charged are sufficient to sup-
purt a conviction of the particular crime,! and to warrant their
judgment; and also, in some instances, to guide them in the
infliction of a proportionate measure of punishment upon the
offender.”2 But —

Modern Reasons. — The commonly alleged modern reasons are
the four which will form the subject of the next four sub-titles
of this chapter.

§ 508. Methods of Allegation to promote Certainty : —

Not Argumentative, but Direct. — The object being to communi-
cate facts? and not reasons, an argumentative form of expression,
obscuring the facts, is not. adequate; the charge must be clear,
distinct, and direct. For example, to say that the defendant
has “taken upon himself” to do a thing, instead of that he did
it, is insufficient; for ‘‘one may take upon himself to do an act
in futuro, or one which he may be sais unable to perform.” §
And, said Lord Ellenborough, C. J.,

§ 509. All the Facts — Consistent. — The indictment “ ought
to contain a complete description of such facts and circumstances
as constitute the crime, without inconsistency or repugnancy.” ®
In other words, it should distinctly specify every thing which
enters into the offence, but not necessarily more.’ Thus, if
the wrongful act is more highly penal when committed on a
person of a particular class than on others, an indictment not
specifying the class will justify only the lower pinehutente"
But, —

Meaning of Words. — Except as to a few technical terms,? and
the particular words of a statute where the indictment is on it,”
language used in its ordinary and non-professional import will
suffice.

§ 510. How when Ambiguous. — It ought not to be ambiguous; *

1 Rex v. Horne, Cowp. 672. 6 Rex v. Stevens, 5 Hast, 244, 259.
2 Ib.; Rex v. Holland, supra. 7 The State v. Ballard, 2 Murph. 186.
8 Ante, § 329, 8 The State v. Fielding, 82 Maine, 585.

4 Rex v. Knight, 1 Salk. 875; Rex v. See ante, § 77 et seq.
Gibbs, 8 Mod. 58; Reg. v. Daniel, Holt, ® Ante, § 836; 1 Chit. Crim. Law, 172.
846; Anonymous, Comb. 808; Rex v. 10 Post, § 612 et seq.
Tucker, 1 Ld. Raym. 1; Commonwealth 11 Commonwealth v. Wentz, 1 Ashm.
v. Dudley, 6 Leigh, 6138. 269; Rex v. Stevens, 5 Hast, 244; People
5 The State v. Perry, 2 Bailey, 17. v. Littlefield, 6 Cal. 356.

VOL. I. 21 821
§ 512 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

and, if really equivocal, it will be inadequate.1 But, referring
to a milder sort of ambiguity, Chitty observes, “that, where a
matter is capable of different meanings, that will be taken by
the court which will support the proceedings, not that which
would defeat them.” And “it does not seem to clash with
any rule of construction, applied even to criminal proceedings,
to construe it in that sense in which the party framing the
charge must be understood to have used it, if he intended his
accusation to be consistent.” ?

§ 511. Inartificial. — Though inartificial-in its structure, it will
be adequate, if it fulfils the substantial requirements of the law.
For example, —

Order of Averments. — Convenience is promoted by introducing
the averments in the order which usage has made familiar, yet
an indictment in a different order is not therefore bad.4 And —

Nice Objections. — Chitty observes, that, where the sense is
clear, nice objections should not be regarded.® “It seems,” he
adds, “that a sentence to a certain extent being ungrammati-
cally constructed,® in describing the offence, is not a sufficient
objection on which judgment will be arrested, if, from the whole
tenor of the charge, the statement be sufficiently clear to fur-:
nish an intelligible description of the manner of committing the
offence.” 7

§ 512. aforesaid — Same — There — Until. — We have already:
considered something of the proper antecedent.8 But this sort
of thing is best taught by a little repetition. Chitty goes on:
‘The word ‘aforesaid,’ in general, refers to the last antecedent,
but not so invariably as the word ‘same,’ which is more explicit.®
And matter stated in a parenthesis saves the rule of grammar,
that the words ‘said’ and ‘aforesaid’ refer to the last ante-
cedent. And it is not necessary to repeat the nominative case
to all the allegations in one continuing sentence.” 10 This is a

1 Ante, § 325, 5 1 Chit. Crim. Law, 178.

21 Chit. Crim, Law, 281, referring 6 And see ante, § 837, 388.
to an exposition by Lord Ellenborough, 7 Rex v. Dale, 1 Moody, 5, 18 Price,
C.J., in Rex v. Stevens, 6 East, 244, 257, 172.
Compare with Bishop Con. § 400, 582. 8 Ante, § 355.

Morgan v. The State, 13 Sm. & M. ® Woodford v. Ashley, 11 East, 608,
242; Thompson v. People, 3 Parker C.C. 613.
208, "215. 10 Cook’s Case, 4 Harg. St. Tr. 787,
# The State v. Divoll, 44 N. H. 140. 747, 13 Howell St. Tr. 311, 881.
822
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 518

sort of criticism little indulged in by modern courts. It may be
useful in rare cases; but, at this day, and perhaps always, the
various words of reference, of which the relative and ‘ there”
and “said” are specimens, will be referred to any antecedent
plainly required by the sense, whether the writer in expressing
it framed his sentences according to the rules of grammar or
not. And the word “until” may be taken as exclusive or
inclusive of the day to which it is applied, according to the
context and subject-matter.2 The court, as already seen,’ will
lean to the interpretation which supports the indictment: but,
where two felonies were set out, then one of them was referred
to by the words “the felony aforesaid,” yet it did not appear
which, this was held to be inadequate. Again, —

§ 518. Matter of Defence. — To continue partly to repeat what
has gone before,® “in general,” says Chitty,® “all matters of
defence must come from the defendant, and need not be antici-
pated or stated by the prosecutor.”’ Only a prima facie case
against the defendant is required. Thus, —
| Married Woman. — “ An indictment against a married woman
need not aver that she was not acting under coercion of her hus-
band.”§ And —

Disobeying Justice — Higher Offence —- Exceptions in Statute —
Receiver. — “In an indictment for disobedience of a justice’s
order,” continues this author, “‘it need not be averred that the
order was not revoked ; nor is it necessary to negative the com-

1 Ante, § 855; Wright v. Rex, 8 Nev. perjury, the omission of the verb indicat-

& M. 892. ing the giving of testimony, in the aver-
2 Rex v. Stevens, 5 East, 244,1 Smith, ment of what was sworn to, was held to

437, . be fatal. The State v. Leach, 27 Vt. 317.
3 Ante, § 510. See ante, § 357.

4 Rex v. Graham, 1 Leach, 4th ed. 87.
Further of the Wrong Word. —In an
indictment for selling spirituous liquors
without license, the word “spiritual”
was used in one place for “spirituous”;
but the court deemed it, in this in-
stance, good; “ Blackford, J., observing:
“That the grand jury, by the words
spiritual liquors, meant spirituous liquors,
there can be no doubt. The indictment,
indeed, expressly says so; for, after charg-
ing the unlawful sale of spiritual liquors,
it says, to wit, one half-pint of spirituous
liquors,” &c. The State v. Clark, 3 Ind.
451. In an indictment for subornation of

5 Ante, § 325, 326.

6 1 Chit. Crim. Law, 281 a.

7 Rex v. Baxter, 5 T. R. 88, 84, 2
Leach, 4th ed. 578, 580.

8 The State v. Nelson, 29 Maine, 329.
Contempt of Tythingman. — It was early
held in Massachusetts not to be necessary,
in an indictment for refusing to answer a
tythingman on the Lord’s day, to allege
that he was sworn into his office, or that
he had a wand or badge of office, or that
he was known to the defendant to be a
tythingman. Commonwealth v. Cald-
well, 14 Mass. 830.

823
§ 514 INDICTMENT AND ITS INCIDENTS. [Book Iv.

mission of a higher offence.! And it is never necessary to neg-
ative all the exceptions which, by some other statute than that
which creates the offence, might render it legal, for these must
be shown by the defendant for his own justification2 Thus
an indictment for a misdemeanor against a receiver of stolen
goods need not aver that the principal has not been convicted.” 8
But —

§ 513 a. Negative Averments. — Where the negative of any
thing is an affirmative element of an offence, — as sometimes
it is, — this negation must appear in allegation in the indict-
ment. The common application of this doctrine occurs in in-
dictments on statutes.5

§ 514. allege Pact, and not Law. — To repeat once more, it
is the fact, not the law, which an indictment must set out.®
Hence, —

Not mingle Law with Fact. — The pleader should, if possible,
select language applicable only to fact, thus distinguishing it
from the law; so that the one will be laid unmingled before the
tribunal, and the judge will supply the other from his own
knowledge. But the infirmities of our language prevent the
doing of this perfectly. It is the ideal standard, to which he
should make the indictment conform as nearly as he can. To
illustrate, —

“Sale” of Liquor — (Price). —If a statute makes punishable
an unlicensed “sale” of intoxicating liquor, it may be a ques-
tion whether the word “sale” or “sold,” the exact statutory
word, necessary therefore to be employed in the indictment,’
will sufficiently describe the act of selling; or, on the other
hand, whether the indictment must specify the things done,
which constitute the sale. Now, there enters always into a
sale the element of price; and, in Indiana, the court held, that
every indictment under this statute must set out the price ;
because “price is an esséntial element in the idea of a sale.”

’ Rex v. Higgins, 2 East, 5, 19, 20.

® Rex v. Pemberton, 2 Bur. 1035, 1086,
1 W. BI. 230; Rex v. Baxter, supra, at
p. 580 of Leach.

3 Rex v. Baxter, supra, at p. 579 of
Leach.

41 Stark. Crim. Pl. 2d ed. 190; Rex
v. Liverpool, 3 East, 86; The State v.
Northfield, 18 Vt. 565.

824

5 The State v. Bullard, 72 N. C. 445;
Bassett v. The State, 41 Ind. 808; post,
§ 687; Stat. Crimes, § 382, 605, 606, 798,
835, 1042-1044.

6 Ante, § 329-334; People v. Aro, 6
Cal. 207; The State v. Fields, Mart. &
Yerg. 187.

7 Post, § 612,
CHAP. XXXVI] SUBSTANTIAL REQUISITES. § 515

Said Stuart, J.: “Every fact essential to be proved should be
alleged. Here the pleader alleges a ‘sale,’ which is a conclu-
sion from the facts, and leaves the important element of price,
a fact essential to support the idea of sale, to be inferred. Per-
haps, had all the facts been stated, the court might have con-
sidered it a barter. It is inverting the order of pleading to allege
conclusions, and leave the facts to inference.” On the other
hand, the legal questions connected with a sale are not com-
plicated, so that generally the word “sale” is accepted as in-
dicating a fact, and not law. Therefore, in most of our States,
the form which the Indiana court rejected is held to be good.
But — .

The Difficulty. — This illustration brings to mind the difficulty
which, more than any other, embarrasses the framing of an in-
dictment in a case not settled by adjudication. The pleader

.must employ the words which the language supplies. And it

was not made by lawyers with a view to distinguish fact from
law. Nor is it possible for the best pleader to know in every
instance in advance, whether or not an unknown judge will
accept a given word or phrase as sufficiently indicating fact,
in distinction from law.

§ 515. Stating Conclusion of Law.— The fact, not the law,
being the thing required to be alleged, “it is not necessary,”
says Chitty,? “to state a conclusion of law resulting from the
facts of a case; it suffices to state the facts, and leave the court
to draw the inference. And therefore, —

Uttering Counterfeits. — “An indictment on the 15 Geo. 2, c.
28, § 3, for uttering counterfeit money, having at the same time
other counterfeit money in the custody of the prisoner, need not
allege him to be a common utterer; because in such case the
statute says that the offender shall be deemed a common utterer,
which is consequently a mere conclusion of law.®

1 Divine v. The State, 4 Ind. 240; Sny-
der v. The State, 5 Ind. 194; The State v.
Miles, 4 Ind. 577; Hubbard v. The State,
11 Ind. 554.

2 Stat. Crimes,§ 1040. And see,among
many cases, Clare v. The State, 6 Iowa,
509; Wrocklege v. The State, 1 Iowa,
167; The State v. Hornbeak, 15 Misso.
478; The State v. Arbogast, 24 Misso.
868; Commonwealth v. Leonard, 8 Met.
56380; Commonwealth v. Odlin, 28 Pick.

275; Commonwealth v. Hatcher, 6 Grat.
667; The State v. Mooty, 3 Hill, S.
C. 187; Zarresseller v. People, 17 Ill.
101.

8 1 Chit. Crim. Law, 281 a.

+ Rex v. Michael, 2 Leach, 4th ed. 988,
941,

5 Rex v. Smith, 2 B. & P. 127, 2 Leach,
4th ed. 856, 858, cited 2 Leach, 4th ed.
942, note, Russ. & Ry. 5, 1 Hast P. C. 183.
And see Rex v. Booth, Russ. & Ry. 7; Rex

325
»

§ 517 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

§ 516. Stating Evidence. — “Neither,” he adds, “is it neces-
sary to state mere matter of evidence, which the prosecutor pro-
poses to adduce, unless it alters the offence; for, if so, it would
make the indictment as long as.the evidence.!| And upon this
principle it has been held, that —

Conspiracy. — ‘“‘ An indictment charging the defendants with
conspiring ‘by divers false pretences and undue means and
devices to obtain money of A. B., and to cheat and defraud
him thereof,’ is sufficient without setting forth the particular
means or pretences.” 2

§ 516 a. Statutory Modifications. — There are more or less stat-
utes in our States, variously modifying the rules of the common
law as to the indictment; but they do not generally affect the
fundamental elements, such as are stated in this sub-title and
the next.3

II. Information to the Defendant to enable him to make Defence.

§ 517. Rights of Defendant. — There are no rights more sacred
than those of a person accused of crime. Hence they are the
main consideration as to the form of the indictment, which, it is
sometimes said, will be good if it does not substantially prejudice
them.* Even the information to the court, to order the course
of the trial and fix the sentence, to be treated of under the next
two sub-titles, pertains to the defendant’s rights.

Why Precise and Full Allegation — (Protection to the Innocent).
— To the unthinking it has sometimes seemed, that, when a
man is arrested for crime, he knows, of course, what he has
done, and so knows what the prosecuting power will undertake
to prove against him. Hence it is inferred that rules of plead-
ing, accumulated by the wisdom of the past, ought to be done
away with. But if this argument is sound, then we should go
a step further, and dispense with the trial and the proofs; and,
as the prisoner knows what he has done, he will not deem him-

v. Michael, 2 Leach, 4th ed. 988, Russ. & 8 Ante, § 339 and the cases there cited.

Ry. 29. Shepherd v. The State, 54 Ind. 265, 26;
1 Rex v. Turner, 1 Stra. 1389, 140; Territory v. Ashby, 2 Mon. Ter. 89; The
Foster, 194. ‘ State v. Edmundson, 64 Misso. 898; Com-

2 Rex v. Gill, 2 B. & Ald. 204; Rex v. monwealth v. Patterson, 2 Met. Ky. 874;
Mawbey, 6 T. R. 619, 628; Rex v. Eccles, The State v. Miller, 84 Texas, 5365.
1 Leach, 4th ed. 274. See Vol. II. § 207 4 The State v. Gurlock, 14 Iowa, 444.

et seq.
826 .
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 519

self unjustly dealt with when shut up in prison or sentenced to
be hung. And.as the community knows also, this proceeding
will have an excellent effect on the public morals. Now, if
none but the guilty could ever be accused, the correctness of
this reasoning would be unquestioned. But the innocent are
liable to suspicion, and even to condemnation, the same as the
‘guilty. They need protection. Let any man, conscious of in-
nocence, imagine himself a victim of a conspiracy to send him
to prison or the gallows, with suborned witnesses hovering
around the officers of the law and the grand jury. For his
‘benefit, and of others in like circumstances, the rules of plead-
ing and of evidence were ordained.1 They are for those who
know what they have done, and that it is nothing amiss. Yet
should they not happen to take the newspapers, they cannot
know what the prosecuting power will undertake to prove
against them, unless it is set down, and distinctly so, in alle-
gation.

§ 518. Guessing at Meaning. — Others decry precision ; assert-
ing that, though inspection of an allegation may show it to be
loose and uncertain, or inconclusive, still “everybody knows
what is meant,” and it ought to suffice. But why infer what
is not said? .And how does “everybody” know that a thing
not said is meant? Imaginations are not alike in power. One
man is fired with half the thoughts of the universe by a single
word. Another can infer nothing beyond the word, taken in
its narrowest meaning. And no man should be deprived of his
life or his liberty because God made him of the latter class.
Hence a court cannot justly assume a thing to be meant, which
the allegation does not plainly state, and in exact words.

§ 519. Full Allegation required by Law — (Every Fact). —
Wisely, therefore, the law requires the allegation to be full.
As already shown,? every fact which is an element in a prima
facie case of guilt must be stated ;® otherwise there will be at

1 Ante, § 109.

2 Ante, § 77 et seq. 325, 826, 513.

3 Ante, § 77 et seq. 325; Rex v. John-
son, 2 Show. 1, 2, note; Sarah v. The
State, 28 Missis. 267; Crandall v. The
State, 10 Conn. 339; The State v. Dunn,
1 Dutcher, 214. ‘In the spirit of that
principle which presumes innocence until
guilt be established, we infer that what

is not charged in an indictment does not
exist; and it is the business of the pleader
to exclude, by proper averments, the con-
clusions to which the accused is thus en-
titled.” Porter, J., in Mears v. Common-
wealth, 2 Grant, Pa. 885, 887. ‘The
general rule of pleading is, that every
fact or circumstance which is a necessary
ingredient in the offence, must be set

327
§ 521 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

least one thing which the accused person is entitled to know,
whereof he is not informed. And that he may be certain what
each thing is, each must be charged expressly, and nothing left
to intendment.! All that is to be proved must be alleged.? For
example, —

§ 520. In Attempt — (Person to be killed). — Where by stat-
ute it is a particular offence to shoot at a person with intent to
kill him, a charge of shooting at one named with intent to kill,
not saying whom, will be inadequate; because, though we may
guess it was the person shot at, the prisoner is entitled to
have this and every other fact of his offence stated, so that he
can know all without drawing on his reason or imagination?
Hence —

Precision. — “ Precision in the description of the offence,” said
Gibson, C. J., ‘is of the last importance to the innocent; for it
is that which marks the limits of the accusation and fixes the
proof of it. It is the only hold he has on the jurors, judges as
they are of the fact and the law, or on an insubordinate judge,
who, confiding in his superior wisdom, refuses to conform to
any general standard of decision, when his judgment cannot be
reached by a writ of error.” 4

Nice Questions. — There are some nice questions connected
with this subject, chief among which is that of the —

§ 521. Allegation of the Intent : —

General Doctrine. — Starkie® says: “To render a party crimi-
nally responsible, a vicious will must concur with a wrongful
act. But though it be universally true that a man cannot

forth in the indictment, otherwise it is
defective. There are, it is true, some
exceptions to this general rule.” Dargan,
C.J.,in Beasley v. The State, 18 Ala.
535, 5388, 589. An indictment for the
removal of a pauper must allege, that he
was likely to be chargeable, and to the
damage of the parish. Rex v. Flint, Cas.
temp. Hardw. 370. Where the statutes
have provided rules for the indictment,
the rule of the text still prevails. Shep-
herd v. The State, 54 Ind. 25, 26; Terri-
tory v. Ashby, 2 Mon. Ter. 89; Kersh v.
The State, 24 Ga. 191; The State v. Coul-
ter, 46 Misso. 564; The State v. Eason,
70 N. C. 88.

1 Ante, § 508; Kit v. The State, 11

828

Humph. 167; Dillingham v. The State, 5
Ohio State, 280.

2 The State v. Wilson, 2 Mill, 135.

8 Jones v. The State, 11 Sm. & M.
8165. .

4 Hartmann v. Commonwealth, 5 Barr,
60, 66.

5 1 Stark. Crim. Pl. 2d ed. 177.

6 1 Hawk. P. C. c. 73, § 1; 6 Co. 125;
5 Mod. 165; 1 Salk. 418; 4 Bl. Com. 125;
Rex v. Abingdon, 1 Esp. 226, 228. These
authorities cited by Starkie are not the
most conclusive among those accessible
to him, of the universality of his propo-
sition; which, however, is beyond any
fair ground for controversy correct. And
see Crim. Law, I. § 204-208, 216-222, 287,
,

CHAP. XXXVII.]

SUBSTANTIAL REQUISITES. § 521

become a criminal unless his mind be in fault, it is not so gen-
eral a rule that the guilty intention must be averred upon the
face of the indictment.” For, in a large part of the crimes, the
vicious will appears, prima facie, in the act itself; hence to allege
simply the act makes the required prima facie case,! and any
non-concurrence of the will therein is matter of defence. But
where an intent other than what arises out of the act as alleged
is an element in the crime, as where a particular intent is de-
scriptive of it, this must appear in the indictment.? To illus-

trate: —

297-812, 440, 441, 874, 1074-1076; II.
§ 664, 693, 922; Stat. Crimes, § 132, 351-
861, 730, 820-825. And see a somewhat
extended discussion of the question by
me in 4 South. Law Rev. n. s. 153, un-
der the title “A Chapter of Blunder-
ings,” &c. The Massachusetts court, fol-
lowed to an uncertain extent. by the
tribunals of one or two of the other
States, has undertaken to engraft some
sort of exception upon the general rule,
but exactly what it is no one can tell.
Some hints of the proper mode of plead-
ing, as to the intent, appear also in that
article.

1 Ante, § 325, 326, 518, 519.

2 It is extraordinary what confusion on
this subject we occasionally meet in the
books. Thus, Chitty says: “ Where an evil
intent accompanying an act is necessary to
constitute such act a crime [as though there
might be a crime without an evil intent,
but plainly enough he refers to a specific
intent, characteristic of the particular of-
fence, in which view his statement be-
comes accurate], the intent must be
alleged in the indictment and proved.”
He proceeds with a statement of the law
less open to criticism: “ Thus, In Libel.
— Where a libel has not been published;
but merely sent to the prosecutor, it 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 w letter containing a libel is
sent to the wife, the indictment ought to
allege it was sent with intent to disturb
the domestic harmony of the parties ; Rex
v. Wegener, 2 Stark. 245 [see 7 Conn.
266]. In Statutory Attempts.— And,
in an indictment on the 43 Geo. 3, c. 68,

where the intent laid in several counts
was to murder, to disable, or to 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 according
to the fact. Rex v. Duffin, Russ. & Ry.

-865. In Burglary.— So in burglary, if

the entry be alleged to have been made
with intent to commit a specific felony,
the indictment will not be supported by
evidence of an entry with intent to com-
mit another kind of felony. 1 Hale P.C.
561; 2 East P.C. 510; Rex v. Monteth, 2
Leach, 4th ed. 702; Rex v. Jenks, 2 Leach,
4th ed. 774.... 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.
Rex v. Philipps, 6 East, 464, 474; Rex v.
Fuller, 1 B. & P. 180, 186, 187; Rex vw.
Farrington, Russ. & Ry. 207. Thus, In
Sedition. — In an indictment for seditious
words, it need not be shown that they
were uttered with intent to alienate his
Majesty’s subjects, for it is manifest they
have that tendency. Reg. v. Taylor, 2
Ld. Raym. 879. Proof of Part.— 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,
In Carnal Abuse.— 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. Rex v. Dawson, 3 Stark.
62. In Libel. — So, where a libel is stated
to have been published with intent to de-
fame certain magistrates, and also to

829
§ 523 INDICTMENT AND ITS INCIDENTS. [Book Iv.

§ 522. In Insanity. — Though an insane man cannot commit
a crime because he lacks the criminal intent,’ it is common
practice that no indictment negatives insanity, or avers sanity.
Every man being presumed sane, if there is insanity in a case
it is matter of defence. In like manner, —

In Mistake of Fact.— Though mistake of fact, when not pro-
duced by carelessness or accompanied by any evil in the intent,
will prevent an act done under constraint of it from being crim-
inal,? the course of pleading is not for the indictment to nega-
tive the mistake. Neither need it, nor should it properly, aver
knowledge. Such mistake, like insanity, is simply matter for
defence both as to allegation and proof. But this sort of case
should not be confounded with another class, wherein affirma-
tive knowledge is an element of the offence; requiring, there-
fore, to be alleged. To explain: —

Terms of Statute —Inferable from Statute. — A statute. some-
times makes it an offence to do a thing “ knowingly,”® or
“knowing” a particular fact; so that the forbidden act, to
be prima facie criminal, must be accompanied by the knowl-
edge, and this must be alleged. Again, some statutes, not
containing the word, are construed to require the affirmative
knowledge ;7 and then, in obedience to a rule to be considered
further on,® the indictment must aver knowledge But, —

§ 523. Generally on Statutes — (Concealing Forgery). — Subject
to this and kindred exceptions, the rule is, that, if a statute
creating an offence is silent concerning the intent, there need

bring the administration of justice into
contempt, it is sufficient to prove a publi-
cation with either of those intentions.
Rex v. Evans, 8 Stark. 85.” 1 Chit. Crim.
Law, 283.

1 Crim. Law, I. § 875, 881.

% Vol. IL § 669-673.

8 Crim. Law, I. § 801-810.

4 4 South. Law Rev. n. s. 158, 167-169,
171 (the article mentioned in a preceding
note); The State v. Bullinger, 54 Misso.
142; Ward v. The State, 48 Ind. 289;
Marshall v. The State, 49 Ala. 21; The
State v. Abbott, 11 Fost. N. H. 484; Com-
monwealth v. Bearse, 108 Mass. 487;
Commonwealth v. Galavan, 9 Allen, 271.

6 Verona Central Cheese Factory v.
Murtaugh, 4 Lans. 17; ante, § 604.

330

6 Commonwealth v. Bradford, 9 Met.
268.

7 Stat. Crimes, § 132, 231, and the
cases cited in the note after the next.

8 Post, § 628.

® Maranda v. The State, 44 Texas,
442; Birney v. The State, 8 Ohio, 230,
237, 288; Miller v. The State, 3 Ohio
State, 475, 487; Anderson v. The State, 7
Ohio, pt. II. 250. See Commonwealth v.
Stout, 7 B. Monr. 247. At Common Law.
— So also, where, at common law, knowl-
edge is an affirmative element in an of-
fence, the indictment must aver it; as, In
Escape. — An indictment at the common
law for aiding an escape should charge
the defendant with knowledge of the
crime of the person aided. Rex v. Young,
1 Russ. Crimes, 5th Eng. ed. 589, note.
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 524

be no intent alleged in the indictment.1 One of the kindred
exceptions arose under a statute making it punishable to “ fraud-
ulently keep in possession or conceal any fictitious instrument,
purporting to be a bank bill, note, check, or draft of any corpo-
ration or company.” And the court deemed that the essence
of the offence consisted in keeping the fictitious instrument in
possession, with the intent to impose it on the community as
good. Therefore, though this intent was not in the terms of
the statute, it was in its spirit and fair construction, and it must
be alleged? A fortiori, therefore, any intent which the statute
creating an offence expressly mentions, must be averred, — a
rule believed to be without exception.2 And, —

Universal Rule. — Whether the indictment is on a statute or
at the common law, it is a rule, universal and without excep-
tion, that every intent, like every thing else, which the law has
made an element of the offence, must be alleged ; for otherwise
no prima facie case appears. Akin to this doctrine, or a part of
it, is that of —

§ 524. Acts innocent in Nature and criminal by Intent. — Where
an act is innocent or indifferent in its nature, yet becomes crim-
inal by reason of some accompanying intent, the intent must be

charged ; but, —

Criminal in Nature. — To repeat what has gone before, an act

1 The State v. Eldridge, 7 Eng. 608;
Phillips v. The State, 17 Ga. 459; The
State v. Bacon, 7 Vt. 219, 222; Tomkins
v. The State, 33 Texas, 228; Robinson v.
The State, 33 Texas, 341; Commonwealth
v. Brooks, 9 Gray, 299; The State v. Ab-
bott, 11 Fost. N. H. 434. Starkie, in illus-
trating the doctrine of the text, says:
“Thus, in an indictment under the Stat.
3 Hen. 7, c. 2, for the taking away, &c.,
of an heiress, &c., though it is usual to
aver the taking to have been ea intentione
ad ipsam maritandam, yet it has been
holden to be unnecessary to make that
averment, because the statute has no such
words as ea intentione; but, according to
Lord Hale, it is safest to use those words,”
1 Stark. Crim. Pl. 2d ed. 178, 179, refer-
ring to 1 Hale P. C. 660.

2 Gabe ¥. The State, 1 Eng. 519. So,
Malicious Mischief. — An indictment in
North Carolina must aver that an act of
malicious mischief was done “ wilfully

and unlawfully,” though these words are
not in the statute. The State v. Simp-
son, 73 N. C. 269.

3 Ante, § 519, 520; The State v. Ba-
con, 7 Vt. 219, 222; People v. Lohman, 2
Barb. 216; Brittin v. The State, 5 Eng.
299; Sarah v. The State, 28 Missis. 267;
The State v. Gove, 34 N. H. 510, 615;
The State v. Freeman, 6 Blackf. 248;
The State v. Ullman, 5 Minn. 13; The
State v. Drake, 1 Vroom, 422; Morrow v.
The State, 10 Humph. 120; 1 Stark. Crim.
Pl. 2d ed. 178.

4 Ante, § 521 and note; The State v.
Ullman, 5 Minn. 18 ; Johnson v. The State,
1 Texas Ap. 146; Drake v. The State, 19
Ohio State, 211, 217; The State v. Free-
man, 6 Blackf. 248; The State v. Mal-
loy, 5 Vroom, 410; The State v. William-
son, 8 Heisk. 488; Wood v. The State,
46 Ga. 822; United States v. Gleason,
Woolw. 75. "

381
§ 526 INDICTMENT AND ITS INCIDENTS. [Book Iv.

criminal in nature is prima facie evil in intent, and the intent
need not be alleged, unless the law has made it affirmatively or
descriptively an element in the offence.!

§ 525. The Authorities — In Principle. — The authorities as to
alleging the intent seem, when first approached, to be confused
and unsatisfactory. Buta careful examination has enabled the
writer to shape them into the foregoing propositions, which, it
is believed, they sustain. Similar also are the deductions of rea-
son, the leading ones of which are the following: Every indict-
ment ought, in some way, to show the evil intent, since this
is an element without which crime is impossible. But some
offences are of such a sort that, prima facie, the evil intent
appears on a mere statement of the act itself. For example,
if one is charged with assaulting another, the evil of the act
carries to the mind of every hearer of the charge the idea of an
evil intent, as constituting one element of the act. On the
other hand, if the allegation is, that the defendant simply did a
thing, which in its nature might as well flow from a pure mind
as a corrupt one, this is not an averment of crime. To make
it such, words expressive of the evil of the intent must be
added.

'§ 526. How far descend into Detail :—

In General. — In the foregoing sections of this sub-title, we
have seen how completely, both as to the act and the intent,
the defendant is entitled to be informed of the facts constituting
his supposed crime. But how far need the allegation descend
into detail? It should, as far as may be, identify the particular

1 Rex v. Philipps, 6 East, 464; s.c.
nom. Rex »v. Phillips, 2 Smith, 550; Com-
monwealth v. Stout, 7 B. Monr. 247;
Turner v. The State, 1 Ohio State, 422;
The State v. West, 10 Texas, 553, 555;
Capps v. The State, 4 Iowa, 502. In
The State v. Freeman, 6 Blackf. 248, Sul-
livan, J., said: “In many cases, the alle-
gation of intent is merely formal, being
no more than the inference which the law
draws from the act itself, and which
therefore requires no proof but what the
act itself supplies; but, where the act is
indifferent in itself, and becomes criminal
only from the intent with which it was
done, the intent then becomes material,
and it is as necessary to allege and prove

832

it as any other of the facts and circum-
stances of the case.” Unwholesome
‘Water. — An indictment for supplying to
the public unwholesome water was held
to require an averment of the scienter, or
some averment covering an evil intent.
Stein v. The State, 87 Ala. 123. Nui-
sance of Infected Person. — Starkie, in
illustration of one of the propositions of
the text, observes: ‘“ Where several per-
sons were indicted for carrying one in-
fected with the small-pox from one parish
to another, it was holden necessary to
aver that it was done with an ill intent.”
1 Stark. Crim. Pl. 2d ed. 179, referring to
Rex v. Bunce, Andr. 162.
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 529
transaction, and thus become “specific,”! in a manner to give
the defendant all reasonable notice of what is to be produced
against him.2 On the other hand, the pleader is not held to such
strict rules as to defeat the ends of justice.?

§ 527. Concealing Birth. —It is too general to charge one with
concealing the birth of a child, “by secretly disposing of the
dead body”; the allegation should proceed to show how the
body was disposed of and secreted. And —

Affray.— To aver that the defendant committed an affray, not
mentioning any acts, is inadequate ;° the special manner of the
fact ought to appear. So, also, —

Burglary. — Though in burglary and statutory house-breaking
the intent, as defined by the law, is simply to commit a felony,
the indictment must go further and say what felony.7 And, —

Criminal or not under Circumstances.—If the thing done is a
crime only in defined circumstances, the indictment must not
only set out the act but also aver the circumstances.®

§ 528. Limit—Clog Record.—There is a limit beyond which
an indictment need not go into details,® and practically the
pleader ought not to pass far beyond the limit. “As observed
by Mr. Justice Buller,” says Chitty, “it is the duty of a good
pleader not to clog the record with unnecessary matter, and
thereby throw a greater burden of proof on his client than the
law requires.” But, continues this author, —

§ 529. Escape. — ‘It has been holden, that an indictment for
escaping from prison, without showing the original cause of im-
prisonment, is not maintainable! So—

Counterfeiting Coin. — “An indictment for traitorously coining
alchemy like to the current coin of the realm is bad, unless it

1 Ante, § 825 and numerous cases
there cited.

2 Rex v. Jarrald, Leigh & C. 301, 308,
where Cockburn, C. J., says: “Both the
jury and the prisoner ought to know pre-
cisely what the charge is which the
former have to investigate, and the latter

has to meet.”

3 Moyer v. Commonwealth, 7 Barr,

439, 440. And see the chapter commenc-

ing, ante, § 493.
4 Reg. v, Hounsell, 2 Moody & R. 292.
5 The State v. Woody, 2 Jones, N. C.
885.

6 The State v. Wimberly, 8 McCord,
190. And see Vol. II. § 16-23.

T Vol. II. § 142; The State v. William-
son, 3 Heisk. 483.

8 Commonwealth v. Clark, 2 Ashm.
105.

9 The State v. Brown, 8 Humph. 89.

10 1 Chit. Crim. Law, 228-230, where
this quotation and subsequent ones in my
text appear.

11 Wightman v. Mullens, 2 Stra. 1226;
2 Hawk. P. C. c. 26, § 67; Bac. Abr. In-
dictment, G. 1.

833
§ 580 [Book Iv.

INDICTMENT AND ITS INCIDENTS.

show the particular kind of money the metal was intended to
resemble.! So,— -

Perjury. — “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.2 And —

Refusing Office — Disobeying Justice's Order. — “In the prosecu-.
tion of a constable for not serving, 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 a crime in refusiig to execute
its duties. And in an indictment for the disobedience of a jus-
tice’s order, it must appear that the order disobeyed was a legal
one, and such previous acts as were the foundation of the magis-
trate’s authority must be recited, or at least referred to.” 4

§ 580. Defaming Officer.— ‘ All indictments ought to charge a
man with a particular specified offence, and not with being an
offender in general... . It is, therefore, insufficient to charge the
defendant with having spoken false and scandalous words of the
mayor of a certain city.2 So—

“Common” Defamer, Vexer, &c. — “It is bad to accuse him with
being a common defamer, vexer, or oppressor, of many men;® or
with being a common disturber of the peace, and having stirred
up divers quarrels ;7 or with being a common forestaller,® a com-
mon. thief,? or with being a common evil doer, a common cham-
pertor, or with being a common conspirator, or any other such
indistinct accusation : ? and —

Libel. —‘‘ An indictment for a libel must set forth the libel
itself.”

1 2 Hawk. P. C.c. 25, § 57; Bac. Abr.
Indictment. ~

% Stedman’s Case, Cro. Eliz. 187; Rex
v. Horne, Cowp. 672, 688; Hitesman »v.
The State, 48 Ind. 473. |

% Rex v. Horne, supra, at p. 688, refer-
ring to Rex v. Harpur, 5 Mod. 96.

4 Rex v. White, Cald. 188. When de-
fect in this respect cured, Rex v. Mytton,
Cald. 536.

5 1 Rol. 79; 2 Rol. Abr. 79; Rex v.
How, 1 Stra. 699; 2 Hawk. P. C. c. 26,
§ 59; Com. Dig. Indictment, G. 8; Bac.
Abr. Indictment, G. 1.

6 2 Rol. Abr. 79; Rex v. Leginham, 1
Mod. 71; Rex v. Taylor, 2 Stra. 849; Rex».
Cooper, 2 Stra. 1246, 1247; 2 Hale P. C.

834

182; 2 Hawk. P. C.c. 25, §59; Com. Dig. In-
dictment, G.3; Bac. Abr. Indictment, G. 1.

7 Ib.

8 Cornwall’s Case, Sir F. Moore, 302;
2 Hawk. P. C. c. 26, § 59; Bac. Abr. In-
dictment, G. 1.

9 Ib.; 2 Rol. Abr. 79; 2 Hale P. C.
182; Cro. C. C. 87.

10 2 Hawk. P C. c. 25, § 59; Bac. Abr.
Indictment, G. 1.

ll 2 Hale P. C. 182; 2 Hawk. P. C.c.
25, § 69; Bac. Abr. Indictment, G. 1.

12 Tb.; Rex v. Winteringham, 1 Stra. 2;
Rex v. Gibbs, 1 Stra. 497.

13 Cook v. Cox, 8 M. & S. 110, 116;
Wood ». Brown, 6 Taunt. 169; Hall v.
Smith, 1 M. & 8. 287.
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 534

§ 581. Exceptions. — To the rule forbidding general allegation
there are exceptions, proceeding from necessity, mentioned in a
previous chapter.!

III. Information to the Court to enable it to order the Course of the
Trial.

§ 532. In General. —It is the right equally of the defendant,?
of the court, and of the prosecutor, to have the indictment so
framed that the judge can direct the trial in a manner to secure
the rights of all persons interested therein. But information,to
the defendant is such also to the court — what concerns the one
as to the order of the trial concerns also the other. In this sub-
title, therefore, we shall consider, only —

§ 533. What depends on the Distinctions between Treason, Felony,
and Misdemeanor : —

Formerly and Now. — These distinctions and their consequences
are explained in other connections. Various things concerning
the course of the trial formerly depended on them. But there
have been gradual changes, till at present the trial is little or not
at all varied by them, —a question on which the practice in our
States is not quite uniform. Hence —

§ 534. “Feloniously ” — “Traitorously." — It was formerly of
prime importance, nor is it quite useless now, for the indictment
to show plainly on its face, whether the crime was treason, felony,
or misdemeanor. So that, while the pleadings were in Latin, the
indictment for treason must contain the word proditorie ; and for
felony, the word felonice. The omission indicated that the of-
fence was no more than a misdemeanor ; “ for,” says Starkie, “ it
seems to be clear, that no offence, as described in any indictment,
can amount to more than a misdemeanor, if it be not laid to have
been committed either proditorie or felonice.”* And these dis-
tinctions are continued, at least as to common-law offences, down
to the present day and in this country. The indictment for trea-
son alleges, that the act was committed trattorously ; for felony,

1 Ante, § 494. : various other places; also multitudes of
2 Ante, § 517. places in the present volume and the next,
8 Crim. Law, I. § 267-275, 607-625, and in Stat. Crimes.
646-659, 672-689, 692-708, 804-810, 812— 41 Stark. Crim. Pl. 2d ed. 74, refer-'
815, 985-945, 949, 1001-1003, 1005, and ring to Staunf. 96a; 2 Hawk. P. C. ¢. 26,

§ 55.
8385
§ 585 [BooK Iv.

INDICTMENT AND ITS INCIDENTS.

that it was done feloniously ; and, where neither of these words
is used, the offence is only misdemeanor.1 But, —

§ 535. Statutory Felony. — Where a new felony is created by
a statute which does not have the word “feloniously,” or a mis-
demeanor is thus made a felony, opinions differ whether the in-
dictment must allege the act to have been “feloniously ” done.
In England it must. “It is a wholesome rule,” said Cockburn,
C. J., “that there should be on the face of the indictment an
intimation whether the offence charged is a felony or a misde-
meanor.’’2 Such also is the doctrine in perhaps most of our
States.3 In other of the States, the courts have held the word
‘‘feloniously ” not to be essential where it is omitted from the
statute, —a conclusion to which in some of these States, not all,
they have been assisted by a legislative direction. In indict-
ments on acts of Congress, the word “ feloniously”” should not,
of course, be used if the offence is misdemeanor,’ though probably
its use will not be fatal to the proceedings. And, —

False Affidavit to defraud United States. — Where a statute made
it an offence to present a false affidavit to the commissioner of
pensions, with intent to defraud the United States, then declared
the person committing it to be guilty of felony punishable by fine
and imprisonment, the Supreme Court-held an indictment not ill
for omitting the word “ feloniously.” ‘It would be otherwise,”
said Nelson, J., “if the felonious intent was descriptive of the

offence, and not simply of the punishment.” ®

11 Stark. Crim. Pl. 2d ed. 75; and
see the authorities cited to the next sec-
tion.

2 Reg. v. Gray, 9 Cox C. C. 417, 419,
Leigh & C. 865.

3 Jane v. The State, 8 Misso. 61; The
State v. Murdock, 9 Misso. 739; The
State v. Gilbert, 24 Misso. 380; The State
v. Davis, 29 Misso. 891; The State v.
Williams, 80 Misso. 864, 868; The State
v. Deffenbacher, 51 Misso. 26; Mears v.
Commonwealth, 2 Grant, Pa. 385; Cain
v. The State, 18 Texas, 887 (see Posey v.
The State, 82 Texas, 476); Bowler v.
The State, 41 Missis. 670; The State v.
Jesse, 2 Dev. & Bat. 297; The State v.
Purdie, 67 N. C. 26; The State v. Rucker,
68 N. C. 211; The State v. Scott, 72 N.C,
461; Randall v. Commonwealth, 24 Grat.
644; Mott v. The State, 29 Ark. 147;
Edwards v. The State, 25 Ark. 444, which

336

two cases compare with The State v. El-
dridge, 7 Eng. 608, 610.

4 Miller v. People, 2Scam. 283; Quigley
v. People, 2 Scam. 301; Jane v. Common-
wealth, 3 Met. Ky. 18; People v. Olivera,
7 Cal. 408. In this case, Murray, C. J.,
dissenting, said: “In my opinion, it would
be impossible to allege felony without the
word felonious, ‘as it is necessary to show
the intent with which the act was done.
A crime may be the result of wickedness,
or malice, and at the same time may not
have been committed with a felonious in-
tent.” p. 404. See People v. Beatty, 14
Cal. 666. As to Tennessee, see next sec-
tion.

5 United States v. Prescott, 2 Bis. 826,
2 Abb. U. S. 169; United States v. Gal-
lagher, 2 Paine, 447.

6 United States v. Staats, 8 How. U.S.
41, 46, 46.
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 587

§ 586. Regulated by Statutes. — As just intimated, this ques-
tion has been more or less regulated by statutes in our States.!
Where, in Tennessee, a statute declared that “all indictments
for offences enumerated in” it, “which are offences at common
law, shall be good, if the offence be described or charged accord-
ing to common law, or according to this statute,” an indictment
without the word “ feloniously ” was held to be sufficient.2 But
an indictment for a statutory offence created out of what is not
criminal at the common law was adjudged to require the word
“feloniously.”? At last, however, the court of this State, over-
ruling former decisions,* has established the doctrine, that the
indictment in all cases under the statutes is good without the
word ‘‘feloniously.” §

§ 537. Misdemeanor — “Feloniously” as Surplusage. — By some
authorities, if an indictment charges acts which in law constitute
only a misdemeanor, as “ feloniously’’ done, in the common
form for felony, the word “feloniously”’ cannot be rejected as
surplusage, but all is bad.6 There is also authority the other
way;7 and the doctrine which rejects the word “feloniously”
as surplusage, and holds the indictment good, is to be preferred.

1 As to Massachusetts, see Common-
wealth v. Scannel, 11 Cush. 547; as to
Minnesota, The State v. Hogard, 12 Minn.
298; The State v. Crummey, 17 Minn.
72. :

2 Peek v. The State, 2 Humph. 78.
The same is held under a similar statute
in Alabama. Beasley v. The State, 18
Ala. 535; The State v. Absence, 4 Port.
897; Butler v. The State, 22 Ala. 48.

8 Williams v. The State, 8 Humph. 585.

4 Williams v. The State, supra, and
Nevills v. The State, 7 Coldw. 78.

6 Jones v. The State, 8 Heisk. 445;
Williams v. The State, 8 Heisk. 876; Rid-
dle v. The State, 3 Heisk. 401.

8 In a Maryland case, the charge was,
that the defendant did “feloniously, un-
lawfully,” &c., commit acts which in law
were misdemeanors; and the verdict was,
that he did “feloniously, unlawfully,”
&c., do the acts. And it was held, that,
as the offence was not felony, no valid

VOL. I. 22

judgment could be pronounced on the
indictment and verdict. Black v. The
State, 2 Md. 376.

7 Gile v. People, 1 Col. Ter. 60. And
see The State v. Crummey, 17 Minn. 72.
In Pennsylvania an indictment for the
misdemeanor of an attempt to commit
burglary, charging that “A, with an axe,
the dwelling-house of one B, in the night
time, feloniously and burglariously did
break, and with the intent with said axe
to open and enter, and the goods and
chattels of the said B, in the said dwell-
ing-house being, feloniously and burgla-
riously to steal and carry away, but the
said A did then and there fail in the per-
petration of said offence,” &c., was held
to be sufficient. Hackett v. Common-
wealth, 8 Harris, Pa. 95. And see Mears
v. Commonwealth, 2 Grant, Pa. 886.

8 Crim. Law, I. § 810, where more
authorities appear, and the question is
more fully stated.

837
§ 540 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

IV. Information to the Court to guide it in the Sentence.

§ 588. Every Element of Offence. —JIn other connections, and
in various aspects of the question, we have seen that every in-
dictnfnt must distinctly set down each and every individual
act and intent, which, in matter of law, determines or influences
the punishment.! And not the least of the reasons for this is,
that it may guide the court in pronouncing the sentence. An
indictment so imperfect that it will not, is inadequate.?

§ 589. Public Safety — Precedents. — Not only is the court
entitled to such full allegation for its own guidance, but the
public safety requires it. Otherwise no decision can be a prece-
dent,? and the law will cease to be a system of known authority.
The prejudices of him who for the moment holds the office of
judge, and not established rule, will determine the destinies of
men accused of crime.

§ 540. Ilustrations. — That the judge should be informed by
the indictment of what will enable him to fix the sentence may
be illustrated thus : —

Value — (Identification — Jurisdiction). — The value of an arti-
cle may be, in special circumstances, but it is not generally,
material as identifying it, or as giving a jurisdiction to the
court;® in which case it should be alleged on grounds distinct
from those we are now considering. But, within our present
discussion, —

Arson — Malicious Mischief. —In a statutory arson in Illinois,
an allegation of the value of the property burned was adjudged
essential ;; Wilson, C. J., observing: ‘This would probably be
unnecessary at common law, as a fine formed no part of the
punishment for the offence. The statute, however, under which
the indictment is found, has changed the common law in this
respect; a fine, equal in value to the property burned, is imposed
as part of the punishment for the offence.” ® So, in Alabama,
the indictment for malicious mischief alleges the value of the

1 Ante, § 77-88, 98 a, 127, 325, 507, * Post, § 567, 569, 678; Stat. Crimes,

509, 519, 521, 523. § 945.
2 Vogel v. The State, 31 Ind. 64; Com- 5 The State v. Stingley, 10 Iowa, 488.
monwealth v. Magowan, 1 Met. Ky. 368. § Clark v. People, 1 Scam. 117; s. Pp. in
3 Ante, § 606. Indiana, Ritchey v. The State, 7 Blackf.
168,

838
CHAP. XXXVII.] SUBSTANTIAL REQUISITES. § 542

property injured ; because, says the court, the statute provides
that the offender shall, on conviction, “be fined in such sum as
the jury trying the same shall assess, not exceeding four fold of
the value of the property injured or destroyed.” }

§ 641. Larceny — Malicious Mischief — Robbery — (General Doc-
trine). — Larceny being in general divided into grand and ‘petit,
depending on the value of the things stolen, or being otherwise
more or less heavily punishable according to such value, it has
become the ordinary rule, often expressed in the books without
qualification, that the indictment for this offence must allege
the value of such articles.2 But, as we have seen,’ the proof of
value will be adequate if it simply shows to which of the two
or more classes, meriting corresponding punishments, the offence
belongs. And if the statute makes it a distinct offence to steal
a horse,‘ or any other specified article,’ irrespective of its value,
or maliciously to injure it,® or to commit a robbery in a particular
place without regard to value,’ the value need not be alleged in
the indictment; but it must be alleged wherever it is an ele-
ment in the punishment, and it is immaterial what the crime is.
In further illustration, —

§ 542. Carrier's Neglect causing Death. — Any common carrier
by whose neglect a passenger’s life is lost, was, by statute,
subjected to a fine “to be recovered by indictment, to the use
of the executor or administrator of the deceased person, for the
benefit of his widow and heirs.” And it was held, not only
that the name and appointment of the administrator must be
set out in the indictment; but it should also “allege,” said
Dewey, J., ‘that the deceased has left a widow and child, or

1 The State v. Garner, 8 Port. 447.
See next section, and Stat. Crimes, § 444,
445,

2 Vol. II. § 718; Boyle v. The State,
87 Texas, 359; People v. Higbie, 66 Barb.
131; Sheppard v. The State, 1 Texas Ap.
622; Sheppard v. The State, 42 Ala. 531;
. Williams v. The State, 44 Ala. 396; Du
Bois v. The State, 60 Ala. 139; Radford
v. The State, 35 Texas, 15; Collins v.
People, 39 Ill. 233.

3 Ante, § 488 b.

4 Lopez v. The State, 20 Texas, 780,
781; People v. Townsley, 89 Cal. 405.

5 Stat. Crimes, § 427; Davis v. The
State, 40 Texas, 184.

6 Caldwell v. The State, 49 Ala. 34.

7 The State v. Burke, 73 N. C. 83.

8 Sheppard v. The State, 42 Ala. 531;
The State v. Daniels, 82 Misso. 558. The
case of Davis v. The State, 40 Ga. 229, is
not harmonious with this doctrine, if, as
I infer, the punishment did not depend
upon value. The decision is by an able
court; still, in this instance, the point as
elsewhere regarded, particularly in Eng-
land, and the weight of authority by
which it is sustained, seem not to have
been accurately apprehended.

9 Rex v. Forsyth, Russ. & Ry. 274;
Stat. Crimes, § 427, 444, 445, 457, 944,

839
§ 544 INDICTMENT AND ITS INCIDENTS. ‘[Book Iv.

one of these only, as the case may. be; and, if no widow and
child, then it should be alleged that the deceased left heirs at
law, for whose benefit the executor or administrator is to recover
the amount of the fine.” }

V. Information to the Defendant to enable him to plead the Pro-
ceeding in Bar of Another.

§ 548. Fundamental.— The right to plead one proceeding in
bar of another is, in the American law, fundamental.? So, con-
sequently, is the right to have the indictment so framed that it
can be made the foundation of the plea. But —

§ 544. How Practically. — The practical importance of this
theoretical proposition is not great. It is not the law that the
first indictment shall be so distinct and minute as to constitute,
without oral proof, a bar toasecond. The identity of the two
accusations must be shown by parol.‘ If, therefore, an indict-
ment satisfies the demands of the previous sub-titles of this
chapter, it will be sufficient under this. No illustrations of this
doctrine are required.

1 Commonwealth v. Eastern Railroad, rigo, 8 Met. Ky. 5; Rex v. Gibbs, 8 Mod.
6 Gray, 478, 474. For other illustrations, 68.
see ante, § 77 et seq. 4 Post, § 816; Horan v. The State, 24
2 Crim. Law, I. § 982. Texas, 161.
3 Ante, § 607; Commonwealth v. Per-

340
CHAP. XXXVIII.] METHODS OF AVERMENT. § 546

CHAPTER XXXVIII.

METHODS OF THE SUBSTANTIAL ALLEGATIONS,

§ 545. Introduction.
546-553. Difference of Allegation where Thing known and unknown.
554-558. Difference where Matter direct and where incidental.
559-563. Different Forms of setting out Written or Spoken Words.
564, 565. How, when the Words were in a Foreign Language.
566-584. Identifying Matter.
585-592. Disjunctive and Conjunctive Allegations.

§ 545. How the Chapter divided. — We shall consider, I. The
Difference in the Allegation where a Thing is known to the
Grand Jury and where it is not; II. The Differing Forms of
Averment where the Matter is incidental and where it is the
Substance of the Accusation; III. The Differing Forms of set-
ting out Written Instruments and Spoken Words; IV. The
Form of the Allegation where the Words were written or spoken
in a Foreign Language; V. Identifying Matter; VI. Disjunc-
tive and Conjunctive Allegations.

I. The Difference in the Allegation where a Thing is known to the
Grand Jury and where it is not.

§ 546. In General.— Within a doctrine already stated, if the
grand jury is informed of the material facts of an offence, but not
of all its identifying circumstances and methods, it may make
averment of the former according to its knowledge, and excuse the
not setting out of the latter by alleging that they are to the
jurors unknown.) An illustration of this is an identifying —

Name unknown : —

Form of Allegation. — Where the name ought by the general rules
to be stated, yet being unknown to the grand jurors they cannot
state it, the usual form of the allegation is: ‘a certain person

1 Ante, § 493-496.
3841
§ 547 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

whose name is to the jurors unknown,” or, “a certain person or
persons to the jurors aforesaid unknown.”! And —

Essential. — The want of knowledge will not avail to make the
indictment good unless averred.?

§ 547. Not always permissible. — As already shown,? if what is
vital in a charge — the substance — is not given, the indictment
will not be rendered good by the allegation that it is to the jurors
unknown.‘ And within this doctrine, if the grand jurors cannot
state a fact necessary for the defendant to know in order to make
his defence,® they cannot indict him. Therefore, in Alabama,
during slavery, an indictment on a statute which made it punish-
able to trade with a slave without the master’s permit speci-
fying the articles, was held ill; charging a sale, without his
permit, ‘to a slave whose name is to the jurors unknown.” If
there had been any such identification of the slave that the
defendant could ascertain what one was meant, the indictment
might have been good; but, in the absence of this, the defendant
could not, though the slave had a permit, produce proof of it at

the trial.§

1 1 Stark. Crim. Pl. 2d ed. 188; 1 Chit.
Crim. Law, 212; Reg. v. Campbell, 1 Car.
& K. 82; Rex v. Clark, Russ. & Ry. 358;
Rex v. Smith, 6 Car. & P. 151; Common-
wealth v. Thornton, 14 Gray, 41; The
State v. Snow, 41 Texas, 596 ; Morgenstern
v. Commonwealth, 27 Grat. 1018. “An
indictment of murder, de quodam ignoto, or
of stealing the goods cujusdam ignoti, is
good, where the person killed or robbed is
unknown.” Partridge v. Strange, 1 Plow.
77, 85; Buckley v. Thomas, 1 Plow. 118,
129; Rushton’s Case, 2 Leon. 121. In
one case, the words in an information for
an assault were, that the defendant did
beat, &c., “a certain boy whose name is
unknown,” contrary, &c.; and they were
held to be sufficient. Said Davison, J.:
“The ground of this exception is, that
the phrase, ‘whose name is unknown,’ is
equivalent to the allegation, ‘that his
name is unknown to the whole world,
and that consequently he has no name,
nor even an existence.’ We are not in-
clined to adopt this construction. The
attorney for the State having made and
filed this information, the terms used in
that pleading, namely, ‘whose name is
unknown,’ evidently intend that the name

342

Quite consistently with this case, —

of the boy was ‘unknown’ to the pleader,
and nothing more.” Brooster v. The State,
165 Ind. 190. The substitution of “by”
for “to,” in the form in the text, does not
spoil it. Commonwealth v. Griffin, 105
Mass. 175.

2 Ante, § 493, 495, 496; cases in last
note; Roberson v. Lambertville, 9 Vroom,
69; The State v. Stucky, 2 Blackf. 289;
Reg. v. Hicks, 2 Moody & R. 302; The
State v. Burgess, 4 Ind. 606.

3 Ante, § 495, 498.

4 Wallace v. People, 27 Ill. 45.

5 Ante, § 517 et seq.

6 Francois v. The State, 20 Ala. 83.
And see The State v. Schroder, Riley,
65; Rudolph v. The State, Riley, 298.',
In a later Alabama case, a complaint on
a municipal ordinance in similar terms to
this statute was on demurrer held to be
adequate; describing the slaves as “‘ sun-
dry slaves, the names and owners of whom
are totally unknown to the plaintiff; to
wit, one black boy about twenty years of
age, and one yellow boy, stout and heavy.”
Eberlin v. Mobile, 80 Ala. 548. And there
are in other States cases which go far—
perhaps not quite far enough—to bring
into doubt the earlier Alabama decision ;
CHAP. XXXVIIL.] METHODS OF AVERMENT.

§ 549

§ 548. Unlicensed Selling of Liquor.— A sale of intoxicating
liquor without a license, where the license is from public author-
ity, and evidenced by a public record, may be charged as to a
person unknown to the jurors.1_ Even, by some opinions, if the
name is known it need not be alleged,? though other opinions
require the name where known.? So, —

Larceny — Assault — Homicide. — An indictment for larceny,‘
assault,® or felonious homicide *® may lay the name of the person
injured or killed as unknown, if such is the fact.

§ 549. Where Unknown Name might be known. — If the grand
jurors refuse to learn the name when they might, their ignorance
of it thus wilfully produced, proceeding from no necessity, creates
none; and, if they lay it as unknown, proof of the facts at the
trial will show the allegation to be unauthorized, and there can
be no valid conviction thereon. As said by the English judges:
* The want of description is only excused when the name cannot
be known.”* For example, on a trial for liquor selling, the name
of the purchaser being laid as unknown to the jurors, one witness
only was examined, who said he knew the name, and should have
disclosed it to the grand jury had he been asked, but he was not;
and, upon this evidence and this allegation, it was held that a
verdict against the defendant could not be sustained. “This
indictment,” observed Blackford, J., “would not have been sus-
tained had the evidence on the trial shown that the name of the
third party was known to the grand jury when the indictment
was found. We are of opinion also, that it ought not to be sus-

5 The State v. Elmore, 44 Texas, 102;
Brooster v. The State, 15 Ind. 190, as to

which still, it is submitted, is well founded
in principle. In just reason, and by es-

tablished doctrine, a case wherein a point
was not taken, and not apprehended
by the court, is of little or no weight.
The cases meant, or to be consulted with
them, are The State v. Harris, 2 Sneed,
224; The State v. Guyott, 26 Misso. 62;
Commonwealth v. Cook, 13 B. Monr. 149,
and The State v. Schroder, 3 Hill, S. C.
61.

1 The State v. Bryant, 14 Misso. 340;
Blodget v. The State, 3 Ind. 403; Com-
monwealth v. Hitchings, 5 Gray, 482.

2 Stat. Crimes, § 1037; People v. Ad-
ams, 17 Wend. 475.

3 Stat. Crimes ut sup.

4 Anonymous, 1 Dy. 99 a; The State
v. Bell, 65 N. C. 813.

which see ante, § 546, note.

§ Reed v. The State, 16 Ark. 499; Reg.
v. Campbell, 1 Car. & K. 82; Reg. v.
Stroud, 2 Moody, 270, 1 Car. & K. 187;
ante, § 546, note.

7 Reg. v. Stroud, 2 Moody, 270. In
the report of this case in 1 Car. & K.
187, 188, the expression is slightly differ-
ent; namely, —“ Their lordships being
of opinion, that, in order to sustain a
count for the murder of a child whose
name is to the jurors unknown, there
must be evidence showing that the name
could not reasonably have been supposed
to be known to the grand jury.”

8 Referring to Rex v. Walker, 3 Camp.
264 and note.

343
INDICTMENT AND ITS INCIDENTS.

§ 551 [Book Iv.

tained in the present case, where the name might have been
ascertained by the grand jury if they had made the proper
inquiry of the witness whom they were examining.”! But, —

§ 550. Doctrine misapprehended in Massachusetts. — In Massa-
chusetts, a singular misapprehension led to a contrary decision.
The question was regarded by the judges simply as one of vari-
ance, nor did the thought cross their minds that any one looked
upon it otherwise. The grand jury being in fact ignorant of the
name, proof that they might have ascertained it but would not,
they held, created no variance, therefore (the doctrine of neces-
sity being entirely out of mind) they saw no objection to: the
conviction.? Of course, as no other court ever deemed there -was
a variance in such a case, and this court had no idea of what
other courts had deemed, the decisions are not in conflict, but
somewhere among them there isa blundering. Andif grand jurors,
whose duty it is to ascertain the facts of every case before bring-
ing in an indictment, can defeat a requirement of the law by
refusing to do their duty, of what use is judicial supervision ?

§ 551. Unknown Name known at Trial.— Though a name, un-
known to the grand jury and so laid, is disclosed at the trial,
this subsequent discovery does not render the indictment ill or
create a variance ; for still it is true that the name was unknown

at the finding.
time the name, the result is the

1 Blodget v. The State, 8 Ind. 403,
404. Chitty says: “Where the parties’
names may be ascertained on inquiry, it
seems they must be named; and, where
property was stated in one count to be-
long 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 described
in the first count, it was considered he
could not recur to the other count.”
1 Chit. Crim. Law, 218, referring to Rex
v. Robinson, Holt N. P. 595. In this
case, Richards, C. B., 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 re-
member a case at Chester before Lord
Kenyon, where the property was laid as
belonging to a person unknown; but,
upon the trial, it was clear that the owner

344

Or, even if the grand jury itself knew at another

same; as, if on the trial of an

was known, and might easily have been
ascertained by the prosecutor. Lord Ken-
yon directed an acquittal.” p. 596. See
also Reg. v. Campbell, 1 Car. & K. 82;
Cheek v. The State, 1 Ala. Sel. Cas. 107,
88 Ala. 227; United States v. Stetson, 3
Woodb. & M. 164; Rice v. The State, 3
Kan. 141.

2 Commonwealth v. Stoddard, 9 Allen,
280; Commonwealth v. Sherman, 13 Al-
len, 248,

3 Commonwealth v. Hill, 11 Cush. 137;
White v. People, 82 N. Y. 465; Common-
wealth v. Hendrie, 2 Gray, 5038; Hays v.
The State, 13 Misso. 246, where Birch, J.,
observed: “ It is conceived, that, in such
cases, it is neither made out that the
grand jury found an improper indictment,
nor does it involve any variance which
would authorize the acquittal or discharge
of the defendant.” Reaffirmed, The State

-v. Bryant, 14 Misso. 340,
CHAP. XXXVIUII.] METHODS OF AVERMENT.

§ 553

indictment for receiving goods charged as stolen by an unknown
person, it appears that the same grand jury had found an indict-
ment against one by name for stealing the same goods, this will
not prevent a conviction.!

What constitutes Unknown.— If the grand jurors know who
is the individual, but are uncertain what his name is, the case is
one of name unknown.?

§ 552. Proof of Name unknown. — That the name was unknown
to the grand jury is, in cases where otherwise the law requires it to
be stated, a material averment, and it must be proved.? As to the —

Presumptions. — It would seem, on principle, that, if at the trial
the name appears to be unknown, the petit jury will be justified
in presuming that it was so also to the grand jury; but,
if it is proved as known, affirmative proof must be added, that,
to the grand jury, it was unknown. The few cases we have to
this question appear, when viewed as direct authority, indistinct
and inconclusive. -

§ 553. Other Things unknown : —

Manner of Homicide. — An indictment for murder may allege,
that the defendant committed the crime, at a place specified,
“in some way and manner, and by some means, instruments,
and weapons, to the jurors unknown,” if in fact the grand jury

1 Rex v. Bush, Russ. & Ry. 872; Com-
monwealth v. Hill, 11 Cush. 187; Loftus
v. Commonwealth, 3 Grat. 631. See the
last two of these cases on the further
question of making a grand juror a wit-
ness of what was known in the jury-room.

2 Commonwealth v. Tompson, 2 Cush.
551. And see Commonwealth v, Hendrie,
2 Gray, 503. Thus, in England, D. C.
was indicted for manslaughter, in killing
“a certain woman whose name to the
jurors is unknown.” D.C. cohabited with
the woman, and sometimes said that she
was his wife, and sometimes that she was
not; and none of the witnesses had heard
her called by any name. Erskine, J.,
told the jury, that, if they were satisfied
the deceased was not the wife of the pris-
oner, and that her name could not be as-
certained by any reasonable diligence,
this description of her was proper; but,
if they should think that the deceased
was the wife of the prisoner, the descrip-
tion was bad; for, although there was no

evidence of her Christian name, she was
entitled to the surname of C., as being
that of her husband. Reg. v. Campbell,
1 Car. & K. 82. To the point that a per-
son cannot be described as unknown,
when one name is known, see also Reg.
v. Stroud, 2 Moody, 270, 1 Car. & K. 187.
And see Stone v. The State, 80 Ind. 115;
Kelley v. The State, 25 Ark. 392. But
see The State v. Bayonne, 23 La. An. 78.

8 Reed v. The State, 16 Ark. 499;
Cameron v. The State, 18 Ark. 712; The
State v. Wilson, 80 Conn. 500; Stone v.
The State, 380 Ind. 115 (compare with
Kelley v. The State, 25 Ark. 392).

* See and compare the cases in last
note and Commonwealth v. Tompson, 2
Cush. 651, 552; Reg. v. Thompson, 16
Q. B. 882, 4 Eng. L. & Eq. 287; Merwin
v. People, 26 Mich. 298, 301, 802; The
State v. Motley, 7 Rich. 827; Morgen-
stern v. Commonwealth, 27 Grat. 1018;
Commonwealth v. Thornton, 14 Gray, 41.

845
§ 554 INDICTMENT AND ITS INCIDENTS. [Book Iv.

are unable on investigation to state the facts with greater cer-
tainty.1 So, —

‘Written Instrument in Forgery.— While in general an indict-
ment for forgery must contain a transcript of the instrument
forged,? if it is lost? or destroyed, or is in the hands of the pris-
oner, this particularity may be dispensed with on the fact being
made thus to appear in the indictment, and the substance only
need be given. Again, —

Things taken in Larceny and Robbery — may be described with
such particularity as the grand jury is able; and the rest of the
description, to fill the ordinary requirements of the law, may be
alleged as unknown.5

Il. The Differing Forms of Averment where the Matter is Inci-
dental and where it is the Substance of the Accusation.

§ 554. In General. — What is incidental, as being introductory
or collateral, or an inducement to something else, need not be
set down in the indictment either so much in detail or with such
directness of charge, as those parts are required to be which
constitute the gist of the offence.6 Thus, —

Recital — (As to Material Part).— “It has frequently been
holden,” says Starkie,’ “ that it is insufficient to allege a mate-
rial part of the charge by way of recital, prefacing it with the
words ‘for that whereas, &c.’; therefore, —

Magistrates’ Order. — ‘“‘ Where an indictment against the defend-
ant for having disobeyed an order of two magistrates averred,
that, whereas the justices made an order, &c., the indictment
was holden to be insufficient, for not directly averring that such
an order was made; for, without the order, there could be no
offence.2 But, —

! Commonwealth v. Webster, 5 Cush.
295; The State v. Williams, 7 Jones, N.
C. 446; People v. Cronin, 34 Cal. 191;
The State v. Burke, 54 N. H. 92; The
State v. Parker, 65 N. C. 458; The State
v. Wood, 53 N. H. 484; Colt v. People, 1
Parker C. C. 611.

2 Post, § 559 et seq.

3 Wallace v. People, 27 Ill. 45.

4 People v. Kingsley, 2 Cow. 522;
Wallace v. People, 27 Ill. 45; United
States v. Britton, 2 Mason, 464; Croxdale

346

v. The State, 1 Head, 189. See Morton
v. The State, 80 Ala. 527; United States
v. Fisler, 4 Bis. 59; post, § 561.

5 Commonwealth v. Sawtelle, 11 Cush.
142; The State v. Hoppe, 89 Iowa, 468;
Chisolm v. The State, 45 Ala. 66; The
State v. Hinckley, 4 Minn. 845; Merwin
v. People, 26 Mich. 298, 801; Common-
wealth v. Green, 122 Mass. 333.

§ 1 Chit. Crim. Law, 231.

7 1 Stark. Crim. Pl. 2d ed. 244, 246.

8 Rex v. Crowhurst, 2Ld. Raym. 1363;
CHAP. XXXVII.] METHODS OF AVERMENT. § 556

As to Introductory Matter. — “‘ Where the matter laid under a
quod cum is merely introductory, the allegation will be suffi-
ciently certain. Thus, —

Forgery. — “‘ An indictment for forgery, which alleged quod
cum testatum existit per quandam indenturam, that J. S. de-
mised, &c., and then averred, that the defendant falsely forged
an assignment in writing of that lease, setting out the tenor, was
holden to be sufficiently certain.” }

§ 555. Inducement — Main Charge. — Circumstances which make
an act an offence are distinguishable from the act. Thus, —

Won-feasance in Office. — An indictment against a constable
for not returning a warrant may aver, that, whereas a third
person whom it mentions was convicted so and so, and whereas
a warrant was issued, and the like, such matter being. induce-
ment; but, when it comes to lay the non-feasance itself, — the
main charge, —its language must be direct.27 And —

Rules as to Inducement and Main Charge re-stated. — Mere in-
ducement may be laid with a “whereas” or quod cum ;3 the main
charge cannot be, but the allegation must be direct. Nor need
the inducement be stated with the same minuteness, or the same
certainty of time and place, as the main charge.®

§ 556. Part of Speech — (Verb, Participle, Adverb, &c.) — Where
the direct averment is required, as in laying the main charge, it
is usually made with the verb. But any other part of speech
which reasonably conveys the idea is adequate ; as, the parti-
ciple, and even the adverb. Thus, —

Participle — (‘Tampering with Witness — Stolen Goods, &e.). _
Though what is laid under a “whereas” is mere inducement,
what is laid under the participle may not be. It was so held

Rex v. Whitehead, 1 Salk. 371; 2 Hawk.
P. C. c. 25, § 60; 4 Co. 42; 5 Co. 120;
Rex v. Mytton, Cald. 586, 4 Doug. 333.

1 Reg. v. Goddard, 3 Salk. 171, 2 Ld.
Raym. 920, 921; Rex v. Lawley, 2 Stra.
904; Com. Dig. Indictment. In Rex v.
Goddard it was said by the Court: “The
quod cum is well enough, for it is but an
inducement to the fact; and, when the
indictment comes to charge the forgery,
it charges it in a particular manner.”
Starkie adds, in his text: “In Long’s
Case, 5 Co. 119 6, 122, but see Rex v.
Crowhurst, 2 Ld. Raym. 1363, it was

holden, that the averment, quod exoneravit

tormentum dans plagam, without saying per-
cussit, was insufficient; and, in Vaux’s
Case, 4 Co. 44 a, an indictment, alleging
quod nesciens potum fore venenatum bibit, was
holden to be vicious, for not saying ex-
pressly venenum bibit.”

2 Reg. v. Wyatt, 2 Ld. Raym. 1189.

8 Reg. v. Goddard, 2 Ld. Raym. 920,
921.

4 Rex v. Whitehead, 1 Salk. 371; Reg.
v. Daniel, Holt, 346, 847.

5 The State v. Mayberry, 48 Maine,
218; Commonwealth v. Reynolds, 14 Gray,
87, 90.

347
§ 559 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

when Lawley, being found guilty of attempting to persuade one
not to appear as a witness against Crooke, moved in arrest of
judgment because, says the report, “it was not positively averred |
that Crooke was indicted. It was only laid, that she, sciens that
Crooke had been indicted, and was to be tried, did so and so;
whereas, in all criminal cases, the fact must be positively alleged,
and not by inference. But the court upon consideration held
it was well enough; and that there is no real difference between
indictments and actions, where the gist of the action must be
positively averred. Dans plagam mortalem, warrantizando ven-
didit, receiving stolen goods knowing them to be stolen, are all
as loose. So is the case of keeping a dog, knowing him to be
accustomed to bite sheep.” ! In like manner, —

§ 557. “Being” — (Alleging Age — Abduction). — An indict-
ment on 4 & 5 Phil. & M. c. 8, which made punishable. any
one ‘“‘above the age of fourteen” who should steal an heiress,
charging that the defendant, “‘ being above the age of fourteen
years,” did the act, was held to contain a sufficient averment of
his age.2 So, —

“Cursing,” &c. — Disturbing the Peace. — In Missouri, an allega-
tion that the defendant did wilfully and unlawfully disturb the
peace of a neighborhood, “ by then and there cursing and swear-
ing, and by loud and abusive and indecent language,” contrary
to a statute, was held to be sufficient.?

§ 558. Laying Intent with Participle. — The allegation of evil
intent is often in this participial form; and it has been adjudged’
adequate in this form, though only in the introductory part of the
indictment. Likewise —

Intent with Adverb.— It is familiar that the adverbs “ feloni-
ously,” ‘“ traitorously,” and others of the like sort, are employed
to designate the intent.

III. The Differing Forms of setting out Written Instruments and
Spoken Words.

§ 559. Legal Effect — Exact Words. — We have seen that, by
a sort of general rule to which there are exceptions, sayings and

1 Rex v. Lawley, 2 Stra. 904. And 3 The State v. Fogerson, 29 Misso..
see Gibson v. Commonwealth, 2 Va. Cas. 416.
111; The State v. Dineen, 10 Minn. 407, 4 Rex v. Philipps, 6 East, 464, 472, 2
2 Rex v. Moor, 2 Mod. 128, 180. Smith, 550.

848
CHAP. XXXVIIL.]

METHODS OF AVERMENT. § 561

doings, even written instruments, may be charged in an indict-
ment according to their legal effect, equally well as by their
outward form! But there are special circumstances in which,
for their own particular reasons, the very words, whether written
or spoken, must be given. Hence —

Substance — Tenor. — There are two ways of setting out words ;
the one by their substance, the other by their tenor. And the
courts, by a long course of construing averments, have established
by what forms of expression the pleader binds himself to the
substance, and by what to the tenor. Thus, —

Tenor. — If the pleader introduces into his indictment words
written or spoken, which the law requires to be given in hee
verba, he properly prefaces them with “to the tenor following,”
or, “according to the tenor following.”2 Yet there are some
other expressions held to be equivalent; as, “‘in these words” —
“as follows” ?— ‘in the words and figures following ” + — ‘as
follows, that is to say.” 5

§ 560. Substance. — Each of the following forms indicates the
substance, none of them the tenor, yet they do not appear to be
exact equivalents for one another: “in manner and form follow-
ing, that is to say” ®— “according to the purport and effect,
and in substance, among other things, as follows, that is to
say” 7— “of the purport and effect following, that is to say” §
— “purport” 9 — “substance ” 9 — “effect following.” 1

§ 561. When must profess Tenor. — When, by law, words writ-
ten or spoken are required to be laid according to their tenor,
the indictment must profess so to charge them, introducing them
in one of the foregoing forms or its equivalent; and it will not
suffice instead to set them out accurately in fact.2 And, —

1 Ante, § 832.

2 Commonwealth v. Bailey, 1 Mass.
62; Commonwealth v. Stevens, 1 Mass.
208, 204; Commonwealth v. Clancy, 7
Allen, 537.

3 Rex v. Powell, 1 Leach, 4th ed. 77,
2 W. BI. 787, 2 East P. C. 976.

4 1 Chit. Crim. Law, 288; Rex v. Beare,
1 Ld. Raym. 414; Dana v. The State, 2
Ohio State, 91.

5 Rex v. Hart, 1 Leach, 4th ed. 145, 2
East P. C. 977; Rex v. Powell, 2 W. Bl.
_ 787, 1 Leach, 4th ed. 77.

8 Rex v. May, 1 Leach, 4th ed. 192, 1
Doug. 198.

7 Commonwealth »v. Wright, 1 Cush. 46.

8 Commonwealth v. Tarbox, 1 Cush.
66; The State v. Witham, 47 Maine, 165;
Dana v. The State, 2 Ohio State, 91.

9 Croxdale v. The State, 1 Head, 139.
See as to the distinction between “ pur-
port” and “ effect,” Downing v. The State,
4 Misso. 572; The State v. Shawley, 5
Hayw. 256.

10 Commonwealth v. Sweney, 10 S. &
R.173; The State v. Brownlow, 7 Humph.
68.

1. Rex v. Beare, 1 Ld. Raym. 414. And
see 1 Chit. Crim. Law, 284.

122 Commonwealth v. Wright, 1 Cush.

849
§ 563 INDICTMENT AND ITS INCIDENTS. [Book Iv.

Exceptions. —If the case comes within any class of the excep-
tions, — as, that the instrument is lost, or is in the hands of the
defendant,! or the libel is too obscene to appear upon the rec-
ords,?— the particular fact which excuses must be mentioned, or
the indictment will still be defective.®

§ 562. Proof of Tenor. — Where the instrument is laid accord-
ing to its tenor, the proof, we have seen,* must, to prevent a
variance, be very strict. Thus, William for Wm. has been ad-
judged fatal.6 So has “not” for “nor,” though the sense was
not changed. But where the word in the indictment was “ re-
ceived,” and in the instrument produced, it was “ receivd,” the
last e only being omitted, the difference was held not material.
“Mr. Justice Gould said, he considered it as the same word,
misspelt, and that there was not a possibility of mistaking it
for any other word in the English language.”’ And where the
abbreviation “ Messrs.” was employed in the indictment, and,
on proof, the writing was found to contain the form ‘ Mess',”
omitting the “r”;8 also, where ‘ undertood” was used for
“‘understood”’;® there was held to be no variance. And Lord
Mansfield stated the distinction ” to be, “that, where the omis-
sion or addition of a letter does not change the word so as to
make it another word, the variance is not material.” A vari-
ance in sums of money, however small, will be fatal.!2 And it
is the same also with a variance in a name.}8

§ 563. Proof of Substance. — It is believed that the proof of
the substance will vary in some degree with the offence, and
with the manner in which it is introduced and set out. Though

46; Commonwealth v. Tarbox, 1 Cush.
66; The State v. Twitty, 2 Hawks, 248;
The State v. Bonney, 84 Maine, 883; The
State v. Brownlow, 7 Humph. 68.

1 Ante, § 553; The State v. Parker, 1
D. Chip. 298; People v. Kingsley, 2 Cow.
622.

2 Commonwealth v. Tarbox, supra.

8 Ante, § 496.

4 Ante, § 488.

5 1 Chit. Crim. Law, 235, referring to
8 Stark. Ev. App. p. 859. Abbreviations.
— But according to Burress v. Common-
wealth, 27 Grat. 934, an abbreviation will
not work a variance. To the like effect,
but not permitting numerous abbrevia-
tions, is The State v. Jay, 6 Vroom, 868.

850

6 Reg. v. Drake, Holt, 847-852, 2 Salk.
660, 3 Salk. 224, 11 Mod. 78.

1 Rex v. Hart, 1 Leach, 4th ed. 145, 2
East P. C. 977.

8 Oldfield’s Case, 2 Russ. Crimes, 8d
Eng. ed. 876.

® Rex v. Beech, 1 Doug. 194, Lofft,
785, 1 T. R. 287, note, 1 Leach, 4th ed.
188; s. c. nom. Rex v. Beach, Cowp. 229.

10 Taken, he says, in Reg. v. Drake, 2
Salk. 660.

11 Rex v. Beech, supra, p. 134 of Leach.

12 Burress v. Commonwealth, supra;
The State v. Handy, 20 Maine, 81. See
ante, § 488 b, .

18 Brown v. People, 66 Ill. 844.
CHAP. XXXVIIIL.] METHODS OF AVERMENT. § 566 .

the tenor is not required to be shown, still the allegation and
proof must in this issue as in others correspond.}

IV. The Form of the Allegation where the Words were written
or spoken in a Foreign Language.

§ 564. How the Tenor. — Where the law requires a written
instrument to be set out by its tenor, if it is in a foreign lan-
guage the course is to give, first, an exact copy of the original ;
then follow it with an English translation. Thus: “of the
tenor following [here insert the copy of the original, in the
original language]. And which, being translated into the Eng-
lish language, is as follows.” The original, without the trans-
lation, is insufficient; so is the translation without the original.?
And if the words as translated do not sustain the indictment,
it must fail though the words in the original do?

§ 565. How the Substance. —— Where only the substance is
necessary, no principle occurs to the writer requiring the foreign
words to be given. The tenor of a discourse in a foreign lan-
guage could not be alleged in English; because this requires
the exact words, and these are foreign ones. But the substance
does not require the exact words; and plainly the substance of
a discourse in German or French may be stated in English.*

V. Identifying Matter.

§ 566. What for this Sub-title. — Having seen that the indict-
ment should be so far extended into detail, beyond the mere
definition of the law on which it is drawn, as to render the par-
ticular instance of offending certain,’ we shall here look further
into the manner of doing it. And —

How make Certain. — “ This certainty,” says Starkie,® “seems
to consist in the special description of the persons, places, and

1 Rex v. Spencer, 1 Car. & P. 260. 28 Cal. 205. So in Louisiana, The State

2 Zenobio v. Axtell, 6 T. R. 162; Rex v. Willers, 27 La, An. 246.
v. Goldstein, 3 Brod. & B. 201, Russ. & 3K. vo. H. 20 Wis. 239, a civil case,
Ry. 473, 7 Moore, 1; Rex v. Harris, 7 but the principle is the same. And see
Car. & P. 416, 429; Rex v. Szudurskie, 1 1 Saund. Wms. ed. 242, note.
Moody, 429; Rex v. Warshaner, 1 Moody, * Reg. v. Thomas, 2 Car. & K. 806.
466. In California, by construction of 5 Ante, § 825, 526 et seq.
‘the statute, the translation is sufficient 6 1 Stark. Crim. Pl. 2d ed. 182.
without the original. People v. Ah Woo,

851
§ 572 INDICTMENT AND ITS INCIDENTS. [Book Iv.

things mentioned in the indictment; with their respective names,
situation, extent, nature, quantity, number, value, and owner-
ship.”

§ 567. Value. — We have seen that, in many cases, the pun-
ishment depends on value, therefore in these cases it must be
alleged. But for purposes of identity it is not generally re-
quired, though in special circumstances it may be.1 When not
affecting the punishment, or the identity of the transaction, the
indictment may be silent concerning it.

§ 568. Species of Things. —In mentioning things connected
with the substance of the offence, the indictment should employ
the word which denotes the species, not the generic term.
For example, “property” is too general, and so is “cattle.”
Thus, —

§ 569. Lotteries. — An indictment on a statute against lotteries
for the division of “property” should state the kind — the spe-
cies — of property; the generic word alone not being adequate?
And, — 7

§ 570. Malicious Mischief. — If a statute makes punishable
malicious mischief to “cattle,” an indictment on it must men-
tion the species of cattle injured or killed; as, horse, cow, or
the like.’

§ 571. Person injured. —In general, the name of a person
injured by a criminal act should be stated, as identifying it.
And —

Other Third Persons. — It is the same, to some extent, with the
names of other third persons connected with the offence. But,
as to this, the decisions are inharmonious.®

§ 572. Repugnancy, Variance, &c, therein. — Says Starkie: ®
‘Any repugnancy or inconsistency in the description of the
person injured will vitiate the indictment; as, where the de-

1 Ante, § 540, 541; Ritchey v. The 277; Mitchum v. The State, 11 Ga. 615;
State, 7 Blackf. 168; People v. Ah Ye, Turpin v. The State, 19 Ohio State, 540;
81 Cal. 461. Rex v. Lovell, 1 Leach, 4th ed. 248, 2 East

2 Markle v. The State, 3 Ind. 535.

3 Rex v. Chalkley, Russ. & Ry. 258;
Stat. Crimes, § 440.

4 Post, § 573; 1 Stark. Crim. Pl. 2a
ed. 182 ; Stat. Crimes, § 448, 458; Burd v.
The State, 89 Texas, 509; Evans v. Peo-
ple, 12 Mich. 27; Matthews v. The State,
83 Texas, 102; People v. Dick, 87 Cal.

802

P. C. 990.

5 Stat. Crimes, § 894, 895, 944, 1037,
1098, 1099; Donniger v. The State, 52
Ind. 326 ; Martin v, The State, 6 Humph.
204; The State v. Meyer, 1 Speers, 305;
The State v. Helgen, 1 Speers, 310;
United States v. Bejandio, 1 Woods, 294.

6 1 Stark. Crim. Pl. 2d ed. 185.

e
‘CHAP. XXXVIII.] METHODS OF AVERMENT. § 5738

fendant is charged with stealing the goods predicti J. S., no
such person having been previously mentioned.! For, though
in civil actions the word predigtus has been rejected as surplus-
age,” yet this is said to have been done by virtue of the Statutes
of Jeofails, which, it is well known, do not extend to criminal
cases. And it may be laid down as an universal rule, that any
variance from the name laid in the indictment will be fatal upon
the trial.” 3

§ 573. Place of Offence. — We have already considered the
doctrine as to the place of the offence and how it should be
laid.4 Now, —

Descriptively. — Not generally, but in some circumstances and
as to some offences, the place of the offence must be stated de-
scriptively ; and, whether it must or not, if it is, it must be
proved as laid.6 Thus, to borrow Starkie’s ® illustrations, —

Burglary —— Arson — Larceny in Dwelling-house, Lodgings, &c. —
“In indictments for burglary it must be averred, that the de-
fendant broke and entered the dwelling-house of another; and
it is not sufficient to charge him with breaking and entering
the house simply.’ The house must be laid to be the dwelling-
house of the real occupier,’ and a variance in evidence would
be fatal.2 And the same rule applies to indictments for arson.”
And in an indictment for stealing in a dwelling-house to the
amount of 40s., in order to oust the defendant of his clergy his
surname, as well as the Christian name of the person in whose
dwelling-house the offence was committed, should be averred.™

1 2 Hawk. P. C. ¢. 25, § 72.

2 Reynoldson v. Bishop of London, 3
Lev. 435, 486; Lewson v. Riddleston, Cro.
Eliz. 709. Qu.

3 Ante, § 488; Mitchum v. The State,
11 Ga. 615; Charleston v. Schroeder, 4
Rich. 296; Collins v. The State, 43 Texas,
677.

4 Ante, § 45-67, 360-384.

5 Ante, § 378, 485, 486.

6 1 Stark. Crim. Pl. 2d ed. 188, 189.

7 1 Hale P. C. 550,

8 Rex v. Rogers, 1 Leach, 4th ed. 89;
Rex v. Carrell, 1 Leach, 4th ed. 237. In
Cole’s Case, Sir F. Moore, 466, the shop
was stated to be the shop of Richard,
without any surname; yet the indictment
seems to. have been deemed sufficient.
Qu. et vide 1 Leach, 4th ed. 258. See

VOL. I. 23

Stone v. The State, 30 Ind. 115; Kelley
v. The State, 25 Ark. 892; Morningstar
v. The State, 52 Ala. 405.

9 Rex v. White, 1 Leach, 4th ed. 252;
Woodward’s Case, 1 Leach, 4th ed. 253,
note.

10 Rex v. Breeme, 1 Leach, 4th ed. 220;
Rex v. Spalding, 1 Leach, 4th ed. 218;
Powlter’s Case, 11 Co. 29; Holmes’s Case,
Cro. Car. 876; Rickman’s Case, 2 East
P.C. 1084, 1035; 1 Hawk. P. C. c. 39, § 8;
Rex v. White, 1 Leach, 4th ed. 252; Wood-
ward’s Case, supra; McCabes’s Case, May
Sess. 0. B. 1785.

Ml Rex v. White, 1 Leach, 4th ed. 252;
Woodward’s Case, 1 Leach, 4th ed. 253,
note; Thompson’s Case, 1 Leach, 4th ed.
838.

353
§ 577 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

Also in an indictment under the Stat. 3 Will. & M. c. 9, for
stealing property from lodgings, the name of the person by
whom the goods and lodgings wexe let must be specified.” 1

§ 574. Fishing without Leave. — “A conviction under the Stat.
5 Geo. 8, c. 14, for fishing without the leave of the owner, alleged
the offence to have been committed ‘in part of a certain stream
which runneth between B, in the parish of A,in the county of
W, and C, in the same county’; and it was quashed, because it
did not show that the intermediate course of the stream between
the two termini was in the county of W.”?

§ 575. Description of Movables. — As things should be identi-
fied in the indictment, not by their generic name, but by the
species,? so, says Starkie,* —

Thing stolen. — “It is not allowable to aver generally, that
the defendant stole the goods and chattels of J. S. without
specifying them.”5 ‘Chattels,” he adds (but his words are to
be accepted only in the special sense meant), “should, it ap-
pears, be described with certainty of their nature, quantity, or
number, value, and ownership.” & But —

§ 576. How Certain the Description. — The certainty of descrip-
tion necessary “‘seems,” he says, “to mean such a certainty as
will enable the jury to decide whether the chattel proved to
have been stolen is the very same with that upon which the
indictment is founded;? and show judicially to the court that
it could have been the subject-matter of the offence charged, and
enable the defendant to plead his acquittal or conviction to a
subsequent indictment relating to the same chattel.”

§ 577. Quantity — (Selling by Unlawful Measure, &c.).— It .
would appear that the allegation and proof of quantity corre-
spond to the same of time. As to the allegation, Starkie§ says:
“It is in general necessary to ascertain the quantity by an aver-
ment of magnitude, weight, or number.” In confirmation of
this, he observes that an indictment for selling divers quantities
of beer in unlawful measures was held ill; because “ the court
could not, on account of the generality of the charge, form a

1 Rex v. Pope, 1 Leach, 4th ed. 386. ® Reg. v. Burnaby, 2 Ld. Raym. 900;

2 Rex v. Edwards, 1 East, 278. See Playter’s Case, 5 Co. 346; Rex v. Cather-
ante, § 486. all, 2 Stra. 900.

3 Ante, § 568. T See Vol. IT. § 702.

41 Stark. Crim. Pl. 2d ed. 192, 8 1 Stark. Crim. Pl. 2d ed. 196.

5 2 Hawk. P. C. c. 26, § 74.
854
CHAP. XXXVIII.] METHODS OF AVERMENT. § 580

judgment in what degree to punish the offender.” Also “an
information ? charged Martin Van Henbeck with selling to such
a one so many pipes of wine, not containing, as they ought to
have done, 126 gallons each; and alleged, that, though they
were so defective, the defendant had not defalked the price
according to the want of measure, whereby he had forfeited ® to
the Queen the value of the wine so defective; and judgment was
given for the defendant, because it was not showed in how many
vessels there was a deficiency.” And, —

§ 578. Liquor Laws.— Under our laws against the unlicensed
selling of intoxicating liquors, the indictment charges an exact
quantity, but the proof is required to show only any quantity
which constitutes the offence. And, generally, —

§ 579. Proof of Quantity, &c.— “In general,” continues Starkie,®
“if the property be correctly described in species, a variance
from that description upon the trial, as to weight, magnitude,
number, or value,® will be immaterial, unless the variance either
affect the nature of the crime as well as the degree of the offence,
or the magnitude of the penalty.”7 Thus, —

§ 580. Larceny in Dwelling-house. —‘“‘In an indictment under
the Stat. 12 Anne, for stealing in a dwelling-house to the amount
of 40s., the property must be proved to be of the value of 40s.,
but the excess is immaterial. So —

Unlawful Brokerage. — “ Under an indictment framed upon
the Statute 17 Geo. 38, c. 26, § 7, for taking more than 10s.
in the hundred pounds for brokerage, it is necessary to prove
that the defendant took more than 10s. in the hundred pounds,
for in that the offence consists; but the quantum of the excess is
immaterial, and need not be proved as laid in the indictment.®
But, —

Usury. — “In the case of usury, where the judgment depends
upon the quantum taken, the usurious contract must be averred

1 Rex v. Gibbs, 1 Stra. 497. See also 6 See Commonwealth v. Garland, 3
2 Rol. Abr. 81. pl. 14, 15, 16,17; Rex v. Met. Ky. 478.
Gibbs, 8 Mod. 58; Rex v. Catherall, 2 T Ante, § 488 b.

Stra. 900; Playter’s Case, 5 Co. 84. 8 Rex v. Gillham, 6 T. R. 265.
2 Van Henbeck’s Case, 2 Leon. 38. 9 Extortion. —So in the case of ex-
3 Under the Stat. 18 Hen. 6, c. 17. tortion, Rex v. Burdett, 1 Ld. Raym. 148,
4 Stat. Crimes, § 1034, 1039, 1047, 149; and Reg. v. Baines, 2 Ld. Raym.
And see ante, § 488 b. 1266.

6 1 Stark. Crim. Pl. 2d ed. 200.
355
§ 585

INDICTMENT AND ITS INCIDENTS.

[BOOK Iv.

according to the fact; and a variance from it, in evidence, would
be fatal, because the penalty is apportioned to the value.” 1

§ 581. Ownership. — A common method of identifying the
offence is by alleging the ownership of the thing on which it
is committed; and, in general, this is required.2 And, —

§ 582. Inaccuracy — Repugnancy — Variance. — “In general,
an inaccuracy or repugnancy in the allegation, or variance in
the proof of ownership, will vitiate the indictment.” 3

§ 583. In what Offences. — These doctrines as to the owner-
ship apply in all offences which consist wholly or in part of a
wrong done to the real or personal property or possession of one
who is injured thereby ;* as, for illustration, —

Malicious Mischief. —— In malicious mischief.5

Larceny. — In larceny.®

False Pretences. — In false pretences.’

So —

§ 584. Realty.— They apply in such offences to or upon the

realty as arson ® and burglary.®

VI. Disjunctive and Conjunctive Allegations.

§ 585. In General. — The certainty required in an indictment
depends often upon properly choosing between “ and” and “ or”

as the conjunction.

We have already seen instances in which

the use of “or” for “and” makes the allegation bad.” There
are other instances in which “or” may and even must be used.

When * and” required : —

The Rule. — Whenever the conjunction “or” would leave it
uncertain which of two things is meant, it is inadmissible; and,

1 Rex v. Gillham, 6 T. R. 265.

2 Ante, § 488 b, 566, 669, 575; The
State v. Harlan, 5 Rich. 470; Beall vo.
The State, 53 Ala. 460; People v. Shaber,
82 Cal. 86; Pleasant v. The State, 17 Ala.
190; The State v. Scott, 1 Hawks, 24;
Commonwealth v. Perris, 108 Mass. 1;
Leobold v. The State, 83 Ind. 484; The
State v. Brant, 14 Iowa, 180; Ritter v.
The State, 88 Texas, 608; Glines v.
Smith, 48 N. H. 259; The State v. Mor-
rissey, 22 Iowa, 168; Wash v. The State,
14 Sm. & M. 120; Flora v. The State, 4
Port. 111; Jarcke v. The State, Riley,

356

296; Washington v. The State, 41 Texas,
683 ; Reg. v. Walker, 10 U. C. Q. B. 465;
Grove v. The State, 10 Misso. 282.

3 1 Stark. Crim. Pl. 2d ed. 206; ante,
§ 488 b; Jenks’s Case, 2 East P. C. 514, 2
Leach, 4th ed. 774.

4 See the cases cited ante, § 581.

5 Vol. II. § 843; Rex v. Patrick, 1
Leach, 4th ed. 253.

® Vol. II. § 718.

T Vol. IL. § 173.

8 Vol. IL. § 86.

® Vol. IL. § 187,

10 Ante, § 825, 484-436, 484,
CHAP. XXXVIII.] METHODS OF AVERMENT. § 586

in its stead, ‘‘and” may be employed if it makes the required
sense.) “Thus,” —

Doing “or” Causing. —Says Chitty: “An indictment stating,
that the defendant murdered or caused to be murdered, or that
he murdered or wounded, is bad because uncertain.2 So to
say that the defendant forged or caused to be forged an in-
strument,’ [that he passed or attempted to pass it], that he
erected or 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 burden the parish of Chelmsford ; ¢
is not sufficiently positive.’? A common illustration we have
already seen ® in the indictment on —

§ 586. Alternative Clauses of a Statute. —If a statute makes it
a crime to do this, or that, or that, mentioning several things
disjunctively, all may indeed, in general, be charged in a single
count; but it must use the conjunctive “and” where “or”
occurs in the statute, else it will be defective as being uncer-

tain.?

All are but one offence, laid as committed in different

ways. And proof of it in any one of the ways will sustain the

1 1 Chit. Crim. Law, 231; 2 Hawk. P.
C. ce. 25, § 58; Rex v. Stocker, 5 Mod.
187, 138, &c.; Commonwealth v. Perrigo,
3 Met. Ky. 5; The State v. Drake, 1
Vroom, 422, 427; Commonwealth v.
France, 2 Brews. 568.

2 Ib.

3 Rex v. Stocker, 5 Mod. 137, 1 Salk.
842, 371; Rex v. Brereton, 8 Mod. 328,
830; Rex v. Ward, 2 Stra. 747; Rex v.
Stoughton, 2 Stra. 900; Rex v. Middle-
hurst, 1 Bur. 399.

£ People v. Tomlinson, 35 Cal. 503.

5 Rex v. Stoughton, 2 Stra. 900; 2
Sess. Cas. 25.

6 1 Sess. Cas. 807; Rex v. Flint, Cas.
temp. Hardw. 370.

7 So, in arson, it is fatal to allege that
the defendant “did burn or cause to be
burned.” People v. Hood, 6 Cal. 286. It
is insufficient to allege that the defendant
“did take or cause to be taken.” The
State v. O’Bannon, 1 Bailey, 144. And
see The State v. Colwell,3 R. I. 284; Reg.
v. Patterson, 27 U. C. Q. B. 142. “ Felo-
niously or unlawfully” is bad. Reg. v.
Craig, 21 U. C. Q. B. 552.

8 Ante, § 486, 484. F

9 Hart v. The State, 2 Texas Ap. 39;
Clifford v. The State, 29 Wis. 827; The
State v. Moran, 40 Maine, 129; Lancas-
ter v. The State, 48 Texas, 619; The
State v. Fitzsimmons, 30 Misso. 236; The
State v. Meyer, 1 Speers, 305; The State
v. Helgen, 1 Speers, 310; Johnson v. The
State, 32 Ala. 583; Raiford v. The State,
7 Port. 101; Cochran v. The State, 30
Ala. 542; The State v. Slocum, 8 Blackf.
815; Keefer v. The State, 4 Ind. 246;
The State v. Colwell, 3 R. I. 284; Rex v.
North, 6 D. & R. 148; People v. Ah Woo,
28 Cal. 205. “It is the usual practice,”
says Starkie, “to allege offences cumula-
tively, both at common law and under
the description contained in penal stat-
utes; as, that the defendant published
and caused to be published a certain libel,
that he forged and caused to be forged,”
&c. 1 Stark. Crim. Pl. 2d ed. 246 et seq.

10 Wingard v. The State, 13 Ga. 396,
898; Commonwealth v. Eaton, 15 Pick.
278; Slicker v. The State, 18 Ark. 397;
United States v. Montgomery, 8 Saw. 544;
Commonwealth v. Dolan, 121 Mass. 374 ;
ante, § 436.

857
§ 588 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

allegation! On the other hand, the indictment may equally

well charge what comes within a single clause of the statute,

and still it embraces the complete proportions of an offence.?
But —

 § 587. Limit of Doctrine. — The right, and especially the prac-
tical expediency, of thus covering several disjunctive clauses with
one count have limits. Thus, —

Repugnancy — Duplicity. — The allegations must not be re-
pugnant? or double; as, if a statute forbids men and women
to live together in “adultery or fornication,” both cannot be
charged in one count by the use of either “and” or “or”:
because, first, the two things are repugnant; secondly, in this
instance, the statute creates two offences, not one, as in the
ordinary case.* In like manner, —

Liquor Law — (Two Offences ). — The following words were held
— whether correctly or not we need not inquire — to create two
offences, in consequence of which an indictment covering both
of these two clauses was double. “It shall not be lawful for

- any person to sell or retail any vinous or spirituous liquors in
less quantities than one gallon, nor suffer the same or any part
thereof to be drank or used in or about his or her house.” While
the first clause made punishable a sale only when the quantity
was less than one gallon, the court deemed that the second made
punishable the sale whatever the quantity, and that the effect
of this diversity was to create two offences, not one, which might
be committed in different ways.

§ 588. Practical Difficulties. — Besides these legal difficulties,
presenting themselves in exceptional cases, there are sometimes
practical ones. Thus, —

Requiring more to be proved — (Liquor Laws). — If a statute
makes it punishable to sell without license “spirituous or in-
toxicating liquors,” an allegation that those sold were spirituous
or intoxicating will be bad for uncertainty,é and an allegation

1 The State v. Ringer, 6 Blackf. 109; ® The State v. Flint, 62 Misso. 393;
United States v. Millard, 13 Blatch. 534; ante, § 489. .

Commonwealth v. Dolan, supra; Mooney 4 Stat. Crimes, § 701.

v. The State, 8 Ala. 328; Stat. Crimes, 5 Miller v. The State, 6 How. Missis.

§ 244, 250. And see, for a case in some meas-
2 The State v. Colwell, 3 R. I. 284; ure parallel, Rex v. Jackson, 1 Leach,

Stat. Crimes, § 244. 4th ed. 267, 1 East P. C. 419.

® Commonwealth v. Grey, 2 Gray, 501.
358
‘CHAP. XXXVIIL.]. METHODS OF AVERMENT. '§ 590
that they were spirituous and intoxicating will require proof
that they were both; whereas, if only one of the statutory ad-
jectives is used, the proof need establish but the one. Yet the
difficulty may be obviated by another form of the expression.!
So, —

Forgery. — Where a statute makes punishable the forgery of
a “‘warrant or order,” the indictment may describe it, if the
pleader chooses, as a “warrant and order” ;? but the proof
must show it to be both.8 Yet difficulties of this sort are ob-

‘viated by the pleader ; thus, —

Keeping Gun. — A statute made punishable any free negro,
&c., who should carry, &c., “any shot-gun, musket, rifle,

pistol, sword, dagger, or bowie knife, unless,’

?

&ec.; and a

count which charged the carrying of “a musket, a rifle, and

”

a shot-gun
them.*

was held to be sustained by proof of any one of

§ 589. When “ or” permissible or required : —
By Statute. — We occasionally meet with a statute authorizing
the disjunctive form of the allegation, generally or in special cir-

cumstances, contrary to the common-law rule

And —

Without Statute.— There is perhaps now and then a case in
which the common-law rule has been departed from without

statutory direction.®

§ 590. “Or” as meaning “To Wit.” — If the statute has the word
“or,” not as introducing an alternative clause, but as explaining
something which went before, signifying therefore the same as

1 Commonwealth v. Livermore, 4 Gray, -

18; ante, § 484. In Commonwealth »v.
Grey, supra, Metcalf, J., said: The de-
fendant should be charged, “either with
selling spirituous liquor, or with selling
intoxicating liquor, or with selling spiritu-
ous liquor and intoxicating liquor. The
latter form is usually adopted; and it is
well settled that it is a proper form, and
that proof of the defendant’s having sold
either spirituous liquor or intoxicating
liquor, as well as proof of his having sold
both, will-support the indictment.” p.
608. Referring to 1 East P. C. 402;
Angel v. Commonwealth, 2 Va. Cas. 231;
The State v. Price, 6 Halst. 203.

2 The State v. Jones, 1 McMul. 236;

The State v. Holley, 1 Brev. 35. See
also Hobbs v. The State, 9 Misso. 855.

3 Reg. v. Gilchrist, Car. & M. 224;
Rex v. Crowther, 5 Car. & P. 816; Reg.
v. Williams, 2 Car. & K. 51. See The
State v. Vermont Central Railroad, 28
Vt. 583.

4 The State v. Locklear, Busbee, 205.
Still the court seemed not to regard the
indictment with favor. —

5 The State v. Owens, 22 Minn. 238 ;
Horton v. The State, 53 Ala. 488; John-
son v. The State, 60 Ala. 456; Ward v.
The State, 50 Ala. 120.

6 Cunningham »v. The State, 5 W. Va.
608; Morgan v. Commonwealth, 7 Grat.

592,
359
§ 592 INDICTMENT AND ITS INCIDENTS. [Book Iv.

“to wit,” the same word will be good in the indictment.!
“ Thus,” —

Possessing Counterfeits. — Said Metcalf, J.:2 “It was held
that an indictment was sufficient which alleged, that the de-
fendant had in his custody and possession ten counterfeit bank
bills or promissory notes, payable, &c., knowing them to be
counterfeit, and with intent to utter and pass them;.. . it
being manifest, from Stat. 1804, c. 120, § 2, on which the in-|
dictment was framed, that ‘promissory note’ was used merely
as explanatory of ‘bank bill,’ and meant the same thing.?
So—

Larceny — Bay “or” Brown. — “* An information was held suffi-
cient which alleged, that the defendant feloniously stole, took,
and carried away a mare ‘of a bay or brown color’; the court
saying, that the colors named in the information were the same.” 4
Again, —

§ 591. Duty — Breach.— A duty, laid as the foundation on
which to charge a breach, may be put in the disjunctive; and, if
the truth of the law is so, it ought to be. Thus, —

Bell “or" Whistle. — Where a statute requires that a bell be
rung, or a whistle blown, on a train of cars; this duty is well
laid, in an indictment for the breach of it, in the disjunctive.
In like manner, —

License. — Where one or another of two .or more forms of
license will justify an act otherwise criminal, an allegation nega-
tiving such license, not only may, but must, employ the word
“or” instead of “and.”® Again, —

Agreement. — A corrupt agreement must be laid as it is; in the
alternative, if such is the fact.?

§ 592. Disjunctive as Surplusage.— Sometimes the disjunctive
part may be got rid of as surplusage.8 Thus, —

1 Blemer v. People, 76 Ill. 265, 271; 3 Brown v. Commonwealth, 8 Mass.
Hart v. The State, 2 Texas Ap. 39; White- 69.
side v. The State, 4 Coldw. 175; The 4 The State v. Gilbert, 13 Vt. 647.
State v. Moore, 61 Misso. 276; The State 5 The State v. Vermont Central Rail-
v. Ellis, 4 Misso. 474; People v. Smith, road, 28 Vt. 583; Stat. Crimes, § 1048.
15 Cal. 408. And see The State v. Bish- ® Stat. Crimes, § 1042, 1043.
op, 1 D. Chip. 120; Vance v. Gray, 9 7 Tate v. Wellings, 3 T. R. 581.

Bush, 656. 8 Ante, § 477 et seq.; Reg. v. Parker,
2 In Commonwealth v. Grey, 2 Gray, Taw Rep. 1 C. C. 226; McGregor v. The
601. State, 16 Ind. 9.

860
CHAP. XXXVIIL] METHODS OF AVERMENT. § 692

Liquor Selling. — Where a complaint was, that the defendant,
“by himself or his agent,” made an unlicensed sale of liquors,
the words “ by himself or his agent” were rejected, and the pro-
ceeding was sustained!

1 The State v. Corrigan, 24 Conn. 286.
361
§ 594 INDICTMENT AND ITS INCIDENTS. [Book Iv.

CHAPTER XXXIX.

METHODS SPECIAL TO INDICTMENTS ON STATUTES.

§ 593. Introduction.
594-601. How to distinguish whether on Statute or not.
602-607. Conclusion of “ Against Form of Statute.”
608-622. Rule of following Words of Statute.
623-630. Exception of expanding Allegation beyond Words.
631-642. What the Indictment must negative and how.

§ 593. Doctrine of the Chapter defined. — The doctrine to be
explained in this chapter is, that the indictment on a statute,
the same as on the common law, and with the same particularity,
must set forth all the affirmative facts which constitute a prima
facie case, but it need not anticipate any defence by denial ;
differing from the indictment on the common law simply in this,
that it must profess on its face to be drawn on a statute, and
employ sufficiently the words of the statute to enable the court
to see what one is meant.

How the Chapter divided. — We shall consider, I. How to
distinguish whether the Indictment should be on a Statute or
at the Common Law; JI. The Conclusion “ Against the Form
of the Statute”; III. The Rule of following the Words of
the Statute; IV. The Exception of expanding the Allegation
beyond the Statutory Words; V. What the Indictment must
negative and in what Form.

I. How to distinguish whether the Indictment should be on a Stat-
ute or at the Common Law.

§ 594. In General. — In a few of our States, and under the
Government of the United States except in the District of
Columbia and the territories, all crimes are statutory.!_ The
rules by which to determine whether, in the other States, a par-
ticular offence is to be deemed statutory or not, are in the main

1 Crim. Law, I. § 85, 198-208.
362
CHAP. XXXIX.]

INDICTMENTS ON STATUTES. § 597

derivable from the elucidations in “Statutory Crimes.” Yet a
condensation of views, with reference to the question when an
indictment must be on a statute and when it may be at common
law, prepared largely from other books, will be useful here.

§ 595. Offence created by Statute. — All the authorities affirm,
that, “if an offence did not exist at common law, but is entirely
created by a statute,” the indictment for it must be on the stat-
ute.) Thus, —

Larceny of Chose in Action. — As a chose in action is not a
subject of larceny at the common law, a statute making it such
creates a new offence, and only on the statute can an indictment
for stealing it be maintained.?- And, adds Starkie : —

Misdemeanor made Felony, &c. — ‘‘ The rule is the same where
an offence at common law is made an offence of a higher nature
by a statute ; as, where a misdemeanor is made a felony, or a
felony treason,” ?— a rule unquestionable where the proceedings
for different grades remain as at common law different, but per-
haps doubtful in localities where they do not.4

§ 596. Benefit taken from Common-law Offence. — “ Where the
‘offence existed at common law, but the offender is, under par-
ticular circumstances, deprived by a statute of some benefit to
which he was entitled at common law,” this does not create a
statutory offence, and the indictment is at common law.’ So,
also, —

§ 597. New Punishment by Statute.—If a statute merely pro-
vides, for a common-law offence which it neither enlarges nor

11 Stark. Crim. Pl. 2d-ed. 228; The
State v. Ladd, 2 Swan, Tenn. 226; Chap-
man v. Commonwealth, 5 Whart. 427;
Warner v. Commonwealth, 1 Barr, 154;
Rex v. Pearson, 5 Car. & P. 121.

2 Vol. II. § 731; Stat. Crimes, § 414-
417; The State v. Dill, 75 N. C. 257.

3 Referring to 2 Hawk. P. C. ce. 25,
§ 116; Rex v. Clerk, 1 Salk. 370. The
doctrine of the text is better supported
by Starkie’s name than by these authori-
ties. And see, as sustaining the text,
The State v. Gove, 34 N. H. 510; Rex v.
Pim, Russ. & Ry. 426.

4 See ante, § 533 et seq.; The State v.
McDonald, 73 N. C. 346.

. 5.1 Stark. Crim. Pl. 2d ed. 229; refer-

ring to 2 Hale P. C. 190; Rex v. Dicken-
son, 1 Saund. 135, note. Starkie adds,
that “the averment in such case would
not be improper ; for, though the statute
does not inflict a new penalty, it takes
away an old privilege.” Referring to 2
Hale P. C. 190; Page v. Harwood, Aleyn,
43, Style, 86; Bennett v. Talbois, 1 Ld.
Raym. 149, 150; s.c. nom, Bennet v. Tal-
bot, 1 Salk. 212. “So,” he continues,
‘under Stat. 21 Jac. 1, ¢. 27, it was holden
to be unnecessary to conclude against the
form of the statute ; for the act created no
new crime, but only introduced a new
rule of evidence.” Referring to 2 Hale
P. C. 190, 288; 2 Hawk. P. C. c. 46, § 43;
J. Kel. 36.
363
§ 598 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

diminishes, a new punishment, an indictment framed upon the
common law will be good! But, —

§ 598. Same under Special Circumstances. — Where the statute,
instead of this, directs a special punishment to be inflicted on
those who commit the common-law offence under particular cir-
cumstances, or with aggravations, which it points out, the in-
dictment, whether drawn at common law or on the statute,
must depart so far from the form before in use as to specify the
circumstances or aggravations ;2 yet whether or not it must con-
clude “against the form of the statute” does not distinctly ap-
pear. There are authorities indicating that it need not; but, in
principle, as the statute has introduced into the offence a new
element, it would seem to be, for the purpose of the conclusion

as well as the rest, statutory?

1 Stat. Crimes, § 166, 167; The State
v. Ratts, 68 N. C. 503; The State v. Mc-
Donald, 73 N. C. 346; The State v. Evans,
7 Gill & J. 290, 298; Davis v. The State,
8 Har. & J. 154; The State v. Stedman,
G Port. 495; The State v. Burt, 25 Vt.
873; Reg. v. Williams, 14 Law J. Nn. s.
M. C. 164; Bennett v. The State, 3 Ind.
167; Chiles v. Commonwealth, 2 Va.
Cas. 260. And see The State v. Mur-
freesboro, 11 Humph. 217; Fuller v. Ful-
ler, 4 Vt. 123. Starkie lays down the
contrary doctrine ; namely, that the indict-
ment must be upon the statute. 1 Stark.
Crim. Pl. 2d ed. 229, referring to 2 Hale
P. C. 199; 1 Saund. 185; 2 Rol. Abr. 82.
Nothing is plainer than that such cannot
be the American law ; for, with us, nearly
or quite universally, the legislature de-
clares the punishment for all offences,
common law as well as statutory ; and,
if the indictment must then be on the
statute, indictments at common law
would be unknown,—contrary to the
general course of things in our crim-
inal practice. On looking into Star-
kie’s authorities, I find a dictum of
Lord Hale, under an “it seems,” at p.
191, sustaining his text. In 1 Saund.
6th ed. 185, is the following, in a note,
which gives the true doctrine: ‘‘ Where
a statute merely increases the punish-
ment of an offence, sentence may be
passed for the increased punishment,

364

The question, in principle, may

though the indictment does not conclude
contra formam, &c.; for that conclusion is
only necessary when a statute creates an
offence, not when it regulates the punish-
ment. Rex v. Chatburn, 1 Moody, 403;
Rex v. Rushworth, 1 Moody, 404; Rex v.
Berry, 1 Moody & R. 468. Accordingly,
in order to warrant a sentence of trans-
portation for life after a previous convic-
tion for felony, the indictment need not
conclude contra formam, &c. Reg. v. Blea,
8 Car. & P. 735. An indictment for a
common felony committed abroad, but
triable here by statute, need not conclude
contra formam, &c. Rex v. Sawyer, Russ.
& Ry. 294, Car. Crim. Law, 3d ed: 108, 2
Car, & K. 101.”’ I will add, that, accord-
ing to Reg. v. Serva, 1 Den. C. C. 104, 2
Car. & K. 53, an indictment at the assizes,
under 7 & 8 Vict. c. 2, for a crime com-
mitted on the high seas, need not con-
clude contra formam statuti.

2 Ante, § 588 and the places there
referred to.

8 Vol. II. § 499. One was tried be-
fore Erskine, J., for burglary, on an
indictment in the common-law form; and,
as Stat. 7 Will. 4 & 1 Vict. c. 86, had de-
fined the hours of the night between
which the breaking and entering should
be deemed burglary, it was objected for
the prisoner that the indictment was in-
sufficient, because it did not lay the of-
fence as against the statute. But the

ee
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 601

be likened to that of a contract under seal, which, if modified by
parol, is held to become a parol contract.1

§ 599. Common-law Offence affirmed by Statute. — If a common-
law offence is made an offence by statute, — “such,” says Starkie,
“as the Stat. 25 Edw. 3, de proditionibus,” — the indictment may
be statutory or not, at the pleader’s option.? In the language of
Blackford, J., “If an offence at common law be prohibited by
statute, this tales not away the indictment at common law.” 3

§ 600. Further of New Punishment by Statute.— Where a stat-
ute has prescribed the punishment for a common-law offence, the
pleader may, if he chooses, conclude the indictment as upon
the statute. But he must set out the offence fully, according to
the requirements of the common law.’ Yet this doctrine is of
little practical importance ; because, —

§ 601. Conclusion against Statute, Surplusage. — Contrary to
some early opinions, it is the universal modern doctrine that the
conclusion “ against the form of the statute” may be rejected as
surplusage, whenever thereby an indictment not adequate under
a statute will be made good at common law. Therefore, in a
case of doubt, it is judicious so to frame it that it will cover the
terms both of the common law and of a statute; and it will be

good whichever way the court deems to be correct.

learned judge overruled the objection,
observing: “I am of opinion, that, this
statute not having altered the offence,
and not having prohibited the offence,
but merely having reduced the punish-
ment, it is not necessary that the indict-
ment should conclude ‘against the form
of the statute.’” Reg. v. Polly, 1 Car. &
K. 77, 81. Assault is an offence at com-
mon law; but, where a statute makes it
more heavily punishable if aggravated
by the intent to kill, it is rather implied
than held, that the indictment must con-
clude as against the statute. Reg. v.
Nelmes, 6 Car. & P. 847. It must con-
tain all the elements of the indictment
for common-law assault, with the allega-
tion of the statutory intent added. Beas-
ley v. The State, 18 Ala. 585. See like-
wise The State v. Burt, 25 Vt. 878, which
was an indictment for an assault upon an
officer. See also The State v. Morse, 1
Greene, Iowa, 508.

1 Bishop Con. § 85. And see ib. § 643.

2 1 Stark. Crim. Pl. 2d ed. 229, refer-
ring to 2 Hale P. C. 189; adding, — “ But
under the Stat. 89 Geo. 3, c. 85, although
it is declaratory, it is necessary to indict
specially. See Rex v. Jones, 2 East P.C.
576.”

% Fuller v. The State, 1 Blackf. 68, 65.

4 Stat. Crimes, § 167; Burton’s Case,
Cro., Eliz. 148; The State v. Ladd, 2
Swan, Tenn. 226; Reg. v: Bethell, 6 Mod.
17. And see The State v. Hoyle, 6 Ire.
1; Davis v. The State, 3 Har. & J. 154;
Commonwealth v. Hoxey, 16 Mass. 385.
See also the cases cited ante, § 597.

5 Ante, § 598 and note; Stat. Crimes,
§ 881, 413, 469.

61 Stark. Crim. Pl. 2d ed. 229, 280;
referring to Rex v. Bathurst, Say. 225;
2 Hawk. P. C. c. 25, § 115, 116; Aleyn,
43; 2 Hale P. C. 191; Bennet v. Talbot,
1 Salk. 212; Penhallo’s Case, Cro. Eliz.
281; Rex v. Mathews, 2 Leach, 4th ed.

865
§ 603 INDICTMENT AND ITS INCIDENTS. [Book rv.

Il. The Conclusion “ Against the Form of the Statute.”

§ 602. In General. — Where the common law is unmodified by
statutes, every indictment on a statute must conclude with the
words “against the form of the statute in such case made and
provided,” or their equivalent.) One which does not, will not
sustain a conviction.?

§ 603. In what Form of Words. — The usual and technical form
is that given in the last section. The name of the State need
not be added, for that is implied.2 Nor need there be a more
specific reference to the statute. The following substitutes for
the usual form have severally been deemed adequate: “ against
the law in such case provided,”’> “in contempt of the laws of the
United States of America,” ® “act of Assembly” for “statute ” ;*
‘against the statute,” omitting the words “form of the ;’’ 8 “‘ con-
trary to the statute,” ® « contrary to the true intent and meaning
of the act of the Congress of the United States in such case made

and provided.”

584, 5 T. R. 162; Reg. v. Wigs, 2 Ld.
Raym. 1163; 4 T. R. 402; 1 Saund. 136,
note; 1 Ld. Raym. 149. That this mat-
ter may thus be rejected see further The
State v. Buckman, 8 N. H. 203; Cruiser
v. The State, 3 Harrison, 206; Gregory
v. Commonwealth, 2 Dana, 417; The
State v. Walker, N. C. Term R. 229;
Southworth v. The State, 5 Conn. 325;
The State v. Phelps, 11 Vt. 116; The
State v. Wimberly, 3 McCord, 190; Van-
derworker v. The State, 18 Ark. 700;
The State v. Kennerly, 10 Rich. 152;
The State v. Gove, 34 N. H. 510; The
State v. Lamb, 65 N. C. 419.

1 McCullough v. Commonwealth, Har-
din, 95; Rex v. Pearson, 5 Car. & P.121;
People v. Stockham, 1 Parker C. C. 424;
Commonwealth v. Springfield, 7 Mass. 9;
1 Chit. Crim. Law, 290. By-law.— Even
a complaint for the violation of a town or
city by-law, though it concludes against
the form of the by-law, must also con-
clude against the form of the statute.
Commonwealth v. Gay, 5 Pick. 44; Com-
monwealth v. Worcester, 8 Pick. 462,

366

“ All that is required,” said Story, J., “is that

475; Stevens v. Dimond, 6 N. H. 880;
Stat. Crimes, § 406.

2 Warner v. Commonwealth, 1 Barr,
154; Reg. v. Radcliffe, 2 Moody, 68, 2
Lewin, 57; Rex v. Pearson, 1 Moody,
313; Commonwealth «. Northampton, 2
Mass. 116; Commonwealth v. Cooley, 10
Pick. 87; Commonwealth v. Caldwell, 14
Mass. 830.

3 The State v. Karn, 16 La. An. 183.

4 Zumhoff v. The State, 4 Greene,
Towa, 526; Toptclif v. Waller, 3 Dy.
846 b; Oldnoll’s Case, 2 Dy. 155 a.

5 Commonwealth v. Stockbridge, 11
Mass. 279. And see Huff v. Common-
wealth, 14 Grat. 648. But see Hudson v.
The State, 1 Blackf. 317.

8 United States v. Andrews, 2 Paine,
461.

7 The State v. Tribatt, 10 Ire. 151;
The State v. Sanford, 1 Nott & McC.
512; Trimble v. Commonwealth, 2 Va.
Cas. 143.

8 Commonwealth v. Caldwell, 14 Mass.
830; The State v. Toadvine, 1 Brev. 16.

® The State v. Bartlett, 55 Maine, 200,
202.
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 605

some phrase should be used which shows that the offence charged
is founded on some statute.” !

§ 604. On Colonial and British Statutes.— Where the statute
was enacted during the colonial period, the conclusion “ contrary
to the act of assembly of the said State in such case made and
provided” was held to be good.? If a statute makes a British
statute “of force,” ? “the usual and correct conclusion,” it was
said, “would be, ‘contrary to the form of the statute in such case
made and provided, and made of force in this State.’” There-
fore, “against the act of Assembly in such case made and pro-
vided ” was held to be inadequate. But where, though the title
of a statute is “ An act for putting in Force” some British’ stat-
utes enumerated, it proceeds with a provision in nearly the same
words with the British, this is but the ordinary case of a State
statute; and the conclusion “against the British statute made
of force in this State ” is vicious.®

§ 605. Indictment on two or more Statutes — (Plural — Singular).
— An indictment drawn on two or more statutes must conclude
in the plural; namely, “contrary to the form of the statutes,”
&c.;® on one statute, in the singular, ‘“‘contrary to the form of
the statute,” &c.’ An error in this is fatal; rendering the indict-

1 United States v. Smith, 2 Mason,
148, 150.

% The State v. Turnage, 2 Nott & McC.
158.

3 Bishop First Book, § 58.

4 The State v. Sanford, 1 Nott & McC.
512.

5 The State v. Holley, 1 Brev. 35; s.c.
nom. The State v. Holly, 2 Bay, 262.

6 Francisco v. The State, 1 Ind. 179;
The State v. Hunter, 8 Blackf. 212; Tevis
v. The State, 8 Blackf. 803; The State v.
Muse, 4 Dev. & Bat. 319; The State »v.
Jim, 8 Murph. 3. Contra, The State v.
Dayton, 8 Zab. 49; Carter v. The State,
2 Ind. 617; The State v. Wilbor, 1 R. I.
199. Chitty says: “It was formerly
holden by several authorities, that, where
an offence is prohibited by several inde-
pendent statutes, it was necessary to con-
clude in the plural; Broughton v. Moore,
Cro. Jac. 142; Dormer’s Case, 2 Leon. 5;
Aleyn, 49, 50; Rex v. Cox, 2 Bulst. 258;
but now the better opinion seems to be,
that a conclusion in the singular will suf-
fice, and it will be construed to refer to

that enactment which is most for the pub-
lic benefit. [See The State v. Wise, 67
N. C. 280.] 2 Hale P. C.173; Sid. 848;
Owen, 185; Rex v. Collins, 2 Leach, 4th
ed. 827; Toptclif v. Waller, 8 Dy. 346 8,
847 a; Anonymous, 4 Co. 48; 2 Hawk.
P. C. c. 25, § 117. And where a statute
is discontinued, or expires by effluxion of
time, and is revived by another, and also
where a temporary act is made perpetual,
the conclusion in the singular will be suf-
ficient, 2 Hale P. C. 178; Barnaby ».
Nandike, 1 Lutw. 72,73; Rex v. Dick-
enson, 1 Saund. 185, note; 2 East P. C.
601; though it is said to conclude in the
plural. 2 Hale P. C.173; 2 Hawk. P.C.
e. 25, § 117. So, if a statute qualify the
manner of proceeding upon a former act,
without altering the substance of its pur-
view, the indictment against the form of
the statute will be valid. Andrew v.
Lewkner, Yelv. 116, Cro. Jac. 187; 2
Hawk. P. C.c. 25, § 117; Bac. Abr. Indict-
ment, H. 6; Burn Just. Indictment IX.”
1 Chit. Crim. Law, 291.

7 The State v. Sandy, 8 Ire. 570; The

367
§ 607 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

ment, where the common-law rules prevail, ill even after verdict,
the same as the omission of the conclusion! Still, —

§ 606. Distinctions as to Singular and Plural.— There are some
nice distinctions. In principle, it results from propositions al-
ready considered,? that, if the offence is created by one statute
and the punishment is provided or changed by another, the con-
clusion may be either in the singular or plural at the pleader’s
option. Yet there are cases, perhaps preponderating in author-
ity, holding the plural form to be necessary in these cirecum-
stances. If the offence and penalty are declared by different
sections of the same statute, the conclusion is properly in the
singular.6 It is so even, according to a North Carolina decision,
where the offence and penalty are created by different chapters
of the statutes of one session; all being in law but one statute.
In principle, as already shown, it should be so though the statutes
were of different years.

Abbreviated in Latin. — Under the Latin indictment, when
abbreviations were used, the pleader avoided difficulty by con-
cluding contra formam stat.; the stat. standing either for statuti

or statutorum, as would render it good.’
§ 607. Legislation with us.—In some of our States, this con-

State v. Abernathy, Busbee, 428; The
State v. Cassel, 2 Har. & G.407. Contra,
Townley v. The State, 3 Harrison, 311.
And see United States v. Gibert, 2 Sum-
ner, 19, 89.

1 The State v. Sandy, supra; The State
v, Muse, supra. But see United States v.
Trout, 4 Bis. 105.

2 Ante, § 597, 600.

3 Stat. Crimes, § 167.

4 Rex v. West, Owen, 184; King v.
The State, 2 Ind. 528; The State »,
Moses, 7 Blackf. 244; yet an earlier In-
diana decision holds the singular form
to be sufficient, Strong v. The State, 1
Blackf. 193; and a later confirms the
earlier, Bennett v. The State, 8 Ind. 167.
In New York it was laid down, that, al-
though there are two statutes, the con-
clusion need not be in the plural where
the offence is wholly created by one of
them, and the other merely makes some
alterations in it, without affecting the
offence. Yet it was added: “Such a
conclusion is sometimes necessary where

868

one statute is in relation to another, as
where one creates the offence and another
fixes the penalty.” Kane v. People, 8
Wend. 203, 212. “If a statute refers to
a former statute, and adopts and con-
tinues the provisions of it, the indictment
must conclude against the form of the
statute.” 1 Saund. 6th ed. 185 6, note.
If one statute subjects an act to a pecu-
niary penalty, and a second makes it
felony, an indictment for the felony con-
cluding against the form of the statute
(in the singular number only) is right.
Rex v. Pim, Russ. & Ry. 425. And see
Rex v. Collins, 2 Leach, 4th ed. 827; The
State v. Berry, 4 Halst. 874; Rex v. Mor-
gan, 2 East P. C. 601; United States v.
Gibert, 2 Sumner, 19. That the singular
form is sufficient, see, in addition to some
of the foregoing cases, Butman’s Case, 8
Greenl. 118; The State v. Robbins, 1 Strob.
855. And see Stat. Crimes, § 166, 167.

5 Crawford v. The State, 2 Ind. 182.

6 The State v. Bell, 8 Ire. 506,

T Rex v. Spiller, 2 Show. 207.

er
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 610

clusion has been rendered unnecessary by express enactment;
in some others, indirectly. Of the latter class is . Kentucky.
‘The substance” of the enactment, says the court, is, ‘that an
indictment is sufficient if it shows intelligibly the offence intended
to be charged; and that it shall not be deemed insufficient by
reason of any defect which does not tend to the prejudice of the
substantial rights of the defendant on the merits.” By con-
struction whereof, the conclusion we are considering need not be
employed.! ‘

III. The Rule of following the Words of the Statute.

§ 608. Reciting Public Statute. — An indictment being never re-
quired to allege the law, whereof the courts take judicial cogni-
zance,? it need not recite a public statute on which it is drawn?
But if it does, and concludes contrary to the statute thus recited,
this matter cannot be rejected as surplusage ; and, if the recital
is incorrect, the indictment will be ill. Perhaps it may be other-
wise if the conclusion is “ contrary to the statute in such case
provided.”5 But—

$ 609. Reciting Private Statute or By-law. — An indictment must
recite a private or other statute or by-law of which the courts do
not judicially know.6 This branch of the procedure is explained
in “ Statutory Crimes.” 7

§ 610. Statutes which do not define. —If a statute creates an
offence without defining it, — as, for example, if it forbids a
thing by its common-law name, leaving the definition to the
common law,®— the indictment, when statutory,® is so only in
its conclusion, the rest being framed as upon the common law."

1 Commonwealth v. Kennedy, 15 B. 5 Ante, § 482 note; 1 Chit. Crim. Law,

Monr. 581. And see, as to Arkansas,
‘ Brown v. The State, 13 Ark. 96.

2 Ante, § 329.

3 1 Chit. Crim. Law, 276; Plunken v.
Griffith, Cro. Eliz. 236; Reg. v. Pugh, 6
Mod. 140; United States v. Rhodes, 1
Abb. U. S. 28; Commonwealth v. Hoye,
11 Gray, 462. See also Commonwealth
v. McCurdy, 5 Mass. 324.

4 Rex v. Marsack, 6 T. R.771; Anony-
mous, 4 Co. 48; Farr v. East, Cro. Eliz.
186; Plunken v. Griffith, supra; Boyce
v. Whitaker, 1 Doug. 93; Hall v. Gaven,
Cro. Eliz. 807; Eden’s Case, Cro. Eliz. 697.

VOL. I. 24

277; 2 Hale P. C. 172; Rex v. Marsack,
supra, at p. 773.

8 Stat. Crimes, § 896, 405, 406.

7 Stat. Crimes, § 394-407. As to
which see also 1 Stark. Crim. Pl. 2d ed.
212 et seq.; 1 Chit. Crim. Law, 277 et
seq. and the books there referred to.

8 Stat. Crimes, § 363.

2 Ante, § 597, 599, 600.

1 Ante, § 600; Stat. Crimes, § 381,
884, 413, 469; United States v. Crosby, 1
Hughes, 448; Wall v. The State, 18
Texas, 682.

369
§ 611 INDICTMENT AND ITS INCIDENTS. [Book Iv.

Or, if to this the statute adds something, the indictment is still
the same, enlarged by the added matter.1 Therefore what we
are now principally to consider is the indictment on —

§ 611. Statutes defining the Offence. — To statutes of this sort,
the doctrines which require the indictment to set out the name
of the defendant, the place, the time, the identifying particulars,
and all other like things, apply, precisely as to the common law.?
Beyond this, —

Words of Statute. — Where a statute defines the offence which
it creates, it is ordinarily adequate, while nothing less will in
any instance suffice, to charge the defendant with all the acts
within the statutory definition, substantially in the words of the

statute, without further expansion.®

1 Ante, § 598; Stat. Crimes, § 414-~

416.

2 United States v. Quinn, 8 Blatch. 48,
66; Reg. v. Jarrald, Leigh & C. 301; The
State v. Brown, 21 La. An. 347; Reg..v.
Norton, 8 Car. & P. 196; The State v.
Winright, 12 Misso. 410; McFain v. The
State, 41 Texas, 885; The State v. Com-
fort, 22 Minn. 271; The State v. Shenton,
22 Minn. 311; The State v. Schroder, 3
Hill, S. C. 61; The State v. Ullman, 5
Minn. 138; Rex v. Mason, 2 T. R. 581,
586.

3 People v. Stockham, 1 Parker C. C.
424; The State v. Williams, 2 Strob. 474;
Hester v. The State, 17 Ga. 130; Camp
v. The State, 3 Kelly, 417; Sweeney v.
The State, 16 Ga. 467 ; Ricks v. The State,
16 Ga. 600; Chambers v. People, 4 Scam.
851; The State v. Noel, 5 Blackf. 548;
The State v. Click, 2 Ala. 26; Clark v.
The State, 19 Ala. 552; The State v. Ab-
bott, 11 Fost. N. H. 434; Romp v. The
State, 3 Greene, Iowa, 276; The State v.
Ragan, 22 Misso. 459; The State v. Ra-
bon, 4 Rich. 260; Moffatt v. The State, 6
Eng. 169; United States v. Lancaster, 2
McLean, 481; The State v. Calvin, R. M.
Charl. 151; The State v. Duncan, 9 Port.
260; The State v. Mitchell, 6 Misso. 147;
The State v. Helm, 6 Misso. 263; Stud-
still v. The State, 7 Ga. 2; The State v.
Bougher, 3 Blackf. 307 ; United States v.
Gooding, 12 -Wheat. 460; Sharp v. The
State, 17 Ga. 290; The State v. Hereford,
13 Misso. 3; The State v. Rust, 35 N. H.
438; Medlock v. The State, 18 Ark. 363;

370

Malone v. The State, 14 Ind. 219; The
State v. Adams, 16 Ark. 497; Eubanks
v. The State, 17 Ala. 181; The State v.
Bess, 20 Misso. 419; Commonwealth v.
Daniels, 2 Va. Cas. 402; The State
v. Cantrell, 2 Hill, S. C. 889; Lemon v.
The State, 19 Ark. 171; The State v.
Collins, 19-Ark. 587; The State v. Keogh,
18 La. An. 243; United States v. Wilson,
Bald. 78; Lodano v. The State, 25 Ala.
64; United States v. Vickery, 1 Har. &

‘J. 427; Whiting v. The State, 14 Conn.

487; Simmons v. The State, 12 Misso.
268; The State v. Jones, 33 Vt. 448; The
State v. Pennington, 3 Head, 119; The
State v. Carpenter, 62 Misso. 594; Craw-
ford v. The State, 44 Ala. 882; West v.
The State, 35 Texas, 89; Smith v. The
State, 1 Texas Ap. 620; The State vu.
Jackson, 39 Conn. 229; The State v.
Bierce, 27 Conn. 319; Hines v. The
State, 26 Ga. 614; United States v.
Henry, 3 Ben. 29; Mohler.v. People, 24
Ill. 26; Fouts v. The State, 4 Greene,
Iowa, 500; Frazer v. People, 54 Barb.
306; The State v. Thatcher, 6 Vroom,
445; The State v. Stedman, 7 Port. 495;
The State v. Sloan, 67 N. C. 857; The
State v. Thomas, 7 Rich. 481; Common-
wealth v. Ewing, 7 Bush, 105; Smith v.
The State, 84 Texas, 612; Reddan v. The
State, 4 Greene, Iowa, 137; Smith v. The
State, 22 Ala. 54; Hall v. The State, 8
Coldw. 125; The State v. Stanton, 1 Ire.
424; Mathews v. The State, 86 Texas,
675; Williams v. The State, 42 Missis.
828; Riley v. The State, 48 Missis. 397;
CHAP. XXXIXx.]

INDICTMENTS ON STATUTES.

§ 612

§ 612. Whether Exact Words. — Practically the judicious pleader
will always reproduce in allegation the exact words of the stat-
ute; for thus all question will be avoided, and just the proof
which the law demands, and no more, will be called for by the
indictment.! Still, not always are the precise words absolutely

‘necessary.2. As to which, —

How closely to follow Statutory Words. — The terms employed
in our courts to indicate the degree of closeness to the words of

the statute necessary in an indictment are not uniform.

But,

if we consider the language of the judges, the reasons on which
the law is based, and the actual course of adjudication, the result
to which we shall arrive is, that the indictment must: employ so
many of the substantial words of the statute as will enable the

court to see on what one it is framed:

and, beyond this, it

must use all the other words which are essential to a complete
description of the offence; or, if the pleader chooses, words which
are their equivalents in meaning; or, if again he chooses, words
which are more than their equivalents, provided they include
the full significations of the statutory words, not otherwise.3

Hence, —

Murrell v. The State, 44 Ala. 367; White
v. The State, 44 Ala. 409; Mason v. The
State, 42 Ala. 548; The State v. Roberts,
3 Brev. 139; Osborn v. The State, 52 Ind.
626; The State v. Kennison, 55 N. H.
242; Ellars v. The State, 25 Ohio State,
885; United States v. Seventeen Empty
Barrels, 8 Dillon, 285; Batre v. The State,
18 Ala. 119; The State v. Webb, 41
Texas, 67.

1 And see United States v. Bachelder,
2 Gallis. 15, 18; Sloan v. The State, 42
Ind. 570.

2 United States v. Bachelder, supra;
The State v. Tally, 74 N. C. 822; Spar-
renberger v The State, 53 Ala. 481;
Commonwealth v. Young, 15 Grat. 664;
Tully v. People, 67 N. Y. 15; McCutcheon
v. People, 69 Iil. 601.

8 Tully v. People, 67 N. Y. 15; The
State v. Robbins, 66 Maine, 824; The
State v. Drake, 64 N. C. 589; The State v.
Boyle, 28 Iowa, 522; Commonwealth »v.
Parker, 117 Mass. 112; Jones v. The State,
51 Missis. 718; The State v. Ware, 62
Misso. 697; The State v. Anderson, 3
Nev. 254; Rex v. Elsworth, 2 East P. C.

986; Robertson v. The State, 31 Texas,
36; Francis v. The State, 21 Texas, 280;
Commonwealth v. Turner, 8 Bush, 1.
Some of the points and judicial utter-
ances, not quite harmonious, but con-
venient in this form for the practitioner,
are, that the allegation must be in the
words of the statute, but a superfluous
description is not objectionable, The
State v. Cheatwood, 2 Hill, S. C. 459;
that all circumstances stated in the stat-
ute as constituting the offence must be
set down with precision in its technical
language, Ike v. The State, 23 Missis.
525; The State v. McKenzie, 42 Maine,
892 ; Commonwealth v. Hampton, 3 Grat.
590; that the exact words of the statute
are not necessary, but their equivalents
will suffice, The State v. Bullock, 13 Ala.
413; Buckley v. The State, 2 Greene,
Iowa, 162; especially if the indictment
substantially follows the statute, putting
the defendant on fair notice, People v.
Thompson, 4 Cal. 238. The exact words
or their equivalents must be employed.
The State v. Gove, 84 N. H. 510; The
State v. Hickman, 8 Halst. 299. Exact

371

\
§ 618 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

Two Statutes. — An indictment so far lacking adherence to
statutory terms that the court cannot see on which of two stat-
utes it is drawn, is ill! But if its allegations are such as by
general rule bring it adequately within either one of two stat-
utes, and there is a trial on it, and the jury render a verdict of
guilty in such form as to indicate the statute, the defendant
cannot afterward object.2. Again, —

§ 618. “Burn” — “Set Fire to” — (Arson). — The common-
law word to indicate the criminal act in arson is “burn” ;3
though, in the indictment, the words “set fire to” have been

connected with it.4

identical, but as to how nearly opinions differ.®
indictment should employ the statutory one.

The meaning of the two terms is nearly

Properly the
Where it was

“burn” in the statute, “set fire to” was held in Virginia® and
Arkansas to be inadequate, but adequate in Maine.’
“Purposely,” &c. — “ Peloniously,” &c. — (Assault). — A statute

words not always necessary. Poage v.
The State, 3 Ohio State, 229. The in-
dictment must contain the substance of
the statutory definition. United States
v. Dickey, Morris, 412. It should follow
the language defining the offence. Howel
vy. Commonwealth, 5 Grat. 664; The State
v. Thomas, 3 Strob. 269; The State v.
Casados, 1 Nott & McC. 91. In the sub-
stantial words. The State v. La Creux,
1 McMul. 488. Sufficient if offence is
substantially set forth, though not in ex-
act words of statute. United States v.
Bachelder, 2 Gallis. 15. Must follow the
words. Nothing can be taken by intend-
ment. The State v. O'Bannon, 1 Bailey,
144. Keep close to statutory expressions.
The State v. Foster, 8 McCord, 442. May
employ equivalents, or more than equiva-
lents; as, where a statute declared it fel-
ony to make fraudulently any coin in
“imitation” of the current coin of the
State, an indictment charging the de-
fendant with fraudulently making coin
to the “likeness” and “similitude” of
the current coin was held good. Peek v.
The State, 2 Humph. 78; The State v.
Vill, 2 Brev. 262. Letter or substance.
Skains v. The State, 21 Ala. 218. All
the facts necessary to bring the defendant
precisely within the statute. Morse v,
The State, 6 Conn. 9. Must contain so
many of the statutory words as are nec-

872

essary to describe the offence. The State
v. Ellis, 4 Misso. 474; Vaughn v. The
State, 4 Misso. 580. Should follow the
statute strictly. Updegraff v. Common-
wealth, 6 S.& R. 5. Not necessarily, in
general, the very words, but the sub-
stance to a reasonable intendment. The
State v. Little, 1 Vt. 831. An allegation
not substantially following the language
of the statute does not clearly charge an
indictable offence; hence it is not cured
by the section of the Iowa statute which
provides, that “no indictment shall be
quashed if an indictable offence is clearly
charged therein, or if the charge be so
explicitly set forth that judgment can be
rendered thereon.” The State v. Morse,
1 Greene, Iowa, 503.

! Commonwealth v. Macuboy, 3 Dana,
70, 72; The State v. Wise, 67 N. C. 281.
And see Camp v. The State, 27 Ala. 53;
Lohman v. People, 1 Comst. 379; Com-
monwealth v. Hamilton, 15 Gray, 480;
The State v. Hayden, 15 N. H. 355; The
State v. Martin, 22 Ark. 420.

2 The State v. Fisher, 8 Kan. 208.

8 Crim. Law, II. § 8 and note.

4 Vol. IT. § 83, 46.

5 Stat. Crimes, § 311.

* Howel v. Commonwealth, 5 Grat.
664.

7 Vol. II. § 47.
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 618

being, “Every person who shall, on purpose, and of malice
aforethought, shoot at,” &c.; the words “feloniously, unlaw-
fully, and of malice aforethought, did shoot,” were adjudged

insufficient in the indictment.}

“Knowingly ” — “ Unlawfully.” — “ Unlawfully,” in the indict-
ment, will not cover ‘‘ knowingly ” in the statute.?
“Wilfully and Maliciously” — “Feloniously and Unlawfully.” —

The former of these two phrases in the statute is not supplied
by the latter in the indictment, or even by “ feloniously, unlaw-

fully, and wilfully.” 8

“ Unlawfully ” — “Feloniously." — The statutory words being
“unlawfully and maliciously,” they were held not to be cov-
ered in the indictment by ‘“feloniously, wilfully, and mali-

ciously.” +

“ Wilful” — “Malicious.” — “ Wilful,” in a statute against libel,
is covered by “malicious” in the indictment; the latter mean-

ing all that the former does, and more.’

So, —

“Falsely ” — “Unlawfully, Feloniously,” &c. — “ Unlawfully, felo-
niously,” &c., in the indictment have been held to cover “ falsely ”
in the statute, being more than equivalents.6 So, —

“Shoot at” — “Shoot.” — The statutory term being ‘“ shoot at,”
the one word “shoot,” which means ‘shoot at,” and more, was

adjudged sufficient in allegation.’

So, also, —

“With Force” — “Violently.” — ‘‘ Force,” the statutory word

1 The State v. Comfort, 5 Misso. 357;
The State v. Harris, 34 Misso. 847. See
Anderson v. The State, 5 Pike, 444; Car-
der v. The State, 17 Ind. 307.

2 The State v. Stalls, 37 Texas, 440.

8 The State v. Gove, 34 N. H. 510.
See Commonwealth v. Sholes, 13 Allen,
654; Commonwealth v. Bearse, 108 Mass.
487.

4 Stat. 9 Geo. 4, c. 21,§11&12. Rex
v. Ryan, 7 Car. & P. 854, 2 Moody, 15.
See also Jarnagin v. The State, 10 Yerg.
629; Anthony v. The State, 13 Sm. & M.
268.

5 The State v. Robbins, 66 Maine,
824.

6 The State v. Dark, 8 Blackf. 526.

7 The State v. Vaughn, 26 Misso. 29.
* Cut down” — “ Cut.” — The words of
a statute against malicious mischief to

trees being “cut down,” “cut,” which
means less, was adjudged insufficient in
the indictment. Maskill v. The State, 8
Blackf. 299. ‘* Force and Violence *? —
‘Force and Arms.” — Where the stat-
utory words were “ with force and vio-
lence,” “force and arms” were adjudged
an inadequate substitute in the indict-
ment. Martin v. The State, 9 Misso. 286.
“Intent to rob’ —‘* To steal.’ —If
the statute requires an ‘‘intent to rob,”
an allegation of an “intent to steal’”’ will
be inadequate. Rex v. Monteth, 2 Leach,
4th ed. 702, 1 East P. C. 420. “His” —
“A? — (Gaming). — “His,” being the
word in a statute against keeping a gam-
ing-house, was held, in the particular
instance, to be sufficiently supplied by
‘“‘a” in the indictment. The State v.
Hubbard, 3 Ind. 6380.

378
§ 618 INDICTMENT AND ITS INCIDENTS. [Book Iv.

in rape, was held to be covered by “violently” in the indict-
ment.}

§ 614. How Many of the Statutory Words. — There are ordi-
narily more or less words in a statute not required in the in-
dictment on it. As to which, the rule, derivable from the
general one,? seems to be, that the allegations must cover so
many of the statutory terms as will show a prima facie violation
of the written law, and they need cover no more. Thus, —

§ 615. “Reasonable Creature” — (Homicide). — If a statute
makes it punishable to “ unlawfully kill any reasonable creature
in being,” an indictment on it, charging the killing of a person
by name, need not allege that he was a reasonable creature in
being; because, prima facie, at least, every man is such. So, —

§ 616. “Personal Property "— (Larceny). — If a statute makes
punishable the larceny of “ personal property,” these words need
not be in the indictment; which may simply charge the stealing
of such and such things, known by the court to be personal
property. Again, —

§ 617. “Circumstances,” &c. — (Assault). — A statute having
provided a special punishment for assault under “ circumstances
not amounting to an intent to murder or maim,” this clause, it
was held, need not be covered by the indictment. ‘The offence,”
said White, J., ‘‘is complete when it is shown to have been com-
mitted with a deadly weapon, and the defendant cannot complain ;
because, under the indictment, he could not possibly have been
convicted of a higher grade of crime than an aggravated assault.”7
Still, —

§ 618. Essential in Description. — Statutory words essential
in the description of the offence cannot be omitted from the
indictment.8

1 Gutierrez v. The State, 44 Texas, 587.

° Hubotter v. The State, 32 Texas,
479; Anderson v. The State, 28 Ind. 22;
The State v. Johnson, 65 Maine, 862;
The State v. Williamson, 21 Misso. 496.

3 Ante, § 325, 326, 619, 538.

* Commonwealth v. Trickey, 13 Alen,
559; Picket v. The State, 22 Ohio State,
405, 410; People v. Clements, 26 N. Y.
193; Commonwealth v. Smith, 116 Mass.
40; The State v. Walton, 62 Maine, 106;

Commonwealth v. Castles, 9 Gray, 128;

874

Surratt v. The State, 45 Missis. 601; Peo-
ple v. Nugent, 4 Cal. 341.

5 Perryman v. The State, 86 Texas,
821; The State v. Stanley, 38 Iowa, 526.
And see Taylor v. Commonwealth, 20
Grat. 825.

8 Jones v. The State, 51 Missis. 718.

7 Brown v. The State, 2 Texas Ap.
61, 62.

8 Rex v. Palmer, 1 Leach, 4th ed. 102;
Commonwealth v. Simonds, 11 Gray, 806;

. Anonymous, Sir F. Moore, 5; Common-
.CHAP. XXXIX.]'. INDICTMENTS ON STATUTES. § 620

§ 619. Specific for General. — We have seen that an indictment
must charge things, not in general, but specifically, — not by
their genus, but species.1 Hence, —

“Cattle” — (Malicious Mischief). — If a statute makes indictable
malicious mischief to * cattle,” an indictment simply employing
the word “cattle” to denote the animal will be inadequate?
It must use some word indicating the species, — as, for example,
“steer,” or “gelding,” — then, though this word is not in the
statute, and the larger word of the statute is not in the indict-
ment, the latter will be good.?

§ 620. General and Specific connected in Statute. —If the stat-
ute itself, in the form of defining, follows the word indicating the
genus. by other words which denote the species, the indictment
must, a fortiori, make use of a specific, rather than the general
term. So much is reasonably plain both in principle and author-
ity. But, —

Selecting among Specific — (Horse Stealing). — Where several
specific terms are connected by the disjunctive “or,” opinions
differ as to the effect. According to an old doctrine, still fol-
lowed by some, where a special punishment was provided by
statute for the larceny of a ‘horse, mare, or gelding, filly, foal,

wealth v. Peas, 2 Grat. 629, 4 Leigh, 692.
Thus, the words of a statute against
Maiming being, “shall, on purpose, un-
lawfully,” &c., an indictment for biting
off the ear, omitting “on purpose,” was
held to be insufficient. The State v. Or-
mond, 1 Dev. & Bat. 119. Shop-break-
ing. — If a statute makes it punishable to
“break and enter, in the night time, any
office, shop, railroad depot, or warehouse,
not adjoining to or occupied with a dwell-
ing-house,” with intent, &c., a charge of
the offence omitting the words “not ad-
joining to or occupied with a dwelling-
house,” is inadequate. Koster v. People,
8 Mich. 431. And see further, as to
keeping to the descriptive words of the
statute, Rex v. Wardle, Russ. & Ry. 9
and notes; Rex v. Jackson, 1 Leach, 4th
ed. 267; Anonymous, 3 Dy. 863 a; Rex
v. Trelawney, 1 T. R. 222; Rex v. Lew-
ellin, 1 Show. 48; Rex v. Jukes, 8 T.
R. 586; Lembro v. Hamper, Cro. Eliz.
147; Anonymous, Cro. Eliz. zt ; Roberts

v. Trenayne, Cro. Jac. 507; Rex v. Tay-
ler, 1 Show. 190; Hamper’s Case, 2 Leon.
211; Rex v. Cox, 1 Leach, 4th ed. 71; Rex
v. Davis, 1 Leach, 4th ed. 493; Rex v.
Remnant, 5 T. R. 169, 2 Leach, 4th ed.
583.

1 Ante, § 568-570.

2 Stat. Crimes, § 440; Rex v. Chalk-
ley, Russ. & Ry. 258. And see Rex v.
Craven, Russ. & Ry. 14.

8 Stat. Crimes, § 440, 441; The State
v. Hambleton, 22 Misso. 452; The State
v. Abbott, 20 Vt. 537; The State v. Lange,
22 Texas, 591. See also The State v.
Pearce, Peck, 66.

4 The State v. Raiford, 7 Port. 101;
The State v. Plunket, 2 Stew. 11; Bush
v. The State, 18 Ala. 415. In the last of
these cases, Dargan, C. J., said: “I con-
fess, however, that I am yielding to au-
thority, without being able to see clearly
the reasons on which the decisions are
based.”

875
§ 622 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

mule or ass,” it was held that a man indicted for stealing a
‘“chorse” could not be convicted if the animal appeared in the
evidence to have been a “gelding”; though, by the common
understanding, a gelding is a horse. The doctrine is, that sa
one of the specific words is to be interpreted as meaning what
any other one does; consequently the pleader must follow the
distinction which the legislature has established for him. By
other opinions, which are deemed to be sounder in reason, and
oftener followed in modern times, there is no objection to con-
struing the words of the statute as overlying one another in
meaning; hence the pleader can select any statutory word
which aptly indicates the thing meant.2 Yet, consistently with
this view, if the statutory words are “horse, mare, or colt,” an
indictment laying the animal as a “mare” will not be sustained
by proof of a ‘ horse.” 3

§ 621. Surplus Allegation. — Though an indictment covers the
statute, still, if it contains also allegations which show that the
acts are not within the statute, it will be insufficient.

§ 622. Offence newly created — (Date, &c.). — Chitty says:
‘‘ Where the prohibiting statute is recent, it is usual to allege
expressly that the offence was committed after the making of
the statute; but, where the statute is ancient, this is not usual;
and does not seem to be in any case necessary.” 5 With us, it
is not necessary, and it is believed to be rarely if ever adopted.
But the indictment must allege a date which is subsequent to the
taking effect of the statute.’

1 Turley v. The State, 3 Humph. 323; Ball v. Cobus, 1 Bur. 866; Rex v. Kilder-
s.P. The State v. Plunket, 2 Stew. 11. by, 1 Saund. Wms. ed. 308, note 5; 1
See as to this, Rex v. Moyle, 2 East P. Chit. Pl. 4th ed. 828; Gilb.C. L. & E.
C. 1076; Rex v. Mott, 2 East P. C. 1075, 242.

1 Leach, 4th ed. 78, note ; Rex v. Beaney, 8 People v. Lafuente, 6 Cal. 202.
Russ. & Ry. 416. 7 Ante, § 404. Though, by the stat-

2 Stat. Crimes, § 245-248, 298, 299, utory terms, the prohibited act is made
814, 815, 826, 440, 441. And see Rex v. an offence when committed after a time
Beard, Jebb, 9; The State v. Pearce, which it specifies, it is believed that an

Peck, 66. allegation in the form mentioned in the
® Thrasher tv. The State, 6 Blackf. text will still suffice. Certainly it will if
460. the statute is thirty years old. The State
4 The State v. Mahan, 2 Ala. 340. v. Chandler, 2 Hawks, 439; The — vw

5 1 Chit. Crim. Law, 285, referring to Sam, 2 Dev. 567.
376
CHAP, XXX1X.]| INDICTMENTS ON STATUTES. § 626

IV. The Exception of expanding the Allegation beyond the Statu-
‘ tory Words.

§ 623. In General. — The indictment on a statute being re-
quired to follow, besides the special rules which govern it, those
also which govern other indictments,! not unfrequently those
other rules will require it to be expanded beyond the statutory
terms.2. Thus, —

§ 624. Fully state.—It must fully state the offence; and, if
this cannot be done in the mere statutory words, it must be
expanded beyond them. For example, —

Selling “Spirituous Liquors.” —If a statute makes punishable
one who shall “keep a tippling house, or sell rum, brandy,
whiskey, tafia, or other spirituous liquors,” a simple allegation
that the defendant sold “spirituous liquors,” not describing
them, will be inadequate. This would result from the rule
requiring the specific term to be used;* but it comes equally
from the fact, that the mere general term does not give the
defendant the identifying information to which in reason and
by the rules of good pleading he is entitled. The indictment
must acquaint the defendant with the particular nature of the
accusation. Jn the language of Colcock, J.,—

§ 625. How Full the Allegation. — The statutory indictment
must specify on its face “‘ the criminal nature and degree of the
offence, which are conclusions of law from the facts; and also
the particular facts and circumstances which render the defend-
ant guilty of that offence.” ® Moreover, —

§ 626. All the Elements. — It must embrace all the elements
which the law recognizes in the offence, whether they are men-
tioned in the statute or come from it by construction ; as —

1 Ante, § 593, 610, 611.

2 United States v. Gooding, 12 Wheat.
460.

3 Clark v. The State, 19 Ala. 552;
Daniel v. The State, 3 Heisk. 257 ; Norris
v. The State, 50 Ala. 126; Robinson v.
The State, 52 Ala. 587; The State v.
Wupperman, 13 Texas, 33; Bryan v.
The State, 45 Ala. 86.

4 Ante, § 620; The State v. Raiford,
7 Port. 101; Bush v. The State, 18 Ala.

415. See also Commonwealth v. Dean,
21 Pick. 884; The State v. Brown, 8
Misso. 210.

5 Commonwealth v. Cook, 13 B. Monr.
149.

6 The State v. Raines, 8 McCord, 533,
548. And see The State v. Barns, 25
Texas, 654; Millican v. The State, 25
Texas, 664; United States v. Jackson, 3
Saw. 569; Quinn v. The State, 35 Ind.

485.
377
§ 627 INDICTMENT AND ITS INCIDENTS. [Book Iv.

Credit to Student. — Where a statute made it an offence to
“give credit to. any student of Yale College, being a minor,
without the consent in writing of his parent or guardian, or of
such officer or officers of the college as may be authorized by
the government thereof to act in such cases, except for washing
or medical aid,” the court deemed that to render the offence
possible there must be a college officer authorized to give con-
sent to a credit; hence the information must set out such official
authority.! In like manner, —

§ 627. “Qualified Voter” — (Election Frauds). — Where a stat-
ute made it indictable for a man knowingly to vote at an election,
not being a “ qualified voter,” an allegation simply in the stat-
utory words was adjudged inadequate. Whether one is a “ qual-
ified voter” or not is a result deduced by the law from facts;
and, though a statute may mention a legal result in defining an
offence, this is not the province of an indictment. It must state
the facts out of which such result comes; thus giving the de-
fendant notice of what is charged against him, and putting upon

the record a proper case for the adjudication of the court.”

1 Morse v. The State, 6 Conn. 9.

2 Pearce v. The State, 1 Sneed, 63. I
have not, in the text, followed very closely
the argument of the learned judge; but
I have, at least, given the “legal result”
of it. Said Totten, J.: “The present-
ment is in the words of the statute, and
the words are, ‘a qualified voter.’ 'I'hat is
not a fact, but a legal result.” p.67. Again,
“The act of voting is not necessarily ille-
gal, but it may become so for some of the
causes before stated; and, in order that
the charge may be perfect, such cause
must be set forth and averred in the in-
dictment or presentment.” p.68. That
such indictment must give specifications
wanting in the statute, see also Quinn v.
The State, 85 Ind. 485. See further,
Stat. Crimes, §. 830-835. See also United
States v. Stowell, 2 Curt. C. C. 163. De-
fraud Gas Company.— A statute made
punishable “any person who, with intent
to injure or defraud any gas company, &c.,
shall make, &c., any pipe, tube, or other
instrument or contrivance, or connect the
same, &c., with any main service-pipe, or
other pipe, for conducting or supplying
illuminating gas, in such manner as,”

378

&c.; and the court held that an indict-
ment in the mere statutory words was
inadequate. The relations of the one
meant to be defrauded to the means of
the fraud must be set out. ‘ The court,”
said Brown, J., ‘must be able to see ju-
dicially that the act was calculated to
defraud the company, otherwise the in-
tent to do so cannot appear. This prin-
ciple is clearly recognized in the following
cases : People v. Stone, 9 Wend. 182, 191; »
People v. Williams, 4 Hill, N. Y. 9, 12;
People v. Thomas, 8 Hill, N. Y. 169. In-
deed, the circumstances which show that
the act was calculated to defraud the
company, constitute the only foundation
whereon the allegation of the intent can
be legally predicated.” People v. Wilber,
4 Parker C. C. 19,24. And see The State
v. Jackson, 89 Conn. 229. So Keeping
Counterfeits.— Where a statute made
punishable one’s “ fraudulently keeping in
his possession” counterfeit bank notes,
it was held that the indictment must go
beyond the words, and allege that the
defendant knew the notes to be counter-
feit, and that he had the intention of pass-
ing them. ‘ This,” said Caruthers, J.,
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 629

§ 628. Allegation to follow Interpretation of Statute. —It is in
effect but repeating what has been already laid down to say, that
the rules by which statutes and indictments are constructed differ
somewhat; and, while the former conform to their own rules,
so also must the latter. The court construes the statute, and
the indictment is to be drawn, not altogether on the statutory
words, but on the statute construed, and in accordance with the
ordinary rules for indictments. Thus, —

Meaning Narrower than Words. — If, as is not uncommon, the
court by construction restricts a statute to a narrower applica-
tion than its general words would indicate,! an indictment on
it in the statutory words will be ill; it must follow the court’s
narrower construction.?

§ 629. Offence created by Technical Term. — An offence, not de-
fined, but created by some word of known meaning, is bounded
by the term itself; yet an indictment, employing the term
alone, would be often insufficient.2 It must set out the ele-
ments of offence.t Thus, —

“Torture” — (Cruelty to Animals). — A statute having made
it an offence to “maliciously and cruelly maim, beat, or torture
any horse, ox, or other cattle,” a count for torturing, the court
deemed, must show the means and their effect. ‘In all acts of
this character,” said Ryland, J., “the means of producing the
torture must be averred, and the courts must see that such
means have the inevitable and natural tendency to produce the

“is necessary to make the possession
Jraudulent.” Owen v. The State, 5 Sneed,
493,

1 And see ante, § 624.

2 Bates v. The State, 31 Ind. 72; The
State v. Bierce, 27 Conn. 319; Parkinson
v. The State, 14 Md. 184; Hikes v. The
State, 26 Ga. 614; Maranda v. The State,
44 Texas, 442. In United States v. Pond,
2 Curt. C. C. 265, 268, Curtis, J., ob-
served: “This indictment follows the
words of the statute. It is sufficient,
therefore, unless the words of the statute
embrace cases which it was not the in-
tention of the legislature to include with-
in the law. If they do, the indictment
should show this is not one of the cases
thus excluded. In the case of The Mary
Ann, 8 Wheat. 880, speaking of an in-
formation, Mr. Chief Justice Marshall

said, ‘If the words which describe the
subject of the law are general, embracing
a whole class of individuals, but must
necessarily be so construed as to embrace
only a subdivision of that class, we think
the charge in the libel ought to conform
to the true sense and meaning of those
words as used by the legislature’; and
this is only another mode of expressing
the same rule which I have stated above.”
If a defendant asks for greater particu-
larity in the indictment than simply fol-
lowing the statutory terms, he should
show that the case is one which requires
it, in departure from the general rule.
Whiting v. The State, 14 Conn. 487.

3 Ante, § 610; The State v. Briley, 8
Port. 472; The State v. Duncan, 9 Port.
260; The State v. Click, 2 Ala. 26.

4 Anthony v. The State, 29 Ala. 27.

379
§ 630 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

effect in which the criminal charge consists.” Nor was it enough
to allege that the defendant tied brush or boards to the tail of
a horse, since this would not necessarily produce torture: the
offence must be stated.!

§ 680. Concluding View. — Of necessity, the cases under this
sub-title are not in complete harmony; nor, in this class of
questions, can general rules be made perfect guides. Each
future case must be considered in reference to its special cir-
cumstances, as well as the general spirit of the law of criminal
pleading ; while yet the precedents in analogous cases, the enun-
ciations of former judges, and the views of text-writers will have
their weight.2 And still the courts will differ as to how closely
they will compel the pleader to adhere to rule in constructing

an indictment on a new statute.

I The State v. Pugh, 15 Misso. 509.
Wounding.— The English Statute 7
Will. 4 & 1 Vict. c. 85, § 4, provided a
punishment for any one who shall “stab,
cut, or wound any person with intent to
maim, disfigure, or disable such person,
or to do some other grievous bodily harm
to such person,” &c.; and it was ruled by
Coleridge, J., not to be necessary, in an
indictment for wounding, to allege with
what instrument the wound was inflicted.
“ The cases establish,” he said, “that it is
necessary to prove by evidence that the
wound was given by an instrument cal-
culated to produce the injury complained
of; but they do not go the length of say-
ing, that the instrument must be stated
in the indictment. The indictment in
this instance has followed the words of
the statute, and I am of opinion that it is
sufficient.” Erle’s Case, 2 Lewin, 183.
So, Shooting. — Under a statute provid-
ing, that “no person shall maliciously
shoot or stab another,” an allegation that
the accused did “unlawfully and ma-
liciously shoot,” &c., is sufficient. The
weapon, the hand in which it was held, the
wound, the circumstances attending the
act, are needless in averment. The State
v. Ladd, 2 Swan, Tenn. 226. Cashier
Overdrawing.— A statute made pun-

380

ishable any cashier of a bank who “shall
knowingly overdraw his account” ; and it
was held unnecessary to allege a fraudu-
lent intent, for it constituted no part of
the offence. The mischief aimed at by
the statute consisted in the overdrawing
of the account, without reference to the
intent. Neither was it necessary to aver,
in terms, that the account overdrawn was
the defendant’s, or to state the manner of
the overdrawing, whether by check or
otherwise, or to specify the notes or money
drawn from the bank. The State v. Stim-
son, 4 Zab. 478. Altering Mark.— An
indictment in North Carolina averred,
that the defendant “unlawfully, know-
ingly, and wilfully did alter the mark of
a certain cow, the property of Martha
Benson,” contrary to the statute, not say-
ing what the mark was before alteration;
and the court sustained it. Said Nash, J.:
“Pursuing the words of the statute is
sufficient, except in cases where the sub-
ject of the indictment cannot be brought
within the meaning of the statute with-
out the aid of extrinsic evidence.” The
State v. O’Neal, 7 Ire. 251, 254. But see
Sewall v. The State, Wright, 483.

2 Andsee Moffatt v. The State, 6 Eng.
169.
»

CHAP. XXXIX.] § 683

INDICTMENTS ON STATUTES.

V. What the Indictment must negative and in what Form.

§ 631. Doctrine definea. — The indictment on a statute, like
any other, must show a prima facie case against the defendant,
and it need not do more. Hence, where the statute has excep-
tions, provisos, and the like, the indictment on it must aver the
contrary of those the negative whereof constitutes an affirmative
element in the offence; but it may be silent as to those which
are merely available in defence. Such is the principle; but the
question whether a particular exception or proviso is of the one_
class or the other depends largely upon how the statutory words
are arranged.

Course of the Discussion. — We shall first see something of what
is said by the older writers, and then inquire what is at present
held by the courts.

§ 682. Views of the Older Writers :—

Provisos and Exceptions in Distinct Clauses — (Alluded to in Pur-
view). — Chitty says:1 “When a statute contains provisos and
exceptions in distinct clauses, it is not necessary to state in the
indictment that the defendant does not come within the excep-
tions, or to negative the provisos it contains? Nor is it even
necessary to allege that he is not within the benefit of its pro-
visos, though the purview should expressly notice them, as by
saying that none shall do the act prohibited, except in the cases
thereinafter excepted.2 For all these are matters of defence,
which the prosecutor need not anticipate, but which are more
properly to come from the prisoner.” 4

§ 633. Exceptions in Enacting Clause. — “On the contrary,”
continues this writer, “if the exceptions themselves are stated
in the enacting clause, it will be necessary to negative them, in
order that the description of the crime may in all respects corre-
spond with the statute.5 Thus, —

1 1 Chit. Crim. Law, 283 b, 284.

21 Sid. 303; 2 Hale P. C.171; Whit-
wicke v. Osbaston, 1 Lev. 26; Popham,
98, 94; Rex v. Jarvis, 1 Bur. 148; Rex v.
Pemberton, 2 Bur. 1085, 1037, 1 W. Bl.
230; Rex v. Bryan, 2 Stra. 1101; Rex v.
Jarvis, 1 East, 644, 646, in notes; Rex v.
Baxter, 5 T. R. 88, 2 Leach, 4th ed. 578;
2 Hawk. P. ©. c. 25, § 112; Bac. Abr. In-
dictment, H. 2; Burn Just. Indictment,

IX.; 1 Chit. Pl. 4th ed. 322; and see
Wells v. Iggulden, 3 B. & C. 186.

3 Popham, 98, 94; 2 Hawk. P. C. c. 25,
§ 118; and see Steel v. Smith, 1 B. & Ald.
94; and Wells v. Iggulden, 3 B. & C. 186.

4 Rex v. Pemberton, 1 W. Bl. 230, 2
Bur. 1085, 1037; Rex v. Baxter, supra; 2
Hawk. P. C. c. 26, § 118.

6 2 Hale P. C.170; Rex »v. Jarvis, 1
Bur. 148; Bell’s Case, Foster, 480, 1 East,

881
§ 634 INDICTMENT AND ITS INCIDENTS. ~ [BOOK Iv.

Counterfeit Money — Instruments of Counterfeiting. — ‘‘ In an
indictment on the statute! which enacts, that, if any person
shall take, receive, pay, or put off any counterfeit milled money,
or any milled money whatever unlawfully diminished, and not
cut in pieces, for a lower rate than its nominal value, he shall
be guilty of felony; it is absolutely necessary to state that the
money was not cut in pieces; and, if those words be omitted, the
informality will be fatal2 And in an indictment upon the first
section of the same act, for keeping a press for coinage, or other
crimes thereby created, all the exceptions by which, under that
clause, the possession might be lawful, or the defendant in any
way derive authority to exculpate him, must be expressly nega-
tived.3 Upon the same ground, —

Prohibited Importation. — “ An information for importing goods
from Holland is insufficient, unless it aver that they were not of
the growth of that country.” ¢

§ 634. What the Courts now hold : —

In General. — The doctrines thus laid down prevail, in a gen-
eral way, to the present day. But they are subject to some
minor distinctions, at least in the forms of expressing them.
Indeed, —

Meaning of Terms — (“ Purview ” — “ Clause” — “Enacting Clause *),
— The discussions of this topic have been in a measure obscured
by a want of exactitude and by differences in the use of terms.
In another connection > we saw into what parts a statute is divis-
ible, and the names of them. It has, or may have, a title, pre-
amble, purview, — which last follows the words “ Be it enacted,”
&c., and includes the entire statute, except the title and preamble.
Yet even the word “purview” is sometimes used as meaning
less.6 A “clause,” in grammar, denotes a member, less than
the whole, of a sentence, — a sentence being what stands be-
tween two periods. But in our law books it is not so restricted.

644, 646, in notes; Spieres ». Parker, 1 £ Pitcher v. Jones, Hardres, 217, 218;

T. R. 141, 144; Whitwicke v. Osbaston,
1 Lev. 26; Com. Dig. Action, Statute; 1
Chit. Pl. 4th ed. 822; when not, Wells v,
Iggulden, 3 B. & C. 186.

18&9 Will. 3, c. 26, § 6.

2 Rex v. Palmer, 1.Leach, 4th ed. 102.

3 Bell’s Case, Foster, 430, where see
Indictment; Rex v. Jarvis, 1 Bur. 148;
1 East P. C. 167.

882

Vin. Abr. Information, F. 6.

5 Stat. Crimes, § 44-61.

§ Stat. Crimes, § 52. In Rex v. Jarvis,
1 East, 648, note, Denison, J., is reported
to have said: “‘ There is a known distinc-
tion between exceptions in a statute by
way of proviso, which need not be set
forth, and those in the purview of the
act.”
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 635

Still it signifies less than the word purview; thus, we speak
of the interpretation clause, the repealing clause, “a saving
clause, an appeal clause,” and some others.1_ The term “ enact-
ing clause,” much employed in the discussions of our present
subject, has not been understood by all alike. Something as
to the meaning of the terms will incidentally appear as we
proceed. .

§ 685. Exception in “Enacting Clause” or not. — A form of the
same doctrine with Chitty’s, but more condensed than in the
foregoing extracts, appears in an article by the late Judge Met-
calf, written while at the bar, as follows: “The rule of pleading
a statute, which contains an exception or proviso, is usually thus
expressed in the books, namely: ‘If there is an exception in the
enacting clause, the party pleading must show that his adversary
is not within the exception; but, if there be an exception in a
subsequent clause or subsequent statute, that is matter of de-
fence, and is to be shown by the other party.’”4 The term
“enacting clause” is plainly used here to mean the part next
following the words “Be it enacted,” yet not extending to a

proviso or a subsequent section.

But, —

Too Literal and Narrow. — By better views now prevailing,
this distinction is objectionable as being drawn in universal

1 Dwar. Stat. 2d ed. 508-511.

2 Stat. Crimes, § 56.

3 In United States v. Cook, 17 Wal.
168, 176, Clifford, J., observed: ‘‘ Com-
mentators and judges have sometimes
been led into error by supposing that the
words ‘ enacting clause,’ as frequently em-
ployed, mean the section of the statute de-
fining the offence, as contradistinguished
from a subsequent section in the same
statute, which is a misapprehension of the
term, as the only real question in the case
is whether the exception is so incorpo-
rated with the substance of the clause
defining the offence as to constitute a
material part of the description of the
acts, omission, or other ingredients which
constitute the offence.” p. 176.

48 Am. Jur. 233, 234. To the like
effect, McDonald, J., in United States vu.
Distillery, 4 Bis. 26,28. This article was
anonymous, but I have often heard it at-
tributed to Judge Metcalf. See, for exam-
ple, per Potter, J., in The State v. O’Don-

nell, 10 R. I. 472. And I am able to say,
from conversations with Judge Metcalf,
that he deemed himself to be its author.
The note to Commonwealth »v. Hart, 11
Cush. 180, as it appears in 1 Ben. & H.
Lead. Cas. Ist ed. 250, consisted of a
reprint of it, concluding as follows: “ This
note is reprinted, with the consent of the
writer, with a few additions, from the
American Jurist, vol. 8, p. 282; it con-
tains the clearest and most accurate state-
ment of this branch of the law of crimi-
nal pleading extant.” Hence, in the first
and second editions of this book, I con-
sidered myself justified in attributing it
to him. But I see that, in the second
edition of the “Leading Casés” (Vol. 2,
1 et seq.), this closing part of the note is
dropped; and Mr. Green (2 Green Crim.
Law Rep. 252) reprints it from the latter,
attributing the authorship to another per-
son, who could not have written it at the
date of its original appearance. There is
evidently a mistake somewhere.

883
§ 686 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

terms, whereas it is not applicable in all cases; and as present-
ing too exclusively the letter, omitting the spirit, of the doctrine.!
Hence —

§ 636. More in Detail.— We shall gain a more exact compre-
hension of the doctrine by viewing it in detail, as follows: —

First. The negative of all exceptions in the enacting clause
should be averred, unless they are such in form and substance that
an affirmative offence will appear without. Thus, —

Violation of Lord’s Day. — Where the provision is, that, if one
on the Sabbath shall “exercise any secular labor, business, or .
employment, except such only as works of necessity and charity,
he shall be punished by a fine,” &c., a negative of the exception
is indispensable.2— And where it is, that no innholder “shall
entertain, or suffer any of the inhabitants, &c., or others, not
being travellers, strangers, or lodgers in such houses, to abide
or remain in their houses, &c., drinking, &c., on the Lord’s day,
&c., on the penalty,” &c., the indictment must allege that those
entertained were not travellers, strangers, nor lodgers.2 So, —

Retailing Liquors. — It being provided that any one retailing
spirituous liquors without license, “except in corporate towns
and cities,” &c., should be guilty of a misdemeanor, an indict-
ment omitting to negative the exception was adjudged ill.!

Hence, —

1 Thus, in the Supreme Court of the
United States, Clifford, J., observed:
“Undoubtedly that rule will frequently
hold good, and in many cases prove to be
a safe guide in pleading; but it is clear
that it is not a universal criterion, as the
words of the statute defining the offence
may be so entirely separable from the
exception that all the ingredients consti-
tuting the offence may be clearly and
accurately alleged without any reference
to the exception.” Again: ‘Where a
statute defining an offence contains an
exception, in the enacting clause of the
statute, which is so incorporated with the
language defining the offence that the
ingredients of the offence cannot be ac-
curately and clearly described if the
exception is omitted, the rules of good
pleading require that an indictment
founded upon the statute must allege
enough to show that the accused ‘is not

384

within the exception; but, if the lan-
guage of the section defining the offence
is so entirely separable from the excep-
tion that the ingredients constituting the
offence may be accurately and clearly
defined without any reference to the ex-
ception, the pleader may safely omit any
such reference, as the matter contained
in the exception is matter of defence and
must be shown by the accused.” United
States v. Cook, 17 Wal. 168, 178, 174,
And see The State v. O’Donnell, 10 R. I.
472.

2 The State v. Barker, 18 Vt. 195.

3 Commonwealth v. Maxwell, 2 Pick.
189.

4 Elkins v. The State, 18 Ga. 435.
And see, to the like effect, Howe v. The
State, 10 Ind. 428; Brutton v. The State,
a 601; Kinser v. The State, 9 Ind.

3.
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 687

Generality of Doctrine. — The doctrine is applicable to most
cases of exceptions in the enacting clause, that they must be
negatived.! And, included within this doctrine, is a narrower
one; namely, that, —

Secondly. Where the negative is descriptive of the offence it must
be alleged in the indictment.2, Thus, —

Counterfeit Money. — In England, by 8 & 9 Will. 3, c. 26, § 6,
it was made felony to receive or pay milled money, counterfeit
or “unlawfully diminished, and not cut in pieces, at or for a
lower rate or value,” &c.; and an indictment which made no
mention of the money not being cut in pieces was held to be ill,
“for the words ‘not cut in pieces’ are a material part of the
description of the offence.” 8

§ 637. Thirdly. Whatever be the location of the different pro-
visions of a statute, an indictment on it, as on the common law,
must aver all negatives necessary to show affirmatively an offence.
Thus, —

School unlicensed. — A statute in Connecticut made punish-
able any person who should (1) set up a school for the instruction
of colored persons, not inhabitants of the State; or (2) “ instruct
or teach in any school, academy, or other literary institution
whatever, in this State; or (3) harbor or board, for the purpose
of attending or being taught or instructed in any such school,
academy, or literary institution, any colored person who is not
an inhabitant of any town in this State, without consent in
writing first obtained of a majority of a civil authority, and also
of the selectmen of the town,” &c. By construction, it was
deemed necessary to a conviction under the third clause that
the school should be unlicensed. Therefore an information on
this clause, not negativing a license of the school, was held to

1 Rex v. Mallinson, 2 Bur. 679; The
State v. Beneke, 9 Iowa, 203; Byrne v.
The State, 12 Wis. 519; The State v.
Stapp, 29 Iowa, 551; The State v. Boy-
ington, 56 Maine, 512; Kline v. The State,
44 Missis. 317; The State v. Craft, Walk.
Missis. 409; The State v. Godfrey, 24
Maine, 232; The State v. Bullard, 72
N. C. 445; Commonwealth v. Hatton, 15
B. Monr. 5387; Russell v. The State, 60
Ind. 174; United States v. Imsand, 1
Woods, 681; Hill v. The State, 58 Ga.

VOL. I. 25

472; Commonwealth v. Hampton, 8 Grat.
690.

2 The State v. Abbey, 29 Vt. 60, 66;
The State v. Keen, 84 Maine, 500; The
State v. Wade, 34 N. H. 495; Thompson
v. The State, 54 Missis. 740.

3 Rex v. Palmer, 1 Leach, 4th ed. 102.
And see 1 East P. C. 166, 167.

4 The State v. O’Donnell, 10 R. I. 472;
Commonwealth v. Kenner, 11 B. Monr.
1; United States v. Cook, 17 Wal. 168.

885
§ 638 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

be inadequate, though it did aver that the harboring was with-
out license! Again, —

Official Neglect. — A South Carolina statute made it penal for
a sheriff or coroner to neglect to return an execution lodged in
his office: “Provided, nothing herein contained shall be con-
strued to compel any sheriff or coroner to return any executions
in their offices expressly lodged to bind property, and so marked
by the persons lodging the same.” Here, though the proviso
is not in the enacting clause, and by the common rule it need
not be negatived,? the court held -a declaration which did not
negative it to be ill.8 Perhaps all courts might not follow this
precedent; yet it presents a strong claim when we consider,
that, omitting the negative of what is set down in the proviso,
there is hardly a prima facie case against the defendant.

§ 638. Fourthly. As on the common law, so on a statute, the
indictment need not negative what is mere matter of defence. For
example, —

Statute of Limitations. — It need not deny that the prosecution
is barred by the statute of limitations. So, —

Selling Imported Liquors. — Though the statute of a State for-
bids the sale of intoxicating liquors without license, by inter-
pretation it is not applied to imported liquors while in their
original and unbroken packages; because such an application,
it is generally understood, would be unconstitutional Yet
that liquor charged to have been sold is of this class is mere
matter of defence; not required, therefore, to be denied in an

indictment for the selling. Again, —

! Crandall v. The State, 10 Conn. 339.

2 Ante, § 632, 635.

8 Mills v. Kennedy, 1 Bailey, 17. The
weight of this decision as authority is
diminished by the fact, that the judge,
who gave the opinion, did not understand
the term ‘“ enacting clause” to mean what
it generally does, and so deemed himself
to be following the old rule. He said:
“Jt is well established, that, in declaring
upon penal statutes, where there is an
exception to the enacting clause, the
plaintiff must show that the defendant is
not within the exception. If the excep-
tion be in another and subsequent clause,
then it is matter of defence, and the other
party must show it, to exempt himself

386

from the penalty. The very clause of
the act which imposes this penalty pro-
vides, ‘that nothing,” &. p.19. In
form of language, this proviso corre-
sponds to that declared upon in Steel v.
Smith, 1 B. & Ald. 94, It was, like this,
in the same section with what went be-
fore; yet it was not deemed to be in the
enacting clause, nor did the court require
it to be negatived.

* Thompson v. The State, 64 Missis.
740; United States v. Cook, 17 Wal. 168.
See ante, § 405.

5 Stat. Crimes, § 89, 90, 990.

6 The State v. Fuller, 88 N. H. 259;
The State v. Blaisdell, 83 N. H. 888.

oe
CHAP. XXXIX.]." INDICTMENTS ON STATUTES. § 639

Polygamy. — Where a statute provided, that, “if any person
who has a former husband or wife living shall marry another
person, or shall continue to cohabit with such second husband
or wife in this State, he or she shall, except in the cases men-
tioned in the following section, be deemed guilty of the crime
of polygamy, and shall be punished,” &c.; adding, in the next
section, “that this act shall not extend to any person whose
husband or wife has been continually beyond the sea, or out of
the State, for seven years together, the party marrying not
knowing the other to be living within that time; nor to persons
divorced, or when the marriage has by decree of the court been
declared null and void; nor to persons when the former mar-
riage was within the age of consent, and not afterwards assented
to,” —a negative of this proviso was held not to be necessary
‘in the indictment. Considerations arising from the form of the
language apart, the matter of the proviso was in its nature de+
fensive.t But we shall see more of this further on.

-§ 639. Fifthly. In general, and subject to exceptions growing
out of doctrines already stated, an exception or proviso which is
not in the enacting clause, whether in the same section with tt

or not, need not be negatived?

1 The State v. Abbey, 29 Vt. 60; Flem-
ing v. People, 27. N. Y. 829. And see
Stat. Crimes, § 605, 606; Commonwealth
v. Hart, 11 Cush. 130.

2 Cook v. The State, 26 Ga. 593; Com-
monwealth v. Fitchburg Railroad, 10
Allen, 189; Commonwealth v. Young, 7
B. Monr. 1; The State v. Godfrey, 24
Maine, 232; United States v.. Schimer, 5
Bis. 195; The State v. Cox, 32 Misso.
566; Kline v. The State, 44 Missis. 317;
The State v. Boyington, 56 Maine, 512;
The State v. Stapp, 29 Iowa, 551; Com-
monwealth v. Tuttle, 12 Cush. 502 ; Com-
monwealth v. Foster, 5 Grat. 695; The
State v. Beneke, 9 Iowa, 203; Worley »v.
The State, 11 Humph. 172; Jenkins v.
The State, 36 Texas, 688; Commonwealth
v. McClanahan, 2 Met. Ky. 8; Steel v.
Smith, 1 B. & Ald. 94; Jones v. Axen, 1
Ld. Raym. 119, 120; The State v. Mc-
Glynn, 34 N. H. 422, 426; Reynolds v.
The State, 2 Nott & McC. 365; Common-
wealth v. Hart, 11 Cush. 180; Brittin o.
The State, 5 Eng. 299; The State v. Gur-

Thus, —

ney, 37 Maine, 149; The State v. Sutton,
24 Misso. 877; Vavasour v. Ormrod, 6
B. & C. 430, 482; The State v. Shaw, 35
N. H. 217; The State v. Miller, 24 Conn.
622; Hinckley v. Penobscot, 42 Maine,
89; Metzker v. People, 14 Ill. 101; The
State v. Abbott, 11 Fost. N. H. 484. Sev-
eral of the foregoing cases show, that the
mere fact of the exception or proviso
being in the same section with the clause
on which the indictment is drawn, does
not require it to be negatived. See also
The State v. Miller, 24 Conn. 522; The
State v. Powers, 25 Conn. 48; Clark v.
The State, 19 Ala. 552; Wells v. Iggul-
den, 3 B. & C. 186. A fortiori, therefore,
if the exception or proviso is in a subse-
quent section or statute, it need not be
negatived. Colson v. The State, 7 Blackf.
590; Commonwealth »v. Hill, 6 Grat. 682 ;
Metzker v. People, 14 Ill. 101; Bouser
v. The State, Smith, Ind. 408; Rawlings
uv. The State, 2 Md. 201; The State
v. Shaw, 85 N. H. 217; The State ov.
Gurney, 37 Maine, 149; The State v.

3887
§ 639 INDICTMENT AND ITS INCIDENTS. [Book Iv.

“ Provided,” &c.— If a statute makes a particular act punish-
able, and then adds, “ provided” that in such and such circum-
stances the punishment shall not be incurred, the indictment
need take no notice of the word “ provided” or of what follows
it... And —

Other Forms. — This rule also applies to other forms of expres-
sion, if similar in substance, and not within the enacting clause.?

Sixthly. Where there is in the enacting clause a reference to an
exception or proviso more fully stated in a separate clause or statute,
the indictment ts required to negative it or not, according as the form
of the expression and the nature of the matter render the latter an
element in the prima facie offence or in the defence.2 Thus, —

Expressions within the Rule. — Within this rule are such ex-
pressions in the enacting clause as ‘‘ except in the cases mentioned
in the following section,” * “ unless as is hereinafter provided,” 5

“ except as hereinafter mentioned,” ® and the like.’

Wade, 84 N. H. 495; Rex v. Pemberton,
2 Bur. 1035.

1 Steel v. Smith, 1 B. & Ald. 94;
Commonwealth v. Fitchburg Railroad,
10 Allen, 189; Commonwealth v. Hart,
11 Cush. 180; Rex vo. Bryan, 2 Stra.
1101.

? Brittin v. The State, 5 Eng. 299;
The State v. Sutton, 24 Misso. 377; The
State v. Shiflett, 20 Misso. 415; Common-
wealth v. Edwards, 12 Cush. 187. If the
provision is, that any person who shall
play “at any game or games with cards
or dice, &c., except the games of billiards,
‘bowls, chess, backgammon, drafts, or
whist, when there is no betting on said
games,” shall be punished in a way
pointed out, the exception is within the
enacting clause, and the indictment must
negative it. Reynolds v. The State, 2
Nott & McC. 865. And see, for other
illustrations, The State v. Black, 9 Misso.
689; Schneider v. The State, 8 Ind. 410;
Rex v. Pratten, 6 T. R. 559.

3 Commonwealth v. Jennings, 121
Mass. 47; The State v. O’Donnell, 10
R. I. 472.

4 Ante, § 638.

5 The State v. O’Donnell, supra.

6 Vavasour v. Ormrod, 6 B. & C. 480.

7 The doctrine of this sixth proposi-
tion seems to me to be sound in reason,

888

and sufficiently sustained by the authori-
ties when viewed collectively, though it
is plainly enough contrary to dicta in va-
rious individual cases. Judge Metcalf,
who scems to have limited his discussion
to the one rule stated ante, § 635, says:
“ There is a middle class of cases, namely,
where the exception is not, in express
terms, introduced into the enacting clause,
but only by reference to some subsequent
or prior clause, or to some other statute.
As where the words ‘except as herein-
after mentioned,’ or other words referring
to matter out of the enacting clause, are
used. The rule in these cases is, that all
circumstances of exemption and modifi-
cation, whether applying to the offence
or to the person, which are incorporated
by reference with the enacting clause,
must be distinctly negatived. Verba relata
inesse videntur.” Commonwealth v. Hart,
11 Cush. 180, 187. For this proposition
he refers to Rex v. Pratten, 6 T. R. 559;
and Vavasour v. Ormrod, 6 B. & C, 430,
432. These authorities sustain the dictum ;
but, as we have seen, ante, § 632, Chitty
lays down directly the opposite doctrine,
and supports it equally well by South-
well’s Case, Popham, 98, and by Hawkins,
2 Hawk. P.C.c. 25,§ 113. In The State
v., O'Donnell, supra, the matter was re-
quired to be negatived, but there it wasin
CHAP. XXXIX.] INDICTMENTS ON STATUTES. § 641

§ 640. Seventhly. A negative not required by law may be re-
jected as surplusage. And, —

Defective. —If such surplus negative is defective in form, no
harm will come from the defect.1

§ 641. Eighthly. A negative averment need not follow the words
of the statute as an affirmative one must ; but any negation in gen-
eral terms, covering the entire substance of the matter, will suffice?
Thus, —

Unlicensed Selling of Liquor. —In an indictment for selling
liquors without license, the words “not being duly appointed
and authorized therefor” constitute a sufficient negative of the
authority to sell. But, —

Lord’s Day. — Where, in a statute against Sabbath breaking,

pursuance of the doctrine of my text. In
Commonwealth v. Jennings, supra, the
negative, on the like view, was not re-
quired. Commonwealth v. Hill, 5 Grat.
682, 690, 691, expressly affirms the doc-
trine of Chitty and of Hawkins. Other
cases hold the indictment good, though
the matter thus referred to is not nega-
tived. The State v. Abbey, 29 Vt. 60;
The State v. Powers, 25 Conn. 48; The
State v. Miller, 24 Conn. 522. And see
The State v. Palmer, 18 Vt. 570; Hart v.
Cleis, 8 Johns. 41. The true doctrine
plainly is, that, in the absence of control-
ling language in the statute, if the mat-
ter thus referred to is such as ought, on
the general principles of pleading, to be
alleged by the party assuming the burden
of the charge, then it should be brought
within the indictment by the proper nega-
tive averments; if not, then no allusion
to it need be made. And see The State
v. Abbey, supra; The State v. Miller,
supra; ante, § 636-688. On a like prin-
ciple another class of cases proceed.
Thus, it being provided by 48 Geo. 3, c.
129, § 2, “that every person who shall,
&e., steal, &c., any money, &c., from the
person of any other, whether privily with-
out his knowledge or not, but without such
Jorce or putting in fear as is sufficient to con-
stitute the crime of robbery, or who shall be
present, aiding and abetting therein, shall
be liable,” &c., it was held not to be
necessary, in an indictment, to negative
the words here printed in italics. Rex v.
Pearce, Russ. & Ry. 174; Rex v. Robin-

son, Russ. & Ry. 821. And see, to the
like effect, Rex v. Baxter, 5 T. R. 83.
And compare ante, § 636. Convictions
and Indictments distinguished. — In
some of the English books, a distinction
is taken between indictments and sum-
mary convictions before justices of the
peace; greater strictness in negativing
the exceptions being required, it is said,
in the latter than in the former. We
have seen, that, in some respects, our
American courts have deemed it admis-
sible to be less strict in these cases than
in the other. Ante, § 390, 396 and note.
And it is believed that no such discrimi-
nation, involving a demand of greater
strictness in the proceedings before magis-
trates, would be now recognized by our
tribunals. See 8 Am. Jur. 244; 1 Ben.
& H. Lead. Cas. 262.

1 Rex v. Hall, 1 T. R. 220.

2 Stat. Crimes, § 382, 835, 1042, 1043;
The State v. Keen, 34 Maine, 500; The
State v. Watson, 5 Blackf. 155 ; Common-
wealth v. Edds, 14 Gray, 406; Common-
wealth v. Chisholm, 103 Mass. 213; Com-
monwealth v. Sloan, 4 Cush. 52; Com-
monwealth v. Thayer, 5 Met. 246.

3 Commonwealth v, Roland, 12 Gray,
132; The State v. Munger, 15 Vt. 290;
Commonwealth v. Davis, 121 Mass. 352;
Commonwealth v, Lynn, 107 Mass. 214;
The State v. Buckner, 52 Ind. 278. And
see Commonwealth v. Thayer, 5 Met. 246.
And for a full view of the various forms
of the negative in these cases, see Stat.
Crimes, § 1042, 1048.

389
§ 642

the exception was “work of neeuaeltys”

INDICTMENT AND ITS INCIDENTS.

[Boox. Iv.

and: in the indictment

it was “ work of daily necessity,” this negative was held to be
inadequate; because not every necessary work is of “daily”

necessity. Again, —

Negative in Affirmative. —If the allegation on the affirmative
part of the statute involves the negation of the other, no aig

negative is required.?,

How Broad. — Though the negative may be general in terms,
it should be as broad as the provision to which it applies.®

§ 642. Conclusion. — The discussions of this chapter. disclose
some minor differences of opinion; but, on the whole, the law
is reasonably well settled, and the doctrines are alike plain and

just.

1 The State v. Stone, 15 Misso. 5138.

2 Sword v. The State, 5 Humph. 102;
Crane v. The State, 3 Ind. 198. An illus-
tration of this principle is the following:
Gaming. — A statute made punishable
one who should keep “any E. O. table, or
any other kind of gaming table, billiard
tables excepted, at which the game of faro,
equality, or any other game of chance
shall be played for money.” And an in-
dictment setting out, that the defendant
“unlawfully did keep a certain gaming
table, called a faro table, at which said
gaming table, unlawfully kept as afore-
said, the game of faro was then and there
unlawfully played for money,” was held
to be good. The rule requiring excep-
tions in the enacting clause to be nega-

390

tived was deemed to rest on the necessity
of setting out a complete offence : “ But,”
added Dorsey, J., “to apply it to a case
like the present, where the charge pre-
ferred, ex natura rei, as conclusively im-
ports a negative of the exception as if
such negative had been in express terms,
would violate the soundest principles of
construction ; and give to the rule an uni-
versality of operation which its terms do
not import, and was never contemplated
in the decisions or commentaries to which
it owes its birth.” The State v. Price, 12
Gill & J. 260, 262.

3 The State v. Haden, 15 Misso. 447;
Commonwealth v. Thayer, 5 Met. 246.
See, and query, The State v. Shoemaker,
4 Ind. 100.

oe
CHAP. XL.] BILL OF PARTICULARS. § 644

CHAPTER XL.
A SUPPLEMENTAL SETTING OUT OF THE PARTICULARS.

§ 643. In General. — An indictment which the court cannot.
pronounce ill may still be deemed wanting in details of which
the defendant is justly entitled to be informed before trial. In
such a case, the judge, if applied to, orders a written specifica-
tion of things, called sometimes a bill of the particulars, to be
filed with the papers in the cause; and, on the trial, restricts the
prosecuting officer in his evidence to the items therein set down.!
The application for it is addressed solely to the discretion of the:
court’;2 hence its decision thereon is not generally subject to
revision by a higher tribunal.’

Not of Record. —It does not constitute a part of the record,
and it is not subject to a demurrer.

§ 644. When ordered. — There are no unvarying rules re-
quiring particulars in one class of offences and not in another.
Still, — :

Conspiracy. —If an indictment for conspiracy is in mere gen-
eral terms, not charging overt acts,° the course is to order a
specification of the particulars.6 The rule as to which is, that
the particulars shall impart the same information which a special
count would do, not descending to specific acts with time and
place: on the one hand, enabling the defendant fairly to defend
himself; and, on the other hand, not fettering the prosecution.’
On a special count alleging overt acts, the court will not order
particulars in the absence of an affidavit by the defendant deny-

1 Commonwealth v. Snelling, 15 Pick. £ Commonwealth v. Davis, 11 Pick.
821; Commonwealth v. Giles, 1 Gray, 482.

466; Rex v. Hodgson, 3 Car. & P. 422; 5 Vol. IT. § 207, 208.
Rex v. Bootyman, 5 Car. & P. 300; Reg. 6 Vol. II. § 209; Reg. v. Rycroft, 6
v. Esdaile, 1 Fost. & F. 213. Cox C. C. 76.
2 The State v. Bacon, 41 Vt. 526. 7 Vol. II. § 209; Rex v. Hamilton, 7
3 Commonwealth v. Wood, 4 Gray,11; Car. & P. 448; Reg. v. Stapylton, 8 Cox

Commonwealth v. Giles, 1 Gray, 466. See C. C. 69, 72. And see People v. McKin-
ante, § 454. ney, 10 Mich. 54.
391
§ 646 INDICTMENT AND ITS INCIDENTS. [Book Iv.

ing knowledge of them, or of information enabling him to meet
them.!

§ 645. Embezzlement. — Particulars have been deemed proper
also in embezzlement, if the prisoner does not otherwise know
what specific acts are meant ;? also, —

Liquor Selling. — In an indictment, framed in general terms,
for being a common seller of intoxicating liquor without li-
cense.3

Particulars by Defendant — (Libel). — On an indictment for a
libel charging a magistrate in general terms with official mis-
conduct, the defendant, offering to give the truth in evidence,
was required to file a bill of the particulars.+

§ 646. Not Substitute for Averment. — The bill of particulars,
not being made by the grand jury on oath, cannot supply any
defect in the indictment. Nor, in reason, should the court suffer
any otherwise insufficient allegation to pass, on the ground that
it has power to order particulars from a person not of the grand
jury. Yet it would seem that something like this has, in a case
or more, been inconsiderately practised.5

’ Reg. v. Stapylton, supra. 4 Commonwealth v. Snelling, 15 Pick.
2 Rex v. Hodgson, 3 Car. & P. 422; 321. For further illustrations, see Vol.

Rex v. Bootyman, 5 Car. & P. 300; Peo- II. § 100, 201, 873.

ple v. McKinney, 10 Mich. 54. 5 The State v. Rowe, 43 Vt. 265, 267.
3 Commonwealth v. Wood, 4 Gray, Compare with ante, § 107, 108.

11; Commonwealth v. Giles, 1 Gray,

466.
892

C7
CHAP. XLI.] THE CONCLUDING PART. § 648

CHAPTER XLI.
THE CONCLUDING PART OF THE INDICTMENT.

§ 647. Unnecessary Forms. — Chitty! says: “In the conclusion
of the indictment, or each count, there are several sentences in
common use which do not seem to be at all material. Of this
description are, —

Damage. — “‘ To the great damage of the party’ particularly
injured by the offence, —

Evil Example. — ‘“‘‘ To the evil example of all others,’ and —

Displeasure of God. — “‘‘ To the great displeasure of Almighty
God’; and, —

Contrary to Allegiance. — “ Though it is usual to conclude an
indictment for treason, ‘contrary to the defendant’s allegiance,’
yet it will suffice if that allegation be in the body of the indict-
ment.” Again, —

In Contempt. — “ The words ‘in contempt of our said lord the
king and his laws’ are frequently used in indictments in supe-
rior courts, in informations of obtrusion, and in actions upon
statutes; but they have been frequently omitted and the pro-
ceeding held valid.” So—

Obstruction of Justice. — The conclusion “to the obstruction
and hindrance of public justice” is unnecessary.?

Special Conclusions — (Contrary to Statute — Common Nuisance,
&c.). — Conclusions in special cases — as, “against the form
of the statute’? in indictments on statutes, and “to the com-
mon nuisance” in indictments for nuisance — are considered
in other connections.

§ 648. Against the Peace : —

In General. — No very satisfactory reason can be given for re-
quiring, at least in our day, an indictment to conclude “against

1 1 Chit. Crim. Law, 245. 3 Ante, § 602-607.
2 Vol. IL. § 897. + Vol. IL. § 863, 864.

893
§ 648 [BOOK Iv.

INDICTMENT AND ITS INCIDENTS.

the peace of the State”; or, in the English form, “against the
peace of our said lord the king, his crown and dignity.” Yet
we shall see, that, not only is this conclusion generally necessary
at the common law, but in some of our States it is even required
by the Constitution, — a freak in fundamental law not quite
explainable.t

At Common Law — (Non-feasance, distinguished). — Starkie ?
says: ‘*Wherever the offence includes a breach of the peace,
the indictment should conclude contra pacem, for the necessity -
of these words is not taken away by Stat. 87 Hen. 8, c. 8;% but,
where the offence consists in a bare omission, as the not per-
forming an order of a justice of the peace,‘ or rests in tendency,
or partakes of the nature of a civil proceeding, as.in the case
of an information for an intrusion, the averment appears to be
unnecessary. But if these words be alleged in an indictment
for a bare non-feasance, they: may be rejected as surplusage.§
According to Lord Hale, ‘every offence against a statute should
be laid contra pacem’;7 and, though there are precedents with-
out this conclusion, they do not appear to be warranted by any
resolution,’ except where the offence consists in a bare non-
feasance.® Where the averment is necessary, it must be alleged
to have been committed contra pacem domini regis, and contra
pacem alone is insufficient.” 1

Every Count.—- We have seen! that the conclusion must be
repeated in every count.”

1 “A mere rhetorical flourish.” Lyon,
J.,in Nichols v. The State, 35 Wis. 308,
811.

2 1 Stark. Crim. Pl. 2d ed. 209.

32 Hale P. C. 188. Concerning 37
Hen. 8, c. 8. — The date of this statute is
1545. The first section, being the one
alluded to in the text, provides, “that
the words, vi et armis, videlicet, cum bacu-
lis, cultellis, arcubus et sagittis, or such other
like, shall not of necessity be put or com-
prised in any inquisition or indictment,”
&c. This section was received as com-
mon law in Maryland (Kilty Rep. Stats.
233), in Pennsylvania (Report of the
Judges, 3 Binn. 595, 620), in Maine (The
State v. Temple, 3 Fairf. 214), in Tennes-
see (Rice v. The State, 8 Heisk. 215, 221),
and doubtless in the other States. In

394

most, however, its provisions are ex-
pressly re-enacted.

4 Anonymous, 1 Vent. 108; Anony-
mous, 1 Vent. 111.

52 Hawk. P. C. c. 25, § 92; Rast.
209, 412; 1 Keb. 360, 364-372, 890; Reg.
v. Wyat, 1 Salk. 880.

® Reg. v. Wyat, supra.

72 Hale P. C. 188; 2 Hawk. P. C.
c. 25, § 92.

8 2 Hawk. P. C. «. 25, § 92.

® Anonymous, 1 Vent. 108; Anony-
mous, 1 Vent. 111.

0 2 Hale P. C. 188.

il Ante, § 429.

2 The State v. Hazle, 20 Ark. 156;
Thompson v. Commonwealth, 20 Grat.
724, But in Alabama the statutory con-
clusion (post, § 650-652) is held to be
CHAP. XLI.] THE CONCLUDING PART.

§ 651

§ 649., Non-feasance, again. —’There is very: little ‘ authority
and still less reason for thus excepting non-feasance from the
general rule: It is not believed the distinction will be ordin-
arily: recognized ; “for,” said Holt, C.-J., “every breach of a
‘law is against the peace, and ought: to. be so laid.”! .The law
deems non-feasance an act, the same as misfeasance;? and,
if:the latter disturbs the peace,.so equally in its measure does
the former. And — ;

General Doctrine. — The general doctrine of the common law
is settled beyond dispute, that the indictment, whether for felony
or misdemeanor, must conclude against the peace of the Queen,
State, or Commonwealth. Still —

Unnecessary. by Statute. —. There are States.in which this con-
clusion is by statute rendered unnecessary.*

§ 650.. Required by Constitution — In what Form. — The con-
stitutions of a considerable number of our States expressly re-
quire this conclusion. In South Carolina the provision is or
was: “The style ofall processes shall be, The State of South
Carolina.. All prosecutions shall be carried on in the name and
by the authority of the State. of South.Carolina, and conclude
against the peace and dignity of the same.” And where an
indictment commenced “ South Carolina,” instead of ‘* The State
of South Carolina,” and concluded “against the peace and dig-
nity of the said State,” the majority of the court. deemed it good.
So a-conclusion simply ‘against the peace and dignity of this
State,” instead of “this said State,” as the defendant contended
it should be, was held to be sufficient. Again, —

§ 651. Continued. — In New Hampshire ’ the constitutional re-

sufficient if given once at the end of an
indictment containing several counts.
McGuire v. The State, 37 Ala. 161. The
like is held in Tennessee. Rice v. The
State, 3 Heisk. 215.

1 Reg. v. Lane, 6 Mod. 128.

2 Crim. Law, I. § 483.

8 Rex v..Cooky Russ. & Ry. 176; Rex
v. Taylor, 5 D. & R. 422; Commonwealth
v. Carney, 4 Grat. 546. And see the ob-
servations of Hawkins, 2 Hawk. P. C.
c. 25, § 92.

4 It is so, for instance, in Massachu-
setts. Gen. Stats. c. 172, § 19.

5 The State v. Anthony, 1 McCord,
285. So held also under a like provision
in Mississippi. The State v. Johnson,
Walk. Missis. 892.

6 The State v. Yancey, 1 Tread. 287.
So “against the peace and dignity of the
same State” has been sustained against
the objection, that the word ‘ State”
does not follow “same” in the Constitu-
tion. ., The State v. Washington, 1 Bay,
120.

7 The State v. Kean, 10 N. H. 347.

395
§ 632 a INDICTMENT AND ITS INCIDENTS. [Book Iv.

quirement, that the indictment shall conclude “against the peace
and dignity of the State,” is held to be satisfied by “against
the peace and dignity of our said State”; and, in Arkansas,!
“against the peace and dignity of the State of Arkansas,”
by “against the peace and dignity of the people of the State
of Arkansas.”2 And —

Surplusage. — Surplusage may be rejected to make a conclusion
good.2 But, —

Variance. — To conclude against the peace and dignity of “ W.
Virginia,” instead of “‘ West Virginia,” as required by the con-
stitution, has been adjudged inadequate.*

§ 652. In Name of State. — In Wisconsin, as in South Carolina,
the constitution requires, that “all criminal prosecutions shall
be carried on in the name and by the authority of the State.”
But it is held sufficient for the record to show this in any form,
it need not be specially alleged. The like also is adjudged -in
Kentucky. But in Illinois an indictment lacking the express
words of the constitution, “in the name and by the authority
of the people of the State of Illinois,” has been held ill.’

Directory. —In Missouri, the provision just stated is inter-
preted as directory merely, so that the defect may be waived, or
cured by a statute.® But —

§ 652 a. Mandatory. — The other provision — namely, as to
the conclusion — has often, and it appears always, been inter-
preted as mandatory ;® even, by some or all opinions, to the
extent that it cannot be waived by the defendant.”

How near to Constitutional Words. — The foregoing illustra-
tions will show how closely the indictment must adhere to the

1 The State v. Cadle, 19 Ark. 613. also Zarresseller v. People, 17 Ill. 101;

2 Anderson v. The State, 5 Pike, 444.

8 The State v. Reakey, 1 Misso. Ap.
3; The State v. Waters, 1 Misso. Ap. 7;
The State v. Pratt, 44 Texas, 98; The
State v. Allen, 8 W. Va. 680.

4 Lemons v. The State, 4 W. Va. 755.
As to which case, see The State v. Waters,
1 Misso. Ap. 7, 10.

5 The State v. Delue, 1 Chand. 166.

6 Allen v. Commonwealth, 2 Bibb, 210.
And see Commonwealth v. Young, 7 B.
Monr. 1.

7 Whitesides v. People, Breese, 4. See

396

Harriman v. The State, 2 Greene, Iowa,
270; The State v. Lopez, 19 Misso. 254;
The State v. Durst, 7 Texas, 74.

8 The State v. Foster, 61 Misso. 549.
See Stat. Crimes, § 255, 256. And see
Horne v. The State, 37 Ga. 80.

9 Williams v. The State, 27 Wis. 402;
The State v. Lopez, 19 Misso. 254; The
State v. Pemberton, 80 Misso. 876. See
Camp v. The State, 25 Ga. 689.

” Holden v. The State, 1 Texas Ap.
225, 284; The State v. Sims, 48 Texas,
621.
CHAP. XLI.] THE CONCLUDING PART. § 6524

words of the constitution. A learned judge has observed, that
“a literal transcript of the formula is not essential”; a substan-
tial responding to it being sufficient.

Informations. — In Wisconsin, where the word in the constitu-
tion is “‘indictment,” this provision is held not to extend to an
information?

1 Lewis, J., in The State v. Waters, 1 2 Nichols v. The State, 85 Wis. 308.
Misso. Ap. 7,9. And see Commonwealth And see The State v. Miller, 24 Conn.
v. Jackson, 1 Grant, Pa. 262. 619.

897
§ 655 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

CHAPTER XLII.

THE CAPTION AND COMMENCEMENT.

§ 653, 654. Introduction.
655-659. Under the English Practice.
660-668. Under the American.

§ 653. In General. — An indictment begins with the words,
“That A, &c., on, &e., at, &c., did,” &c.1 Preceding these are
the words, “The jurors, &c., present.’ They are called the
commencement; being a mere preliminary explanation by the
indictors. When the indictment is carried into court, the record
must show various things, to be explained in their proper places.
If afterward it is removed to another court for trial, enough of
the record of the court where it was found must be transmitted
with it, to show that it was properly found, and is valid. This
extract from the record of the first court, transmitted with the
indictment to the second, is termed the caption. Minuter ex-
planations of this will occupy us in the present chapter.
§ 654. How the Chapter divided. — We shall consider the cap-
tion and commencement under, I. The English Practice; II. The
American Practice.

I. The English Practice.

§ 655. Commencement. — We have seen,? that in the upper
or side margin of an indictment is generally written the name
of the county. Then follow the words: “The jurors for our
lady the queen on their oath present, that,” &c.3 This is not
the caption, it is the commencement. And the bill which is

1 Ante, § 182, 188. also in New York. People v. Bennett, 87

2 Ante, § 877 et seq. N. Y. 117.

3 Archb. New. Crim. Proced. 76; 2 * Archb. New Crim. Proced. 76; Peo-
Chit. Crim. Law, 1; Dickinson’s Quarter ple v. Bennett, 87 N. Y. 117, 121, 122.
Sessions, 5th ed.179,981. It is the same

398

71
CHAP. XLII.] CAPTION AND COMMENCEMENT. § 658

laid before the grand jury, and by their finding becomes the
indictment,! has on it, in the English practice, this introductory
matter, and no more. But, —

§ 656. Caption. — In England, many indictments, found in the
inferior courts of limited jurisdiction, are removed to the superior
for trial.2 When thus one is transmitted to the Queen’s Bench,
in obedience to a writ of certiorari, “it is accompanied,” says
Starkie, “with a formal history of the proceedings, describing
the court before which the indictment was found, the jurors by
whom it was found, and the time and place where it was found.
This instrument, termed a schedule, is annexed to the indict-
ment, and both are sent to the crown office. The history of the
proceedings, as copied or extracted from the schedule, is called
the caption, and is entered of record immediately before the
indictment.” ? The caption, therefore, strictly speaking, first
appears in the superior court. Still the matter whereof it is
composed is a part of the record of the inferior; and it is there
sometimes called by the name caption. Consequently, —

§ 657. How Caption defined. — The caption is that part of the
record which comprehends the history of the cause to the time
of finding the indictment.

Form where in Inferior Court. — The following is Lord Hale’s
form, given in Latin, and translated by later writers : —

“Norfolk. Ata general sessions of the peace, holden at S. in the county
aforesaid, on the fifth day of October, in the twenty-fifth year of the reign,
&c., before A. B., C. D., and their fellows, justices of our said lord the king,
assigned to keep the peace of our said lord the king, and also to hear and
determine divers felonies, trespasses, and other misdemeanors in the same
county committed, by the oath of G. H., E. F., &c., good and lawful men
of the said county, sworn and charged to inquire for our said lord the king,
and the body of the said county, it is presented,’”’ &c.*

§ 658. Form where in Superior Court. — If the indictment is
originally found before the Court of Queen’s Bench,. being a
court of superior jurisdiction, the jurisdictional matter is omitted.
It is: — ;

‘t Middlesex. Be it remembered, that, on Friday next, &c., in the ——
year of the reign of our sovereign Lord George the Fourth, by the grace of

1 Ante, § 131; post, § 696 et seq. 4 2 Hale P. C. 165; 1 Chit. Crim. Law,
2 People v. Bennett, 87 N. Y. 117,122. 827.
3 1 Stark. Crim. Pl. 2d ed. 233.

399
§ 660 INDICTMENT AND ITS INCIDENTS. [Book Iv.

God of the United Kingdom of Great-Britain and Ireland, King, Defender
of the Faith, in the court of our said lord the king, before the king himself,
at Westminster in the county of Middlesex, upon the oath of [here insert the
names of the grand jurors] now here sworn, and charged to inquire for our
said lord the king for the body of the said county, it is presented as followeth,
that is to say,’’ — [then follows the indictment verbatim].}

§ 659. One Caption for Session. — Where the same grand jury
attends the entire session of a court, the record does not show
a separate caption for each individual case, but one serves for
all. From this general caption is prepared that for each partic-
ular record transmitted, whether before or after trial, to a higher
tribunal.?

With this preliminary explanation, we are prepared for the
main inquiry; namely, the caption and commencement under —

II. The American Practice.

§ 660. Diversities. — There are, with us, great diversities of
practice relating to the caption and commencement.
Following English. — In some of our States, the English practice

is followed.

Extended Commencement for Caption. — In other of the States,
the commencement is extended to embrace matter proper for
the caption ; and, in this form, it is itself termed the caption.?

Uncertain. — In others, the practice is unsettled and uncertain.

1 2 Gude Crown Pr. 168. The author
observes: ‘When the defendant pleads
in a subsequent term, the caption is put
in the past tense.”

2 Rex v. Marsh, 6 A. & E. 236, 249.

8 Commonwealth v. Stone, 8 Gray,
453; Commonwealth v. Edwards, 4 Gray,
1, 5, 6, where Dewey, J., said: “In our
practice, every indictment has a caption
attached to it, and returned by the grand
jury, as a part of their presentment in
each particular case ; and, in this respect,
a caption as used in this Commonwealth
differs essentially from that of other tri-
bunals, where the separate indictments
are returned without any caption, and the
caption is added by the clerk of the court,
as a general caption, embracing all the
indictments found at the term”; Com-
monwealth v. Colton, 11 Gray, 1; The

400

State v. Nixon, 18 Vt. 70; The State v.
Sutton, 1 Murph. 281; The State v. Long,
1 Humph. 386, 388 ; Mitchell v. The State,
8 Yerg. 514; McClure v. The State,
1 Yerg. 206, 216; The State v. Jeffreys,
Conference, 364; The State v. Wasden,
N.C. Term R. 163; The State v. Had-
dock, 2 Hawks, 461; The State v. Conley,
39 Maine, 78. Still it is believed that, in
States where the extended commence-
ment is used instead of the caption, the
courts would —at least, should— hold the
English forms to be adequate ; the record
being made up to embrace the required
matter. And compare, with the above ex-
tract from Commonwealth v. Colton, Com-
monwealth ». Stone, 3 Gray, 453; Jeffries
v. Commonwealth, 12 Allen, 145; Com-
monwealth v. Glover, 111 Mass. 395, 396;
Commonwealth v. Smith, 108 Mass. 486.
CHAP. XLU.] CAPTION AND COMMENCEMENT. § 662

§ 661. Caption not Part of Indictment, but Record — (Amend-
ments). — It follows from what has been said, that, though the
caption is a part of the record, it is not of the indictment, and
it may be amended to the same extent as the record in any other
place.! In like manner, —

§ 662. Commencement not Part of Indictment. — The commence-
ment, whether in England or this country, is not a part of the
indictment. It is a preliminary statement, liable to be corrected
like an indorsement on the indictment by the clerk of the court,
or a docket entry, before it becomes of record, or afterward in
the same manner as any other part of the record. Such is pretty
plainly the true view, though the authorities on the question are

not entirely uniform and distinct.”

1 Faulkner’s Case, 1 Saund. 249; Rex
v. Brandon, Comb. 70; The State v.
Creight, 1 Brev. 169; The State v. Brick-
ell, 1 Hawks, 854; Reeves v. The State,
20 Ala. 33; Noles v. The State, 24 Ala.
672, 694; The State v. Hopkins, 7 Blackf.
494; Allen v. The State, 5 Wis. 8329; The
State v. Paine, 1 Ind. 163, Smith, Ind. 73;
Rex v. Davis, 1 Car. & P. 470; The State
v. Gary, 386 N. H. 359; Farnum v. United
States, 1 Col. Ter. 809; The State v. Em-
mett, 28 Wis. 632; English v. The State,
4 Texas, 125; The State v. McCarty, 2
Chand. 199; United States v. Thompson,
6 McLean, 56; Brown v. Commonwealth,
28 Smith, Pa. 122. Ina Louisiana case
the court observed: “The caption is the
inception of the record, both in civil and
criminal suits; it is that part of it which
precedes the declardtion or indictment.”
Territory v. McFarlane, 1 Mart. La. 221.
As to amendments, see post, § 705 et
seq.

2 1. How in England. — Looking into
the English text-books, we find forms in
which the commencement is omitted from
the record, or merged in the caption
proper. Thus in 3 Burn’s Justice, 28th
ed. by Chitty, p. 418, tit. Indictment, we
have the following: “ Westmoreland. At
a general quarter sessions,” &c., proceed-
ing in the usual style of the caption, “it is
presented [here the caption ends], that
John Armstrong, late of,” &c. Looking
back to § 655, ante, we shall see, that the
commencement, which was here omitted
or merged in the caption, is as follows:

VOL. I. 26

‘books.

“Westmoreland. The jurors for our lady
the queen on their oath present.” See
also Archb. Crim. Pl. & Ev. 18th Lond.
ed. 80. Now, in explanation of this, the
English writers say, that such used to be
a common style; “but,” adds Starkie,
“the more correct form seems to be this,
‘It is presented in manner and form fol-
lowing, that is to say, Lancashire, to wit,
the jurors for our lord the king,’ &c., and
then copy the whole of the indictment
verbatim.” 1 Stark. Crim. Pl. 2d ed.
238. And Chitty speaks of this as “the
preferable form.” 1 Chit. Crim. Law,
334. So likewise it is given in some other
Dears. Crim. Process, 88; Rex v.
Marsh, 6 A. & E. 236; Broome v. Reg.
12 Q. B. 834. ~The result, however,
plainly is, that, in matter of strict law,
the commencement is not in England
deemed a part of the indictment, but at
most it is no more than a part of the cap-
tion.

2. How with us.—In some Indiana
cases, the introduction is apparently
treated as a part of the indictment, not to
be omitted or blended with the caption.
The State v. Hopkins, 7 Blackf. 494; The
State v. Paine, 1 Ind. 163, Smith, Ind. 73.
Directly contrary to this view, the South
Carolina court has held it to be a part, not
of the indictment, but of the caption.
Said Trezevant, J.: “The caption of an
indictment may be made up or amended,
at any time, from the minutes of the
clerk, made on the bill, or from what may
appear upon the face of the bill... . The

401
§ 663

§ 663. Contents of Caption : —
Jurisdiction of Court — (Inferior). — If the court wherein the

INDICTMENT AND ITS INCIDENTS.

[BOOK Iv.

indictment is found is of inferior or limited jurisdiction, as in most
of the cases reported in the English books, the facts showing its

jurisdiction must appear in the caption.!

caption ends with the words ‘upon their
oaths present.’” And said Grimké, J.,
speaking of an earlier unreported case:
“Tt was resolved by the court in that
case, that the part of the indictment here
in question was a part of the caption, and
might be filled up by the court at any
time during the sitting of the court.”
The State v. Creight, 1 Brev. 169, 171,
172. See also The State v. Williams, 2
McCord, 301. Tending more or less to-
ward this South Carolina doctrine are
The State v. Brady, 14 Vt. 353; The
State v. Wasden, N. C. Term R. 163;
Commonwealth y. Gee, 6 Cush. 174;
Mitchell v. The State, 8 Yerg. 514; Unit-
ed States v. Thompson, 6 McLean, 56;
The State v. Conley, 89 Maine, 78; Eng-
lish v. The State, 4 Texas, 125; The State
v. Thibeau, 80 Vt. 100; The State v. Free-
man, 21 Misso. 481; Allen v. The State,
5 Wis. 8329; Barnes v. The State, 5 Yerg.
186; Kirk v. The State, 6 Misso. 469. In
a Vermont case, Redfield, J., observed:
“The caption of a bill of indictment is no
part of the presentment of the grand jury.
It is merely the record of the court, and
might be wholly omitted. The minute
of the clerk of the time when the bill was
found and the record of the court would
supply the defect. So, too, if the preface
of the bill, which formerly contained the
names of the jurors, is defective or false,
it may be corrected by reference to the
other records of the term.” The State v.
Gilbert, 13 Vt.647. In Massachusetts, it
was held that an indictment which pur-
ported on the face of its commencement
(called the caption) to have been found
“at the Municipal Court of the city of
Boston, begun and holden at said Boston,
&e., on,” &e., yet charges the offence as
committed at a later date, may be shown
by the clerk’s indorsement to have been
returned into court subsequently to the
alleged time of the offence. Dewey, J.,
said: ‘It is true, that, in practice in Eng-
land, appending the caption is usually a

402

But, —

ministerial act, and it is introduced as a
part of the record, or return from an in-
ferior to a superior court, from which a
certiorari issues. Heré the caption is
usually drawn with the other parts of the
indictment, and is embodied in the instru-
ment returned by the grand jury as a
true bill. But we do not think that an
insuperable objection to showing, by a
certificate filed in the course of proceed-
ings in a particular case, under the hand
of the clerk, the actual time of filing the
bill. It might be a good reason why an
amendment should not be made of the
caption in such cases, but leaves the other
sources for fixing the time open to be re-
sorted to, if any such exist.” Common-
wealth v. Stone, 3 Gray, 453, 464, 455.

1 Ante, § 236; Scroggins v. The State,
55 Ga. 880; Bell v. People, 1 Scam. 397;
Cobb v. The State, 27 Ind. 183; Smith v.
The State, 19 Ind. 197; The State uv.
Gachenheimer, 30 Ind. 68; Ohio, &c.,
Railroad v. Shultz, 31 Ind. 150; The State
v. Ely, 48 Ala. 568; Peacock v. Bell, 1
Saund. Wms. ed. 74; Whitehead v.
Brown, T. Raym. 75; 1 Stark. Crim. Pl.
2d ed. 234. Among other things, Starkie
says, in this place: ‘The caption ought
to notice the authority of the justices to
hear and determine ‘divers felonies, &c.
It was formerly deemed necessary to de-
scribe the justices either as the king’s
justices, or as justices of the public peace,
but it has since been holden to be suf-
ficient to describe them as justices of
the peace. But it is not sufficient to
describe them generally as justices of
the peace, &c., without either naming
them or showing for what division they
were justices ; and, where in their descrip-
tion as justices assigned to keep the peace,
&c., the word assigned was omitted, the
caption was holden to be defective. But
it is unnecessary to allege that the jus-
tices of the general quarter sessions were
of the quorum. It is a general rule, that
the title of their authority should be set
CHAP. XLII.] CAPTION AND COMMENCEMENT. § 665

§ 664. Superior Court. — If the indictment is found in a supe-
rior court of general jurisdiction, the authority of the tribunal
is presumed, and the jurisdictional matter need not appear in
the caption.2 Still, —

§ 665. Misapprehensions as to Jurisdictional Matter. — These dis-
‘tinctions, abundantly familiar to the courts as general doctrine,
have not always been in the minds of the judges when consider-
ing the caption. Hence, —

Confusions and Uncertainties. — In our tribunals, many unsatis-
factory decisions have been pronounced. Indeed, the whole
question as to what the caption should contain appears, when
approached through the American books, draped in mist and
girded about with darkness. A consultation of the cases re-
ferred to in the note will be helpful; but, in many of them, the
reports do not explain what sort of court it was in which the in-
dictment was found, or whether the caption was the English one

or the commencement.?

forth; as, that they were justices of the
peace, &., justices of jail delivery, &c.
If a session be holden by virtue of several
commissions, as of jail delivery, oyer and
terminer, and tlie peace, and the record
be made up as upon all three commis-
sions, the caption will be good, if the
justices had authority to take the indict-
ment by one of those commissions though
not by the others. ... The justices’ names
should be set out; and, though it is not
necessary to mention all, yet so many
should be named as are enabled by their
commission to take an indictment.”

1 Ante, § 286, 658; The State v. Was-
den, N. C. Term R. 163; The State v.
Haddock, 2 Hawks, 461; Fitzgerald v.
The State, 4 Wis. 895; The State v. Mc-
Carty, 2 Chand. 199. And see The State
v. Marion, 15 La. An. 495; The State v.
Gary, 36 N. H. 359; The State v. Went-
worth, 87 N. H. 196.

2 Alabama. —“ The caption of an in-
dictment is that 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 ju-
rors; and this caption is applicable to, or
is a part of, every indictment, and need
not be again repeated in any part of the
indictment.” Dargan, C.J., in Reeves v.

The State, 20 Ala. 83, 86. The caption,
as a part of the record, may aid the in-
dictment. Noles v. The State, 24 Ala.
672, 694. Matter belonging to the cap-
tion, if inserted in the body of the indict-
ment, may be rejected as surplusage.
Rose v. The State, Minor, 28. An indict-
ment is good, which purports to be found
by ‘‘the grand jurors for the said State,
sworn and charged to inquire for the
said county,” when the names of the
State and proper county are stated in
the margin. Lawson v. The State, 20
Ala. 65. When the commencement is,
the ‘grand jurors for the State of Ala-
bama upon their oaths present,” &c., and
the name of the county is in the caption,
it need not be also averred that the grand
jurors were selected, impanelled, sworn,
and charged to inquire for the body of
the county. Morgan v. The State, 19
Ala. 556. The venire and the names of
the grand jurors are for the caption, and
need not be stated in the indictment.
The State v. Murphy, 9 Port. 487. And
see Harrington v. The State, 36 Ala. 236.
If the caption shows the grand jury to
have been properly organized, a demurrer
to the indictment will not lie, though on
its face it appears to have been found by
the “grand jury of said court,” instead of

403
§ 666

INDICTMENT AND ITS INCIDENTS.

[BOOK Iv.

§ 666. Names of Jurors — Number — How described, &c. —
Starkie says: The caption must ‘‘show that the indictment was

said “county.” Perkins v. The State, 50
Ala. 154.

Arkansas. — The courts do not require
a close adherence to the old English
forms of caption. Accuracy in showing
that the grand jurors are good and lawful
men, &c., is not important, where every
facility is given the defendant to ascer-
tain their qualifications. Cornelius v.
The State, 7 Eng. 782.

Georgia. — Giving the Christian names
of some of the grand jurors with their
initials only is not ground for arresting
judgment. Hatcher v. The State, 18 Ga.
460, 465. See post, § 685, 698.

Illinois. —One caption extends to all
the counts; so that, if a part are quashed,
the rest are not thereby rendered ill.
Duncan v. People, 1 Scam. 456. The
criminal jurisdiction of the Municipal
Court of Chicago is confined to the terri-
torial limits of the city. Therefore an
indictment purporting to be found by the
“grand jurors chosen, and selected, and
sworn in and for the city of Chicago and
county of Cook,” the county in which
Chicago is situated, is bad. Bell v. Peo-
ple, 1 Scam. 397.

Indiana. — Simply to say in the cap-
tion, that it is presented by the grand
jury, &c., is not sufficient; the grand
jury must appear also to be of the proper
county. Clark v. The State, 1 Ind. 253,
Smith, Ind. 161. For a form sufficiently
showing the county, see Lovell v. The
State, 45 Ind. 550. It is sufficient to de-
scribe the grand jurors as “good and
lawful men,” with nothing more specific
as to their qualifications. Jerry v. The
State, 1 Blackf. 395; Beauchamp v. The
State, 6 Blackf. 299; Weinzorpfiin v. The
State, 7 Blackf. 186; Willey v. The State,
46 Ind. 863. “Oaths,” in the commence-
ment, for “oath,” is no ground of error.
Jerry v. The State, supra. Where a cap-
tion from the Circuit Court showed, that,
at, &c., on, &c., the jurors (naming them)
appeared.in court, and, being duly sworn
and charged, &c.; it was held that the
omission of the words “then and there,”
before the words “sworn and charged,”
was not material. Beauchamp v. The

404.

State, supra. The record of the Board
of County Commissioners must show,
that grand jurors were selected as re-
quired by the statute, or the indictment
will be quashed. The State v. Conner,
6 Blackf. 825. In an information, it is
sufficient to state the title of the court,
without naming the county. The State
v. Mathis, 21 Ind. 277.

Maine. — A commencement, termed
the caption, was: ‘“ State of Maine, Cum-
berland, ss. At the Supreme Judicial
Court begun and holden at Portland,
within and for the county of Cumber-
land, on the first Tuesday of March, in
the year of our Lord one thousand eight
hundred and fifty-four. The jurors for
said State upon their oaths present, that,”
&e. The court observed: “The caption
is conformable to general if not universal
practice in this and other States,” &c.
And it sufficiently showed at what court
the indictment was found. The State v.
Conley, 39 Maine, 78.

Massachusetts. — An indictment pur-
porting to have been found at a Court of
Common Pleas for the county of Hamp-
shire, adding, “the jurors for said Com-
monwealth on their oath present,” suf-
ficiently appears to proceed from the
grand jury for Hampshire county. Com-
monwealth v. Edwards, 4 Gray, 1. See
Commonwealth v. James, 1 Pick. 375;
Commonwealth v. Fisher, 7 Gray, 492.
It is not bad though the indictment pur-
ports to have been found at a court begun
and holden “on the first Monday of Jan-
uary,” when, in fact, the grand jury was
not impanelled till the next day. Com-
monwealth v. Colton, 11 Gray, 1. And
see Commonwealth v. Hamilton, 15 Gray,
480; Commonwealth v. Smith, 108 Mass.
486; Commonwealth v. Hines, 101 Mass.
83. “The jurors for the said Common-
wealth on their oath present, that,” &c.,
are sufficient in the commencement; the
form need not be “the grand jurors,” &e.
Said Dewey, J.: “No other jurors than
grand jurors being authorized by law to
find and return bills of indictment, this
indictment, under this long-established
form of description, must be taken to
CHAP. XLII. ]

CAPTION AND COMMENCEMENT.

§ 666

found by twelve jurors of the county, city, or place for which

the court was holden.

have been found by the grand jury.”
Commonwealth v. Edwards, 4 Gray, 1, 6.
The reader has observed, ante, § 655, that
the form in England is in this respect the
same. A caption was: “Norfolk, ss. At
the Superior Court begun and holden at’
Dedham, within and for the county of
Norfolk, on the first Monday of , in
the year of our Lord one thousand eight
hundred and sixty—.” And on it was
indorsed by the clerk: “Norfolk, ss. On
this eleventh day of September, in the
year eighteen hundred and sixty-eight,
this indictment was returned to and pre-
sented in said Superior Court, by the
grand jury, and ordered to be filed.” It
was thereupon held, that this certificate
supplied the defects of date in the cap-
tion, and the indictment was sufficient.
Commonwealth v. Hines, 101 Mass. 33.
A defect in the name of the court may,
in like manner, be supplied by a refer-
ence to the record. Commonwealth v.
Mullen, 18 Allen, 551. See, also, Com-
monwealth v. Hamilton, 15 Gray, 480.

Minnesota. — That an indictments in
the District Court is entitled of the (first
district, instead of the second, is not
fatal; for the number of the district is
no part of the name of the court. The
State v. Munch, 22 Minn. 67. Consult,
in connection with this case, United States
v. Upham, 2 Mon. Ter. 170.

Mississippi. — A caption must state
the style of the court, the judge, and the
place where and jurors by whom the in:
dictment was found. Thomas v. The
State, 5 How. Missis. 20. “The grand
jurors of the State of Mississippi, im-
panelled and sworn in and for the county
of Warren,” &c., sufficiently shows that
the jurors were of Warren county. Byrd
v. The State, 1 How. Missis. 163. It
must appear of record that the grand
jurors were sworn. And arecital in the
indictment that they were, does not cure
the omission in the record. Abram v.
The State, 25 Missis. 589. But the
swearing of the witnesses examined be-
fore the grand jury need not appear of
record. King v. The State, 6 How.
Missis. 780.

 

The precedent cited from Hale states

Missouri. — “ State of Missouri, County
of Hickory. In the Hickory Circuit Court,
September Term, a.p. 1852. The grand
jurors for the State of , impanelled,
charged, and sworn to inquire,” &c.
Above all were the words “State of Mis-
souri.” The indictment, with this blank
unfilled, was sustained. The State v.
England, 19 Misso. 886. The omission
of “present,” in the commencement, does
not spoil the indictment. The State »v.
Freeman, 21 Misso. 481. A caption re-
citing that the grand jurors were “im-
panelled, sworn, and charged,” need not
state when and where. Vaughn v. The
State, 4 Misso. 530. The defendant can-
not object, that the caption does not find
in what court, or at what term, the in-
dictment was found. Said the judge:
“The records of the court show in what
court and at what term this bill was
found, and the caption of the indictment
forms no part of the indictment.” Kirk
v. The State, 6 Misso. 469.

New Jersey. —“ Oaths” for “oath ” is
not fatal in the commencement. The
State v. Morris Canal and Banking Co.,
2 Zab. 587. The caption does not gen-
erally state, that the grand jurors were
summoned, or by whom, or even that
they were impanelled. Where it styled
the court in which the indictment was
found “the Court of Oyer and Terminer
and General Jail Delivery, holden at
N. B., in and for the county of M.”; and
the award of the venire styled the judges,
of whom one was a justice of the Supreme
Court and the others were judges of the
Court of Common Pleas, ‘‘judges of the
Court of Oyer and Terminer and General
Jail Delivery”; both styles were held to
be correct, being the same as in the stat-
utes and reports. Berrian v. The State,
2 Zab. 9. Accaption, to be good, must
show the style of office of the judges and
their names; for otherwise their compe-
tency “to hold the court” and “to take
the indictment” will not appear. The
State v. Zule, 5 Halst. 348. The caption
need not say in words that the grand
jury were summoned and returned as
such, The State v. Jones, 4 Halst. 857;

405

 
§ 666

INDICTMENT AND ITS INCIDENTS.

[Book Iv.

the names of the jurors; but, though it certainly is necessary
that the names of the jurors should be returned in the schedule,

The State v. Price, 6 Halst. 203. Nor
need it particularize their qualifications ;
to describe them as “good and lawful
men” is sufficient. ‘“ At a Court of Oyer
and Terminer and General Jail Delivery,
held, &c., before the honorable G. H. F.,
one of the justices, &c.,and J. G., &.,
their fellows, it is presented,” sufficiently
indicates the court. The State v. Price,
supra. A finding is ill which purports to
be on the affirmations of some of the
grand jurors, unless it appears that they
were legally entitled to serve on their
mere affirmation. The State v. Harris, 2
Halst. 8361; The State v. Fox, 4 Halst.
244. Inthe former of these two cases,
the court, however, observe: “We are
not disposed to favor exceptions of this
kind, which have nothing to do with the
justice of the case; and, were the ques-
tion now to arise for the first time, we
should hesitate before we gave it our
sanction. But the cases cited, particu-
larly Sharp’s Case [a New Jersey case],
have settled the question; and we feel
ourselves bound to adhere to the rule
established by the court on previous
occasions.” p. 862. [The contrary of
this, in accordance with what is thus
deemed just in principle, is adjudged
in Massachusetts. Commonwealth v.
Fisher, 7 Gray, 492. And see post, § 666,
note.|

New York. —It is no valid objection to
a caption that one of the justices of the
peace before whom the indictment was
found, is described as “in and for the
county of ——,” whereas justices are
town officers. People v. Thurston, 2
Parker C.C.49. After judgment, a cap-
tion, omitting the names of the grand
jurors, but describing them as “ good and
lawful men,” will not be held ill; the ob-
jection, to be available, should have been
taken by demurrer, or by motion to quash.
Dawson v. People, 25 N. Y. 899. See
McGarry »v. People, 2 Lans. 227. In this
State, the English practice is followed,
and the caption and commencement are
distinguishable. It is not necessary or
proper to give the names of the grand
jurors in the latter. People v. Bennett,

406

87 N. ¥. 117. See also Myers v. People,
4 Thomp. & C. 292.

North Carolina. — As by law the grand
jury must consist of freeholders, the
words “good and lawful men,” in a cap-

“tion, mean freeholders. The State v.

Glasgow, Conference, 38. In one case,
“State of North Carolina, Franklin
County, March sessions, 1798,” was
deemed a sufficient caption. The State
v. Jeffreys, Conference, 364. See 1 Tay-
lor, 216. But the caption must state the
court where there are two having the ju-
risdiction in the same county. The State
v. Sutton, 1 Murph. 281. See further, as
to the caption in this State, The State v.
Sprinkle, 65 N. C. 463; The State v. Sea-
born, 4 Dev. 805.

Ohio. —It is not necessary to specify
the number of the grand jury. Young».
The State, 6 Ohio, 435: An indictment
purporting to be found by “the grand
jurors of the State of Ohio, inquiring
of crimes and offences within and for
the county of Monroe,” sufficiently pro-
fesses to be found by the Monroe grand
jury. Mackey v. The State, 3 Ohio State,
862.

South Carolina. —The caption must
set forth the court, the jurors, and the
time and place of the finding. The State
v. Williams, 2 McCord, 801. But not
necessarily the names of the jurors. The
State v. Cook, Riley, 234. Nor need the
words “good and lawful men,” as de-
scriptive of the grand jurors, appear in
the caption. Smith, J., said: “This
might have been a sufficient ground un-
der the English law, regulating the im-
panelling of jurors. ... But by the various
acts of our own State legislature, relative
to the impanelling of jurors, it is done
under so many guards and checks that
these exceptions can never prevail....
Now under all this strictness and precau-
tion, it could scarcely be deemed essen-
tial to the safety of the prisoner that the
particular words ‘good and lawful men’
should be set forth in the indictment. I
am not only of opinion that it is perfectly
unnecessary to set out these words in the
indictment, but I should deem them su-

ab
CHAP. XLII]

CAPTION AND COMMENCEMENT.

§ 666

yet, in making up the record in the King’s Bench, it has been
the constant practice in the crown office to omit the names of

.the jurors in the caption.

perfluous, and believe that setting forth
in the indictment the impanelling of the
jury, in pursuance of the acts of the legis-
lature, is more conformable to good sense,
and equally safe, at least for the prisoner.”
The State v. Yancey, 1 Tread. 237, 238,
289. See also, as to this. State, The State
v. Brisbane, 2 Bay, 451.

Tennessee. — That the grand jurors
were “balloted for, elected, tried, and
sworn,” is equivalent in the caption to
saying they were qualified. Turner v.
‘The State, 9 Humph. 119. It is sufficient
to say “Circuit Court, November Term,
1829,” in figures, if the record otherwise
shows the finding of an indictment at
that term. Barnes v. The State, 5 Yerg.
186. The body of an indictment need
not state in what court it was found if
the fact appears in the caption.
The State, Mart. & Yerg..127. So likewise
the ‘indictment need not profess on its
face to have been found on the oath of the
grand jury, if the caption shows this fact.
McBean v. The State, 3 Heisk. 20. The
caption shouldshow the county. The State
v. Fields, Peck, 140; The State v. Hunter,
Peck, 166. The grand jurors may be de-
scribed as “ good and lawful men,” with-
out saying that they are freeholders.
Bonds v. The State, Mart. & Yerg. 143;
Cornwell v. The State, Mart. & Yerg. 147.
The day and year should be stated, and
that the indictment was taken.on the oath
of jurors of the county in which the
crime was committed. Tipton v. The
State, Peck, 308. As to which, sce also
The State y. Long, 1 Humph. 386. See
further, as to the caption, Williams uv.
The State, 3 Heisk. 376.

Texas. The county must appear by
direct averment. The State v. Hilton, 41
Texas, 565. The indictment need not
show by what grand jury it was found,
if .the fact sufficiently appears in the
records. Williams v. The State, 30 Tex-
as, 404.

Vermont.— “It has been decided, in
State v. Nixon, 18 Vt. 70, and in State v.
Gilbert, 13 Vt. 647, that the only ques-

Dean v.

And it has been solemnly decided

tions which can be raised on a motion in
arrest of judgment, are those which re-
late to the sufficiency of the indictment;
and that, on the hearing of such question,
defects in the caption, or even the omis-
sion of the caption, cannot be noticed.”
The State v. Thibeau, 30 Vt. 100, 104.
“The grand jurors for the people of the
State of Vermont, upon their oath, pre-
sent,” &c., is a sufficient commencement,
on motion in arrest of judgment. The
State v. Nixon, supra. Where, in charg-
ing an offence, the pleader is required to
allege that a certain term of court was
duly holden, the form may be that it was
holden by and before the chief judge,
without mentioning any assistant judge.
If any judge is named, it should appear
that at least a quorum held the term.
The State v. Freeman, 15 Vt. 7238.

Virginia. — A caption which sets forth
the county, without the title of the court,
is adequate. Taylor v. Commonwealth,
2 Va. Cas. 94; Burgess v. Commonwealth,
2 Va. Cas. 488. The date of the finding
of an indictment need not appear on its
face. Burgess v. Commonwealth, supra ;
Haught v. Commonwealth, 2 Va. Cas. 3.

Wisconsin. — ‘‘ The grand jurors of the
State of Wisconsin, to wit, twelve good
and lawful men,” is bad; because, by
statute, grand juries must consist of not
less than sixteen. Fitzgerald v. The State,
4 Wis. 395, 397. So a caption is ill which
gives incorrectly the name of the court.
Mau-zau-mau-ne-kah v. United States, 1
Pinn. 124. Where the court is of general
jurisdiction, the qualifications of the grand
jurors and the jurisdictional facts need
not be stated in the caption. The State
v. McCarty, 2 Chand. 199. When it was
set out, that the jurors, being “duly sum-
moned, sworn,” &c., “do present,” &c.,
omitting ‘upon their oath,” the present-
ment upon oaths was held sufficiently to
appear. Byam v. The State, 17 Wis.
145. See also The State v. Delue, 1
Chand. 166; Fizell v. The State, 25 Wis.
864.

407
§ 667 INDICTMENT AND ITS INCIDENTS. [Book Iv.

that it is unnecessary to insert their names in the caption!
though this was formerly doubted; but the caption must show,
that the offence was presented by twelve jurors. It should
appear that they were sworn and charged; but the omission
of the latter will not be fatal.? It has been holden necessary
to allege, that they were then and there sworn and charged, and
for what county or division. And it must appear that they
acted under the obligation of an oath; and, therefore, the cap-
tion should not only allege that they were sworn, but also that
they made their presentment upon oath; but it has been holden
in some instances that the words ‘present upon their oath’ sup-
ply the place of the words ‘sworn and charged’; and probably
this would now be holden sufficient in all cases. It is unneces-
sary to describe them as probdi et legales homines, for this is a
necessary intendment of law.” How, on these questions, the:
law is in our several States will appear in the foregoing notes.
But, —

§ 667. Entire Record. — From the foregoing expositions and
numerous adjudged cases the doctrine is abundantly derivable,
that, in considering whether or not an indictment is sufficiently
found, the whole record, whereof the caption and commencement
are parts, must be taken into view. What is deficient at one
place may be aided by what appears in another. Hence, as
well as because the jurisdictions of courts differ, there can be

1 Such also is the general doctrine in
this country. The State v. Cook, Riley,
234; McGarry v. People, 2 Lans. 227;
The State v. Coleman, 27 La. An. 691.

2 And see Reg. v. Watton, 6 Mod. 95.

31 Stark. Crim. Pl. 2d ed. 236, 287.
See also Reg. v. Butterfield, 2 Moody &
R. 522; Rex v. Vaws, 1 Mod. 24; Rex v.
Waite, 4 Mod. 248; Rex v. Roysted, 1
Keny. 255; Aylett v. Rex, 3 Bro. P. C.
529,6 A. & E, 247, note; Rex v. Fearn-
ley, 1 Leach, 4th ed. 425,1 T. R. 316;
Rex v. Davis, 1 Car. & P. 470; Dakin’s
Case, 2 Saund. 290 6; Rex v. Marsh, 6
A. & E. 286, note, 1 Nev. & P. 187. Stat-
ing in the caption that the court was held
on an impossible day is fatal. Rex v.
Fearnley;1 T.R.316. Mode of adminis-
tering Oath. —If one of the grand jurors
is a Quaker, the indictment should com-

408

mence, “The jurors for our lady the
queen, upon their oath and affirmation,
present,” &c. Anonymous, 9 Car. & P.
78. And it need not mention the reason
why some of the jurors affirm, instead of
being sworn. Commonwealth v. Fisher,
7 Gray, 492. See Rex v. Dann, 1 Moody,
424; and, as to New Jerseyathe preced-
ing note. A caption ran: “Upon the
oaths of twelve jurors, good, &c.,” then
and there sworn and charged to “inquire
Jor our said lady the queen, &c., it was
presented in manner and form following;
that is to say.” Then the commence-
ment: ‘Middlesex. The jurors of our
lady the queen, upon their oath, present,”
&c. And the whole was adjudged suf-
ficiently to show that the presentment
was by jurors for the queen. Broome v.
Reg. 12 Q. B. 884.
CHAP. XLII. ]

CAPTION AND COMMENCEMENT.

§ 668

no absolute standard as to what the caption alone, or the com-

mencement alone, shall contain.!

still, —

§ 668. Form of Commencement. ~The neat, proper, and usual
form for the commencement, where sufficient other matter is
stated in the caption or other part of the record, is —

‘* The Jurors of the State of
the People of the State of

 

 

[or of the Commonwealth of
, or of the United States of America] on their

, or o£

 

oath [or oath and affirmation 2] present, that, &c.’?

 

“County” or “ District.” — Sometimes this form is enlarged by
the words “in and for the body of the county of »?* or “in
and for the district of ——,’’® or ‘in and for the circuit and dis-

trict of

 

”;8 but the county, circuit, or district appears as

of course elsewhere in the record, rendering the insertion of this

matter here unnecessary.

“Oath” — is the proper word; yet the plural form “ oaths”
does not render the commencement ill.’
“Jurors” —is usual and sufficient; yet “grand jurors” is not

legally objectionable.’

Name and Authority of State. — Where the constitution requires
the prosecution to be “in the name and by the authority of the
State,” ° this matter is often, and always appropriately, put in

the commencement.”

1 Perkins v. The State, 50 Ala. 154;
The State v. Pearce, 14 Fla. 153; The
State v. Coleman, 27 La. An. 691; Millar
v. The State, 2 Kan. 174; Commonwealth
v. Mullen, 18 Allen, 551; Commonwealth
v. Hamilton, 15 Gray, 480; Williams v.
The State, 80 Texas, 404; McBean v.
The State, 8 Heisk. 20.

2 Ante, § 666, note; United States v.
Wilson, 1 Bald. 78; Commonwealth v.
Fisher, 7 Gray, 492.

3 Ante, § 655; Holloway v. Reg. 2 Den.
C. C, 287; Broome v. Reg. 12 Q. B. 834;
Commonwealth v. Glover, 111 Mass. 895;
Jeffries x. Commonwealth, 12 Allen, 145;
The State v. Bartlett, 55 Maine, 200;
Commonwealth v. Edwards, 4 Gray, 1, 6.

4 People v. Bennett, 87 N. Y. 117.

5 United States v. Wilson, supra.

6 United States v. Paul, 6 Pet. 141.

7 Jerry v. The State, 1 Blackf. 395;
The State v. Morris Canal and Banking
Co. 2 Zab. 587.

8 United States v. Williams, 1 Clif. 5;
Commonwealth v. Edwards, 4 Gray, 1;
The State v. Pearce, 14 Fla. 153.

9 Ante, § 652.

10 Wrocklege v. The State, 1 Iowa, 167;
Baurose v. The State, 1 Iowa, 874; The
State v. Reid, 20 Iowa, 418, 417; Fairlee
v. People, 11 Ill. 1; Commonwealth v.
Stephenson, 3 Met. Ky. 226; Long v. The
State, 12 Ga. 298; Mains v. The State,
42 Ind. 827; Lovell v. The State, 45 Ind.
650.

409
§ 671 INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

CHAPTER XLIII.

THE NAME AND ADDITION OF THE DEFENDANT AND THIRD
PERSONS.

§ 669,670. Introduction.
671-6765a. Addition and whether required.
676-682. Naming Defendants and Third Persons.
683-689 6. Further of the Name in Pleading.

§ 669. What for this Chapter.— Relating to the name and
addition of the defendant, there is much old law now nearly
obsolete. We shall be obliged to take some notice of it, as an
aid to the understanding of the law now in use. But the latter,
as to the names alike of defendants and third persons, will chiefly
occupy us in this chapter.

§ 670. How the Chapter divided. — We shall consider, I. The
Addition and whether required; II. The Naming of Defend-
ants and Third Persons; III. Further of the Name in Pleading.

_ I. The Addition and whether required.

§ 671. Under Ancient Law. — Under the early common law,
“it seems to have been sufficient,” says Starkie,! “to describe
the defendant by his Christian and surname, unless he was of
the degree of a knight or some higher dignity, in which case the
name of the dignity? was required to the name of baptism and
surname,’ or, in case of nobility, to supply the place of the sur-
name,” — exceptions which do not concern us. “If he were
indicted in respect of his office,t an addition of his office was
necessary.” Upon this, —

1 1 Stark. Crim. Pl. 2d ed. 45. 8 2 Inst. 665, 666.
211 H. 4, 40; Com. Dig. Ind. G.1; 4 Com. Dig. Ind. G. 1.
2 Inst. 665, 666; 10 E. 4,16; 11 H. 6,11.

410

ee
CHAP. XLII. ] NAME AND ADDITION.

§ 674

§ 672. Statute of Additions. — The Statute of Additions (1
Hen. 5, c. 5) was passed in 1418. It is: “In every original
writ of actions personals, appeals, and indictments, and in which
the exigent shall be awarded, in the names of the defendants in
such writs original, appeals, and indictments additions shall be
made of their estate or degree or mystery, and of the towns or
hamlets or places and counties of which they were or be, or in
which they be or were conversant; and if, by process upon the
said original writs, appeals, or indictments, in which the said
additions be omitted, any utlagaries be pronounced, that they
be void, frustrate, and holden for none; and that, before the
utlagaries pronounced, the said writs and indictments shall be
abated by the exception of the party, where, in the same, the said
additions be omitted. Provided,” &c., — the proviso having
plainly no application to our own country.

§ 678. Limited Application — (Bxigent — Outlawry). — By ex-
press terms, the reader perceives, this statute extends only to
cases ‘in which the exigent shall be awarded.” The exigent
was the first process in outlawry, to be issued when the defend-
ant was not found, or did not give himself up; and upon it
certain forfeitures, as well as outlawry, followed! Hence the
English courts held the addition to be unnecessary where “the
process of outlawry lieth not against” the defendant.2 But, —

How in this Country.— With us, we have seen, outlawry and
these forfeitures are unknown. Therefore, though this statute
is*early enough in date to be common law in this country, there
is here no scope for its application.* Still, —

§ 674. Continued. — This view, so conclusive of the question
in principle, has not always been in the minds of our judges; so

1 Jacob Law Dict. tit. Exigent.

2 Dacre’s Case, Cro. Eliz. 148.

3 Crim. Law, I. § 967-970.

# In an Indiana case, holding the ad-
dition to be unnecessary, Dewey, J., ob-
served: “ By the common law, no addition
was required in indictments against per-
sons under the degree of a knight. The
Statute of Additions, 1 Hen. 5, c. 5, enacts,
that defendants shall be described by
adding to their names their estate, de-
gree, or mystery, and place of residence,
in all cases in which the exigent shall be
awarded. It has been held, in the con-

struction of this statute, that, in prosecu-

tions which cannot be attended by the

process of outlawry, the indictment need
not give the addition of the defendant.
The exigent, being a step in the proceed-
ings of outlawry, is unknown to our law.
It is therefore evident, that the Statute of
Additions, from its own terms, is not ap-
plicable to prosecutions in this State;
and it is equally clear, that the common
law does not require the defendant to be
described by his addition in our indict-
ments.” The State v. McDowell, 6 Blackf.

49.
411
§ 6754 INDICTMENT AND ITS INCIDENTS. [B0oK Iv.

that there are States in which this Statute of Additions has not
only been accepted as common law, but applied in cases wherein,
by its terms, and by English adjudications, it could not be appli-
cable. On the other hand, in two or three of the States, out-
lawry has been known.! And there may have been colonial
statutes requiring the addition. Apparently the English Stat-
ute of Additions has been deemed of force, or some colonial or
State statute of the like sort has been, in Maryland,? Pennsyl-
vania,? New Hampshire,‘ Virginia,’ North Carolina,® Alabama,’
and Georgia.’ It has been rejected in Indiana.2 In 1796 a stat-
ute of additions was enacted in Kentucky.“ But subsequent
legislation in most of our States has rendered the addition un-
necessary, even if its necessity under the unwritten law of the
States were conceded.

§ 675. Later in England. — In 1826, in England, a wrong addi-
tion or the want of addition was, by Stat. 7 Geo. 4, c. 64, § 19,
made amendable, so that practically it became unimportant; and,
in 1851, Stat. 14 & 15 Vict. c. 100, § 24, declared the “ want of or
imperfection in the addition of any defendant” to be immaterial.
The latter statute provided also, in § 1, for amendments in the
body of the indictment to prevent an acquittal for variance be-
tween names charged and proved, when the defendant would not
be prejudiced thereby as to substantial rights of defence."

§ 675 a. How the Addition. — Where the addition is used, the
place and county should both be inserted; then should follow
the “estate or dignity,” as esquire, gentleman, yeoman, or fhe

1 Crim. Law, I. § 967, note.

2 Kilty Rep. Stats. 226, where the case
of The State v. Hughes is mentioned;
Hughes was indicted, without an addi-
tion, for assault; and his plea in abate-
ment, setting out this defect, was held to
be good. Says Kilty: “A reference was
made by one of the judges to several
acts of Assembly, in which the process
of outlawry was mentioned.” I presume
this is the same case which is reported,
The State v. Hughes, 2 Har. & McH. 479,
though the latter report is less satisfac-
tory than Kilty’s.

8 Report of Judges, 3 Binn. 599, 615;
Commonwealth v. Jackson, 1 Grant, Pa.
262; Commonwealth v. France, 2 Brews.
668. \

412

4 The State v. Moore, 14 N. H. 461.

5 Commonwealth v. Clark, 2 Va. Cas.
401.

6 The State v. Newmans, 2 Car. Law
Repos. 74.

7 Morgan v. The State, 19 Ala. 656.

8 Studstill v. The State, 7 Ga. 2. As
to Maine, see The State v. Bishop, 15
Maine, 122; The State v. Nelson, 29
Maine, 829.

® The State v. McDowell, 6 Blackf.
49.

10 Commonwealth v. Rucker, 14 B.
Monr. 228.

1 See Greaves Lord Campbell’s Acts,
1 et seq.
CHAP. XLII. ]

NAME AND ADDITION. § 677

like; or, at the election of the pleader, the “ mystery ” or busi-
ness. An unlawful occupation, as maintainer, extortioner, vaga-
bond, is not good in addition. Advantage of an error or want
of addition can be taken only by plea in abatement or motion
to quash.!

II. The Naming of Defendants and Third Persons.

§ 676. Defendant by Name. — The defendant must be charged
by his name ;? except, —

Impossible. — If from any cause this is impossible,? the doc-
trine of necessity will excuse it. Yet still the pleader must
come as near to it as he can. For example, —

Refusing to disclose Name. — In 1822, in England, before mis-
nomer was declared by 7 Geo. 4, c. 64, § 19, to be no longer
ground of abatement, an unknown prisoner refused to disclose
his name. And by advice of the judges he was “indicted as a
person whose name was unknown, but who was personally brought
before the jurors by the keeper of the prison.” > And, —

Known in Part.—If a part only of a name is known, it
should be given, supplemented by the proper excuse for not
stating the rest.

§ 677. Why Name required — Identification. — The purpose of
requiring the name, whether of the defendant or of a third per-
son,’ is identification. Hence, —

How avail of Defect — Defendant — Third Person. — A defend-
ant not correctly named can take advantage of the error only
by a plea in abatement, wherein he must state what his true
name is; not doing this, he will be conclusively presumed to
be the person, whatever be the real fact.8 But a mistake in the
name of a third person, in a material allegation, will be fatal

11 Stark. Crim. Pl. 2d ed. 47-68; 1
Chit. Crim. Law, 204-211; The State v.
Bishop, 15 Maine, 122; Rex v. Warren,
1 Sid. 247, 1 Keb. 885; Long v. The State,
88 Ga. 491; post, § 791.

21 Chit. Crim. Law, 202.

8 Ante, § 493 et seq., 546 et seq.

4 Ante, § 549.

5 Rex v. , Russ. & Ry. 489.

6 Morningstar v. The State, 52 Ala.
405. See Stone v. The State, 80 Ind.

 

115; Kelley ». The State, 25 Ark. 392;
The State v. Bayonne, 23 La. An. 78;
Kriel v. Commonwealth, 5 Bush, 362.
See post, § 678.

7 Ante, § 566; The State v. Angel, 7
Ire. 27,

8 2 Hale P. C. 238; 1 Chit. Crim. Law,
202; The State v. Duestoe, 1 Bay, 877;
Commonwealth v, Dedham, 16 Mass. 141,
146; Thompson v. Elliott, 6 Misso. 118;
Salisbury v. Gillett, 2 Scam. 290; Lynes

4138
§ 679 INDICTMENT AND ITS INCIDENTS. [Book Iv.

at the trial; for it creates a variance between allegation and
proof.

§ 678. Statutes as to Defendant unknown. — Something under
this head has already been mentioned.2, Where the provision
was, that, if the defendant’s name “cannot be discovered,” he
may be ‘described by a fictitious name, with the statement that
his real name is unknown,” it was held sufficient to say, “a man
in Turner Hall, whose name to the grand jurors is unknown.”
In Indiana, “a man calling himself L. J. Jones, whose given
name is to the grand jurors unknown,” was adjudged sufficient.‘
In Alabama, “under § 8505 of the Code, an indictment cannot
be held bad for the mere omission of the Christian name of the
defendant, if it contains an allegation that his Christian name
is unknown to the jury, and if it is in all other respects unob-
jectionable.”> Practically, —

Various Methods. There are various ways to overcome the
difficulty of not knowing the defendant’s name. Besides the
foregoing, —

Charging Fictitious Name. — The grand jury can, if they choose,
charge him by a mere fictitious name as though known to be
his own. Then, if he elects not to be tried by it, he must plead
the misnomer in abatement and give his true name,® which they
can substitute for the old in a fresh indictment.’ Or, by statutes
in some of our States, the true name may, on tender of the plea,
be substituted for the fictitious, as already explained.

§ 679. Warrant of Arrest against Unknown — Not all the fore-
going methods are adapted to a warrant of arrest. Where, in
Massachusetts, such warrant was attached to the complaint set-
ting out the offence, and it was against “‘ John Doe or Richard
Roe, whose other or true name is to your complainant unknown,”
it was adjudged inadequate; because, while on its face it did
v. The State, 5 Port. 236; Carpenter v. 3 Geiger v. The State, 5 Iowa, 484.
The State, 8 Misso. 291; Commonwealth 4 Jones v. The State, 11 Ind. 857. See
v. Lewis, 1 Met. 151; Christian Society v. Gardner v. The State, 4 Ind. 632.
Macomber, 3 Met. 285; The State v. 5 Rice, C. J., in Skinner v. The State,
White, 32 Iowa, 17; The State v. Bru- 30 Ala. 524, 525. And see ante, § 676.
nell, 29 Wis. 435; Wilcox v. The State, ® Ante, § 677.

81 Texas, 586. And see The State v. 7 1 Chit. Crim. Law, 208.
Burns, 8 Nev. 251. 8 Ante, § 97; Lasure v. The State, 19

1 Ante, § 488; 1 Chit. Crim. Law, 216; Ohio State, 48. And see The State v.
McBeth v. The State, 50 Missis. 81. See Burns, 8 Nev. 251.

Unger v. The State, 42 Missis, 642, ® Ante, § 227, 285.
2 Ante, § 87, 88.

414
CHAP. XLIII.] NAME AND ADDITION. § 681

not give the defendant’s real name, it did not “contain,” as it
ought, a “description or designation by which he could be known
and identified as the person against whom it was issued.” Thus
defective, it violated alike the common-law rules, and the con-
stitutional inhibition of warrants without a special designation
of the persons or objects of search, arrest, or seizure! And —

§ 680. Alleging Excuse of Unknown. — An indictment, and, it
is believed, the warrant of arrest, not giving the name, must,
to be good, allege in excuse that it is unknown?

§ 681. Alias Dictus. —If it is uncertain by which of two or
more names the defendant should be designated, the method is
to give both or all, connected by an alias dictus ; as, —

That John Richardson, late of, &c., laborer, otherwise called John Baldwin,
late of, &c.?

And proof of one will sustain the allegation. It was formerly
held, that, since a person cannot have two Christian names,® an
indictment alleging two under an alias dictus — as, Elizabeth
Newman, alias Judith Hancock — is bad,§ But Chitty shows
this ruling to be a mistake; for the law has always recognized
the fact, that men may be and sometimes are called by different
Christian names,’ and such is exactly what the indictment under
an alias dictus alleges.2 It is not believed that this old doctrine
would now be followed by our courts.°

known,” is sufficient.
State, 86 Ala. 270.

1 Commonwealth v. Crotty, 10 Allen, Bryant v. The

403, 404, opinion by Bigelow, C. J., refer-

ring to 1 Hale P. C. 577; 2 ib. 114; Fos-
ter, 312; 7 Dane Abr. 248; 1 Chit. Crim.
Law, 89; Mead v. Haws, 7 Cow. 332.
Compare this case with Bailey v. Wig-
gins, 5 Harring. Del. 462. Chitty says:
“If the name of the party to be arrested
be unknown, the warrant may be issued
against him by the best description the
nature of the case will allow; as ‘the
body of a man whose name is unknown,
but whose person is well known, and who
is employed as the driver of cattle, and
wears a badge No. 578.’” 1 Chit. Crim.
Law, 29, 40.

2 Ante, § 676; Campbell v. The State,
10 Ind. 420; The State v. Hand, 1 Eng.
165. An indictment charging that the
defendant “killed Butler, whose
Christian name is to the grand jury un-

 

8 2 Chit. Crim. Law, 2.

4 Barnesciotta v. People, 10 Hun, 18%.
And see 1 Chit. Crim. Law, 446; Rex v.
Clark, 1 D. & R. 43; Rex v. Cook, 4 D.
& R. 114; Kennedy vu. People, 39 N. Y.
245, 250-253.

5 Post, § 683.

6 Rex v. Newman, 1 Ld. Raym. 562.
And see Gabe ». The State, 1 Eng. 519;
Evans v. King, Willes, 554 ; Scott v. Soans,
8 East, 111.

7 Walden v. Holman, 6 Mod. 115;
Weleker v. Le Pelletier, 1 Camp. 479;
The State v. Dresser, 54 Maine, 569;
Taylor v. Commonwealth, 20 Grat. 825;
Commonwealth v. Desmarteau, 16
Gray, 1.

8 1 Chit. Crim. Law, 208, note.

9 Addition. — Where an addition was

415
§ 688 INDICTMENT AND ITS INCIDENTS. [BooK Iv.

§ 682. Corporation. — An indictment against a corporation prop-
erly describes it by its corporate name. The words ‘ The Ver-
mont Central Railroad Company, a corporation existing under
and by force of the laws of this State, duly organized and doing
business,”’ were held in Vermont to be sufficient.!. Some vari-
ations from this may be allowed; as, in Massachusetts, the
words, ‘The town of Dedham, in said county of Norfolk,” in-
stead of “the inhabitants of the town,” &c., were held to be
well enough.2, And, in England, a company registered as “A
and B Joint Stock Bank” was held to be adequately described
in an indictment as “A. and B. Banking Company,” the name
used in its general business. The indictment should show on
its face that a name in it is a corporation’s, if such in fact.*
‘Where the name of a town was changed pending an indictment
against it, the court refused to quash the indictment, deeming
that proceedings might go on to judgment and sentence in the
old name}

Ill. Further of the Name in Pleading.

§ 688. Christian Name — Surname — Middle Name. — Though a
man may be called by two or more Christian names,® there are
old cases and some modern ones which hold, that the law rec-
ognizes but one ;‘ and, if the person in the indictment or in the

necessary, an indictment against “James
George Harrold, otherwise Semple, other-
wise Kennedy, laborer,” was quashed;
because the addition “laborer” referred
only to Kennedy, and not to Semple or to
Harrold. Rex v. Semple, 1 Leach, 4th
ed. 420; s. p. Fusse’s Case, Cro. Eliz. 583.
Lord Hale says: ‘‘ Regularly the addition
refers to the last antecedent; and, upon
the same reason it is, if the indictment
runs Sibilla B. nuper de C., uxor Johannis
B. nuper de C., spinster [it will be insuf-
ficient] ; because spinster is an addition
applicable to the husband, as well as to
the wife. But an indictment of John B.
vir Emelin B., nuper de C., yeoman, is
good; because yeoman is not applicable
to a woman, but to a man.” 2 Hale
P. C. 177.

1. The State v. Vermont Central Rail-
road, 28 Vt. 583. And see Rex v. Patrick,
1 Leach, 4th ed. 268, 2 Hast P. C. 1059.

416

2 Commonwealth v. Dedham, 16 Mass.
141, 147.

3 Rex v. Atkinson, 2 Moody, 278. But
see McGary v. People, 45 N. Y. 153.
Where the corporate name of a bank was
“ President and Directors of the Bank of
South Carolina,” an indictment for coun-
terfeiting one of its bills was held inade-
quate which described it as the ‘“ Bank
of South Carolina.” The State v. Waters,
8 Brey. 507, 2 Tread. 669. And see
Noakes v. People, 25 N. Y. 880; Reg. v.
Beard, 8 Car. & P. 148; Reg. v. Carter, 1
Den. C. C. 65, 1 Car. & K. 741.

4 Wallace v. People, 63 Ill. 451; Peo-
ple v. Schwartz, 32 Cal. 160.

5 Commonwealth v. Phillipsburg, 10
Mass. 78.

6 Ante, § 681.

7 Rex v. Newman, 1 Ld. Raym. 662.
And see Co. Lit. 8a; 1 Stark. Crim. Pl.
2d ed. 46.
CHAP. XLII. ] NAME AND ADDITION. § 683

proof has a middle name or initial, all but the first and last
names is to be regarded, even on a question of variance, as mere
surplus matter,! the middle name or initial not being a part
either of the Christian name or surname.? Other cases hold,
that, though the middle name or initial need not be inserted,
yet, if it is, and is wrong, the defect will be fatal. In accord-
ance with both these opinions, it is inadequate to charge a man
simply by his middle name and surname, omitting his Christian
name.* It is well known, that, in modern times, and especially
in this country, a man’s middle name is practically as important
in any designation of him as either his Christian name or sur-
name; and, recognizing this fact, some of our courts hold, in
accordauce with the true reason of the law, that the middle
name is a part of the name, which must be correctly laid and
proved like the other parts. And why is not a middle name,
bestowed by baptism or by common use, a part of the Christian

name ?5

1 The State v. Williams, 20 Iowa, 98;
Edmundson v. The State, 17 Ala. 179;
The State v. Smith, 7 Eng. 622; Erskine
v. Davis, 25 Ill. 251; Hart v. Lindsey, 17
N. H. 285; Girous v. The State, 29 Ind.
93; Choen v. The State, 52 Ind. 3847;
West v. The State, 48 Ind. 483; Miller v.
People, 39 Ill. 457. See Dodd v. The
State, 2 Texas Ap. 58.

2 The State v. Manning, 14 Texas,
402; People v. Cook, 14 Barb. 259.

3 Price v. The State, 19 Ohio, 423;
The State v. Hughes, 1 Swan, Tenn. 261.

4 The State v. Martin, 10 Misso. 391.
And see Timms v. The State, 4 Coldw.
188.

5 It seems to me, that Walden v. Hol-
man, 6 Mod. 115, s. c. Holman v. Walden,
1 Salk. 6,a case by no means modern,
almost affirms that a man may have two
Christian names. Said “ Holt, C. J., and
the rest of the court,” according to the
report in Modern: “Nor is it true that
one baptized by the name of John can-
not be known by another name. Sir
Francis Gawdy acquired a new name by
his confirmation, without, as Holt, C. J.,
said, losing his Christian name; at least,
he said, he was not satisfied that his
name of baptism did cease upon his tak-
ing a new name of confirmation, as Pow-

VOL. I. 27

ell, J., would have it.” See also Weleker
v. Le Pelletier, 1 Camp. 479. When, with
us, a child is named in his infancy John
William, for instance, and he is always
afterward known as John William, with
the addition of his father’s surname, it is
but matter of common sense to say, that
William is just as much a part. of his
name — indeed, of his Christian name —
as John. If he was familiarly called
John, without the William, and was
known by the name of John as well as
by the name of John William, then it
should be deemed sufficient to describe
him in the indictment either way. And
see Rex v. Brinklett, 3 Car. & P. 416;
Rex v. ,6 Car. & P. 408; Rex v.
Berriman, 5 Car. & P. 601. In accord-
ance with this view, where, in Massachu-
setts, one was indicted by the name of
Thomas Perkins, and he pleaded in abate-
ment that his name was Thomas Hopkins
Perkins, to which plea the attorney for
the Commonwealth demurred, the court
held that the objection was well taken,
and the demurrer could not be sustained.
“The indictment,” said the court, “ must
give the defendant his right Christian
name.” Commonwealth v. Perkins, 1
Pick. 388. Likewise, in the same State,
it was held that Charles Jones Hall was

417

 
§ 685 INDICTMENT AND ITS INCIDENTS. [BooK Iv.
\

§ 684. Both Christian Name and Surname. — Contrary to some
early cases,! it is settled in modern law that both the Christian
name and the surname must be given, and a plea of misnomer
of either will be good.2 But the court, it has been held, does
not know judicially that every man has of necessity two names.®

§ 685. Initials. — There is no reason why a man should not
be known as well by a single letter for his name as by many
letters. Hence, if one is commonly designated by initials for
his Christian and middle name, so that their use indicates plainly
who is meant, it is the doctrine to which the tribunals have been
tending and most of them have reached, that such initials are
adequate in the indictment. To render this doctrine available,
the man must be known by the initials.® And allegation by
the initial, and mere proof by the whole name without ex-
planation, or the contrary, appear not to be adequate; though,

in such case, it would seem, the question is for the jury.®

Some

courts have deemed, that, when one is indicted by initials for his

not properly enrolled in the militia under
the name of Charles Hall. Said Morton,
J.: “Charles Jones is the respondent’s
Christian name. It needs no argument
to prove, that Charles and Charles Jones
are different names.” Commonwealth v.
Hall, 8 Pick. 262, 268. And see The
State v. Homer, 40 Maine, 488; Hayney
v. The State, 6 Pike, 72; The State v.
Dudley, 7 Wis. 664; Mead v. The State,
26 Ohio State, 505. But see The State ».
Houser, Busbee, 410. See also Dodd v.
The State, 2 Texas Ap. 58.

1 See 1 Stark. Crim. Pl. 2d ed. 45, 46;
Anonymous, 8 Dy. 285 a.

2 The State v. Lorey, 2 Brev. 395;
The State v. Hand, 1 Eng. 165; People v.
Kelly, 6 Cal. 210; Gabe v. The State, 1
Eng. 540; Rex v. Shakespeare, 10 East,
83.

3 Boyd v. The State, 7 Coldw. 69.

4 United States v. Winter, 13 Blatch.
276; The State v. Anderson, 3 Rich. 172;
Vandermark v. People, 47 IIL. 122;
Thompson v. The State, 48 Ala. 165;
Franklin v. The State, 52 Ala. 414; Mitch-
um v. The State, 11 Ga. 615; The State
v. Seely, 30 Ark. 162; The State v. Brite,

73 N. C. 26; The State v. Black, 31 Texas,

560; The State v. Wall, 89 Misso. 582.
418

A consonant may be presumed to be an
entire Christian name as well as a vowel.
Tweedy v. Jarvis, 27 Conn. 42. <A jurat
is good where only the initials of the offi-
cer taking it are given. Rice v. People,
16 Mich.9. The initials of the foreman’s
Christian name, with his surname in full,
are a sufficient signature to an indictment.
Easterling v. The State, 85 Missis. 210;
Wassels v. The State, 26 Ind. 80; Ander-
son v. The State, 26 Ind. 89. And see
The State v. Pierce, 8 Iowa, 281; Stone
v. The State, 30 Ind. 115; Aikin v. The
State, 35 Ala. 899. Where a prefix toa
surname is abbreviated in ordinary use,
it may be so in the indictment; as Mc-
Kusick for MacKusick. The State v.
Kean, 10 N. H. 847, 351.

5 United States v. Winter, supra; Van-
dermark v. People, supra; Diggs v. The
State, 49 Ala. 311.

6 City Council v. King, 4 McCord,
487; Graham v. The State, 40 Ala. 659;
The State v. McMillan, 68 N. C. 440;
The State v. Taylor, 15 Kan. 420; Tardy
v. The State, 4 Blackf. 152; Mitchum ».
The State, 11 Ga. 615; Franklin v. The
State, 52 Ala. 414. And see Hardin v.
The State, 26 Texas, 113; The State v.
Henderson, 68 N. C. 848.
CHAP. XLIII.]

NAME AND ADDITION.

§ 687 a4

Christian name, a plea in abatement will be available,! yet the
proceeding will be good after verdict.?

§ 686. True Name — Commonly known. — A name by which
the person is commonly known will be good, though differing

from his name of baptism.®

Still the baptismal or other true

mame will be equally good 34 and either, in these circumstances,

‘may be employed.5

surname.

| Bastard. — A bastard does not bear as of course his mother’s
By it, therefore, he can be designated in pleading

only after he has acquired it by reputation.®
§ 687. Junior — Senior. — ‘ Junior” and “senior” are no part

of a name, however commonly employed.’

If either is omitted,®

or inserted where not proper,® this will not create a variance or

otherwise injure the indictment.

In one case, however, there

being in town a father and his son, commonly known as senior
and junior, the court would not permit evidence of adultery with

the son on an allegation omitting the “junior.”

So—

Addition. — An addition not required need not be proved."
§ 687 a. Name changed. — We have seen™ that a change in
the defendant’s name while an indictment is pending is no

ground of abatement.

So, if, for example, a woman is robbed,

then she changes her name by marriage, the indictment for

1 See ante, § 677.

2 Smith v. The State, 8 Ohio, 294. See
The State v. Webster, 830 Ark. 166; Ger-
rish v. The State, 53 Ala. 476; Common-
wealth v. Hamilton, 15 Gray, 480; The
State v. McMillan, 68 N. C. 440; Com-
monwealth v. Melling, 14 Gray, 388.

8 Commonwealth v. Desmarteau, 16
Gray, 1; McBeth v. The State, 50 Missis.
81; The State v. Bundy, 64 Maine, 507;
The State v. Johnson, 67 N. C. 55; Rex
v. Norton, Russ. & Ry. 510. See Reg. v.
Smith, 4 Fost. & F. 1099; The State v.
Thompson, 20 N. H. 250.

4 Rex v, Williams, 7 Car. & P. 298.

5 Bell v. The State, 25 Texas, 574;
The State v. Libby, 44 Maine, 469; Tay-
lor v. Commonwealth, 20 Grat. 825; The
State v. Dresser, 54 Maine, 569.

6 Rex v. Clark, Russ. & Ry. 358. And
see 1 Russ. Crimes, 3d Eng. ed. 656 ; Rex
v. Smith, 6 Car. & P. 151, 1 Moody, 402.
An illegitimate child six weeks old was
baptized on Sunday, and thence to the

following Tuesday was called by its
name of baptism and mother’s surname.
This, on an indictment for murder de-
scribing it by these names, was held to
justify a jury in finding the names to be
as laid. Reg. v. Evans, 8 Car. & P. 765.

7 Cobb v. Lucas, 15 Pick. 1, 7; Kin-
caid v. Howe, 10 Mass. 203, 205; Com-
monwealth v. Perkins, 1 Pick. 888; Peo-
ple v. Collins, 7 Johns. 549; Brainard v.
Stilphin, 6 Vt. 9; People v. Cook, 14
Barb. 259; The State v. Weare, 38 N. H.
814; Commonwealth v. Beckley, 3 Met.
880; Commonwealth *v. East Boston
Ferry, 13 Allen, 589.

8 Pell v. Prevost, 2 Caines, 164; Hodg-
son’s Case, 1 Lewin, 236.

9 Commonwealth v. Perkins, 1 Pick.
388.

10 The State v. Vittum, 9 N. H. 519.

ll Reg. v. Keys, 2 Cox C. C. 225; The
State v. Flye, 26 Maine, 312.

12 Ante, § 682.

419
§ 689 [BOOK Iv.

INDICTMENT AND ITS INCIDENTS.

robbery may charge it as committed on her by her maiden
name.}

§ 688. Idem Sonans — (Orthography). — The law not regarding
orthography,” no harm can come from misspelling a name,? pro-
vided it is idem sonans with the true spelling.t There are nice
questions as to what is idem sonans ; the following names, among
many others,> have been held to be: Blackenship and Blanken-
ship ;® Whyneard and Winyard, pronounced Winnyard ;7 Mich-
ael and Michaels;8 McInnis and McGinnis; Edmindson and
Edmundson ; Deadema and Diadema;" Conly and Conolly ; 2
Hutson and Hudson; Chambles and Chambless. Stone, J.,
in the last-mentioned case, said: “The books abound in hair-
breadth distinctions; but we apprehend the true rule to be, that,
if the names may be sounded alike without doing violence to the
power of the letters found in the variant orthography, then the
variance is immaterial.” * The following, among others, have
been held not to be of the same sound, within the rule: Don-
ald and Donnel;1® Shakepear and Shakespeare ; 1” Comeyns and
Cummins; 8 Gabriel Carter and Carter Gabriel.’

§ 689. Same Names in Differing Forms. — Chitty says: “If two
names are, in original derivation, the same, and are taken pro-
miscuously in common use, though they differ in sound, yet
there is no variance.” 29 This is because, when one form of the

1 Rex v. Turner, 1 Leach, 4th ed. 536.

2 See ante, § 337, 338.

3 2 Hawk. P. C. ec. 27, § 81.

4 Tibbets v. Kiah, 2 N. H. 557; Petrie
v. Woodworth, 8 Caines, 219; Common-
wealth v. Gillespie, 7 S. & R. 469; The
State v. Upton, 1 Dev. 513; Rex v. Shake-
speare, 10 East, 83; The State v. Lincoln,
17 Wis. 579. And see People v. May-
worm, 5 Mich. 146.

5 Aaron v. The State, 87 Ala. 106;
The State ». Mahan, 12 Texas, 283;
Reg. v. Wilson, 1 Den. C. C. 284; Com-
monwealthv. Stone, 103 Mass. 421 ; Cleave-
land v. The State, 20 Ind. 444; McDonald
v. People, 47 Ill. 583; Lytle v. People, 47
Ill. 422; Houston v. The State, 4 Greene,
Iowa, 487 ; Beneux v. The State, 20 Ark.
97; The State v. Farr, 12 Rich. 24; The
State v. Lincoln, 17 Wis. 579; The State
v. Wheeler, 85 Vt. 261; The State v.
Stedman, 7 Port. 495; McLaughlin »v.
The State, 52 Ind. 476.

420

6 The State v. Blankenship, 21 Misso.
604.

7 Rex v. Foster, Russ. & Ry. 412.

8 The State v. Houser, Busbee, 410.
§ Barnes v. People, 18 Ill. 52.

10 Edmundson v. The State, 17 Ala.
179.

Ul The State v. Patterson, 2 Ire. 346.

12 Fletcher v. Conly, 2 Greene, Iowa,
88.
13 The State v. Hutson, 15 Misso. 512;
Chapman v. The State, 18 Ga. 736.

14 Ward v. The State, 28 Ala. 53.

16 Amann v. People, 76 Ill. 188 ; United
States v. Howard, 3 Sumner, 12; Rex v.
Carter, 6 Mod. 168; Mathews v. The
State, 33 Texas, 102; The State v. Toney,
13 Texas, 74.

16 Donnel v. United States, Morris, 141.

Vv Rex v. Shakespeare, 10 East, 83.

18 Cruikshank v. Comyns, 24 Ill. 602.

19 Collins v. The State, 43 Texas, 577.
1 Chit. Crim. Law, 203, referring to

8
CHAP. ‘XLIII.] NAME AND ADDITION. § 689 6

name is spoken or written, the memory of the hearer is impressed
likewise with the other, and he employs the one or the other
indifferently, like any other synonymes. Thus it is said in Bacon’s
Abridgement, that Piers and Peter are the same; because, as
appears from some acts of Parliament, they “have been used
promiscuously, as signifying the same person. So Saunders and
Alexander, Jane and Joan, Jean and John, Garret, Gerat, and
Gerald, are the same names.”! This doctrine of the common
law appears: to have had some recognition in our courts,? but
not hitherto enough to be pronounced affirmatively a part of our
unwritten law.?

§ 689 a. How allege Name. — Where the name has been once
fully set out, repetitions may be made by a part of it, accom-
panied by the word “said” or “aforesaid,” if there is nothing
to create an ambiguity. Not always is even such a repetition
necessary ; as, for example, the nominative may by construction
extend through the sentence.5 And sometimes, by rejecting sur-
plusage, we may render harmless a mistake in the repetition.$

§ 689 6. Proof of Name.— The proof must be of the whole
name, not of the Christian name or surname alone;’ and, as
we have seen, it must correspond to the allegation, or the vari-
ance will be fatal. Other questions connected with the proof

belong rather to the general law of evidence.®°

2 Rol. Abr. 185; Bac. Abr. Misnomer,
where the instances of this principle are
stated at large.

1 Bac. Abr. Misnomer, A.

2 Wilkerson v. The State, 13 Misso.
91.

3 Commonwealth v. Terry, 114 Mass.
268; The State v. Godet, 7 Ire. 210; Ken-
nedy v. Merriam, 70 IIl. 228.

* The State v. Pike, 65 Maine, 111;
The State v. Coppenburg, 2 Strob. 273.

5 The State v. Hand, 1 Eng. 165.

6 Ante, § 481, note; Musquez v. The
State, 41 Téxas, 226; The State v. Hen-
derson, 68 N. C. 348. :

7 Charleston v. Schroeder, 4 Rich. 296 ;
People v. Hughes, 41 Cal. 284; Hensley
v. Commonwealth, 1 Bush, 11; Reg. v.
Dent, 2 Cox C. C. 354.

8 Ante, § 488; The State v. Houston,
19 Misso. 211; The State v. Lincoln, 17
Wis. 579; Owen v. The State, 48 Ala.
328; Reg. v. Frost, Dears. 474, 29 Eng.
L. & Eq. 546; Whittle v. Frankland,
2B. & 8.49; The State v. Harrison, 69
N. C. 143; Reg. v. Wilson, 1 Den. C. C.
284, 2 Car. & K. 527. /

9 The State v. Dillihunty, 18 Misso.
331; Mershon v. The State, 51 Ind. 14;
Commonwealth v. Dillane, 1 Gray, 488;
Reg. v. Douglas, Car. & M. 193; Com-
monwealth v. Crawford, 9 Gray, 129;
Shepherd v. People, 72 Ill. 480; United
States v. Dodge, Deady, 186; Meyer »v.
The State, 50 Ind. 18; Commonwealth v.
Stone, 103 Mass. 421; Reg. v. Toole,
Dears. & B. 194, 7 Cox C. C. 266, 40 Eng.
L. & Eq. 683.

421
§ 691

INDICTMENT AND ITS INCIDENTS.

[Book Iv.

CHAPTER XLIV.

THE INDORSEMENT OF THE PROSECUTOR'S NAME ON THE
INDICTMENT.

§ 690. Private Prosecutor.— We have seen that, in England,
indictments are generally found at the instigation of a private
prosecutor, and sometimes they are here."

§ 691. Liabilities — (Malicious Prosecution). — Such prosecutor

is, at the common law, under some liabilities; as, for instance,
if the prosecution was both malicious and without probable cause,
the prisoner, on being acquitted, may maintain against him a
civil action for damages. Also, —

Costs and Expenses. — Under statutes existing to some extent in
both countries, the prosecutor is in certain circumstances, not in
all, liable to pay the costs of the proceeding when it is frivolous
or malicigus, or even when it simply fails.2 And, on the other
hand, in England, he is sometimes compensated or reimbursed
from the public treasury for a successful prosecution,’ or occa-

1 Ante, § 278; 1 Chit. Crim. Law, 1 et
seq.
2 1 Chit. Crim. Law, 9, 10; Farmer v.
Darling, 4 Bur. 1971; Johnstone v. Sut-
ton, 1 T. R. 510, 544, 545; Davis v. Hardy,
6 B. & C. 225; Basebe v. Matthews, Law
Rep. 2 C. P. 684; Stone v. Stevens, 12
Conn. 219; Ash v. Marlow, 20 Ohio, 119;
Stewart v. Thompson, 1 Smith, Pa. 158.

3 Reg. v. Steel, 1 Q. B. D. 482; Rex v.
Filewood, 2 T. R. 145; Frazer v. The
State, 2 Swan, Tenn. 535; The State v.
Green, 2 Head, 356; Commonwealth v.
St. Clair, 1 Grat. 656; The State v.
Cockerham, 1 Ire. 881; Office v. Gray, 2
Car. Law Repos. 424; The State v. For-
syth, Taylor, 21; Rex v. Righton,3 Bur.
1694; The State v. Darr, 63 N.C. 516;
Commonwealth v. Hargesheimer, 1 Ashm.

422

413; Commonwealth v. Philadelphia, 4
S. & R. 541; The State v. Holliday, 22
Iowa, 897; In re Ebenhack, 17 Kan. 618;
Gault v. Wallace, 53 Ga. 675; The State
v. McCarty, 4 R. 1. 82; Rex v. Watton,
4 Car. & P. 229; Guffy v. Commonwealth,
2 Grant, Pa. 66; The State v. Donnell,
11 Iowa, 452; The State ov. Menhart, 9
Kan. 98; Commonwealth v. McCuen, 25
Smith, Pa. 215; Margrave v. United
States, Morris, 452; Commonwealth v.
Hill, 9 Leigh, 601; Rex v. Salwick, 2
B. & Ad. 186; Rex v. Chadderton, 5 T. R.
272; York v. Jacobs, 8 Pa. 365; Burns v.
The State, 6 Ala. 227; Ex parte Cain, 9
Misso. 769. And see In re Kelly, 62 N. Y.
198.

* Reg. v. Oswestry, 12 Q. B. 289; Reg.
v. Williams, 6 Q. B. 278; Reg. v. Dobson,

¢
CHAP. XLIV.] INDORSEMENT OF PROSECUTOR'S NAME.

§ 692

. sionally for proper steps taken short of a conviction,! or the
defendant is required to pay costs to him.? He is not a party ;
and, in these cases as in others, the costs and expenses, whether
on the one side or the other, are a mere creature of statute, re-
coverable only when and to the extent prescribed.2 Hence, —

Indorsement by Prosecutor. —In some of the States, the stat-
utes require the prosecutor’s name to be indorsed on the indict-
ment. Ina part of these States, the indorsement need be only
on certain indictments, not on all.4

§ 692. Directory or Mandatory. — Some of these statutes are
construed as only directory, so that the omission of the indorse-
ment does not render the indictment invalid. But the statute
in most of the States is by construction or its terms mandatory ;

9 Q. B. 802; Rex v. Gilbie, 5 M. & S. 520;
Reg. v. Hanson, 2 Car. & K. 912, 4 Cox
C. C. 188; Rex v. Millington, 1 Car. & P.
88; Rex v. Powell, 1 Car. & P. 96; Rex
v. Osborne, 4 Bur. 2125; Rex v. Richards,
2 Man. & R. 405, 8 B. & C. 420; Rex v.
Johnson, 1 Moody, 173; Reg. v. Butter-
wick, 2 Moody & R. 196; Rex v. Cook, 1
Man. & R. 526; Rex v. Johnson, 4 M.
& S. 515; Wormersly’s Case, 2 Lewin,
162; Lewen’s Case, 2 Lewin, 161; Rex
v. Paine, 7 Car. & P. 138.

1 Rex v. Robey, 5 Car. & P. 552.

2 Reg. v. Roberts, Law Rep. 9 Q. B.
77; Rex v. Thompkins, 2 B. & Ad. 287;
Rex v. Moate, 3 B. & Ad. 237; Rex v.
Williamson, 7 T. R. 82; Rex v. Ingleton,
1 Wils. 189; Reg. v. Manchester, 7 Ellis
& B. 453, 40 Eng. L. & Eq. 141; Reg. v.
Preston, 7 Dowl. P. C. 593; Reg. v. Vow-
church, 2 Car. & K. 893; Reg. v. Taun-
ton, 3 M. & S. 465; Rex vo. Bird, 2 B. &
Ald. 522; Rex v. Clifton, 6 T. R. 844;
Rex v. Wingfield, 1 W. Bl. 602; Reg. v.
Merionethshire, 6 Q. B. 348; Rex v. Tur-
ner, 15 East, 570; Rex v. Dewsnap, 16
East, 194; Rex v. Chamberlayne, 1 T. R.
108; Reg. v. Hawdon, 11 A. & E. 148;
Rex v. Exeter, 5 Man. & R. 167; Rex v.
Waldegrave, 2 Q. B. 341; Rex v. Barrett,
2 Lewin, 263; Rex v. Dewhurst, 2 Nev.
& M. 263, 5 B. & Ad. 405; Reg. v. Pem-
bridge, 3 Q. B. 901.

8 Hansard v. The State, 5 Humph.
115; Carter v. Hawley, Wright, 332 ; The

State v. Abrams, 4 Blackf. 440; Rex v.
Richardson, 6 D. & R. 141.

4 As to when the indorsement is re-
quired, and when not, see McWaters v.
The State, 10 Misso. 167; The State v.
McCourtney, 6 Misso. 649; The State v.
Hurt, 7 Misso. 321; United States v.
Flanakin, Hemp. 30; Lucy v. The State,
8 Misso. 134; The State v. Brown, 5 Eng.
104; Wortham v. Commonwealth, 5 Rand,
669 ; The State v. Robinson, 9 Fost. N. H.
274; Commonwealth v. Bybee, 5 Dana,
219; The State v. Moles, 9 Misso. 694;
Commonwealth v. Gore, 3 Dana, 474;
The State v. McCann, Meigs, 91; United
States v. Mundel, 6 Call, 245; Gabe v.
The State, 1 Eng. 540; The State v. Stan-
ford, 20 Ark. 145; The State v. Scott, 25
Ark. 107; White v. The State, 13 Ohio
State, 569; Baker v. The State, 12 Ohio
State, 214; Commonwealth v. Patterson,
2 Met. Ky. 374; The State v. Rogers, 37
Misso. 867; The State v. Harrison, 19
Ark. 565; Bedford v. The State, 2 Swan,
Tenn. 72; The State v. Gossage, 2 Swan,
Tenn. 268; Molett v. The State, 33 Ala.
408. The Pennsylvania act is construed
not to require an indorsement on all in-
dictments, but only where a prosecutor
really exists. Rex v. Lukens, 1 Dall. 5.

5 The State v. Hughes, 1 Ala. 655, 656,
opinion by Collier, C.J. And see, as to
Virginia, Commonwealth v. Dever, 10
Leigh, 686.

423
§ 694 INDICTMENT AND ITS INCIDENTS. = [BOOK IV.
and the unindorsed indictment will be quashed,! or otherwise
adjudged ill.2 In Illinois? and Kentucky,* no advantage can
be taken of this defect after verdict. But in Mississippi® and
Tennessee ® the objection is open at any time.

§ 693. Who Indorser. — A married woman, it was held in
‘Tennessee, cannot be the indorser; because, “she being wholly
irresponsible in law, either for costs or damages, the indorsement
.of her name was no compliance with the true meaning of the
statute.”7 The foreman of the grand jury may be;®. and, in
North Carolina, the prosecuting officer has a discretionary power
to put on the Governor’s name as prosecutor, whenever he thinks

the public interest demands.?

Voluntary. — No one can be made an indorser who does not

consent./0

Nor does a voluntary appearing before the grand jury

as a witness amount to an indorsement.U

Security for Costs. —It was held in Missouri that an indorser
cannot be required to give security for costs.™ +

Death. — The death of the indorser does not cause the indict-

ment to abate.®

§ 694. On what Part written. — An indorsement will be good,
on whatever part written, and whether on the face or back. In
some States, at least, it is generally at the foot.

Form of Words. — Any form of words, conveying the idea, will

be adequate.!6

1 Towle v. The State, 3 Fla. 202.

2 Moore v. The State, 138 Sm. & M.
259; Peter v. The State, 3 How. Missis.
433; The State v. Joiner, 19 Misso. 224;
Commonwealth v. Gore, 8 Dana, 474.

3 Vezain v. People, 40 Ill. 897.

4 Hayden v. Commonwealth, 10 B.
Monr. 125.

5 Kirk v. The State, 18 Sm. & M. 406.
And the indorsement must be made be-
fore the indictment goes to the grand
jury ; at least, it is too late after verdict.
Moore v. The State, 13 Sm. & M. 259;
Allen v. Commonwealth, 2 Bibb, 210.

6 Medaris v. The State, 10 Yerg. 239.
In one case, where the indorsement was
by a married woman, the objection to her
competency was taken by plea in abate-
ment. Moyers v. The State, 11 Humph.

40.
424

7 Moyers v. The State, 11 Humph. 40.
8 King v. The State, 5 How. Missis.

- 780.

® The State v. English, 1 Murph. 435.

10 The State v. Hodson,.74 N. C. 151..

ll The State v. Bailey, 21 Maine, 62.
See The State v. Scott, 25 Ark. 107; The
State v. Lupton, 63 N. C. 483.

12 The State v. Bowling, 14 Misso. 508.

13 Commonwealth v. Cunningham, 5
Litt. 292; The State v. Loftis, 3 Head,
500.

M4 Williams v. The State, 9 Misso. 270;
United States v. Mundell, 1 Hughes, 415.

1 Allen v. Commonwealth, 2 Bibb,
210; Haught » Commonwealth, 2 Va.
Cas. 3.

16 Commonwealth v. Dove, 2 Va. Cas.
29; The State v. Denton, 14 Ark. 848;
Haught v. Commonwealth, supra.
CHAP. XLIV.] INDORSEMENT OF PROSECUTOR'S NAME. § 694

Striking of — According to a Kentucky case, a motion to strike
off a prosecutor’s name, or release him, should be cautiously re-
ceived. Ifit is put on without authority, he may have redress
by action.!

1 Bartlett v. Humphreys, Hardin, 522.
425
§ 698 INDICTMENT AND ITS INCIDENTS. [BOoK Iv.

CHAPTER XLV.
INDORSEMENT BY THE GRAND JURY.

§ 695. Procedure. — The procedure before the grand jury is
explained in a chapter further on.1_ In brief, —

In England. — The indictment, termed a bill before finding,
being engrossed on parchment, is laid before the grand jurors,
who examine witnesses to it. If they find its allegations to be
true, and so declare, this perfects it, and it is afterward known
as the indictment.?

§ 696. In United States. — The course is in substance the same
in our States. But generally with us the prosecuting officer
attends the grand jury, and he defers drawing the bill till the
evidence has been heard, and he is advised whether or not they
will indict the accused person and for what.®

§ 697. Foreman — Indorsement. — On the organization of the
grand jury, there is appointed by the court, or chosen by them-
selves, a foreman who is their mouth-piece. If they find a bill
to be true, he or their clerk indorses on it the words “A true
bill”; or if, in the English practice, the bill is to be rejected,
the indorsement is “Not a true bill,” or “ Not found.”4 More
in detail, —

§ 698. Form of indorsing Bill.— The usual and proper course
is for the foreman, when the grand jury have determined to
affirm a bill, to write under the words “A true bill,” his own
name, adding his official title of ‘Foreman of the Grand J ury.”
But it is sufficient. in law merely to write his name, with no
mention of official character, because the latter appears of rec-

1 Post, § 861 et seq. 432; Commonwealth v. Smyth, 11 Cush.
2 Ante, § 131, 887; Dears. Crim. Pro- 473.
cess, 85; 1 Gude Crown Pract. 84; 1 41 Chit. Crim. Law, 324; The State
Chit. Crim. Law, 163. v. Horton, 63 N. C. 595; Esterling v. The
® And see Webster's Case, 5 Greenl. State, 35 Missis. 210.

426
CHAP. XLV.] INDORSEMENT BY GRAND JURY.

§ 699

ord. For the like reason, where his whole name is in the
record, a signature by initials for his Christian name is ade-
quate.? And such signature by initials may be sufficient for
still other reasons, in part already explained.2 It may be by
his mark, or the name may be written by a third person at his
request.

Place on Bill. — It is immaterial on what part of the bill the
foreman’s signature appears.®

§ 699. What imports— Any Thing Else? — Such indorsement
imports that the finding was by an adequate number of the grand
jurors.6 And in other respects it fully satisfies the demands of
the common law.’ Indeed, —

Further of the Words. — The words “ True bill,” omitting “a,”
have been held adequate. And a sentence has been sustained
where the words were “A bill,” omitting “true”; for, sup-
posing ‘‘true”’ to be necessary, still “the omission,” said Gibson,
C. J., “ was one of those clerical slips which, it is well settled,
the court has power, by the previous assent of the grand jury,

to amend.” ®

1 The State v. Chandler, 2 Hawks,
439, 440; ante, § 238; post, § 703; Mc-
Guffie v. The State, 17 Ga. 497; The
State v. Brown, 31 Vt. 602, 603; Wall v.
The State, 23 Ind. 150; The State v.
Jolly, 7 Iowa, 15; Wesley v. The State,
52 Ala. 182. And see Hall’s Case, 3 Grat.
593; Cherry v. The State, 6 Fla. 679;
Dixon v. The State, 4 Greene, Iowa, 381;
Dutell v. The State, 4 Greene, Iowa, 125.
An indictment indorsed a true bill, and
returned by the whole grand jury, has
been held sufficient without the special
appointment of a foreman. Friar v. The
State, 8 How. Missis. 422; Peter v. The
State, 3 How. Missis. 483. And see Ester-
ling v. The State, 35 Missis. 210.

2 The State v. Collins, 3 Dev. 117;
The State v. Taggart, 38 Maine, 298.

3 Ante, § 665, note, Georgia, 685; The
State v. Taggart, supra; Studstill v. The
State, 7 Ga. 2; Commonwealth v. Glea-
son, 110 Mass. 66.

4 The State v. Tinney, 26 La. An. 460;
The State v. Powell, 24 Texas, 135.

5 Overshiner v. Commonwealth, 2 B.
Monr. 844; The State v. Hogan, 31 Misso.
842. Signature to Information.— An
information written on connected pages,

in one hundred counts, each with a sep-
arate caption, was held good though
signed only at the close of the last count.
The State v. Paddock, 24 Vt. 312. See
also, to a like effect, Burgess v. Common-
wealth, 2 Va. Cas. 483.

8 Turns v. Commonwealth, 6 Met. 224;
Dutell v. The State, 4 Greene, Iowa, 125.

7 Spratt v. The State, 8 Misso. 247;
McDonald v. The State, 8 Misso. 288;
Harriman v. The State, 2 Greene, Iowa,
270. Possibly, in some of our States,
more is required by statute, but not gen-
erally. Name of Offence.—The name
of the offence need not be indorsed by
the grand jury, and no harm will come if
a wrong name is thus given. Cherry v.
The State, 6 Fla. 679; Collins v. People,
89 Ill. 283; The State v. Rohfrischt, 12
La. An. 882; The State v. Fitzpatrick, 8
W. Va. 707. And see Commonwealth v.
McKinney, 8 Grat. 589; Hall’s Case, 3
Grat. 5938; The State v. Shepard, 10
Towa, 126.

8 The State v. Elkins, Meigs, 109; The
State v. Davidson, 12 Vt. 300.

9 Sparks v. Commonwealth, 9 Barr,
854.

427
§ 700 INDICTMENT AND ITS INCIDENTS. [Book Iv.

§ 700. Statutory Requirements. —The statutes of some of the
States appear peremptorily to require the foreman’s indorse~
ment;1 so that, when it is not made, the proceedings become,
as observed in one case, coram non judice.2. But, —

Omitting “True Bill” and Foreman’s Signature.—-In the absence
of a mandatory statute, it is the better view that both the
words “a true bill” and the signature of the foreman may be
dispensed with, if the fact of the jury’s finding appears in any
other form in the record. Even where a statute required the
words “a true bill” to be indorsed, the foreman’s signature
thereto was held not to be necessary.2 Holt, C. J., once put
the doctrine admirably, thus: ‘An indictment is not an indict-
ment till it be found, it is only a writing prepared for the ease
of the jury and for expedition; it is nothing till it is found, for
the jury make it an indictment by finding it; they may alter
what they please, or refuse it absolutely. And if the jury, upon
examining the witnesses, would only present a matter of fact
with time and place, the court might cause it to be drawn up
into form, without carrying it to the jury. Again, there needs
no billa vera; for that is only the jury’s owning that which the

court has prepared for them.” +

1 Gardner v. People, 3 Scam. 83.

° Nomaque v. People, Breese, 109. See
The State v. Mertens, 14 Misso. 94; Steele
v. The State, 1 Texas, 142; Johnson »v.
The State, 23 Ind. 82.

3 Commonwealth v. Walters, 6 Dana,
290.

4 Rookwood’s Case, 18 Howell St. Tr.
189, 159. In some of the States, the
formal indorsement appears to be deemed
necessary. The State v. Squire, 10'N. H.
558; Webster’s Case, 5 Greenl. 482, 434;
The State v. Burgess, 24 Misso. 381;
Johnson v. The State, 23 Ind. 82. In
other of the States, while it would seem
to be required, advantage can be taken
of the omission only at an early stage of
the proceedings. ‘The State v. Murphy,
47 Misso. 274; The State v. Shippey, 10
Minn. 228; People v. Lawrence, 21 Cal.
868; People v. Johnston, 48 Cal. 549;
Wau-kon-chaw-neek-kaw v. United States,
Morris, 832. In other of the States, arecord
showing the finding — as, for example, that
the indictment was returned into court by
the grand jury — will render their formal

428

indorsement unnecessary. The State v.
Creighton, 1 Nott & McC. 256, 257; Mc-
Guffie v. The State, 17 Ga. 497; The State
v. Cox, 6 Ire. 440. And see the earlier
case of The State v. Collins, 8 Dev. 117.
See also Hopkins v. Commonwealth, 14
Wright, Pa. 9; The State v. Powell, 24
Texas, 135; The State v. Flores, 88 Texas,
444; Pinson v. The State, 28 Texas,'579;
Hannahv. The State, 1 Texas Ap.578. The
same has been strongly intimated in Ken-
tucky. Commonwealth v. Ripperdon,
Litt. Sel. Cas. 194. Commonwealth ».
Walters, 6 Dana, 290. And, in Missouri,
a statute expressly providing that the
foreman shall certify every indictment
found, to be a true bill, on the indictment

‘itself, was held to be only directory, and

one without his name was adjudged, on
a motion in arrest of judgment, to be
good. The State v. Mertens, 14 Misso.
94. And see The State v. Lassley, 7 Port.
626; Greeson v. The State, 5 How. Missis.
83; Bennett v. The State, 8 Humph. 118,
See also The State v. Muzingo, Meigs,
112; Gilman v. The State, 1 Humph. 59;
CHAP. XLV. ]

INDORSEMENT BY GRAND JURY. § 701

§ 701. Finding a Part. — If the grand jury pass upon a bill
already drawn for them, as in the English practice, they may
find one count a true bill and ignore another! But a count
cannot thus be divided, and a part be affirmed and the rest
rejected.2, And where the bill was in ten counts, and the in-
dorsement by the grand jury was “ A true bill on both counts,”
the finding was ruled to be insufficient, being too uncertain and

indistinct.?

Brown v. The State, 7 Humph. 155. The
record must show that the grand jury
returned the indictment into court.
Rainey v. People, 3 Gilman, 71. Accord-
ing to New Hampshire and Massachusetts
decisions, assuming that the indictment
must be signed by the foreman, still the
words “a true bill” over his signature
are not necessary. The State v. Freeman,
13 N. H. 488; Commonwealth v. Smyth,
11 Cush. 478. In the Irish court, Per-
rin, J., said: “It is perfectly competent
for any twelve of the grand jury, in the
unavoidable absence of the foreman, to
take into consideration and deal with the

respective bills of indictment; but, in
every such case, it is essential that every
one of the twelve grand jurors who have
concurred in finding or rejecting any bill
do sign his name thereupon. The fore-
man alone has the privilege of signing for
self and fellows.” In re Grand Jury, 3
Crawf. & Dix C. C. 895.

1 Rex v. Fieldhouse, Cowp. 325; The
State v. Wilhite, 11 Humph. 602.

21 Chit. Crim. Law, 322, 823; The
State v. Creighton, 1 Nott & McC. 256;
The State v. Wilburne, 2 Brey. 296; The
State v. Wilhite, supra.

3 Reg. v. Cooke, 8 Car. & P. 582,

429
§ 708

INDICTMENT AND ITS INCIDENTS.

[BooxK Iv.

CHAPTER XLVI.

INDORSEMENT BY THE PROSECUTING OFFICER.

§ 702. Not at Common Law.— No indorsement of the indict-
ment by the prosecuting officer is necessary at the common law.

Its validity proceeds from the grand jury’s finding.?

Yet in

some of the States, such indorsement is common, though not

generally essential.? Still, —

§ 703. Required by Statute. —In some of our States, the sig-
nature of the prosecuting officer is made by statute essential.?
How sign — (Initials — Name of Office). — A signature by

initials for the Christian name is good.4

And, though the offi-

cial designation ought properly to be added to the name, its
omission would seem not to be fatal.6 Nor is it fatal to omit
the name of the county or district for which the officer is prose-
cuting attorney, or perhaps even to give it the wrong name.
The words “ Prosecuting Attorney,” instead of “ District Attor-
ney,” for the official designation, do not render the indictment
ill’ But in Tennessee a signing as “ Solicitor-General,” instead
of “ Attorney-General,” there being no office of solicitor-general,
was adjudged inadequate; because, it was said, ‘all documents
required to be authenticated by the signature of public officers

must be certified by them in their public character.

1 Keithler v. The State, 10 Sm. & M.
192, 285; The State v. Reed, 67 Maine,
127; The State v. Vincent, 1 Car. Law
Repos. 493 ; Commonwealth v. Stone, 105
Mass. 469; The State v. Murphy, 47
Misso. 274.

2 Keithler v. The State, 10 Sm. & M.
192; Ward v. The State, 22 Ala. 16; An-
derson v. The State, 5 Pike, 444, 453;
Thomas v. The State, 6 Misso. 457; Har-
rall v. The State, 26 Ala. 62; Eppes v.
The State, 10 Texas, 474; Common-
wealth v. Stone, supra; The State »v.
Farrar, 41 N. H. 58, 60.

8 Jackson v. The State, 4 Kan. 160;

430

A judge

Foute v. The State, 3 Hayw. 98; The
State v. Lockett, 3 Heisk. 274; Heacock
v. The State, 42 Ind. 893.

4 Vanderkarr v. The State, 51 Ind. 91;
ante, § 685, 698.

5 Ante, § 698.

6 People v. Ashnauer, 47 Cal. 98; Com-
monwealth v. Beaman, 8 Gray, 497; The
State v. Tannahill, 4 Kan. 117; The State
v. Brown, 8 Humph. 89; The State v.
Evans, 8 Humph. 110.

7 Baldwin v. The State, 12 Ind. 383.
And see The State zv. Salge, 2 Nev. 821;
Craft v. The State, 8 Kan. 450.
CHAP. XLVI.] INDORSEMENT BY PROSECUTING OFFICER. § 704

must authenticate the records of his court; if he signs his name
as Attorney-General, the authentication is a nullity.”1 If one
holds two offices, and signs in a way indicating that he is acting
in the wrong office, this reasoning will probably be deemed by
most persons to be applicable. But the more common doctrine
is believed to be, that, if a known officer performs an official act
within the sphere of his office, he will be presumed to be acting
officially, though he does not say he is, in words.

§ 704. Pro Tempore. — A prosecuting officer pro tem. may
make the indorsement.2 And his due appointment will, in
most circumstances, be presumed in the absence of proof to
the contrary.

1 Teas v. The State, 7 Humph. 174. see The State v. Farrar, 41 N. H. 53.
2 Reynolds v. The State, 11 Texas, United States Courts.— As to the in-
120. dorsement in the United States courts,
3 Isham v. The State, 1 Sneed, 111; see United States v. McAvoy, 4 Blatch.
Eppes v. The State, 10 Texas, 474. And 418.
431
§ 705 ‘INDICTMENT AND ITS INCIDENTS. [BOOK Iv.

CHAPTER XLVII.

DEFECTS IN THE INDICTMENT CURED BY AMENDMENT AND
BY ACQUIESCENCE.

§ 705. Distinctions. — The reader should distinguish between
amendments of the record and of the indictment, between the
different times of making the amendment, between the cure by
amendment and that by mere acquiescence while steps in the
cause are being taken, between what is done or permitted under
the common law and what by statutes, and some other things
which will appear as we proceed.

Statutes of Amendments and Jeofails. — Though a statute may
be, and often is, both of amendments and jeofails, the two things
are plainly distinguishable. A statute of amendments authorizes
a defect to be cured by an amendment actually made in the
record; of jeofails, directs the court not to recognize the defect
after a time or step mentioned. A particular statute may be
both or either, though the courts seem inclined to construe every
statute as of jeofails when possible. To illustrate, 16 & 17 Car. 2,
c. 8, § 1, applicable only to civil cases, provides, that, after verdict,
“judgment thereupon shall not be stayed or reversed” for certain
enumerated defects, but they “shall bé amended.” And this was
construed and practised upon simply as a statute of jeofails. ‘* An
actual amendment,” said Lord Hardwicke, “is never made, but the
benefit of the act is attained by our overlooking the exception.”
And a learned American judge once put the doctrine in terms
very broad, as follows: “ There is no force in the objection in
the present case, that no application was made to amend in the
Circuit Court, for the purpose of supplying the proper aver-
ments, pursuant to the act of 1852. The general rule in respect
to statutes of amendment and jeofails is, that the amendment
need not, in point of fact, be made. The benefit of the statute

1 Rex v. Landaff, 2 Stra. 1006, 1011. And see Conden »v. Coulter, Cas. temp.
Hardw. 314.
482
CHAP. XLVII.] AMENDMENT AND ACQUIESCENCE. § 706 a

is obtained by the court’s overlooking the exception, or consider-
ing the amendment as made.” ! Still, —

§ 706. How distinguish between. — Not all statutes providing
for amendments can be treated as statutes of jeofails. We find
in the books no distinct rules on this question; yet it would
seem that, whenever a statute directs an amendment absolutely,
reposing no discretion in-the court, it may be treated as made,
and the statute is of jeofails.2 But when the amendment is to
be granted by the court only in its discretion, such discretion
must move before it can be regarded as made, and the statute
is of amendments.

How make Amendment. — The court, on an appeal to its dis-
cretion,? first orders the amendment. If made without the order,
it is void! In some circumstances, the order alone gives it
effect ;5 but generally the actual making of it is also essential.®
This should be, not by mutilating the record, but by supple-
mental or. marginal entries, new papers, or otherwise, according
to the circumstances of the case.’

§ 706 a. Statutes in Nature of Jeofails. — Jeofails comes, says
Stephen, “from J’ay faillé, an expression used by the pleader
of former days, when he perceived a slip in his proceedings.” §
And the term appears to be generally applied only to clerical
mistakes and others of a similar kind. But in modern times
we have statutes in the nature of the old ones of jeofails, pro-
viding that objections, to be available, shall be taken at or before
a particular time or step in the cause.?

1 McKinney, J., in Eakin v. Burger, 1
Sneed, 417, 425.

2 And see Whiting v. Beebe, 7 Eng.
421; The State v. Mobile, 24 Ala. 701;
The State v. Blaisdell, 49 N. H. 81.

3 Bean v. Moore, 2 Pin. 392, 2 Chand.
44; Hayden v. Hayden, 46 Cal. 382;
The State v. Brown, 78 N.C. 81.

4 Missouri River, &c. Railroad v. Wil-
son, 10 Kan. 105.

5 Reg. v. Gumble, Law Rep. 2 C. C. 1,
12 Cox C. C. 248; Holland v. Crow, 12
Ire. 275; McBee v. Petty, 8 Coldw. 178;
Beeler v. Huddleston, 3 Coldw. 201;
Eakin v. Burger, 1 Sneed, 417; Palmer
v. Lesne, 8 Ala. 741; Fulkerson v. The
State, 14 Misso. 49.

6 Lohrfink v. Still, 10 Md. 6380; Fox v.
Cosby, 2 Call, 1.

VOL. I. , 28

7 Howe Pr. 886; Hill v. Road District,
10 Ohio State, 621; Commonwealth v.
Cheney, 108 Mass. 33; Cook v. Berth,
108 Mass. 78; Sewall v. Sullivan, 108
Mass. 355; Farrelly v. Cross, 5 Eng. 197;
Luce v. Graham, 4 Johns. Ch. 170; Walsh
v. Smyth, 8 Bland, 9; Norwood v. The
State, 45 Md. 68, 76; post, § 1345.

8 Steph. Pl. 4th ed. App. xxxviii.

® The State v. Sprinkle, 65 N. C. 463;
The State v. Smith, 63 N. C. 284; Ken-
ney v. The State, 5 R. 1. 385; Green v.
Commonwealth, 111 Mass. 417; Common-
wealth v. Harvey, 111 Mass. 420; People
v. Swenson, 49 Cal. 888; People v. Jim
Ti, 82 Cal. 60; Reg. v. Goldsmith, Law
Rep. 2 C. C. 74, 12 Cox C. C. 479; Com-
monwealth v. Norton, 13 Allen, 550; Lam-
bert v. People, 29 Mich. 71; The State v.

433
§ 708 INDICTMENT AND ITS INCIDENTS. [Book Iv.

§ 706 5. Statutes amendatory of Law. — Unlike these statutes,
are modern ones amendatory of the old rules of pleading and
procedure.! They are in no sense statutes either of amendments
or of jeofails.

§ 707. Old Statutes of Jeofails and Amendments. — There are
many English statutes of amendments and jeofails, which, having
been passed before the settlement of this country, are common
law with us. But, by their terms, they do not extend to crim-
inal causes; so that, for example, a defective indictment is not,
like a defective declaration, cured by verdict.2, But, —

§ 707 a. Cured at Common Law by Verdict. — At common law,
the verdict cures some things, as to which the rule is the same
in criminal causes as in civil. It is that, though a matter either
of form or of substance is omitted from the allegation or alleged
imperfectly, still, if under the pleadings the proof of it was
essential to the finding, it must be presumed after verdict to
have been proved, and the party cannot now for the first time

object to what has wrought him no harm.t

And —

Under Statutes. — There are, in many of our States, statutes
still further precluding objections after verdict.5

§ 708. Amendments in the Indictment : —

In General at Common Law. — Starkie ® says: “Since the in-
dictment is found upon the oath of a jury, there would be a

Harrington, 9 Nev. 91; Mayer v. The
State, 48 Ind. 122; Commonwealth v.
Blanchard, 105 Mass. 178; Common-
wealth v. Sheehan, 105 Mass. 174; Com-
monwealth v. Intoxicating Liquors, 13
Allen, 561; Bowler v. The State, 41
Missis. 570; The State v. O'Flaherty, 7
Nev. 153; The State v. Roderigas, 7 Nev.
828 ; The State v. Sears, Phillips, 146.

1 The State vo. Edmundson, 64 Misso.
898; Mulrooney v. The State, 26 Ohio
State, 826; The State v. Flynn, 42 Iowa,
164; Mead v. The State, 26 Ohio State,
605; Turpin v. The State, 19 Ohio State,
640; People v. Dick, 87 Cal. 277; The
State v. Carr, 43 Iowa, 418.

2 Ante, § 572; 2 Tidd Pr. 8th Eng. ed.
959; 2 Hale P. C.198; 4 BL. Com. 375;
1 Stark. Crim. PL. 2d ed. 259; Atcheson
v. Everitt, Cowp. 882, 392; Rex v. Atkins,
3 Mod. 8,7; Rex v. Sparks, 8 Mod. 78;
Commonwealth v. Morse, 2 Mass. 128;
Brown v. Commonwealth, 8 Mass. 59, 65;

434

Commonwealth »v. Child, 18 Pick. 198, 200.
And see Reg. v. Tutchin, 6 Mod. 268.
The law of amendments in Mississippi
has been held not to apply to criminal
cases. Moore v. The State, 18 Sm. & M.
259.

3 Heymann v. Reg. Law Rep. 8 Q. B.
102, 12 Cox C. C. 888.

4 Ante, § 443; Stennel v. Hogg, 1
Saund. Wms. ed. 226, 228, note; Hey-
mann v. Reg. supra; Handcock v. Baker,
2 B. & P. 260, 263; Reg. v. Goldsmith,
Law Rep. 2 C. C. 74, 12 Cox C. C. 479.
And see Vaughan v. Commonwealth, 17
Grat. 676; The State v. Harrington, 9
Nev. 91; Commonwealth v. Newcomer, 13
Wright, Pa. 478; People v. Jim Ti, 82
Cal. 60; People v. Swenson, 49 Cal. 388;
Stone v. People, 2 Scam. 326.

5 Ante, § 114, 123, 706 a; Megowan v.
Commonwealth, 2 Met. Ky. 3.

6 1 Stark. Crim. Pl. 2d ed. 259 et seq.

ee
‘

CHAP. XLVII.] AMENDMENT AND ACQUIESCENCE. § 709

manifest impropriety in making any alteration in it,! which
could possibly affect the sense, without their consent. Amend-
ments of this kind have, in some cases, been made by the
authority of the court, even after verdict; but such instances
are rare.2 In the second volume of Bulstrode’s Reports, Mr. J.
Yelverton cites the case of two persons who had been indicted
before him for a capital felony. It appeared that the indictment
charged them in the singular number ; on that account he stayed
the proceedings, and took the opinion of the judges; eight or
nine of whom —all who were present — clearly held that the
indictment was good and amendable; and he adds, that it was
amended accordingly, and that both the defendants were exe-
cuted.” In the United States, in rare instances, slight amend-
ments in mere form may have been allowed as at the common
law, but none in substance. For example, the allegation of
the date of an offence cannot thus be amended,® though it need
not be proved as laid. Not even the consent of the prisoner
will justify an amendment at common law. But, —

Caption and Commencement. — As already seen,’ the caption
and commencement come under a different reason, and they
may be amended.®

§ 709. Amendments by Grand Jury. — Starkie proceeds: ‘“‘ Where
an indictment appeared to be insufficient, either for its uncertain-
ty, or for want of proper legal words, it was anciently the prac-
tice to award process to the grand jury, if the court sat in the
same county, to come into court to amend it.”® Or a second
indictment may be found on the original evidence. If the

1 Per Lord Mansfield in Rex v. Wilkes,
4 Bur. 2527, 2569.

5 Sanders v. The State, 26 Texas, 119;
The State v. Kennedy, 86 Vt. 563; The

2 Anonymous, stated in Odington v.
Darby, 2 Bulst. 35. And see 11 Hen. 6,
f.2 and f. 14, where a writ of forger of
false deeds was amended by inserting
imaginavit for imaginatus est.

3 See Mr. J. Powell’s observations
upon this case in Reg. v. Tutchin, 6 Mod.
268, 288.

4 McKinley v. The State, 8 Humph.
72; McCorkle v. The State, 14 Ind. 39;
McGuire v. The State, 85 Missis. 866;
The State v. McCarty, 2 Chand. 199; The
State v. Chamberlain, 6 Nev. 257, 260;
The State v. Lyon, 47 N. H. 416. And
see The State v. Schricker, 29 Misso. 265.

State v. Davidson, 86 Texas, 325; Com-
monwealth v. Seymour, 2 Brews. 567.

6 Ante, § 96 ; Commonwealth r. Mahar,
16 Pick. 120; s. p. People cv. Campbell,
4 Parker C. C. 886. See Gregory v. The
State, 46 Ala. 151; Johnson v. The State,
46 Ala. 212.

7 Ante, § 661, 662.

8 The State v. Moore, 1 Ind. 548;
Moody v. The State, 7 Blackf. 424; Brown
v. Commonwealth, 28 Smith, Pa. 122.
And see Dennis v. The State, 5 Pike,
280.

9 1 Stark. Crim. Law, 2d ed. 260.

10 Post, § 870.

435
- [BOOK Iv.

§ 711 _ INDICTMENT AND ITS INCIDENTS.

grand jury isin the presence of the court when. the defendant
is arraigned, it may there cure by amendment any defects which
he brings forward in abatement.! And it is customary in some
of the States to have it so present for this purpose. . Beyond
this, —

§ 710. Grand Jury authorizing Amendments. — Chitty says: “It
is the common practice for the grand jury to consent, at the time
they are sworn, that the court shall amend matters of form, alter-
ing no matter of substance ; and mere informalities may, there-
fore, be amended by the court before the commencement of the
trial.” 2 Not many traces of this practice appear in our Ameri-
can reports.2 The New Hampshire court expressly rejected it,
observing: “This practice has never been adopted in our courts;
and formerly in England such amendments were inadmissible,
except on process issued to the grand jury to come in for this
purpose.”* As obviously this body cannot transmute to the
judge its jurisdiction to find an indictment, on no sound reason
can it authorize him to do a part; namely, amend one.

§ 711. Under Modern Statutes — (English). — There are modern
English statutes — none early enough to be common law in this
country — authorizing amendments in the indictment. But, —

American. — With us, there are constitutional objections to

1 Jones’s Case, J. Kel. 87. And see
ante, § 88; Garvin v. The State, 62 Mis-
sis. 207; McKinley v. The State, 8
Humph. 72. ©

2 1 Chit. Crim. Law, 297. I do not dis-
cern the origin of this English practice,
but it seems to be comparatively recent.
Chitty refers, in this place, to 2 Hawk. P.
C. c. 25, § 98; and Bac. Abr. Indictment,
H. [G.], 11. Hawkins wrote in his book,
at the place thus referred to: “It seems
to be the common practice at this day,
while the grand jury who found a bill is
before the court, to amend it by their
consent in a matter of form, as the name
or addition of the party,” &c. And he
refers, for authority, only to the case in
Kelyng, cited to my last section. The
author of Bacon’s Abridgment, in the
above place, simply copies from Hawkins
what I have copied here, adding no refer-
ence to other authority. The editors of
Hawkins have put into the margin of his
book at this place, with no citation of

436

authorities, the following: “N. B. They
consent, at the time they are sworn, that
the court shall alter matter of form,
altering no matter of substance.” Star-
kie, referring only to Hawkins, doubtless
with an edited edition before him, puts it
thus: “ And it is the common practice at
present to amend the indictment in mat-
ters of form, whilst the grand jury are
before the court; for which purpose they
formally give their consent, that the
coust shall amend matters of form, alter-
ing no matter of substance.” 1 Stark.
Crim. Pl. 2d ed. 260.

8 See, however, ante, § 699; McGuire
v. The State, 35 Missis. 366.

4 The State v. Squire, 10 N. H. 558.

5 See Greaves Lord Campbell’s Acts,
1 et seq. 29; Archb. New Crim. Proced.
99 et seq.; Reg. v. Gumble, Law Rep. 2
C. C. 1, 12 Cox C. C. 248; Reg. v. Hew-
ins, 9 Car. & P. 786; Reg. v. Ashburton,
5 Q. B. 48, note; Reg. v. Orchard, 8 Car.
& P. 665; ante, § 675.
CHAP. XLVII.] AMENDMENT AND ACQUIESCENCE. § 711

statutes of this sort, not known in England. Still, as not ob-
jectionable, we have in Virginia,! Missouri,? and perhaps some
other States, statutes of jeofails for the cure of mere formal de-
fects. And for the cure of such defects, not extending anywhere
much further, there are differing statutes of amendments in these
and some of the other States.2 By reason of their diversities, a
discussion of the practice under them would not be profitable

here.
considered.*

1 Trimble v. Commonwealth, 2 Va.
Cas. 143; Commonwealth v. Ervin, 2 Va.
Cas. 837; Aldridge v. Commonwealth, 2:
Va. Cas. 447; Commonwealth v. Bennet,
2 Va. Cas. 235.

2 The State v. Craighead, 32 Misso.
561; The State v. Sides, 64 Misso. 383.

8 Myers v. Commonwealth, 29 Smith,
Pa. 308; Gamblin v. The State, 45 Missis.
658; Bosshard v. The State, 25 Texas
Supp. 207 ; Evans v. The State, 25 Texas
Supp. 303 ; Kline v. The State, 44 Missis.
317; The State v. Elder, 21 Ia. An. 157;
The State v. Durbin, 20 La. An. 408;
Miller v. The State, 53 Missis. 403 ; Greg-
ory v. The State, 46 Ala. 212; Johnson
v. The State, 46 Ala. 151; Common-

The question of their constitutionality has been already

wealth v. O’Brien, 2 Brews. 566; Garvin
v. The State, 52 Missis. 207 ; The State v.
Runnals, 49 N. H. 498; McGuire v. The
State, 35 Missis. 866; Commonwealth v.
Buzzard, 5 Grat.694; The State v. Brown,
4 Port. 410; The State v. Kreps, 8 Ala.
951; Rocco v. The State, 37 Missis. 357;
Morrison v. Dapman, 8 Cal. 255; People
v. Kelly, 6 Cal. 210; Commonwealth »v.
Holley, 8 Gray, 458; Cain v. The State,
4 Blackf. 512; The State v. Hart, 4 Ire.
246; Dennis v. The State, 5 Pike, 230;
The State v. Armstrong, 4 Minn. 335;
The State v. Craighead, 32 Misso. 561;
People v. Cook, 10 Mich. 164.
4 Ante, § 97, 98.

437
§ 713 OTHER FORMS OF PROCEDURE. [BooK V.

BOOK V.

OTHER FORMS OF ACCUSATION AND PROCEDURE.

CHAPTER XLVIII.

THE INFORMATION BEFORE THE HIGHER COURTS AND ITS
INCIDENTS.

§ 712. Already considered. — We saw, in a previous chapter,
what is the general doctrine of the information and the procedure
thereby.) And —

Like Indictment. — We there saw that the information is in
its allegations exactly the same as an indictment, from which
it differs only in formalities at the beginning and close.2 The
similitude extends even to such averments as “against the
peace’? and the like.

§ 713. Formal Parts. — The formal requisites depend mainly
on the differing statutes of the States. As to —

Signing. — The information must be signed by the informing
officer before it is filed.*

Verification. — In the English practice, it is not verified by the
informing officer’s oath; though, where it is not filed ex officio,
the application for it by private persons is.6 And according
to an old Vermont case, an information by the State’s attorney
need not allege that he informs under his official oath.6 But
now very largely, though perhaps not universally, by statutes

1 Ante, § 141-147. 5 Cole Crim. Inf. 50-68, 65-67; Rex v.
2 Ante, § 147; Archb. Crim. Pl.& Ev. Fielding, 2 Bur. 654; Rex v. Jones, 1
18th ed. 95, 96. Stra. 704; Rex v. Miles, 1 Doug. 284;

3 Wilson v. The State, 38 Texas, 548. Rex v. Haswell, 1 Doug. 887; Rex v.

4 Reg. v. Crooks, 5 U.C. 0. s. 788; Gardner, 2 Bur. 1117; Rex v. Willett, 6
The State v. Nulf, 15 Kan. 404. But not T. R. 294.

necessarily in Texas, Rasberry v. The 6 The State v. Sickle, Brayt. 182.
State, 1 Texas Ap. 664.

438
,

CHAP. XLVIII.] INFORMATION AND ITS INCIDENTS.

§ 714

in our States, the information must be supplemented by the
informing officer’s oath. “A defective aftidavit is not cured
by a sufficient information.”? And by construction of the In-
diana statute, the information must be based on an affidavit first
filed; a mere verification of the information is not sufficient.3
A verification on information and belief is adequate.*

Title — (Quashing). — It will not be quashed for a mere defect
in the title.®

§ 714. Amendments. — An information is quite unlike an in-
dictment as to amendments. The officer prosecuting it being
always in court, it may on his application be amended to any
extent consistent with the orderly conduct of judicial business,
with the public interests, and with private rights. The appli-
cation may, indeed, be denied;® and, in Kentucky, it was held
not to be amendable by adding new charges.’ It may be amended
to cure a defect objected to by plea in abatement,’ or a variance
appearing at the trial.2 “After a record has been sealed up,”
said Holt, C. J., “I have known it amended, even just as it was

going to be tried.”
after a plea in bar.4

‘

1 Baramore v. The State, 4 Ind. 524;
Lambert v. People, 29 Mich. 71; District
of Columbia v. Herlihy, 1 McArthur, 466.

2 The State v. Gartrell, 14 Ind. 280.
As to the form of the affidavit, see this
case; also, The State v. Ellison, 14 Ind.
880; Brooster v. The State, 15 Ind. 190;
The State v. Clevinger, 14 Ind. 366.

8 Carpenter v. The State, 14 Ind. 109.
And see Levy v. The State, 6 Ind. 281.

4 Washburn v. People, 10 Mich. 372;
The State v. Montgomery, 8 Kan. 351.
See further as to Michigan, People v.
Smith, 25 Mich. 497.

5 Malone v. The State, 14 Ind. 219.

6 Anonymous, Comb. 45; The State
v. Merchant, 88 Iowa, 375. See Rex v.
Goffe, 1 Lev. 189; Attorney-General v.
Ray, 11 M. & W. 464.

7 Commonwealth v. Rodes, 1 Dana,
595. And see Commonwealth v. William-
son, 4 Grat. 554. See also a subsequent
note to this section.

8 Reg. v. Stedman, 2 Ld. Raym. 1807;
Rex v. Seawood, 2 Ld. Raym. 1472; 8. c.
nom. Rex v. Seaward, 2 Stra. 739; The
State v. Washington, 16 Rich. 39.

Of course, therefore, it may be amended

9 The State v. Stebbins, 29 Conn. 463.

10 Rex v. Harris, 1 Salk.47; The State
v. Weare, 88 N. H. 314. In a Connecti-
cut case it was observed: ‘That the
public prosecutor may amend an informa-
tion, at any time before trial, is too well
settled to admit of dispute; and even
during trial it has often been done. And
that he may amend by adding a new
count is equally indisputable. But, Stat-
ute of Limitations. — Whether he may
add such count, for the offence already
charged, after that offence is barred by
the Statute of Limitations, presents a
question upon which there has not, per-
haps, been an entire uniformity of de-
cision.” The court held, that he could
not; because, if the amendment were
granted, there might be a conviction on
the new allegations, which might really
charge a new offence, and thus the de-
fendant would lose the protection of the
statute. The State v. Rowley, 12 Conn.
101, 106.

11 Rex v. Wilkes, 4 Bur. 2527, 2568.

439
§ 715 OTHER FORMS OF PROCEDURE. [Book v.

Reverification. — If the information is required by statute to
be on oath, there must be a fresh verification after the amend-
ment is made,! otherwise it cannot be granted.”

§ 715. Terms. — The court may impose terms, like costs or a
continuance, as the condition of allowing the amendment, or
not, as appears just. Mere formal amendments may even be
permitted without terms after issue joined.®

Quashing. — The court has refused to quash an information,
for the reason that it was amendable and so the defect might
be cured.!

1 See Atlantic Bank v. Frankford, 3 Anonymous, 1 Salk. 50; Rex »v.
Phillips, 199. Charlesworth, 2 Stra. 871.

2 District of Columbia v. Herlihy, 1 # Rex v. Nixon, 1 Stra, 186.
McArthur, 466. :
440
CHAP. XLIX.] BEFORE INFERIOR MAGISTRATE.

§ 717

CHAPTER XLIX.

THE COMPLAINT OR INFORMATION BEFORE AN INFERIOR MAG-
ISTRATE AND ITS INCIDENTS.

§ 716. Already considered. — In an earlier chapter, we saw
something of the summary proceeding, before inferior magis-
trates, for the punishment of petty offences.! And, in a chapter
further on, we had a view of the binding over, by these magis-
trates, of offenders for trial in the higher courts.?

For this Chapter. — This chapter, while it is a continuation of
the former, is closely related also to the latter, and it should be
consulted in connection with both?

§ T17. Name of Accusation — (Information — Complaint — Affi-
davit).— The statutes employ different names to designate the
written or oral accusation in these cases. In England, says
Paley, “the proceeding, which forms the groundwork of a
conviction, is termed ‘laying’ or ‘exhibiting, an information’ ;
while the similar proceeding for the obtaining of an order of
justices is termed ‘making a complaint.’ This distinction is
preserved throughout the Statute 11 & 12 Vict. c. 48.4 It is
believed that this distinction is not recognized with us; and, in
most of our States, not all, the allegation which corresponds to
the indictment or information before the higher courts is termed
the “complaint.”® In some States it appears to be called the
“ affidavit,” ® and there are doubtless still other names.

1 Ante, § 148 et seq. 27 Vt. 558; The State v. Dolby, 49 N. H.

2 Ante, § 225 et seq.

8 Consult also, in connection with this
chapter, Stat. Crimes, § 170, 242, 261,
403-407, 688.

* Paley Conv. 4th ed. 55. See Han-
cock v. Somes, 1 Ellis & E. 795.

1 § See, for illustration, Stat. Crimes,
§ 170, 242; Commonwealth v. Haynes,
107 Mass. 194; The State v. Comstock,

488; Byars v. Mt. Vernon, 77 Ill. 467;
Howell v. People, 2 Hill, N. Y. 281; Prell
v. McDonald, 7 Kan. 426; The State v.
Mullen, 52 Misso. 480; Fink v. Milwau-
kee, 17 Wis. 27; Roberson v. Lambert-
ville, 9 Vroom, 69; The State v. Holmes,
28 Conn. 2380.

6 Cranor v. The State, 89 Ind. 64;
Deveny v. The State, 47 Ind. 208.

441

.
§ 721 OTHER FORMS OF PROCEDURE. [BOOK V.

§ 718. Writing — Oath.— By the English law, the complaint
need be neither in writing nor on oath, unless required by stat-
ute! And such appears to be the unwritten law of our States
generally.2 But most of the statutes in both countries require
a writing and perhaps an oath also. And under the system
of statutes prevailing in Maine it was held, that, where the
prosecution is required to be ‘on complaint,” the meaning is, a
complaint on oath or affirmation.*

§ 719. Accomplice as Complainant. — Plainly any person may
be legally a complainant who can be a witness at the hearing®
Therefore an accomplice may be. But how far the magistrate
should act on his unaided testimony must depend on the cir-
cumstances. In one case, a criminal information was in England
granted by the higher court on the sole testimony of a particeps
ertminis 3° in another, it was refused.’

§ 720. Frame of Complaint.— As to this, we have already seen
something. The general doctrine with us does not require it
to be more technically exact or full.than an indictment; and,
on the other hand, in some of the States, it may to an undefined
degree be less so. Practically, it is better to be everywhere drawn
precisely like an indictment, for then no question can arise.? If
there is any relaxation, it should be limited to mere form; be-
cause what is right and just before one tribunal is equally so
before another.”

§ 721. Amendments. — The complaint may be amended." As

1 Ante, § 230; Reg. v. Millard, Dears.
166, 167, 6 Cox C. C. 150, 20 Eng. L. &
Eq. 596, referring to Basten v. Carew, 3
B. & C. 649; Wilson v. Weller, 1 Brod.
& B. 57.

2 Ferguson v. People, 73 Ill. 559; Alton
v. Kirsch, 68 Ill. 261; Watson v. The State,
29 Ark. 299, But see Prell v. McDonald,
7 Kan. 426.

3 Ante, § 230, 232; The State v. Quigg,
1 Green, N. J. 293; In re Perham, 5 H.
&N. 30.

4 Campbell v. Thompson, 16 Maine,
117.

5 Ante, § 282.

6 Rex v. Steward, 2 B. & Ad. 12.

7 Rex v. Peach, 1 Bur. 548.

8 Ante, § 391, 396, 639, note, Cum-
mings’s Case, 3 Greenl. 51; Frisbie v. But-

442

ler, Kirby, 213; Commonwealth »v. Keefe,
7 Gray, 332; Keeler v. Milledge, 4 Zab.
142; Alexander v. Commonwealth, 1 Bibb,
515 ; City Council v. Seeba, 4 Strob. 319;
Mayor v. Mason, 4 Dall. 266; Philadel-
phia v. Nell, 3 Yeates, 475; Ford v. The
State, 4 Chand. 148. And see In re Per-
ham, 5 H. & N. 80; Brown v. Mobile, 23
Ala. 722,

® And see Fink v. Milwaukee, 17 Wis.
27; Roberson v. Lambertville, 9 Vroom,
69; Cranor v. The State, 89 Ind. 64;
Howell v. People, 2 Hill, N. Y. 281.

1 And see Deveny v. The State, 47
Ind. 208; The State v. Holmes, 28 Conn.
280.

1 The State v. Batchelder, 6 Vt. 479,
488.

2
CHAP. XLIX.] BEFORE INFERIOR MAGISTRATE.

§ 723

to this, it is like a complaint to hold to bail! or a criminal in-
formation.?

§ 722. Record of the Conviction. — The record of these sum-
mary convictions was once a very nice affair in England and
in some of our States. And in New York and one or two other
of the States it has been so till recently, and perhaps it remains
so still. For example, in New York, it must set forth the in-
formation or charge; a summons or notice to the accused; his
appearance or non-appearance; his confession or defence; the
evidence, if he does not confess; the judgment’ or adjudication ;
and the true dates and places, all with precision. And Edmonds,
J., observed: “ The power thus exercised is not in conformity to,
but is in derogation of, the common law, is derived solely from
the statutes; and all proceedings under the authority so created
must be strictly conformable to the special law in each instance,
from which all their force is derived? ... The necessity of
putting under some restraint a power so summary, so arbitrary,
so materially affecting personal liberty, and so liable to be per-
verted to purposes of oppression and wrong, required from the
courts great watchfulness and care. Hence frequent decisions
were made by the highest courts in regard to it, and a system
of regulations and restrictions grew up and became incorporated
into the common law. Those regulations and restrictions were
a part of the common law at the adoption of our Constitution,
which made the common law the law of our land; and, when
by our statutes we adopted this peculiar mode of trial, we nec-
essarily subjected it to the principles already established in
regard to it.”* But, —

§ 723. Right of Appeal as modifying Record. — When these
views and their consequences first appeared in England, the
statutes permitted no appeal from the decision of the single

1 Ante, § 231, 234.

2 Ante, § 714.

3 Referring to Cole’s Case, W. Jones,
170; Garrett v. Dandy, 1 Show. 14, 15.

4 People v. Phillips, 1 Parker C. C. 95,
99; Morris v. People, 1 Parker C. C. 441;
Morewood »v. Hollister, 2 Seld. 309. And
see Bennac v. People, 4 Barb. 164; Peo-
ple v. Miller, 14 Johns. 871; Powers v.
People, 4 Johns. 292; Willis v. Have-
meyer, 5 Duer, 447; Simpson v. Rhine-

landers, 20 Wend. 103; Birdsall v. Phil-
lips, 17 Wend. 464. As to Pennsylvania,
see Commonwealth v. Hardy, 1 Ashm.
410. In South Carolina, the defendant
must be summoned, there must be a spe-
cific charge, he must be heard, and the
substance of the evidence must appear in
the record. Singleton v. Commissioners,
2 Bay, 105; Geter v. Commissioners, 1
Bay, 364.

443
§ 725 OTHER FORMS OF PROCEDURE. [BOoK v.

justice on the facts.1 Hence only by requiring great fulness
and exactitude in the record could the superior courts afford.
even a partial protection from wrongs at the hands of the in-
ferior magistrates.2 Now, however, appeals from the justice,
opening the whole case, and permitting a trial by jury in the
higher court, are almost everywhere allowed ; and, where they
are, there remains no room for the old doctrine. Yet it is diffi-
cult to say, in full, what the modern law is. In part, —

§ 724. Jurisdictional’ Matter in Record. — As this jurisdiction
comes only from statutes, the statutory terms must be precisely
followed. And, since the court of a justice, like other inferior
tribunals, has no general jurisdiction, the record must show all
the facts out of which the special jurisdiction of the statute
proceeds.*

§ 725. What Record sufficient. — In Massachusetts, a record
is sufficient which shows, that the defendant, on being asked
whether he was guilty or not of the offence alleged against him,
fraudulently and wilfully stood mute; and, after due examina-
tion of witnesses and a full hearing of the case, he was adjudged
to be guilty, and was sentenced to imprisonment.6 In Pennsyl-
vania, it must contain a finding, that a special act was performed
by the defendant, the act must be so described as to be individ-

ualized, and appear to be of the class of unlawful acts.

1 Paley Convict. 4th ed. 12.

2 In Paley Convict. 4th ed.-10, 11, we
have the following: “The earliest stat-
ute, upon which a summary conviction
by a justice is on record, or of which a
precedent is found in the books, is that
of 33 Hen. 8, c. 6, against the practice of
carrying daggs, or short-guns. Mr. Lam-
bard has given a precedent of a convic-
tion upon this statute ; and there appears
to have been one removed into the Court
of Queen’s Bench, by certiorari, as early
as the forty-third year of Elizabeth, 1600;
and this very case affords a proof of the
objection, which, in the state of manners
at that day, might well exist against re-
laxing the jealousy of the common law,
by intrusting any thing like arbitrary
authority in private hands. It appears
that a sheriff’s officer, going to execute a
writ against a justice of peace for a debt,
and taking with him a hand-gun, from

444

And

apprehension of a rescue, the justice, in-
stead of obeying the writ, apprehended,
convicted, and imprisoned the officer, till
he paid a fine of £10, under color of the
act of Parliament.’

%’ The State v. La Bore, 26 Vt. 765;
Keeler v. Milledge, 4 Zab. 142; Bargis v.
The State, 4 Ind. 126; Commonwealth v.
Hardy, 1 Ashm. 410.

# Arthur v. The State, 22 Ala. 61;
Granite Bank v. Treat, 18 Maine, 340;
Barrett v. Crane, 16 Vt. 246; The State
v. Kimbrough, 2 Dev. 481; The State v.
Seaborn, 4 Dev. 305; Low v. The Com-
missioners, R. M. Charl. 302; The State
v. Shreeve, 8 Green, N. J. 57; Brackett
v, The State, 2 Tyler, 152, 167. And see
ante, § 236.

5 Ellenwood v. Commonwealth, 10
Met. 222. See Commonwealth v. King-
man, 16 Gray, 208.
CHAP. XLIX.] BEFORE INFERIOR MAGISTRATE. § 727

if it sets out no definite facts, but only a legal conclusion from
facts unrecorded, a superior court cannot, without compelling
areturn of the evidence, or taking testimony of what it was,
decide whether the legal conclusion — that is, the conviction
of the offence — is right or wrong. Therefore the court, in such
a case, usually reverses the conviction, because no acts justifying
it appear of record.}

.§ 726. Open Court — Counsel — Taking Notes. — The following
extract presents a collection of English views. How far they
accord with constitutional rights and the practice in our States
no attempt will be made here to show. “When a justice is
acting judicially, and has power to decide upon law, fact, and
punishment, all persons have a prima facie right to be present
thereat ;? but the magistrate may, in his discretion, prevent
any one, whether counsel or attorney, from taking part in the
proceedings as an advocate on either side. When the magis-
trate acts ministerially, his powers are still greater. He may
then prevent the advocate, whether he be barrister or attorney,
or any other person whatever, from being present, if he thinks
it conducive to the ends of justice;® and he may prevent any
one who is present from taking notes of the proceedings ;* and,
if such notes be afterwards published, it will be no defence to
an action of libel that they formed a fair and impartial account
of the proceeding.” 7

§ 727. Jurisdiction. — Relating to the justice’s jurisdiction over
particular offences, there are some questions special to particular
States. And —

Forms of Procedure. — It is the same of some of the forms of
procedure.?

1 Commonwealth v. Nesbit, 10 Casey,
Pa, 898. And see Commonwealth v. Burk-
hart, 11 Harris, Pa. 521; Commonwealth
v. Borden, 11 Smith, Pa. 272.

2 2 Hayes Dig. Crim. Law of Ireland,
463, 464.

8 Daubney v. Cooper, 10 B. & C. 287;
Anonymous, 8 Law Ree. 44.

* Rex v. Staffordshire Justices,.1 Chit.
217; Collier v. Hicks, 2 B. & Ad. 6638.

5 Rex v. Borron, 8 B. & Ald. 482; Cox
v. Coleridge, 1 B. & C. 37.

6 Garnett v. Ferrand, 6 B. & C. 611.

7 Rex v. Lee, 5 Esp. 123; Duncan ».
Thwaites, 3 B. & C. 556.

8 Crim. Law, I. § 811; Williams v.
The State, 4 Misso. 480; The State v.
Dolby, 49 N. H. 483; The State v. Brown,
24 Conn. 316; Webb v. Commonwealth,
2 Leigh, 721; The State v. Towle, 48
N. H. 97; Dickinson v. Potter, 4 Day,
840; Houghton v. Havens, 6 Conn. 805-
McGinnis v. The State, 9 Humph. 43, 4».

® The State v. Comstock, 27 Vt. 533;
Phinney, petitioner, 32 Maine, 440.

445
§ 729 BETWEEN INDICTMENT AND TRIAL. [BOOK VI.

BOOK VI.

THE DEFENDANT’S PLEA AND THE OTHER PROCEED-
INGS BETWEEN INDICTMENT AND TRIAL.

CHAPTER L.
THE ARRAIGNMENT.

§ 728. Purpose of, and how defined. — The purpose of the
arraignment is to obtain from the defendant his answer — in
other words, his plea — to the indictment. It consists of read-
ing the indictment to him, and requiring him to say in open
court, whether or not he is guilty of what is therein alleged
against him.1

First Step. —It is the first step in court against one who has
been indicted and arrested; though, in special circumstances, as
where at common law the charge is of having been an accessory
to a principal not yet apprehended, the plea cannot be imme-
diately required, consequently the arraignment should be post-
poned until it can be.?

§ 729. Formalities. — Practically the arraignment is quite a
formal affair, though somewhat less so now than it was in the
earlier periods of our law.®

1 ] Stark. Crim. Pl. 2d ed. 805-807; 4
BI. Com. 821, 832; Whitehead v. Common-
wealth, 19 Grat. 640 ; Jackson v. Common-
wealth, 19 Grat. 656.

2 2 Hale P. C. 216, 222-224. And see
Rex v. Tutchin, 6 Mod. 164.

3 See, for the formalities, Dalt. Just.
ed. of 1727, c. 185, p. 653; Reg. v. Abing-
ton, 1 Howell St. Tr. 1141; Rex v. Hewet,
5 Howell St. Tr. 883; Rex v. James, 6
Howell St. Tr. 67, 74; Rex v. Tonge, 6
Howell St. Tr. 225, 229; Rex v. Twyn, 6

446

Howell St. Tr. 518; Rex v. Turner, 6
Howell St. Tr. 565; Rex v. Hawkins, 6
Howell St. Tr. 921; Rex v. Ireland, 7
Howell St. Tr. 79; Rex ». Green, 7 How-
ell St. Tr. 159; Rex v. Reading, 7 Howell
St. Tr. 259, 262; Rex v. Langhorn, 7
Howell St. Tr. 417; Rex v. Wakeman, 7
Howell St. Tr. 591; Rex v. Anderson, 7
Howell St. Tr. 811; Rex v. Gascoigne (a
prisoner hard of hearing), 7 Howell St.
Tr. 959; and multitudes of other cases in
the State Trials and other books,
CHAP. L.] THE ARRAIGNMENT.

§ 731

Jointly indicted. — Though persons jointly indicted may be
separately arraigned,! they may be equally well, and they com-
monly are, arraigned together. Yet each is separately asked
‘whether he is guilty or not guilty, and his answer constitutes
his separate plea.?

§ 780. Abatement or Demurrer — Continuance. — Though the
demand upon the prisoner at the arraignment is to say whether
he is guilty or not guilty, he may, instead of answering this
question, show that he is not in law bound to answer it; in other
words, plead in abatement, or otherwise specially, or demur.!
And he must plead in abatement or demur now, or not at all;
for his right to do either is waived by the plea of guilty or not
guilty. But he can now bring forward nothing which does
not relate to his plea; as, for example, if he wishes a post-
ponement or continuance, he must plead first, and apply for it
afterward.6

§ 730 a. Dilatory Plea or Demurrer overruled. — If, after a dila-
tory plea or demurrer is overruled, the defendant is entitled to
answer to the merits, the arraignment, whether on the same or
a subsequent day, proceeds. The question, whether he is guilty
or not guilty, is repeated to him, and he pleads the one or the
other as he chooses.’ But, —

Mistrial or New Trial. — After not guilty is pleaded, should
a trial on this issue be abortive, or for any reason a new trial
be ordered, no repetition of the arraignment and plea will be
necessary.®

§ 731. In Irons. — “ Every person, at the time of his arraign-
ment, ought to be used with all the humanity and gentleness

1 Rex v. White, 17 Howell St. Tr.
1079.

2 Whitehead v. Commonwealth, 19
Grat. 640; Rex v. Rouse, 9 Howell St.
Tr. 687; Reg. v. Grahme, 12 Howell St.
Tr. 645; Rex v. Charnock, 12 Howell St.
Tr. 1877; Rex v. Rookwood, 138 Howell
St. Tr. 189; Rex v. Goodere, 17 Howell
St. Tr. 1008; Rex v. Tonge, 6 Howell St.
Tr. 225; Rex v. Turner, 6 Howell St. Tr.
565.

3 Ante, § 728, and cases cited, § 729.

4 Rex v. Delamere, 11 Howell St. Tr.
609, 618, 519; Rex v. Sidney, 9 Howell
St. Tr. 817, 820, 821; Commonwealth v.
Harvey, 103 Mass, 461.

5 Post, § 756, 780; 2 Hale P. C. 175;
Kinloch’s Case, Foster, 16; The State v.
Warnke, 48 Misso. 451; The State v.
Coover, 49 Misso. 432; People v. Smith,
1 Parker C. C. 829; Sunday v. The State,
14 Misso. 417; Foster v. The State, 1
Texas Ap. 5381.

8 Reg. v. Bolam, 2 Moody & R. 192;
Rex v. Grahme, 12 Howell St. Tr. 645,
664; Rex v. Kidd, 14 Howell St. Tr. 123,
128.

1 Rex v. Fitzharris, 8 Howell St. Tr.
243, 827; Rex v. Delamere, 11 Howell St.
Tr. 609, 626,

8 Byrd v. The State, 1 How. Missis.
247; Hayes v. The State, 58 Ga. 85.

447
§ 733 BETWEEN INDICTMENT AND TRIAL. [Book VI.

which is consistent with the nature of the thing, and under no
other terror or uneasiness than what proceeds from a sense of
his guilt, and the misfortune of his present circumstances.” !
Therefore, in general, he should not be in irons? But the
arraignment is distinguishable from the trial ;* and, if.a keeper
deems it necessary to bring his prisoner to the former in man-
acles, the court will not as of course order their removal at the
mere reading of the indictment and giving in of the plea.*

§ 732. Holding up the Hand. — The forms in common use direct
the prisoner, while the indictment is being read, to hold up his
hand. But this is not essential; being “only a ceremony for
making known the person of the offender to the court; and, if
he answer that he is the same person, it is all one.” >

§ 733. Necessary.—It is laid down, in a general way, that

the arraignment and plea are a necessary part of the proceed-

ings, without which there can be no valid trial and judgment.
But, —

Waiver. — With the consent of the court, the prisoner may
waive the reading of the indictment ;’ though, without waiver,
it will be read, even where he has been furnished with a copy.

And —

Plea without Arraignment.— As the object of the arraignment
is to obtain the plea,® if the prisoner voluntarily makes it without,
and it is accepted by the court, nothing more is required.”

But, —

1 2 Hawk. P. C. ¢. 28, § 1.

2 Burn Just. Arraignment, referring
to 2 Hale P. C. 219; 4 Bl. Com. 322; 2
Hawk. P. C. ¢. 28, § 1.

3 Post, § 955. °

4 Layer’s Case, 16 Howell St. Tr. 93,
97, 99, 100; Rex v. Waite, 1 Leach, 4th
ed. 28, 86,2 East P. C. 670; Burn Just.
ut sup., referring to the above cases, and
to 2 Hale P. C. 219, note b; 4 Bl. Com.
Chit. ed. 322, note 2.

5 2 Hawk. P.C.c 28, § 2; Rex v. Rad-
cliffe, 1 W. Bl. 8; Stafford’s Case, T.
Raym. 407, 408; Rex v. Lilburne, 4 How-
ell St. Tr. 1269, 1289-1292; Rex v. Staf-
ford, 7 Howell St. Tr. 1293, 1665.

6 Rex v. Lancaster, 1 Howell St. Tr.
89, 45, 46; Early v. The State, 1 Texas
Ap. 248; Holden v. The State, 1 Texas
Ap. 225; Smith v. The State, 1 Texas

448

Ap. 408; The State v. Barnes, 59 Misso.
154; Graeter v. The State, 54 Ind. 159;
Fletcher v. The State, 54 Ind. 462; Grigg
v. People, 31 Mich. 471; Powell v. United
States, Morris, 17; Anonymous, 3 Mod,
265; Pringle v. The State, 2 Texas Ap.
800. And see post, § 801, 950 a, 1854.

7 Goodin v. The State, 16 Ohio State,
344. See Washburn v. People, 10 Mich.
872; Elick vo. Territory, 1 Wash. Ter.
166.

8 Rex v. Hensey, 1 Bur. 642.

® Ante, § 728.

10 Post, § 801; The State v. Hughes, 1
Ala. 655, 657 ; Dixon v. The State, 18 Fla.
631; Molihan v. The State, 80 Ind. 266;
Hendrick v. The State, 6 Texas, 341;
Graeter v. The State, 54 Ind. 159; The
State v. Cheek, 63 Misso. 864; Peeler v.
The State, 3 Texas Ap. 847; Parchman

ae
CHAP. L.]

THE ARRAIGNMENT. § 733 6

Plea essential. — Without plea, there can be no valid trial.t
Nor will the proceeding be rendered.-good by the fact that the
defendant went to trial voluntarily and without objection, know-
ing there was no plea? It must be before the jury are sworn ;?
afterward, the plea comes too late.*

§ 783 a. Declining or unable to plead. — Under the common
law, as received in this country somewhat modified by statutes,
if one not answering to the indictment on his arraignment, or
answering improperly, was found by a jury to be malicious
therein, he was sentenced as on conviction, or the consequences
were otherwise very severe;® though, if through the visitation
of God he was unable to answer, the trial simply proceeded as
on a plea of not guilty.6 In modern times and in probably all
our States, this old law is done away with by statutes, which
provide, that, whenever the prisoner does not plead, the court
shall enter for him the plea of not guilty.’

§ 733 6. How tried? — When, in England, there were other
methods of trial than by jury, it was necessary at an arraignment
to ask a prisoner who had answered “not guilty,” how he would
be tried. And his reply, if the trial was to be by jury, was
“By God and my country.” This, therefore, became the estab-
lished practice, not in any case of treason or felony to be dis-
pensed with. But, in misdemeanor, this question seems to have
been omitted.® And by T & 8 Geo. 4, c. 28, § 1, it was rendered

v. The State, 3 Texas Ap. 225; The State
v. Koerner, 51 Misso. 174.

1 People v. Corbett, 28 Cal. 828; Doug-
lass v. The State, 3 Wis. 820; Aylesworth
v. People, 65 Ill. 801. But see, under the
Kansas statute, The State v. Cassady, 12
Kan. 550. See, as to Alabama, Fernan-
dez v. The State, 7 Ala. 511.

2 Anderson v. The State, 3 Pin. 367.

3 The State v. Hughes, 1 Ala. 655,
657.

4 The State v. Montgomery, 63 Misso.
296; The State v. Epps, 27 La. An. 227;
The State v. Barnett, 63 Misso. 300. And
see Davis v. The State, 88 Wis. 487. But
see Smith v. The State, 1 Texas Ap. 408.

5 Burn Just. Mute; 2 Hawk. P. C. cc.
80; Commonwealth v. Moore, 9 Mass.
402; Rex v. Mercier, 1 Leach, 4th ed.
183.

VOL. I. 29

6 2 Hawk. P. C. c. 380, § 6, 9; Rex v.
Steel, 1 Leach, 4th ed. 451.

7 And see The State v. Saunders, 53
Misso. 234; People v. Gregory, 30 Mich.
871; In re Turner, 5 Ohio, 542 ; Sutcliffe
v. The State, 18 Ohio, 469. As to Eng-
land, Rex v. Bitton, 6 Car. & P.92; Reg.
v. Bernard, 1 Fost. & F. 240; Reg. v.
Schleter, 10 Cox C. C. 409; Reg. v. Is-
rael, 2 Cox C. C. 268; Rex v. Roberts,
Car. Crim. Law, 8d ed. 57; Rex v. Hal-
ton, Ryan & Moody N. P. 78.

3 Post, § 796, 797; Rex v. Walcot, 9
Howell St. Tr. 519, 521; Rex v. Jackson,
25 Howell St. Tr. 788, 794. And see the
cases cited ante, § 729.

9 It is so in all the cases of misde-
meanor which I have examined in the
State Trials; as, Rex v. Reading, 7 How-
ell St. Tr. 259, 264; Rex v. Hampden, 9

449
§ 733 6 BETWEEN INDICTMENT AND TRIAL. [BooK VI.

unnecessary even in the high crimes. In our country, the ar-
raignment and plea are, where the latter is oral,! in probably
all offences, good without this question and its answer.?

Howell St. Tr. 1058, 1056; Rex v. But- 2 United States v. Gibert, 2 Sumner,
ler, 18 Howell St. Tr. 1249, 19.
1 Post, § 796, 797.

450
CHAP. LI.] NAMES AND IMPORT OF PLEAS. § 736

CHAPTER LI.
THE NAMES AND IMPORT OF THE PRINCIPAL PLEAS.

§ 734. In General. — The answer in court by the defendant
to the charge in the indictment, ordinarily termed his plea,!
assumes a form depending partly on the particular facts, and
partly on technical rules of pleading. Hence the necessity of
understanding the latter.

§ 735. Pleas enumerated. — Passing by the motion to quash,”
and the plea of guilty, Starkie states the defences to be, “I. By
a plea to the jurisdiction; II. By a declinatory plea; III. By a
plea in abatement of the indictment for some defect contained in
it; IV. By demurrer; V. By a plea in bar; VI. By the general
plea that he is not guilty.” He proceeds: 4

§ 736. “I. Plea to the jurisdiction : —

Nature of. — ‘By this plea, the defendant totally denies the
authority of the court to try him; as, —

Instances. — “‘ Where an indictment for rape has been found
before the sheriff in his torn, which he has delivered to the
justices, then, because the sheriff had no authority to take such
an indictment, the defendant may plead to the jurisdiction with-
out making any answer to the charge itself.5 So, if justices of
the peace should arraign a defendant for treason.6 But it seems
that the defendant cannot plead to an indictment before jus-
tices, that the offence was committed at some place beyond their
jurisdiction, for this would amount to no more than the general
issue.”

Answering over. — “ After a plea to the jurisdiction overruled,
it seems that the judgment should, in all cases, be to answer over
to the charge in the indictment.®

1 Ante, § 728. : 5 2 Hale P. C. 256; 22 E. 4. 22,

2 Post, § 758 et seq. 6 2 Hale P. C. 256.

8 1 Stark. Crim. Pl. 2d ed. 310. 7 See Trem. P. C. 271.

41 Stark. Crim. Pl. 2d ed. 310-820. 8 Rex v. Holles, Trem. P. C. 294, 302

451
§ 741 BETWEEN INDICTMENT AND TRIAL. [Book VI.

§ 737. “II. Declinatory Pleas” : —

Not in United States. — Under this head, he mentions the old
pleas, of sanctuary, “‘ abolished in the reign of James the First” ;1
and of the benefit of clergy, rarely resorted to, because clergy
could be prayed after conviction and before judgment.2 But
the latter,? equally with the former, is practically unknown
with us.

§ 738. “III. By Plea in Abatement” : —

Two Sorts of Defect. — This plea may be for a defect either
apparent .or not apparent on the record; as —

§ 739. Apparent on Record. — “It seems in general that any
defect, which in any stage of the criminal’ proceeding will vitiate
the indictment, may be taken advantage of by plea in abate-
ment.”* And some of these defects must be taken advantage
of in this way or not at all.6 Still, —

How practically. — “ But little advantage is, in general, to be
gained by a plea of this kind; since, with a few exceptions, the
defendant will be entitled to the advantage of his objection after
the trial;® and, should his plea be allowed, the court would
direct a new bill to be sent out to the grand jury ; or, if they had
been discharged, would detain the prisoner till the next assizes
or sessions.” 7

§ 740. Wot apparent on Record. — For various defects not ap-
pearing in the record this plea is available ; as, for example, —

Wrong Name or Addition. — “If the defendant be indicted by a
wrong name, or be described by an improper addition [where the
addition is necessary],® he may plead it; and, if the fact be found
for him, the indictment shall be abated.” 9

§ 741. “IV. By Demurrer : —

Described, and Effect of. — ‘“ By a demurrer the defendant refers
it to the. court to pronounce, whether, admitting the matters of
fact alleged against him to be true, they do, in point of law,
constitute him guilty of an offence sufficiently charged against
him. And a demurrer puts the legality of the whole of the
proceedings in issue, as far as they judicially appear; for the

1 21 Jac. 1, c. 28. 6 2 Hale P. C. 287.

2 2 Hale P. C. 286; 4 BI. Com. 388, 7 2 Hawk. P. C. c. 84, § 2.
8 Crim. Law, I. § 938. 8 See ante, § 672-675 a.

4 2 Hale P. C. 236. 9 2 Hale P. C. 288.

5 Ante, § 675 a; 2 Hale P. C. 236-239,
452

wh
CHAP. LI.] .NAMES AND IMPORT OF PLEAS. § 743

court is bound to examine! the whole record, to see whether
they are warranted in giving judgment upon it; and it is open
to objections, not only to the subject-matter of the indictment,
but also to the jurisdiction of the court in which the indictment
was found But — ,

How practically. — “ This plea is not very frequently resorted
to in practice, since [under the common-law rules] the defendant
may take advantage of the same exceptions after a conviction, by
motion in arrest of judgment.®

§ 742. “V. Plea in Bar: —

Defined. — “‘By a plea in bar the defendant shows, by matter
extrinsic of the record, that the indictment is not maintainable.

Enumerated. — ‘The most usual special pleas, in answer to a
charge of felony, consist either of matter of fact mixed with
matter of record, or, secondly, of matter of record only. The
former are of three kinds: 1. Autrefois Acquit. 2. Autrefois
Convict. 8. Autrefois Attaint. Of the latter kind is a plea of
Pardon.” #

§ 743. VI. “ The General Issue : —

What. — “By the general plea, that he is not guilty of the
treason or felony alleged against him, the defendant denies the
whole of the charge; and —

Special Defence. — ‘He may give his special defence in evi-
dence, though the matter of fact be proved against him.” ®

1 Rex v. Fearnley, 1 T. R. 316. 8 2 Hale P. C. 267.

21 T. R. 820,i.e. supposing the in- 4 1 Stark. Crim. Pl. 2d ed. 310-320.
dictment to have been removed into 5 1 Stark. Crim. Pl. 2d ed. 388, 889;
another court by certiorari or otherwise. | Neaderhouser v. The State, 28 Ind. 267.

453
§ 746 BETWEEN INDICTMENT AND TRIAL. [Book VI.

CHAPTER LI.
HOW THE PLEAS ARE FRAMED AND PLEADED.

§ 744, Law's Methods. — While the rights of a defendant to
make his defence are perfect, he can avail himself of them only
by doing it in the methods prescribed by law.1 Hence, —

As to Pleas.— To be entitled to show a particular matter in
defence, he must tender the plea which the law has provided, in
the law’s form, and at the law’s time.?

§ 745, Certainty in Plea. — We have already seen? that, in
the element of certainty, the plea differs from the indictment;
either it must be more certain, or it may be less, than the latter.
Thus, —

Dilatory Pleas, — such as pleas to the jurisdiction and in abate-
ment, require the highest of the three degrees of certainty ;*
and —

In Bar. — Pleas in bar and the general issue admit of the
lowest degree of certainty.®

§ 746. Order of Pleas. —In civil cases, at the common law,
there is an established order for the pleas; so that, when a plea
has been overruled, the party may bring forward any one below
it, but none above it, in the order. In criminal, the rules as to
this are fewer, and in a degree different. In a general way, yet
not as conclusively binding throughout, we may accept, for the
latter, Chitty’s “outline of these matters, in the order in which
they naturally arise,” as follows : —

1 Ante, § 113, 114, 117 et seq. 4 Ante, § 824, 827, 828; The State v.

2 Martin v. Commonwealth, 1 Mass. Ward, 64 Maine, 545; Ward v. The State,
847, 858; McQuillen v. The State,8 Sm. 48 Ind. 289; Dolan v. People, 64 N. Y.
& M. 587; Robertson v. Lea, 1 Stew. 141; 485, 492. See The State v. Flemming,
Mershon v. The State, 61 Ind. 14; Com- 66 Maine, 142, 150, 151; Gunter v. Dale,
monwealth v. Lannan, 13 Allen, 563; 44 Ala. 639.
Carper v. The State, 27 Ohio State, 672. 5 Ante, § 328, 824.

8 Ante, § 823-328, 506, 507. ® Gould Pl. c. 5, § 1-8.

454
CHAP. LU.] HOW PLEAS FRAMED AND PLEADED. § 748
‘1. Pleas to the jurisdiction.
2. Demurrers.
8. Dilatory pleas.
1. Declinatory of trial.
2. In abatement.
4. Pleas in bar of the indictment.
1. Autrefois acquit.
2. Autrefois attaint.
3. Autrefois convict.
4. Convict of another felony, and had his clergy.
5. Matter of record, pardons, &c.
5. Pleas to the matter of the indictment.
1. Not guilty.
2. Special pleas.’? 1

Instead of Order.— Instead of an exact order for the pleas,
Tigidly enforced, and in contrast to it, we have, in the criminal
law, the practice of —

§ 747. Withdrawal and Substitution. — During the more plastic
and forming periods of our law, the court, we have seen,? was,
in treason and felony, the prisoner’s counsel. One consequence
of which was, that, as expressed by Hyde, C. J., he should
“suffer nothing for his want of knowledge in matter of law.’ 3
So that, if the judges had desired to hold him to the order of
the pleas in civil causes, they could not; because, as his mistake
therein would have arisen from ignorance of law, they must
have permitted him to retrace his step. This may be the origin
of a practice, which rests also on still other reasons, and prevails
everywhere among us to the present day, of permitting prisoners,
not as of absolute right, but whenever justice or humanity dic-
tates, to withdraw any plea, whether dilatory or to the merits,
and substitute for it any other.1 But this cannot be per-
mitted after sentence pronounced ;° unless, perhaps, it has been
reversed.®

§ 748. Double Pleading. — The question of the order of the

Wickwire v. The State, 19 Conn. 477,
488; Norwood v. The State, 45 Md. 68,

1 1 Chit. Crim. Law, 484. *
2 Ante, § 296.

3 Rex v. Twyn, 6 Howell St. Tr. 518,
516.

# Ante, § 124; Kinloch’s Case, Foster,
16; Phillips v. People, 65 Ill. 429; Morton v.
People, 47 Ill. 468; Page v. Commonwealth,
27 Grat. 954; Hensche v. People, 16 Mich.
46; The State v. Kraft, 10 Iowa, 880;
The State v. Oehlshlager, 88 Iowa, 297;

76; Rex v. Fitzharris, 8 Howell St. Tr.
248, 825; People v. Lee, 17 Cal. 76; Sun-
day v. The State, 14 Misso. 417. And
see Commonwealth v. Lannan, 18 Allen,
663; Commonwealth v. Hagarman, 10
Allen, 401.

5 Reg. v. Sell, 9 Car. & P. 846.

8 Commonwealth. Ervine, 8 Dana, 80.

455
§ 749 BETWEEN INDICTMENT AND TRIAL. [Book v1.

pleas is more or less important according as defendants are
deemed entitled or not to plead two or more distinct pleas
together.

That this is not permissible. — Chitty says: ‘At common law,

there was but one rule which applied alike to civil and criminal:

proceedings, that the defendant must rely upon one ground of
defence, and that pleading double was never to be admitted.”
The correctness of this statement as to civil cases is conceded
by all; also, that 4 Anne, c. 16, § 4, changed the rule? only
in them, criminal causes being expressly excepted. But the
other English books do not support Chitty’s assertion, that the
common-law rule as to civil causes extended also to criminal.
Thus, — ;

§ 749. That Double Pleading permissible. — Hawkins, treating
of the plea in abatement, says: “If a defendant in an appeal,
or even in an indictment of felony, think it proper to make use
of never so many pleas or exceptions of this kind, requiring all
of them the same kind of trial, he may take advantage of them
all, unless they be repugnant to one another. Also it seems to
be the better opinion, that he shall have the like advantage,
where such pleas or exceptions do not all of them require the
same kind of trial, but some of them are triable by matter of
record, and others by the country. And if such pleas or ex-
ceptions be all of them triable by the country, it seems to have
been generally agreed, that the defendant must at the same
time plead also with them all his matters in bar, if he have any
such, and also plead over to the felony, unless where he hath
admitted the fact by the matter pleaded in bar. But if the plea
in abatement be triable by matter of record, it is holden in some
books that the defendant is not bound to plead over to the fel-
ony till such plea in abatement be found against him. But the
greater number of precedents and constant practice of late seem
to be otherwise. However, it seems clear, that whatsoever mat-
ters are pleaded in abatement of an appeal or indictment of
felony, and found against the defendant, yet he may afterwards
plead over to the felony.” He distinguishes criminal cases from
civil, as follows: ‘And in these respects such an appeal and

1 1 Chit. Crim. Law, 484, referring to 2 Gould Pl. 84 ed. 428 et seq.
2 Eunomus, 141; Tidd, Pr. 8th ed. 706; 8. Chit. Crim. Law, ut sup.
1 Chit. Pl. 4th ed. 477, 478.

456
CHAP. LII.] HOW PLEAS FRAMED AND PLEADED. § 750

indictment differ from appeals of mayhem,! and all civil actions
whatsoever, except only assizes of mort d’ancestor, novel disseisin,
nuisance, and juris utrum ;. for it seems to be a settled rule, that,
in appeals of mayhem and all other civil actions, those above
mentioned only excepted, if a plea in abatement, triable by the
country, be found against the defendant, he shall not be suffered
afterwards to plead any new matter, but final judgment shall be
given against him. Also it seems to be agreed, that, in all other
actions, except those above mentioned, if a defendant together
with a plea in abatement plead also a plea in bar, or the general
issue, he waives the plea in abatement; and the plea in bar or
general issue only shall be tried.”2 In accordance with this
doctrine of Hawkins, the practice of the English courts appears
always to have been, and it still is, in felony and treason, to
permit the defendant to add to his demurrer,’ or plea to the
jurisdiction,‘ or in abatement, or in bar,® the general issue of not
guilty. He has not been required to do it, at least in all cir-
cumstances, unless he chose. But, —

In Misdemeanor. — In misdemeanor, the rule, it is believed,
has been different; only one plea being received at a time, as
at common law in civil cases.’ As observed by Pemberton,
C. J., “in favorem vite, it would not hurt the plea [to the
jurisdiction] to plead over,’ §— a reason not applicable in mis-
demeanor.

§ 750. Pleading Double in United States. —- With us, the dis-
tinction between felony and misdemeanor, as to pleading double,
is very obscure, if indeed it is anywhere recognized. And, in
some of our States, the courts utterly deny the right to bring
forward more than one defence at a time by plea.? In others,
the right is given by statute.? In perhaps the greater number,

| See, as to the appeal of Mayhem,
Crim. Law IL. § 1001, note.

2 2 Hawk. P. C. c. 28, § 128.

3 Reg. v. Adams, Car. & M. 299.

4 Rex v. Fitzharris, 8 Howell St. Tr.
248, 275, 276.

5 2 Hale P. C.219, 256; Reg. v. Green,
Dears. & B. 113.

6 2 Hale P. C. 256; Reg. v. Phelps,
Car. & M. 180.

7 Reg. v. Charlesworth, 1 B. & S. 460,
9 Cox C. C. 40; Reg. v. Strahan, 7 Cox
C. C. 85.

8 Rex v. Fitzharris, supra, at col. 276.
See the reasoning in Rex v. Taylor, 3 B.
& C. 502, 514, and Rex v. Gibson, 8 East,
107, 110.

® Nauer v. Thomas, 13 Allen, 572;
Commonwealth v. Bakeman, 105 Mass.
58, 58; The State v. Heselton, 67 Maine,
698; The State v. Potter, Phillips, 338.
See Commonwealth v. Merrill, 8 Allen,545.

10 Crippen v. The State, 8 Heisk. 25.
Contra, formerly in this State, Hill o.
The State, 2 Yerg. 248; The State v.
Copeland, 2 Swan, Tenn. 626.

457
§ 752 BETWEEN INDICTMENT AND TRIAL. [BOOK VI.

however, the right is recognized as at common law, at least to
the extent of joining not guilty to a dilatory plea or plea in bar,
in general accord with the English practice.

§ 751. Form of the Double Pleading. — Some authorities hold,
that, where more defences than one are pleaded together, it
must be by a separate plea for each.? This, at least, is practi-
cally the better method. And the common course is, where,
for example, the general issue is to be joined with a special
plea, to frame the latter completely, as though it were to be
introduced alone; then add, before signing, the plea of not
guilty “as to the felony,” &c., with the conclusion to the
country.®

§ 752. How tried. — In general, two or more pleas, though
tendered together, should be separately tried ;* because they
involve distinct issues. And, as said by the English judges
with reference to former acquittal and not guilty, charging the
jury ‘with both issues at once would lead to this absurdity, that,
being charged with both, they would be obliged to find upon
both; and yet, if the first finding was for the prisoner, they could
not go to the second, because that finding would be a bar.” It

1 Lee v. The State, 26 Ark. 260; Long
v. The State, 88 Ga. 491; The State v.
Trimble, 83 Md. 468; Hartung v. People,
26 N. Y. 154; People vw. Roe, 5 Parker
C. C. 231; People v. Kinsey, 61 Cal. 278.
For example, in Alabama, a defendant
was held not compellable at the trial to
select and rely on one of several pleas in
abatement introduced by him. And Or-
mond, J., said: ‘“‘ The act of the legisla-
ture, in allowing more pleas than one to
be filed, does not extend to criminal cases.
But the right thus to plead exists at com-
mon law. In1 Chitty’s Criminal Law,
434, this is denied; but he cites no ad-
judged case in support of his opinion,
whilst the contrary doctrine is held by
Hawkins, a much higher author on crimi-
nal law, supported by high authority.
This seems, then, to be the better law;
and we do not feel warranted in depriv-
ing the prisoner of any defence secured
to him by the common law, and not re-
pealed by statute.” The State v. Green-
wood, 5 Port. 474, 483. And see The
State v. Allen, 1 Ala. 442; 8. ep. Buzzard
v. The State, 20 Ark. 106 ; Commonwealth

458

v. Long, 2 Va. Cas. 318. Having had oc-
casion to examine all the American cases,
in the preparation of my criminal-law
works, I can state of my general recol-
lection, that it is very common in this
country for the prisoner to introduce
several distinct pleas together, mingling
even dilatory pleas with pleas in bar or
to the general issue, and even to submit
more issues than one to the jury at the
same time.

2 Findley v. People, 1 Mich. 284; The
State v. Flemming, 66 Maine, 142.

8 Train & Heard Prec. 486; Gore-
ing v. Dearing, Trem. P. C. 15,18; Arm-
strong v. Lisle, Trem. P. C. 20, 25; Reg.
v. Green, Dears. & B. 118, 114, 7 Cox
C. C. 186. And see Rex v. Sheridan, 31
Howell St. Tr. 548, 577.

4 Commonwealth v. Merrill, 8 Allen,
645; Commonwealth v. Bakeman, 105
Mass. 53, 58; Henry v. The State, 33 Ala.
889, 899 (overruling Bob v. The State, 29
Ala. 20); Foster v. The State, 39 Ala.
229 ; Dominick v. The State, 40 Ala. 680;
Lee v. The State, 26 Ark. 260; Clem v.
The State, 42 Ind. 420,
‘

CHAP. LII.] HOW PLEAS FRAMED AND PLEADED. § 755

was added, that two issues in abatement “are always tried upon
separate charges to the jury.”! Still the issues, it is believed,
may be such as to render proper their submission together.?

§ 753. Pleading over subsequently. — If a single issue is pre-
sented by a plea which is then overruled or found against the
defendant, it is too late for him, as of right, to plead any thing
which the plea thus disposed of had admitted,’ or the jury’s ver-
dict had established. But, —

§ 754. In Felony. — Subject to this exception, if such it is
deemed, the rule in felony and treason is, that, if the prisoner
chooses to plead in the first instance only a dilatory plea or plea
in bar, he may, on judgment being rendered against him thereon,
tender the plea of not guilty and take his trial on the merits.4
But this is an innovation upon the ordinary rules of pleading,
originally permitted in favorem vite; not extending, therefore,
to misdemeanor.®

§ 755. In Misdemeanor. — If, in misdemeanor, the defendant
pleads in abatement, and this plea is demurred to, raising a
question of law, or if in any other way the issue becomes one
of law and not of fact, and the court decides against him, he
may plead over to the indictment, the same as in felony.®
According to various American authorities, he may do so also
where the plea is a special one in bar;’ but, in England, final
judgment is entered against him.’ On the other hand, when-

1 Rex v. Roche, 1 Leach, 4th ed. 134, 8 Buzzard v. The State, 20 Ark. 106;

185; post, § 812.

2 Schram v. People, 29 Ill. 162. And
see People v. Kinsey, 51 Cal. 278; Pritch-
ford v. The State, 2 Texas Ap. 69; ob-
servations of Metcalf, J., in Common-
wealth v. Merrill, supra ; Commonwealth
v. Loud, 8 Met. 828, and Commonwealth
v. Bubser, 14 Gray, 83.

3 Wickwire v. The State, 19 Conn. 477;
People v. Delany, 49 Cal. 894; People v.
Benjamin, 2 Parker C. C. 201. Perhaps
this does not apply to an admission by
demurrer in treason and felony. Post,
§ 781-784. /

4 2 Hale P. C, 255, 256; Anonymous,
Holt, 848. See post, § 781-784, 811; Reg.
v. Phelps, Car. & M. 180; Commonwealth
v. Merrill, 8 Allen, 545, 546.

5 Rex v. Gibson, 8 East, 107, 110; Rex
v. Taylor, 3 B. & C, 502, 618, 614.

Harding v. The State, 22 Ark. 210. See
Page v. Commonwealth, 27 Grat. 954.

7 Commonwealth v. Golding, 14 Gray,
49; Barge v. Commonwealth, 3 Pa. 262;
Hirn v. The State, 1 Ohio State, 15, 23,
Bartley, J., observing: “In a criminal
case in this State a defendant cannot
waive a jury trial, in any other way than
by a plea of guilty.”

8 Rex v. Taylor, 3 B. & C. 602. Said
Abbott, C. J., applying the rule of civil
pleading to criminal misdemeanor: “If
a plea in abatement be held bad on de-
murrer, the judgment is, that the defend-
ant do answer over; but, if a plea in
bar be held bad on demurrer, the judg-
ment is general against the defendant.”
p. 612.

459
§ ToT [BooK VI.

BETWEEN INDICTMENT AND TRIAL.

ever, in misdemeanor, the issue becomes one of fact, a verdict
against the defendant operates to convict him of the offence;
and the court or the jury, as by the law of the State it. devolves
on the one or the other, proceeds to fix the punishment! In
‘justification of which it is said, “that, wherever a man pleads
a fact which he knows to be false, and a verdict be against him,
the judgment ought to be final; for every man must be presumed
to know whether his plea be true or false in matter of fact: but,
upon demurrer to a plea in abatement, there shall be a respondeas
ouster; because every man shall not be presumed to know the
matter of law, which he leaves to the judgment of the court.” ?
The authority of the court to allow a plea to be withdrawn ap-
pears to continue after verdict until judgment; so that, by its
permission, the defendant can plead over in these circumstances.*

§ 756. No Abatement after Bar.— After the general issue, or
any plea in bar, it is too late to plead in abatement,® except on
leave to withdraw the former ;® because the plea in- bar admits
whatever is ground only of abatement.? So —

Any Plea— to an indictment admits its genuineness as a
record. And — /

Objections to Process — will not be considered after trial.?

§ T57. Formalities. — Connected with the pleas, there are vari-
ous formalities, depending on the general law of pleading, and
the practice of the particular State. Thus, —

Verification. — It is provided by 4 Anne, c. 16, § 11, which,
though not enacted till 1705, was accepted as common law even

1 The State v. Allen, 1 Ala. 442; Guess 3 Ante, § 747.
v. The State, 1 Eng. 147; 1 Chit. Crim. # And see Commonwealth v. Carr,
Law, 451; Rex v. Gibson, 8 East, 107; supra.

Schram v. People, 29 Ill. 162; Miazza v.
The State, 36 Missis. 618; Common-
wealth v. Carr, 114 Mass. 280.

21 Chit. Crim. Law, 451; Gibson,
C. J., in Barge v. Commonwealth, 8 Pa.
262, 264. In Alabama, it appears, if there
are several pleas in abatement and on
some of them issues of law are made up,
and on others issues of fact, and the pleas
involving the issues of law are overruled
by the court, the defendant may then
plead over to the misdemeanor, notwith-
standing the jury find against him on the
issues of fact. The State v. Allen, 1 Ala.

442,
460

5 1,Chit. Crim. Law, 447; The State
v. Farr, 12 Rich. 24; Commonwealth v.
Butler, 1 Allen, 4; The State v. Monta-
gue, 2 McCord, 257; Carper v. The State,
27 Ohio State, 672; Commonwealth v.
Lannan, 18 Allen, 563; Winship v. Peo-
ple, 61 Ill. 296; The State v. Carver, 49
Maine, 588.

6 Ante, § 128, 124, 747; Reg. v. Pur-
chase, Car. & M. 617.
‘ T McQuillen v. The State, 8 Sm. & M.

87,

8 The State v. Clarkson, 3 Ala. 378;
Ex parte Winston, 52 Ala. 419.

® The State v. Goyette, 11 R. I. 692.
-CHAP. LIl.] HOW. PLEAS FRAMED AND PLEADED. § T57

in such of the older States as Maryland and Pennsylvania,! but
probably not in all,? that “no dilatory plea shall be received
in any court of record, unless the party offering such plea do,
by affidavit, prove the truth thereof, or show some probable
matter to the court to induce them to believe that the fact of
such dilatory plea is true.” And this applies, not only in civil
cases, but in criminal. By construction, the verification is nec-
essary only where the matter of the plea is outside the record ;
what is within it, requiring no proof.t In some of our States,
there are statutes of a like sort.®

1 Kilty Rep. Stats. 246; Report of 3 Rex v. Grainger, 3 Bur. 1617; 1 Chit.
Judges, 3 Binn. 599, 625. - Crim. Law, 486.
. 2 See Bishop First Book, § 54, 56, 58. 4 Gould Pi. 3d ed. 280.
5 McCoy »v. Harrell, 40 Ala. 232.

461
§ 760 BETWEEN INDICTMENT AND TRIAL. [Book VI.

CHAPTER LIII.
THE MOTION TO QUASH THE INDICTMENT.

§ 758. In General. — Whenever the judge perceives that an
indictment cannot be proceeded with advantageously to public
justice, or without doing a wrong to the defendant, he may in
his discretion quash it; in other words, cause it to abate.1 The
method is by an entry on the record, which he orders either
self-moved or prompted by motion. Or, —

§ 759. Refusing to try Indictment. — Instead of proceeding so
formally, the court may simply refuse to try an indictment on
which, plainly, no good judgment can be rendered.?

Amicus Curie suggesting — Even an amicus curie, it is said,
may move to quash an indictment;® since, in law, no motion
from any source is necessary.

§ 760. Prosecutor moving — (Nol. Pros.).— Under the English
practice, where a private prosecutor conducts the cause, and a
nolle prosequi could be applied for only at considerable incon-
venience, the motion to quash frequently comes from him. It
will not be granted, says Chitty,* “as a matter of course > unless
it appear to be clearly insufficient;® nor even then after the
defendant has pleaded, unless another good indictment has been
found against him ;7 nor where he has been put to extra expense,
unless the costs are first paid him.’® Nor, it seems, will an in-
formation filed ex officio by the attorney-general be quashed on
his application under any circumstances; for, if he desires its

1 Reg. v. Wilson, 6 Q. B. 620. ® Rex v. Stratton, 1 Doug. 239, 241;

2 Rex v. Tremearne, 56 B. & C. 761, Com. Dig. Indictment, H.

Ryan & Moody N. P. 147; s. c. nom. Rex 7 Rex v. Wynn, 2 East, 226; Rex v.
v. Tremaine, 6 D. & R. 413; Rex v. Dea- Frith, 1 Leach, 4th ed. 10, 11; Goddard

con, Ryan & Moody N. P. 27. v. Smith, 6 Mod. 261, 262.
8 Rex v. Vaux, Comb. 18. 8 Rex v. Webb, 8 Bur. 1468, 1469, 1
4 1 Chit. Crim. Law, 299, 300. W. Bi. 460; Rex v. Moore, 2 Stra. 946;

5 Reg. v. Smith, 2 Moody & R. 109; Com. Dig. Indictment, H; Bac. Abr. In-
Rex v. Webb, 3 Bur. 1468, 1 W. Bl. 460. dictment, K.

462
CHAP. LO. ] QUASHING THE INDICTMENT.

§ 762

discontinuance, he may do it by nolle prosequi.1 Hence, in our
country, where all prosecutions in the higher courts are con-
ducted by official counsel having the power of nolle prosequi,?
the prosecutor’s moving to quash is unknown. So that, —

§ 761. Quasi Plea in Defence. — Practically with us, the motion
to quash is one of the ordinary steps in defence, in the nature of
a plea, for which in a measure it is a substitute.

Discretionary with Court. — It is not a proceeding as of right,?
like a plea; but the motion is addressed to the discretion of
the court, which means a discretion regulated by judicial rule.*
Hence, —

Higher Court revising. — In ordinary circumstances, and accord-
ing to what is believed to be the more common practice in our
States, the decision of the presiding judge on this motion is not
open for revisal by a higher court. But in some States,® in
some circumstances,’ and in some conditions of the statutory
law,’ it is, — questions not profitable for discussion in a general
work like this.®

§ 762. When made. — The favored time for this motion, when
it is most likely to be granted, is before plea; and some of the
cases appear even to hold, that, after plea, and especially after
issue joined, it is too late. Hence, by some tribunals, the motion

1 Rex v. Stratton, supra.

2 Crim. Law, I. § 1006, 1014, 1016,
1017, 1021.

8 People v. Davis, 56 N. Y. 95.

41 Chit. Crim. Law, 299; The State
v. Nail, 19 Ark. 568; Ex parte Bushnell,
8 Ohio State, 599; The State v. Dayton,
3 Zab. 49; Strawhern v. The State, 37
Missis. 422; The State v. Wishon, 15
Misso. 503 ; Click v. The State, 3 Texas,
282; United States v. Stowell, 2 Curt.
C. C. 153; Commonwealth v. Eastman, 1
Cush. 189; The State v. Barnes, 29 Maine,
661; The State v. Stuart, 23 Maine, 111;
The State v. McCarty, 4 R. I. 82; Rex v.
Frith, 1 Leach, 4th ed. 10; The State v.
Baldwin, 1 Dev. & Bat. 195.

5 The State v. Jones, 5 Ala. 666; The
State v. Conrad, 21 Misso. 271; The State
v. Putnam, 88 Maine, 296; Common-
wealth v. Eastman, 1 Cush. 189; The
State v. Hurley, 54 Maine, 662; United

States v. Rosenburgh, 7 Wal. 580; ante,
§ 455.

6 See The State v. Fortune, 10 Misso.
466; The State v. Rector, 11 Misso. 28;
The State v. Batchelor, 15 Misso. 207;
The State v. Wall, 15 Misso. 208; The
State v. Leapfoot, 19 Misso. 375; Chavis
v. The State, 83 Texas, 446; The State
v. Barnes, 29 Maine, 561; The State v.
Staker, 8 Ind. 570; Commonwealth v.
Church, 1 Barr, 105.

7 People v. Stone, 9 Wend. 182, 192.

§ Ante, § 114; Commonwealth »v. Mc-
Govern, 10 Allen, 198; The State v. Cun-
ningham, 51 Misso. 479; The State v.
Bohannon, 21 Misso. 490.

9 See also The State v. McCarty, 4
R. I. 82; Shifflet v. Commonwealth, 14
Grat. 652; Reg. v. Wilson, 6 Q. B. 620,

10 1 Stark. Crim. Pl. 2d ed. 299; Rex v.
Frith, 1 Leach, 4th ed. 10, 11; Wilder v.
The State, 47 Ga. 622 ; People v. Walters,

463
§ 763 [Book v1.

BETWEEN INDICTMENT AND TRIAL.
will be heard afterward only on the withdrawing of the plea by
leave; or, if the hearing is simply by consent of court, it will
operate as such withdrawal! The New Jersey court deems,
that, to make way for this motion, leave to withdraw the -plea
of not guilty should be granted as of course. But the better
doctrine is believed to be, that, in the absence of statutory
changes of common-law rules, the motion has no relation to
any plea, that it should be more favored at an early stage of
the proceeding than at a later, that whenever presented the court
will exercise its discretion whether or not to hear it then; that
it may be heard, yet will not ordinarily, even during a trial,
and even after the evidence is in; and, in short, it is in order,
without any withdrawal of pleas, at any time, down to the ren-
dition of the verdict. After verdict, it cannot be received.®

§ 768. Defect on Face of Indictment or not. —It is sometimes
said, and such may be the rule in some of our States, that the
motion to quash can be only for matter appearing in the indict-
ment. In a general way, this is so everywhere.’ But the
better doctrine is, that the court may aid its discretion by
looking into what is brought to its attention outside the indict-
ment, and even outside the record of the cause.2 Thus, —

Extrinsic Fact.— The prosecuting attorney may admit a fact,®
or it may be shown by affidavit,! and in either case it will be

5 Parker C. C. 661; Reg. v. Carruthers,
1 Cox C. C. 188; The State v. Burling-
ham, 15 Maine, 104; Nicholls v. The
State, 2 Southard, 539.

‘1 Mentor v. People, 30 Mich. 91; Mor-
ton v. People, 47 Ill. 468; Hensche v. Peo-
ple, 16 Mich. 46.

2 Nicholls v. The State, supra.

3 Reg. v. Goldsmith, Law Rep. 2 €. C.
74, 77; Parrish v. The State, 14 Md. 238;
Rookwood’s Case, 18 Howell St. Tr. 139,
161 et seq.; Cranburne’s Case, 13 Howell
St. Tr. 221, 223 et seq. See Rex v. Abra-
ham, 1 Moody & R.7; Rex v. Souter, 2
Stark. 423.

# Ante, § 760; Commonwealth v. Chap-
man, 11 Cush. 422; Rex v. Moor, W. Kel.
108; Rex v. Wynn, 2 East, 226; Rex v.
Frith, 1 Leach, 4th ed. 10, 11; Reg. v.
Heane, 9 Cox C. C. 433, 436, 10 Jur. x. 8.
724; Smith v. The State, 45 Md. 49; Rex

464

v. Cranburne, 13 Howell St. Tr. 221, 223;
Justice v. The State, 17 Ind. 56.

5 The State v. Barnes, 29 Maine, 561.
See The State v. Stuart, 28 Maine, 111;
Thomasson v. The State, 22 Ga. 499;
Rice v. The State, 3 Kan. 141; The State
v. Jarvis, 63 N. C. 556; The State v. Mc-
Carty, 4 R. I. 82.

® The State ‘v. Rickey, 4 Halst. 293;
Wickwire v. The State, 19 Conn. 477;
Commonwealth v. Church, 1 Barr, 105;
Broward v. The State, 9 Fla. 422; United
States v. Brown, 1 Saw. 581; Bell v. The
State, 42 Ind. 385; ante, § 455. And see
United States v. Pond, 2 Curt. C. C. 265.

7 Reg. v. Burnby, 18 Law J. N. 8
M. C. 29.

8 The State v. Batchelor, 15 Misso.
207; The State v. Wall, 15 Misso. 208.

® The State v. Cain, 1 Hawks, 352.

10 Reg. v. Heane, 9 Cox C. C. 438, 436,
CHAP. LUI.] QUASHING THE INDICTMENT. § 766

considered in connection with the indictment, as foundation for
the motion to quash.!

§ 764. Quashing a Part. — Where an indictment for one assault
was in twenty-one counts, laying it in different ways, Lord
Hardwicke, C. J., denied a motion to quash a part of them as
needless and vexatious, saying: “How can we strike out any
thing that the grand jury have found? ... The officer that
attends the grand jury should not let such indictments come
before them.”? Singularly this case has sometimes been inter-
preted as establishing, that a court cannot quash a defective
count and leave a good one to stand, but the whole must be
quashed or none. Plainly it maintains no such doctrine; and,
for the same reason that a grand jury may find some counts in
a bill and ignore others,* the court — looking at the question
as one of principle — may quash bad counts and leave good
ones. In perhaps most of our States, this is done;® but in
others it is not, or the question is in doubt, by reason of the

misunderstanding as to the English rule.®

In truth, the English

courts hold that bad counts may be quashed, leaving the good

ones to stand.’

§ 765. Caption. — Where the caption ® is made up in the Eng-
lish way, and perhaps where it is not, a defect in it may be
reached by the motion to quash, the same as in the body of the

indictment itself.9
§ 766. For what Causes : —
In General. — The motion to

10 Jur. n. s. 724; The State v. Horton,
63 N.C. 595. See Reg. v. Stockley, 2
Gale & D. 728, 3 Q. B. 288.

1 And see The State v. Nutting, 89
Maine, 359; United States v. Shepard, 1
Abb. U. S, 481; Rex v. Thomas, 3 D. &
R. 621.

% Rex v. Pewterus, Cas. temp. Hardw.
208; s. c. nom. Rex v. Pewtress, 2 Stra.
1026.

31 Chit. Crim. Law, 803. And see
Reg. v. Withers, 4 Cox C. C. 17, 19.

* Ante, § 701.

5 Jones v. The State, 6 Humph. 435;
The State v. Woodward, 21 Misso. 265;
The State v. Wishon, 15 Misso. 508; King
v. The State, 10 Texas, 281; Scott v.
Commonwealth, 14 Grat. 687; The State

VOL. I. 80

quash an indictment or a part

v. Coleman, 5 Port. 32; Williams v. The
State, 42 Texas, 892; United States v.
Bickford, 4 Blatch. 387.

6 Dukes v. The State, 11 Ind. 557;
Kane v. People, 3 Wend. 863; The State
v. Rector, 11 Misso. 28; The State v.
Buchanan, 1 Ire. 59; The State v. Smith,
8 Blackf. 489; Rose v. The State, Minor,
28; Commonwealth v. Hawkins, 3 Gray,
463.

7 Reg. v. Fuidge, Leigh & C. 390, 9 Cox
C. C. 480.

8 Ante, § 655 et seq.

9 1 Chit. Crim. Law, 299; The State
v. Hickman, 8 Halst. 299; Respublica v.
Cleaver, 4 Yeates, 69; Rex v. Burkett,
Andr. 280. See Kemp v. Commonwealth,
18 Grat. 969.

465
§ 769 BETWEEN INDICTMENT AND TRIAL.

of the counts being addressed to the discretion of the court,
such discretion, rather than any absolute rule of law, determines

the causes which will prompt its action. What will promote
justice it will do, what will retard justice it will withhold. And
it will look into all the circumstances and conditions of the par-
ticular case. Thus, —

§ 767. Other Remedies considered. — The court will consider
what other remedies are available to the defendant, and refuse
this one where it deems that justice will be better promoted by
compelling him to resort to another.! Therefore, if there are
statutes restraining the exercise of other remedies, it may en-
courage this the more, and quash an indictment when it would
not under the common-law precedents.”

§ 768. Clear Case. — If the motion is, as in most instances,
grounded on an alleged defect in the indictment, the court, where
the case is’ plain, will grant it,? unless for some reason the de-
fendant ought to be compelled to another remedy.* But ina
doubtful case, and especially where also the court is of inferior
jurisdiction, the tribunal should not act on this mere discretionary
motion.®

§ 769. Nature of Offence. —If the offence is such that the
indictment partakes of the nature of a civil proceeding,§ it is
reasonably plain that the court should and will be less ready
to quash it.’ And there are old cases and occasionally a modern
one which almost hold, that, where the offence is very serious, or
concerns great. numbers of people, the court will therefore de-

[Book vi.

cline to quash the indictment

1 Rex v. Crookes, 3 Bur. 1841; Rex
v. Sutton, 4 Bur. 2116; Leyton’s Case,
Cro. Car. 584; Rex v. King, 2 Stra. 1268;
Rex v. Bailey, 2 Stra. 1211; Rex v. John-
son, 1 Wils. 325.

2 Ante, § 114 and the cases there cited.

3 The State v. Albin, 50 Misso. 419;
Anonymous, Comb. 243; Rex v. Combs,
Comb. 2438 ; Rex v. Trevilian, 2 Stra. 1268;
Rex v. Burkett, Andr. 280; Rex v. Lease,
Andr, 226; The State v. Cole, 17 Wis.
674; The State v. Beard, 1 Dutcher, 884;
The State v. Robinson, 9 Fost. N. H, 274,

4 Ante, § 767.

5 The State v. Bohannon, 21 Misso.
490, 491; People v. Davis, 56 N. Y. 95;
The State ». Baldwin, 1 Dey. & Bat. 196,

466

however defective.’ But such
196; Reg. v. Burnby, 5 Q. B. 348; Reg.
v. Birmingham, &c., Railway, 1 Gale & D.
457; Reg. v. Wetherill, Cald. 432; Reg.
v. Wheatley, 1 W. Bl. 278; Bell v. Com-
monwealth, 8 Grat. 600; Commonwealth
v. Eastman, 1 Cush. 189; Respublica v.
Cleaver, 4 Yeates, 69; The State v. Smith,
1 Murph, 213; People v. Eckford, 7 Cow.
635.

® Crim. Law, I. § 1074~1076.

7 Garland v. Burton, Andr. 174, 175.
And see Rex v. Wadsworth, 5 Mod. 18;

. Rex v. Belton, 1 Salk. 872; Rex v. —,

1 Chit. 698.

8 1 Chit. Crim. Law, 800-308; Reg. v.
Wigg, 2 Ld. Raym. 1163, 1164; Rex »v.
Belton, 1 Salk. 872; Rex v. Wetherill,
CHAP. LIII.]

" QUASHING THE INDICTMENT. § 772

r

rulings do. not accord with what is believed to be the general
practice in modern times.! Surely, in no case, can justice be
promoted by driving a defendant to trial on an indictment
which will certainly be set aside after he is found guilty.

§ 770. Another Indictment pending. — “It is no ground,” says
Chitty,” “‘to quash an indictment that there be another pending
against defendant for the same offence,’ unless indeed there be
some vexation which the court will judge of and determine ;+#
and, in a case where there was a joint indictment against two for
perjury, which on the trial the court inclined to think bad, and
the trial was postponed, pending which a separate indictment
against one of the parties was preferred, the court refused to
quash the latter indictment, no vexation appearing.” ®

§ TT1. As to Effect on Recognizances. — A reason sometimes
assigned for not quashing the indictment, where the offence is
heavy, and in some other cases, is “because,” in the language
of Chitty, “‘if the indictment be quashed, the recognizances will
become ineffectual.” ® In Kentucky, and perhaps some of the
other States, such is not the effect of quashing.’ But we have
seen that the court may, and should, in all cases of quashing,
pursue a course which will not result in setting the defendant

at liberty and freeing the bail.®

After a forfeiture of the recog-

nizance, the indictment should not be quashed.®
§ 772. Some Instances. — Want of jurisdiction in the court is

a favored ground for quashing an indictment.”

Cald. 482; Anonymous, 1 Vent. 869, 870;
Rex v. Wadsworth, 5 Mod. 13; Rex v.
Bishop, Andr. 220; Rex v. Sutton, 4 Bur.
2116; The State v. Baldwin, 1 Dev. &
Bat. 195, 196; The State v. Colbert, 75
N. C. 868; Commonwealth v. Litton, 6
Grat. 691.

1 I make this proposition more on my
general remembrance of the course of
things, as appearing in the reports, than
on any particular decision. And see Rex
v. Thomas, 8 D. & R. 621; The State v.
Bonnell, 46 Misso. 395.

21 Chit. Crim. Law, 301,

3 Crim. Law, I. § 1014.

4 Rowand v. Commonwealth, 1 Nor-
ris, Pa. 405. See Durr v. The State, 53
Missis. 425.

«“ And if, from

5 Per Abbott, J., Nov. 1816, Adolphus
moved to quash the indictment; The
State v. Whitmore, 5 Pike, 247. See
Commonwealth v.. Hoey, 3 Brews. 514.

6 1 Chit. Crim. Law, 300; The State
v. Colbert, 75 N. C. 368.

7 Little v. Commonwealth, 3 Bush, 22;
ante, § 264 f, 264 j-264 1.

8 Ante, § 264 k; Reg. v. Murphy, 1
Cox C. C. 108, 109.

® Anonymous, 1 Salk. 880.

10 Reg. v. Heane, 9 Cox C. C. 433, 10
Jur. n. s. 724; Bell v. Commonwealth, 8
Grat. 600; Justice v. The State, 17 Ind.
66; Rex v. Williams, 1 Bur. 385, 389;
Rex v. Bainton, 2 Stra. 1088; Rex v.
Marsh, 1 Barn. 46.

467
‘

§ 778

BETWEEN INDICTMENT AND TRIAL.

[Book VI.

the facts stated, it appear that no indictable offence has been
committed, the indictment will be thus set aside in the first

instance.” }
of any material averment.?

So it will be in a clear case for the total omission
If a nuisance is shown to the court

to be abated, this will be an inducement to quash the indictment

where it is ill!
the whole ground.

These are instances illustrative, not covering
And, whatever be the cause, —

Form of Motion. — The motion should be in proper form. If,
for example, only a part of the counts are bad, it should not be
to quash the whole.’ If the objection is the want of addition,

it must state what the addition should be.®

In one case, it was

laid down that reasons need not be assigned;7 but by statute
in Missouri they must be ;® and so, it is believed, they must often
be elsewhere on general principles, but perhaps not in all cir-

cumstances.?

§ 778. Considered in Other Places. — Various questions relating
to the motion to quash are considered in other places in these

volumes. Thus, —

Misjoinder.— We have seen how the courts avail themselves
of this power to prevent an improper joinder of offences and
offenders.° And so, says Chitty,” “where six persons were
jointly and severally charged with exercising a trade without

11 Chit. Crim. Law, 302; Common-
wealth v. Clark, 6 Grat. 675; The State
v. Mitchell, 1 Bay, 267; Smith v. The
State, 45 Md. 49; Williams v. The State,
42 Texas, 892; The State v. Albin, 50
Misso. 419.

2 Chit. Crim. Law ut sup.; Anony-
mous, Comb. 248; Rex v. Trevilian, 2
Stra. 1268; Rex v. Burkett, Andr. 230;
Rex v. Lease, Andr. 226,

8 Leyton’s Case, Cro. Car. 584.

4 Limitations. — Where the statute of
limitations has run, see, that the motion
to quash is available and is not, The State
v. Robinson, 9 Fost. N. H. 274; The State
v. Howard, 15 Rich. 274. And see ante,
§ 405; United States v. Cook, 17 Wal.
168. ‘Against Peace.’? — An indict-
ment not concluding “against the peace
and dignity of the United States,” may
be quashed. United States v. Crittenden,
Hemp. 61; United States v. Lemmons,
Hemp. 62. Prisoner abducted. — It is

468

not a ground for quashing, that, between
the issuing of the warrant and finding of
the indictment, the prisoner was forcibly
brought into the jurisdiction from a for-
eign country. People v. Rowe, 4 Parker
C. C. 258. See ante, § 219, 224 db.

5 The State v. Wishon, 15 Misso. 508.

6 Rex v. Thomas, 8 D. & R. 621. See
The State v. Maurer, 7 Iowa, 406; The
State v. McGregor, 41 N. H. 407.

7 The State v. Kirby, 2 Southard, 885.

8 The State v. Berry, 62 Misso. 595;
The State v. Murphy, 47 Misso. 274; The
State v. Marshall, 47 Misso. 878; The
State v. Van Houton, 37 Misso, 867; The
State v. Webb, 87 Misso. 866.

8 Compare with post, § 775, 798.

10 Ante, § 442, 447, 449, 453, 455, 478,
475; Lewellen v. The State, 18 Texas,
688; The State v. Nail, 19 Ark. 563;
Strawhern v. The State, 87 Missis. 422;
Rex v. Kingston, 8 East, 41.

M1 Chit. Crim. Law, 802.

*
CHAP. LII.] QUASHING THE INDICTMENT. § 174

having served an apprenticeship, the indictment was quashed
as altogether vicious.”! So —

Repugnancy ? — may be ground for quashing.®

§ 774. Effect of Refusal. — A refusal to quash an indictment
does not bar the party’s right to raise the question in proper
form at another stage of the proceeding.*

1 Rex v. Weston, 1 Stra. 623; Com. 3 The State v. Johnson, 5 Jones, N. C.

Dig. Indictment, H. 221,
2 Ante, § 489 et seq. 4 Ex parte Bushnell, 8 Ohio State,
599.

469
§ 776 BETWEEN INDICTMENT AND TRIAL. [BOOK VI.

CHAPTER LIV.
THE DEMURRER.

§ 775. What and how defined. — The demurrer is used both
in civil pleadings and in criminal; and as well by the plaintiff,
in reply to the defendant’s plea, as by the defendant in reply to
the plaintiff's allegation. It submits to the court, that, assuming
the other party’s averments to be true, they constitute no well-
alleged accusation or defence.1

General or Special. —If it does not undertake to particularize
defects, it is termed a general demurrer; if it does, a special.?
Perhaps duplicity requires, at the common law, a special de-
murrer,’ and there are possibly some other imperfections of the
like sort; but, in most circumstances, and in the absence of a
controlling statute, a defect can be reached as well by general
demurrer as by special, and the two differ only in form.*

Whole Record. — “Upon a demurrer to an indictment, the
court must look to the whole record® to see whether they are
warranted in giving judgment on it;” objections, therefore, to
its jurisdiction, and to the substance and structure of the indict-
ment, are alike reached in this way.6 So, —

§ 775 a. First Error. —In criminal causes, the same as in civil,
judgment must be given against the party who committed the
first fault in pleading.’

§ 776. Form. — The following is an English form of general
demurrer to an indictment or information, with the rejoinder: —

‘* And the said J. S. in his own proper person cometh into court here, and,
having heard the said indictment [or information] read, saith that the said

indictment [or information] and the matters therein contained, in manner
and form as the same are above stated and set forth, are not sufficient in law,

1 And see ante, § 741. 6 Rex v. Fearnley, 1 T. R. 816, 820, 1

2 Gould Pl. c. 9, § 8. Leach, 4th ed. 425; Rex v. Haddock,

3 Ante, § 442, 443 and note; Gould Pl. Andr. 187, 145. See The State v. Bran-
ut sup., 3d ed. note. don, 28 Ark. 410.

* Lazier v. Cofamonwealth, 10 Grat. ™ People v. Krummer, 4 Parker C. C.
708; Commonwealth v. Jackson, 2 Va. 217; The State v. Sweetsir, 58 Maine, 438;
Cas. 601. United States v. Lawrence, 18 Blatch.

5 Ante, § 741. 295. ;

470
CHAP. LIv.] THE DEMURRER. § 177

and that he the said J. S. 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 [or information] in this behalf, the said J. S. prays judgment, and
that by the court he may~be dismissed and discharged from the said premises
in the said indictment [or information] specified.”’

Joinder. ‘* And J. N., who prosecutes for our said lady the queen in this
behalf, saith, that the said indictment and the matters therein contained, in
manner and form as the same are above stated and set forth, are sufficient
in law to compel the said J. S. to answer the same; and the said J. N., who
prosecutes as aforesaid, is ready to verify and prove the same, as the court
here shall direct and award; wherefore, inasmuch as the said J. S. hath not
answered to the said indictment, nor hitherto in any manner denied the same,
the said J. N., for our said lady the queen, prays judgment, and that the said
J. S. may be convicted of the premises in the said indictment specified.”
[The like form, mutatis mutandis, may be adopted in the case of informations,
and of indictments in the Court of Queen’s Bench.]1

§ 777. To Plea. — The general demurrer to a plea in bar is,
with the rejoinder, as follows: —

‘¢ And J. N., who prosecutes for our said lady the queen in this behalf, as
to the said plea of the said J. S. by him above pleaded, saith that the same,
and the matters therein contained, in manner and form as the same are above
pleaded and set forth, are not sufficient in law to bar or preclude our said lady
the queen from prosecuting the said indictment against him the said J. S.;
and that our said lady the queen is not bound by the law of the land to an-
swer the same; and this the said J. N., who prosecutes as aforesaid, is ready
to verify: wherefore, for want of a sufficient plea in this behalf, he the said
J. N., for our said: lady the queen, prays judgment, and that the said J. S.
may be convicted of the premises of the said indictment specified.’? [The
like form, mutatis mutandis, may be adopted in the case of informations, and
of indictments in the Court of Queen’s Bench. A demurrer to'a plea in
abatement is'in the same form, except that it concludes with praying ‘“ judg-
ment, and that the said indictment may be adjudged good, and that the said
J. S. may further answer thereto,’’ &c.] g

Joinder. ‘‘ And the said J. S. 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 the said
J. S. ; and the said J. S. is ready to verify and prove the same, as the said
court here shall direct and award: wherefore, inasmuch as the said J. N.,
for our said lady the queen, hath not answered the said plea, nor hitherto in
any manner denied the same, the said J. S. prays judgment, and that by the
court here he may be dismissed and discharged from the said premises in the said
indictment specified.”” [The joinder is the same, if the demurrer be to a plea
in abatement, except that it concludes with praying ‘‘ judgment, and that the
said indictment may be quashed,’’ &c.]*

1 Archb. Crim. Pl. & Ey. 18th Lond. ed. 115, 116. 2 Ib.
471
§ 782 BETWEEN INDICTMENT AND TRIAL. [Book v1.

§ 778. Special by Statute. — In some of the States, by statute,
all demurrers must be special; that is, they must state the par-
ticulars of the objection.1

§ 7179. To Part or All. — A demurrer may be to a part of the
counts,” or to all. If to the former, it must specify to what ones.
Where to the whole indictment, it will be overruled should any
one count be found good.3

§ 780. When. — Though by the better opinion, as we have
seen,‘ a court after plea may quash an indictment without the
plea being withdrawn, it is not quite so with the demurrer. In
a proper case, where the objection is to the merits, not where it
is to a mere technicality,® a defendant will be permitted to with-
draw his plea and demur ;® but it is believed, that, in the absence
of such permission, no demurrer can be received while an unde-
cided plea is on the records. If a dilatory plea has been over-
ruled, with judgment to answer over, he may demur.’

Revisal by Higher Court. — A judgment on demurrer, like any
other on the merits, may be revised or not by a higher tribunal,
as the general course of its practice indicates.8 The exercise of
the discretion in permitting or refusing the withdrawal of a plea
in order to demur, cannot, in the English procedure, be thus
revised.®

§ 781. The Judgment : —

For Defendant. — ‘The judgment for the defendant upon
demurrer is, that he be dismissed and discharged from the
premises.” 1°

§ 782. Against Defendant, whether answer over. — When it is
against the defendant, the question whether it shall be final,

1 The State v. Berry, 62 Misso. 595;

& M. 617; Reg. v. Faderman, 1 Den.
The State v. Murphy, 47 Misso. 274; The

C. C. 565; Reg. «. Sheals, 8 Crawf. &

State v. Marshall, 47 Misso. 378; Ben-
ham »v. The State, 1 Iowa, 542; The State
v. Groome, 10 Iowa, 308.

2 Turner v. The State, 40 Ala. 21;
Rex v. Cordy, 8 Car. & P. 425.

3 Ingram v. The State, 89 Ala. 247,
250; Wheeler v. The State, 42 Md. 563.
See People v. Martin, 47 Cal. 112.

4 Ante, § 762.

6 Reg. v. Brown, 1 Den. C. C, 291, 3
Cox C. C. 127, 2 Car. & P. 604; Reg. v.
Odgers, 2 Moody & R. 479.

6 Ante, § 762; Reg. v. Purchase, Car.

472

Dix C. C. 830.

7 Reg. v. Duffy, 4 Cox C. C. 172, 190,
294.

8 Commonwealth v. Bosworth, 1138
Mass. 200; Marston v. Commonwealth,
18 B. Monr. 485; The State v. Gregory,
88 Misso. 501; Commonwealth v. Glouces-
ter, 110 Mass. 491; People v. Wooster,
16 Cal. 485.

® Reg. v. Brown, 17 Law J.n. 8. M:C.
145.

10 Archb. Crim. Pl. & Ev. 18th Lond.
ed. 116.
CHAP. LIV.] THE DEMURRER. § 782

operating as a conviction, or whether it shall direct him to
answer over to the charge, is a little complicated. In civil
suits at common law, the demurrer conclusively admits whatever
the opposite party has well pleaded;1 and, if to a declaration,
and it is overruled, the plaintiff has final judgment.2 And so
formerly it was always held on indictments. “If,” says Lord
Hale, “‘a person be indicted or appealed of felony, and he will
demur to the appeal or indictment, and it be judged against him,
he shall have judgment to be hanged; for it is a confession of
the indictment, and indeed a wilful confession, for he may have
all the advantages of exception to the insufficiency of the indict-
ment or appeal by way of exception, either before his plea of
not guilty or after his conviction and before judgment, as he
might have by demurrer.” And in a case comparatively re-
cent, the English judges held, that, where there was a general
demurrer to an indictment for a transportable felony, and it
was overruled, final judgment must pass; “inasmuch as, by a
general demurrer, the prisoner confesses all the material facts
charged against him in the indictment, though, in the case of
a demurrer of a special nature, which is usually called a de-
murrer in abatement, it might be otherwise. And they inti-
mated, that the various dicta which appeared in the books in
opposition to the above ruling were probably to be accounted
for by the above distinction not having been sufficiently at-
tended to.” #

1 Steph. Pl. 4th ed. 143. authorities went to show it to be final: 2

2 Gould Pl. c. 10, § 42, 43.

3 2 Hale P. C. 267. “If he demur in
law, and it be adjudged against him, he
shall have judgment to be hanged.” 2
Inst. 178.

4 Reg. v. Faderman, 1 Den. C. C. 565,
570, 8 Car. & K. 358, 4 Cox C. C. 359,
Temp. & M. 286; Reg. v. Hendy, 4 Cox
C. C.248, In Archb. Crim. Pl. & Ev. 18th
Lond. ed. 116, 117, this case of Reg. v.
Faderman is mentioned as having settled
the law as thus stated, where the demur-
rer is general; but, as to the doctrine pre-
viously held, the following is said: “ De-
murrers in felonies have hitherto been of
such rare occurrence, that it has been
doubted what judgment ought to be pro-
nounced against the defendant. The older

Hawk. P. C. ¢. 81, § 6; but by some this
was questioned, and it was said that, in
Javorem vite, the defendant should plead
over to the felony. Ib. § 6; 2 Hale P.C.
255, 257; 4 Bl. Com. 384; Rex v. Taylor,
5D. & R. 422, 8 B. & C. 502, 612; Rex v.
Gibson, 8 East, 107. See Reg. v. Pur-
chase, Car. & M. 617; Reg. v. Bowen, 1
Car. & K. 501, 604. In Reg. v. Duffy [4
Cox C. C. 24], which was an indictment
for a felony not capital, the judges sitting
on the commission of Oyer and Terminer
in Dublin agreed that the defendant was
entitled to plead over to the felony, after
judgment against him on demurrer to the
indictment. In some cases it hae been
ruled, indeed, that the defendant, in
felony, may demur and plead over to the

473
BETWEEN INDICTMENT AND TRIAL. [Book VI.

§ 786

§ 783. Answering over in Misdemeanor. — In misdemeanor, by
the English doctrine, the defendant is not entitled to answer
over, even where the demurrer is in abatement, but the judgment
against him will be final.! And Hawkins so states it with refer-
ence to “criminal cases not capital.” ‘ For,” he says, “it seems
that in such cases there can be no demurrer properly in abate-
ment, except it be to a plea in abatement, or to a replica-
tion to such a plea.”2 But there may be a plea over by per-
mission.®

§ 784. How in United States. — With us, in misdemeanor, the
judgment against a defendant on his demurrer is final, unless he
has leave to withdraw it* or answer over.’ In felony, it is, in
some of the States, and perhaps all, that he answer over. Not
all our courts hold a demurrer to be an admission for purposes
other than those of the demurrer itself.”

§ 785. Statutes and their Effect.—In Missouri, “the statute
directs,” says the court, ‘ that, in all cases where the defendant
does not confess the indictment to be true, a plea of not guilty
shall be entered”; and a demurrer is held not to constitute
such confession. Therefore, in this State, when a demurrer to
an indictment, whether for felony or misdemeanor, is overruled,
the court enters the plea of not guilty for the defendant, and the

trial proceeds thereon.®

§ 786. Statutes restrictive of other Methods. — We have, in
some States, statutes restricting to the demurrer, or to it and

indictment at the same time: Reg. v.
Phelps, Car. & M. 180; Reg. v. Adams,
Car. & M. 299; but this was denied to be
law in Reg. v. Odgers, 2 Moody & R. 479.”
See also Reg. v. Smith, 4 Cox C. C, 42.

1 Rex ve. Gibson, 8 East, 107, 111;
Reg. v. Mitchel; 3 Cox C. C. 1, 20-22.

2 2 Hawk. P. C. ¢. 81,§ 7. In Archb.
Crim. Pl. & Ev. 18th Lond. ed. 116, it is
stated thus: “The judgment against the
defendant in misdemeanor is the same as
upon demurrer in civil cases: Rex v. Tay-
lor, 5 D. & R. 422,38 B. & C. 502, 612;
and the court has the same power of per-
mitting the defendant afterwards to plead
over. Reg. v. Birmingham and Glouces-
ter Railway, 8 Q. B. 223, 224.”

3 See the last note ; also Reg. v. Smith,
4 Cox C. C. 42.

474.

4 Wickwire v. The State, 19 Conn.

A717; The State v. Shaw, 8 Humph. 32;

People v. Taylor, 3 Denio, 91; Common-
wealth v. Eastman, 1 Cush. 189, 192;
Commonwealth v. Foggy, 6 Leigh, 638;
Commonwealth v. Gloucester, 110 Mass.
491.

5 The State v. Wilkins, 17 Vt. 151;
McCuen »v. The State, 19 Ark. 680.

® The State v. Merrill, 87 Maine, 329,
833.

7 The State v. Barrett, 54 Ind. 484.

8 Thomas v. The State, 6 Misso. 457;
Ross v. The State, 9 Misso. 696; Maeder
v. The State, 11 Misso. 363; Austin v.
The State, 11 Misso. 366; Lewis v. The
State, 11 Misso. 366.
‘CHAP. LIV.]  !/.° OTHE DEMURRER. i § 786

the motion to quash, the right to take advantage of a defect in
the indictment.! Their effect cannot be otherwise than prac-
tically to enlarge, if need be, the right of pleading over after
demurrer.”

1 Cowman v. The State, 12 Md. 250; . Josephs, 7 Cal. 129; People v. Apple, 7
Wise v. The State, 24 Ga. 31; People v. Cal. 289.
; 2 See ante, § 114, 767.

4T5
§ 789 BETWEEN INDICTMENT AND TRIAL. [BOOK VI.

CHAPTER LV.
SOME OF THE PLEAS AND THEIR METHODS.

§ 787. Introduction.
788-790. Oral Pleas.
791-793. Abatement, especially for Misnomer.
‘194. Plea to Jurisdiction.
7940-801. Guilty and Not Guilty.
802-804. Nolo Contendere.

§ 787. How the Chapter divided. _— We shall consider, I. Oral
Pleas; II. Pleas in Abatement, especially for Misnomer; III.
The Plea to the Jurisdiction; IV. The Pleas of Guilty and Not
Guilty ; V. The Plea of Nolo Contendere.

I. Oral Pleas.

§ 788. Ancient and Modern. — In the criminal law, the ancient
oral plea! is not entirely superseded by the written. Thus, —

Guilty and Not Guilty. — Except in one or two of the States
where statutes have changed the practice,? the pleas of guilty
and not guilty are always delivered orally by the prisoner in
person, and written down by the clerk of the court. Doubtless
they would be equally good in writing. But—

§ 789. Dilatory and Special in Bar. — This does not extend to
special pleas in bar, and dilatory pleas; because they require
skill in the pleader.? Therefore, ever since written pleas have
been in use, these have been commonly tendered in writing.*
Still it is or has been, in England, sometimes permitted to the
defendant, in treason and felony, to put in the special or dilatory
plea orally, the clerk taking it down, as already mentioned.

1 Ante, § 340. 4 1 Chit. Crim. Law, 448; Champney’s
2 The State v. Ballenger, 10 Iowa, Case, 2 Lewin, 52, 53, note.
868. 5 Post, § 848; Swan’s Case, Foster,
8 See Rex v. Vandercomb, 2 Leach, 104, 105; Rex v. Dean, 1 Leach, 4th ed.
4th ed. 708. 476 ; 1 Chit. Crim. Law, 447; Rex v. Coo-

476
CHAP. Lv.] SOME OF THE PLEAS.

' § 791

Form of Oral Plea.— When, under the old practice, the court
compelled the prisoner to plead either guilty or not guilty, unless
he voluntarily tendered some other plea,! the judges instructed
him in the form, and accepted no plea not correct.2 But dila-
tory pleas are not favored,’ and it is plain that the court will
not thus help parties to plead them. And even though the plea
of a former conviction or acquittal, which is of the favored
sort, may probably® be oral, Park, J., expressed the meaning
to be, “that the prisoner may state the plea, but he must do so
in the proper form.” 6

§ 790. How in United States. — The foregoing are believed to
be substantially the doctrines of our courts in the absence of
statutory changes. Yet, consistently with them, in most in-
stances in practice, dilatory pleas and special pleas in bar are,
with us, and the courts require them to be, in writing.’

Il. Pleas in Abatement, especially for Misnomer.

§ 791. In General. — There are various pleas in abatement,
but the most common is for misnomer. For example, —

Wrong Name or Addition — (Want of Addition). —If the de-
fendant is wrongly named,’ or a wrong or no addition is given
him where an addition is necessary,° he can take advantage of the
defect by a plea in abatement. For the want of addition, the
motion to quash is not ill in form, though the court may decline
acting thereon.” But any one of these defects will be waived
by pleading over to the merits.”

gan, 1 Leach, 4th ed. 448; Commonwealth
v. Merrill, 8 Allen, 545, 548.

1 Ante, § 728, 780, 738 a.

2 See numerous cases in the State
Trials ; also post, § 797, note.

! 3 Ante, § 324, 827; Lewis v. The State,
1 Head, 329.

4 Ante, § 328, 324, 745.

5 Rex v Vandercomb, supra.

6 Rex v. Bowman, 6 Car. & P. 387.

7 See Commonwealth v. Merrill, 8
Allen, 545; The State v. Farr, 12 Rich.
24; Jordan v. The State, 22 Ga. 545;
Commonwealth v. Lannan, 18 Allen,
663.

3 As to the name, see ante, § 676-
689 b.

® As to the addition, see ante, § 671-
675a. The following plea in abatement
for a wrong addition was held to be suf-
ficient: that, “(at the time of the taking
of the said indictment, and long before,
he the said James Clark was, and ever
since hath been, and still is, a laborer;
without that, that he, the said James
Clark, now is, or at the taking of the
said indictment, or at any time before,
was a yeoman, as by the said indictment
is supposed,” &c. Commonwealth v.
Clark, 2 Va. Cas. 401.

10 Rex v. Thomas, 3 D. & R. 621; Rex
v. Checkets, 6 M. & S. 88.

ll Ante, § 676 a, 677; The State ».
Hughes, 1 Swan, Tenn. 261; The State v.

ATT
§ 792 BETWEEN INDICTMENT AND TRIAL. [BooK VI.

§ 792. Porm for Misnomer.— The following is an English form
for the plea of misnomer in abatement, with the replication : —

“¢ And James Long, who is indicted by the name of George Long, in his
own proper person cometh into court here, and, having heard the said indict-
ment read, saith that he was baptized by the name of James, to wit, at the
parish aforesaid, in the county aforesaid; and by the Christian name of
James hath also since his baptism hitherto been called or known; without
this, that he the said James Long now is or at any time hitherto hath been
called or known by the Christian name of George, as by the said indict-
ment is supposed; and this he the said James Long is ready to verify:
wherefore he prayeth judgment of the said indictment, and that the same
may be quashed,’’ &e.

Replication. — ‘‘ And hereupon J. N. [the clerk of the peace, or clerk of
the arraigns], who prosecutes for our said lady the queen in this behalf, saith,
that the said indictment, by reason of any thing by the said James Long
in his said plea above alleged, ought not to be quashed; because he saith,
that the said James Long, long before and at the time of the preferring of
the said indictment, was and still is known as well by the name of George
Long, as by the name of James Long, to wit, at the parish aforesaid, in the
county aforesaid; and this he the said J. N. prays may be inquired of by the
country,’ &c.1

Baptized. — “ Baptized” is not necessary; “saying that it is
his name, and that by that name he was always called and
known, is sufficient.” 2

Proof of Name. — We have already seen something of the proof
of the name.®

McGregor, 41 N. H. 407. See Common-
wealth v. Adkinson, 2 Va. Cas. 518.

1 Archb. Crim. Pl. & Ev. 18th Lond.
ed. 112, 118.

2 Tb., referring to Walden v. Holman,
6 Mod. 115, s. c. nom. Holman v. Walden,
1 Salk. 6; Read v. Matteur, Cas. temp.
Hardw. 286; Com. Dig. Abatement, F,
17. And see ante, § 686.

8 Ante, § 689 4, and the preceding sec-
tions. Archbold, supra, says: “This
issue is generally proved thus: the de-
fendant gives in evidence his certificate
of baptism, with evidence of identity, or
proves by parol evidence that he has al-
ways been called James, and not George;
and the prosecutor, on the other hand,
proves that upon some occasion he has
assumed the name of George, or that he
has usually gone by that name. But it
may be questioned, perhaps, whether the

478

proof of this issue be not entirely on the
prosecutor. It is said, indeed, to have
been decided, that, if a defendant allege
in his plea that he was baptized by a cer-
tain name, he will be held to strict proof
of that fact; 1 Camp. 479; but this isa
mistake; for, even supposing the proof
of the issue to be upon the defendant, he
cannot be called upon to prove the in-
ducement to his traverse, which is neither
traversable nor traversed by the prosecu-
tor.” Where the State demurred to the
defendant’s plea of misnomer, it was held
that the court might declare the two
names idem sonans, as a question of law,
and sustain the demurrer. The State v.
Havely, 21 Misso. 498. In Sayres v. The
State, 30 Ala. 15, Stone, J., citing authori-
ties as follows, said: “The issue in this
case was idem sonans. Generally such
issue is triable by the court without evi-

oe
CHAP. Ly.]

SOME OF THE PLEAS.

§ 798

§ 793. Verifiea. — We have seen, that, in general, all pleas in
abatement must be verified by oath.! It is done, says Archbold,
by annexing “‘an affidavit intituled in the court and cause, to

this effect: ‘James Long, of

 

, the defendant in this prosecu-

tion, maketh ‘oath and saith, that the plea hereunto annexed is
true in substance and matter of fact.’ ?
How conclude. — The proper conclusion to the plea is a prayer

that the indictment be quashed.

This, or that it abate, is the

correct form of judgment in the defendant’s favor,! and the court

can render no other than is prayed.®

Still a conclusion, praying

that the defendant be not compelled to answer to the indictment,
has, in England, hesitatingly been sustained.®

What further. — The plea must be drawn with the greatest ex-
actness,’ specify the objections,® show how they may be obviated,®

dence, and not by the jury. We will not
say there might not be cases in which it
would be permissible to introduce evi-
dence on this issue. A foreign name
might be in issue; and, although the or-
thography of the two supposed names
might, according to the laws of our lan-
guage, require us to affix to each a differ-
ent sound, yet in fact the foreign orthog-
raphy might be then sounded precisely
as the letters employed by the Ameri-
can pleader would be here pronounced.
Whether, in such ease, the proper issue
is idem sonans, or that the party is as well
known by the one name as the other; or,
if the former, whether the issue thereby
becomes one for the jury; we do not now
determine. See Armstrong v. Burrows,
6 Watts, 266; Wusthoff'v. Dracourt, 3
Watts, 240; Jennings v. Sherwood, 8
Conn. 122; Sidwell v. Roberts, 1 Pa. 382;
Welsh v. Dusar, 3 Binn. 829; Denison v.
Wertz, 7S. & R. 372; Moore »v. Miller, 4
S. & R. 279; Watson v. Blaine, 12 S. &
R. 181; Overton v. Tracey, 14 S. & R.
811; Etting v. Bank of United States, 11
Wheat. 59; Goddard v. Pratt, 16 Pick.
412. There are some authorities which
hold, that, ‘where the writing is illegible
or obscure, the question what the letters
really are, is matter of fact to be decided
by the jury.’ Armstrong v. Burrows, 6
Watts, 266. There are, however, decisions
the other way. Remon v. Hayward, 2 A.
& E. 666; Swain v. Ransom, 18 Johns.

107.” p. 17,18. The court held, that
the opinion of a non-expert witness, ac-
quainted with the writer’s hand, is inad-
missible to show that a letter made as a
“yv,” in the indictment, was intended for
an “r,” although the writer usually made
“r” like other persons. Compare this
with ante, § 338.

1 Ante, § 757; Findley v. People, 1
Mich. 284; Rex v. Grainger, 3 Bur. 1617;
The State v. Farr, 12 Rich. 24.

2 Archb. Crim. Pl. & Ev. ut sup.

8 United States v. Hammond, 2 Woods,
197, 202; Findley v. People, 1 Mich. 234;
Lewis v. The State, 1 Head, 329; Orbell
v. Ward, Trem. P. C. 27, 28.

4 Rawls v. The State, 8 Sm. & M. 599.

5 Rex v. Shakespeare, 10 East, 83, 87;
Reg. v. Mitchel, 3 Cox C. C. 93, 119, 120.

6 Rex v. Shakespeare, supra, on the
authority of Rex v. Westby, 10 East, 85,
note. In Rex v. Knowles, Trem. P. C.
11, 13, the prayer is that the defendant
be not compelled further to answer;
while, in Orbell v. Ward, supra, which
was an appeal of murder, it is “that the
writ aforesaid may be quashed.”

7 O’Connell v. Reg. 11 Cl. & F. 156;
Lewis v. The State, 1 Head, 329; Owens
v. The State, :2 Head, 455.

8 Brennan v. People, 15 Ml. 511; The
State v. Stanhope, Brayt. 20.

® Ante, § 827, 828; Rex v. Checkets,
6M. & S. 88.

‘ 479
§ 794: BETWEEN INDICTMENT AND TRIAL. [BOOK VI.

and’ conform to some other rules laid down for it in previous
pages of this volume. Hence, —

Amendments. — The court will not grant leave to amend this
plea, at least in misdemeanor.!

Plea Ill — Demur. — The proper course for the prosecuting
officer, where the plea is bad, is to demur to it;? though, where
the objection was the want of a sustaining affidavit, it was simply
set aside.?

Issue of Fact. — If an issue of fact is raised by the pleadings,
it must be tried by jury.

Ill. The Plea to the Jurisdiction.

§ 794. Form. — The following is an English form, with the
replication : —

“« And the said J. S., in his own proper person, cometh into court here,
and, having heard the said indictment read, saith, that the court of our lady
the queen here ought not to take cognizance of the [trespass and assault] in
the said indictment above specified; because, protesting that he is not guilty
of the same, nevertheless the said J. S. saith, that [&c., so proceeding to state
the matter of the plea. See the precedents, 1 Went. 10, 18; 4 Went. 63.
Conclude thus]: And this the said J. S. is ready to verify; wherefore he
prays judgment if the said court of our lady the queen now here will or ought
to take cognizance of the indictment aforesaid; and that by the court here
he may be dismissed and discharged,’’ &. [Then add profert of any letters
patent which may have been set forth in the plea. The form is the same in
the Queen’s Bench, excepting that the court is described as ‘‘ the court of our
said lady the queen before the queen herself here’’; and, in the case of in-
formations, the words, ‘‘ having heard the said indictment read,’’ are omitted.
The plea must be verified by affidavit. ]

Replication. —‘* And hereupon J. N. [the clerk of the peace or clerk of
arraigns], who prosecutes for our said lady the queen in this behalf, says,
that notwithstanding any thing by the said J. S. above in pleading alleged,
this court ought not to be precluded from taking cognizance of the indict-

1 Rex v. Cooke, 2 B. & C. 871. fendant is the same person mentioned in
2 Rex v. Cooke, 2 B. & C. 618, 871; the indictment. Commonwealth v. Dock-
The State v. Havely, 21 Misso. 498; Buz- ham, Thacher Crim. Cas. 238. To a plea

zard v. The State, 20 Ark. 106; Reg. v
Duffy, 4 Cox C. C. 172; Rex v. Clark, 1
D. & R. 48. See Commonwealth v. Lan-
nan, 13 Allen, 663.

3 Rex v. Grainger, 3 Bur. 1617. See
Quillen v. The State, 8 Sm. & M. 587.
Replication. —It is not a good replica-
tion to a plea of misnomer, that the de-

480 °

that the defendant’s name is Davis, while °

indicted as David, the replication is good
that he is called and known as well by
the one name as the other. Lewis v. The
State, 1 Head, 329.

4 The State v. Marston, 81 Maine,
292.

7
CHAP. LV.] SOME OF THE PLEAS. § 795

ment aforesaid; because he says, that [&c., stating the matter of the replica-
tion]. And this he the said J. N. prays may be inquired of by the country,”
&c. [Or, if it conclude with a verification, then thus]: — ‘‘ And this he the
said J. N. is ready to verify; wherefore he prays judgment, and that the said
J. S. may answer to the said indictment.’? [Where the plea is pleaded in
the Court of Queen’s Bench, the replication is in the name of the master of
the crown office, in the case of an indictment or of an information filed by
him; or in the name of the attorney-general, in the case of informations ex

officio. +
f
IV. The Pleas of Guilty and Not Guilty.

§ 794 a. Bach as to Part.— The right to plead guilty as to a
part of the indictment and not guilty as to the rest has been
denied. The prisoner must, said Pemberton, C. J., ‘confess all
or deny all.”2 Perhaps it may be different with a special plea in
bar and not guilty; for Bigelow, C. J., said in the Massachusetts
court, ‘‘he might plead special matter as to part and not guilty
or guilty as to the residue.”® Returning to the general issue
alone, the reasonable view is, that a defendant may plead guilty
to one count and not guilty to another; but not, as of right,
divide a count by his plea. Yet plainly the prosecuting officer
may, if he chooses, accept a plea of guilty as to a part of a count
and enter a nolle prosequi as to the rest.

§ 795. Guilty. — Undoubtedly it is the right of a prisoner,
competent in understanding and acting in good faith, to plead
guilty instead of denying the charge. Yet in various circum-
stances the court should exercise caution in receiving this plea.
For example, in one capital case, where the prisoner tendered
it, the judges would not accept it till they had explained to him
its consequences, sent him back to his cell for reflection, brought
him again into court where the indictment was read to him a
second time, and there examined witnesses as to whether he was
sane, and whether promises of clemency had been made him.‘ Its
effect is an admission by record of the truth of whatever is well
alleged in the indictment.’ If the latter is insufficient, it con-

1 Archb. Crim. Pl. & Ev, 13th Lond. 572. See Hines v. The State, 9 Humph.
ed. 111, 112. For an inartificial form, 720.
with the proceedings, in the Court of the 3 Nauer v. Thomas, 18 Allen, 572, 580.
Lord High Steward, see Rex v. Delamere, 4 Commonwealth v. Battis, 1 Mass. 96.
11 Howell St. Tr. 509, 619. See further, 5 Crow v. The State, 6 Texas, 834;
of this plea, 1 Chit. Crim. Law, 437-439. People v. Goldstein, 82 Cal. 432.

2 Rex v. Hone, 9 Howell St. Tr. 671,

VOL. I. 81 481
§ 797 BETWEEN INDICTMENT AND TRIAL. [BOOK VI

fesses nothing ;! but, if good, the court may proceed at once to
the sentence.”

§ 796. Form of Not Guilty, in Writing. — The written form of
the plea of not guilty may, with the joinder of issue, be as fol-
lows : —

And the said B., in his proper person, comes into court here, and, having
heard the said indictment read, says, that he is not guilty of the felony [or
misdemeanor or crime] therein charged against him, and hereof he puts him-
self upon the country.

Joinder of Issue. — And hereupon comes C. D., attorney, &c., who prose-
cutes for the said Commonwealth in this behalf, and does the like.

§ T97. Concluding Part. — ‘ And hereof he puts himself upon
the country” is, not only usual,’ but necessary, in the written
plea. It was formerly so equally in the oral;+ but, as we have
seen,® in modern practice the question to the prisoner how he
will be tried is sometimes omitted, the clerk assuming it to have
been put and properly answered, and writing up his record

accordingly.

1 Fletcher v. The State, 7 Eng. 169.

2 Where a statute provided, that, on a
conviction “ by confession in open court,
the court shall proceed by examination of
witnesses in open court to determine the
degree of the crime, and shall pronounce
sentence accordingly,” it was held, that,
not only must such examination of wit-
nesses be made, but the same, with the
decision, must appear of record. Me-
Cauley v. United States, Morris, 486.

8 2 Stark. Crim. Pl. 2d ed. 784.

* This proposition is well illustrated
in a passage in The Trials of the Regi-
cides, 56 Howell St. Tr. 947, 999, 1000.
Thomas Harrison, having, after some
bandying of words, pleaded not guilty,
was asked : —

“ Clerk. Wow will you be tried 2

“ Harrison. Iwill be tried according
to the laws of the Lord.

“Clerk. Whether by God and the
country ?
“TL. C. Baron. Now I must tell you,

if you do not put yourself upon your
country, you have said nothing.

“Clerk. How will you be tried ?

“ Harrison. It is to put myself upon
what you please to put me upon.

“Court. If you understand (you are

482

not every man, you are versed in proceed-
ings of law), you know you must put
yourself upon the trial of God and your
country ; if you do not, it is as good as if
you had said nothing.

“ Harrison. You have been misin-
formed of me.

“ Court. You have pleaded Not Guilty ;
that which remains is, that you must be
tried by God and the country, otherwise
we must record you as standing mute.

“Clerk. How will you be tried?

“ Harrison. I will be tried according
to the ordinary course.

“Clerk. Whether by God and the
country ? you must speak the words.

“ Harrison. They are vain words.

“Court. We have given you a great
deal of liberty and scope, which is not
usual. It is the course and proceedings
of law, if you will be tried, you must put
yourself upon God and the country.

“ Clerk. How will you be tried ?

“ Harrison. I do offer myself to be
tried in your own way, by God and my
country.

“Clerk. God send you a good deliv-
erance.”

5 Ante, § 783 b.

AN
CHAP. Ly.] SOME OF THE PLEAS.

§ 799

Written Form required. — If a statute requires the plea to be
in writing, the objection that it is oral comes too late when made
for the first time in the appellate court.1

§ 798. Withdrawal of Guilty. — The court, in proper cases, will
freely exercise its discretion? by allowing the plea of guilty to
be withdrawn, and not guilty pleaded in its place. Even where,
after a plea of guilty, the defendant has moved in arrest of judg-
ment, and his motion is overruled, the court may, should justice
require, permit him, before judgment, to withdraw this plea and
plead not guilty.3

§ 799. Effect of Not Guilty — (Special Defence — Former Jeop-
ardy — Pardon). — The plea of not guilty puts in issue the entire
question of guilt; so that, under it, not only the prosecuting
power is to make out its whole case, but the prisoner may bring
forward in proof any defence, however special, showing an origi-
nal absence of the guilt charged. For example, the defence
that a sale of liquor was by license,’ that a libel is true,® that
the act was committed in a fit of insanity,’ and other special
defences, are, and should be,’ made under the plea of not guilty.
But subsequent matter in bar of the proceeding —as, for ex-
ample, a conviction or acquittal on another indictment,® or a
pardon 1°— must be pleaded specially. Nor can irregularities in
the proceeding, in its earlier stages, be shown in defence on this
plea!

Statute of Limitations. — It is permissible to plead the statute
of limitations specially, and so it is sometimes done.” But, not-
withstanding the foregoing rule, the law is settled that this de-
fence may be made under the general issue.

1 The State v. Ballenger, 10 Iowa,
868.

2 Ante, § 747.

3 The State v. Cotton, 4 Fost. N. H.
143.

41 Stark. Crim. Pl. 2d ed. 839; Rex
v. Pemberton, 1 W. BI. 280; Rex v. Banks,
1 Esp. 144; Bennett v. The State, 1 Swan,
Tenn. 411; Eggleston v. The State, 6
Blackf. 436; Uterburgh v. The State, 8
Blackf. 202; Plainfield v. Batchelder, 44

Vt.9; People v. Benjamin, 2 ParkerC.C. .

201, 212.

5 Peters v. The State, 3 Greene, Iowa,
74. See The State v. Howard, 2 Brev.
165; Sharp v. The State, 17 Ga. 290.

6 Commonwealth v. Morris, 1 Va. Cas.
176.

7 Vol. II. § 664.

8 Hirn v. The State, 1 Ohio State, 15.

9 Post, § 806; People v. Benjamin, 2
Parker C. C. 201; Thomas v. Common-
wealth, 22 Grat. 912.

10 Post, § 838, 847.

ll Ante, § 791; Teal v. The State, 22
Ga. 75. And see Ferris v. People, 48
Barb. 17.

12 Thompson v. The State, 54 Missis.
740; People v. Roe, 5 Parker C. C. 231.

13 Thompson v. The State, supra; Rex
v. Sidney, 9 Howell St. Tr. 817, 820, 821;°
United States v. Brown, 2 Lowell, 267.

483
§ 802

BETWEEN INDICTMENT AND TRIAL.

[BOOK VI.

§ 800. More Defendants than One. — Though, when numbers
are arraigned together on a joint indictment, the usage is to take
the separate plea of each, yet, if all plead one plea, it is in law

several.2

§ 801. The Issue. — There can be no trial on the merits with-

out a plea of not guilty.*

This plea ought in strictness to be

followed by a joinder of issue, the form of which we have already

seen.

fatal to the record,® but by the better opinion it is not.®

Some courts hold that the omission of such joinder is

The

defect was long ago adjudged amendable at any time as of

course.”

Withdrawing. — By leave of court,’ this plea may be with-
drawn to make way for that of guilty, or for some other pro-

ceeding?

Yet in England such is deemed not the correct

practice where an indictment has been removed, and sent down

to trial as a Queen’s Bench record.

“The proper course,” said

Alderson, B., “is to take a verdict of guilty by consent.”

V. The Plea of Nolo Contendere.

§ 802. How defined. — The plea of nolo contendere is a formal
declaration by the defendant in court, that he will not contend
with the State or other prosecuting power.

When, and Effect. — It is pleadable only in light misdemeanors,

and by leave of court.

The difference between it and guilty

appears simply to be, that, while the latter is a solemn confes-

1 Ante, § 729.

2 The State v. Smith, 2 Ire. 402.

3 Ante, § 788 ; Sartorious v. The State,
24 Missis. 602.

4 Ante, § 796.

5 Post, § 1354; The State v. Roberts,
T. U. P. Charl. 26,

8 Post, § 1864; Commonwealth v. Mc-
Cauley, 105 Mass. 69; The State v. Smith,
Peck, 165. See Henry v. The State, 33
Ala. 389.

7 Harris’s Case, Cro. Jac. 602.

8 Ante, § 747, 798.

° Rex v. Knightly, Holt, 898; "The
State v. Abrahams, 6 Iowa, 117; Davis
v. The State, 20 Ga. 674.

10 Rex v. Barrett, 2 Lewin, 264.

11 Commonwealth v. Tilton, 8 Met. 282;

484

Commonwealth v. Horton, 9 Pick. 206.
Hawkins puts the matter thus: “An im-
plied confession is where a defendant, in
a case not capital, doth not directly own
himself guilty, but in a manner admits it
by yielding to the king’s mercy, and de-
siring to submit to a small fine; in which
case, if the court think fit to accept of
such submission, and make an entry that
the defendant posuit se in gratiam regis,
without putting him to a direct confes-
sion, or plea (which in such cases seems
to be left to discretion), the defendant
shall not be estopped to plead not guilty
to an action for the same fact, as he shall
be where the entry is quod cognovit indicta-
mentum,” 2 Hawk. P. C.c. 81,§ 3. And
see 1 Chit. Crim. Law, 481.
CHAP. Lv. ] SOME OF THE PLEAS. ; § 804

sion which may bind the defendant in other proceedings, the
former is a confession only for the purposes of the particular
case.1

§ 803. Formality under Statute.— A statute having provided,
that “no admission of the defendant, made in court, shall be
received on the trial, without the consent of the prosecutor,
except a plea of guilty’’; it was held, that, where the plea of
nolo contendere is received, the record must show the prosecutor’s
consent.” :

§ 804. Distinguished in Form from Guilty. — In an assault and
battery case before a justice of the peace, the defendant, being
asked, “ Am I to understand you as pleading guilty?” answered,
“Yes, I did it: there’s no use denying it. How much is to pay?
What is the bill?” This was held to be a plea of guilty, not
merely of nolo contendere?

1 See the authorities in the last note. 3 Birchard v. Booth, 4 Wis. 67.
2 Commonwealth v. Adams, 6 Gray,
359.

485
§ 807 BETWEEN INDICTMENT AND TRIAL, [Book VI.

CHAPTER LVI.

THE PLEAS AND METHODS IN THE DEFENCE OF FORMER
JEOPARDY.

§ 805-807. Introduction.
808-817. Pleas of Autrefois Convict and Autrefois Acquit.
818-831. Methods where these Pleas not available.

§ 805. Already considered. — In “Criminal Law,” the law of
this defence is explained, leaving only the procedure for this
chapter.

§ 806. By Special Plea. — As already shown, this defence must
be made by a special plea, it not being available under not guilty.”
For which purpose the ordinary and familiar pleas of the com-
mon law are —

Autrefois Convict, —- appropriate where there has been a con-
viction on former proceedings, and —

Autrefois Acquit, — where there has been an acquittal.

Autrefois Attaint.— The old plea of autrefois attaint is, we have
seen,® obsolete.

§ 807. Neither. — Where there has been a legal jeopardy with-
out conviction or acquittal, so that further proceedings for the
same offence are barred,‘ yet neither of the above pleas is appro-
priate, the common-law methods of defence are indistinct if not
doubtful.

How the Chapter divided. — We shall consider, I. The Pleas of
Autrefois Convict and, Autrefois Acquit ; II. The Methods where
these Pleas are not available.

1 Crim. Law, I. § 978 et seq.

2 Ante, § 799; post, § 813; Pitner v.
The State, 44 Texas, 578; Brill v. The
State, 1 Texas Ap. 152; Commonwealth
v. Merrill, 8 Allen, 545, 547. See The
State v. Conlin, 27 Vt. 318; United
States v. Brown, 2 Lowell, 267, 268. In
Indiana, there is w statute the effect of
which is to admit this defence under the

486

general issue, yet still a defendant may
plead it specially if he prefers. Clem v.
The State, 42 Ind. 420. As to California,
see People v. Cage, 48 Cal. 824.

3 Crim. Law, I. § 1070.

4 Crim. Law, I. § 1016, and accom-
panying sections; Morgan v. The State,
18 Ind. 216.
CHAP. LVI.] FORMER JEOPARDY. § 810

I. The Pleas of Autrefois Convict and Autrefois Acquit.

§ 808. How defined. — These are pleas in bar: the former,
that the defendant has been before convicted of the offence now
charged against him; the latter, that he has been acquitted.

Degree of Certainty. — We have seen,! that these are among the
favored pleas, admitting of a lower degree of certainty than the
indictment, and a still lower than a dilatory plea.

Alike in Form. — The two pleas are alike in form, except that
the one has “‘ convicted” where the other has “acquitted.”

§ 809. Essential Points. — What are the essential facts, to be
averred in the plea and established by the evidence, appears in
the discussions of the law of the subject in “Criminal Law.” ?
Not only must there have been a conviction or acquittal, but it
must have been on proceedings so far valid, and before a tribunal
of such authority, as to put the defendant in “jeopardy” of pun-
ishment. And the former and present offence must be “the
same,” not necessarily in minute description or throughout, but
so far, and only so far, as the law requires to render a conviction
or acquittal of the one a bar to a prosecution for the other, as
explained in “ Criminal Law.”

§ 810. Form of Autrefois Acquit.— For the common-law forms
of these pleas, we are to look into the English books of a date
prior to 1851, when, by 14 & 15 Vict. c. 100, § 28, a briefer
form was provided. For autrefois acquit, we have, at common
law, the following : —

‘¢ And the said J. 8. in his own proper person cometh into court here, and,
having heard the said indictment read, saith, that our said lady the queen
ought not further to prosecute the said indictment against the said J. S.; be-
cause he saith, that heretofore, to wit, at the general quarter sessions of the
peace holden at [so continuing the caption of the former indictment], it was
presented, that the said J. S., then and there, and thereby described as J. S.,
late of ——, in the county aforesaid, laborer, on the third day of [&c., con-
tinuing the indictment to the end; reciting it, however, in the past, and not
in the present tense. Recite also the remainder of the record to the end of
the judgment in the past tense, inlike manner. Then proceed thus]: As by
the record thereof more fully and at large appears; which judgment still re-
mains in full force and effect, and not in the least reversed or made void.
And the said J. S. in fact saith, that he the said J. S. and the said J. S. so

1 Ante, § 828, 324, 745. 2 Crim. Law, I. § 978-1070.
487

'
§ 811 BETWEEN INDICTMENT AND TRIAL. [Book VI

indicted and acquitted as last aforesaid, are one and the same person, and
not other and different persons; and that the [felony and larceny] of which
he the said J. S. was so indicted and acquitted as aforesaid, and the [felony
and larceny] of which he is now indicted, are one and the same [felony and
larceny], and not other and different [felonies and larcenies]. And this he
the said J. S. is ready to verify; wherefore he prays judgment, and that by
the court here he may be dismissed and discharged from the said premises
in the present indictment specified.”? 1

The Answer. — To this plea the prosecuting officer may reply?
or demur,? as its particular form and the facts of the case may
indicate.t

§ 811. Adding Plea of Not Guilty. — We have already consid-
ered, perhaps sufficiently, the question of pleading over to the
main charge, by adding the plea of not guilty. The authorities
upon it are in inextricable confusion. Some of the old English
ones seem even, in felony, to require it. But none of the modern
ones go so far; and, by all, “if,” in the language of Archbold,
“the defendant pleads autrefois acquit without pleading over to
the felony, after his special plea is found against him, he may
still plead over to the felony.”? Nor, by the modern English
rulings, is this form of double pleading permissible in misde-

meanor.® In our own country,

1 Archb. Pl. & Ev. 10th Lond. ed. 89.
It would bring this form within some cus-
tomary analogies in pleading, if, after the.
words “having heard the said indictment
read,” we should add, “and protesting
that he is not guilty of the premises
charged in the said indictment.” Ac-
cording to Mr. Leach’s report, in Rex v.
Vandercomb, 2 Leach, 4th ed. 708, 712,
note, the plea was presented without this
protest, when the court ordered it to be
inserted, deeming it absolutely essential ;
that is, such is one of the views we may
take of the report. Yet the way the re-
porter puts it is, that “the plea, as origin-
ally delivered to the court, did not plead
over; but, the court conceiving this to be
absolutely necessary, the prisoner pleaded
over to the burglary ‘Not Guilty,’ and it
was added to the plea in parchment.” '
The words added were simply the protest,
in the above form, and no more. They
do not constitute a plea of not guilty
(ante, § 796, 797), and there could never
have been a bench of English judges who

488

there are various cases in which

supposed they did. Consequently the
report must be wrong, and we are left to
draw what inference from it we choose.

2 Commonwealth v. Roby, 12 Pick.
496; The State v. Conlin, 27 Vt. 818.

8 Rex v. Vandercomb, supra; The
State v. Horneman, 16 Kan. 452; The
State v. Nelson, 7 Ala. 610; Fulkner v.
The State, 3 Heisk. 33. :

# Commonwealth v. Bosworth, 113
Mass. 200. See post, § 817 and note.

5 Ante, § 749-755.

6 Rex v. Vandercomb, 2 Leach, 4th
ed. 708, 712 (see note to the last section),
seems to hold it necessary ; and the Eng-
lish books contain other intimations of
the like sort.

7 Archb. Crim. Pl. & Ev. 18th Lond.
ed. 121, referring to 2 Hawk. P. C. ¢. 28,
§ 128; Rex v. Sheen, 2 Car. & P. 634;
Rex v. Welch, MS. 1828, Car. Crim. Law,
8d ed. 56.

8 Reg. v. Charlesworth, 1 B. & S. 460,
9 Cox C. C. 40.
CHAP. LVI.] FORMER JEOPARDY. § 814

it has been allowed,! even in misdemeanor.2 On the other hand,
it has been utterly repudiated. But the right to answer over,
Where the special plea has been pleaded alone and overruled, is,
it is believed, not questioned generally, if at all, by our courts ;#
hence the safe practice, in a State where there is any doubt
on the domestic authorities, is to plead singly.

§ 812. How submitted to Jury. — Where the special plea and
not guilty are pleaded together, the better practice is, not to try
them together, but to submit the former to the jury first.6 Still
some American courts appear to allow it, when accompanied by
the instruction to the jury to pass on the former first, and dis-
regard the latter if they find on the former for the defendant.®
But, even then, a verdict of guilty, with no response to the
special plea, will be erroneous.’

§ 818. Only Method — (Arrest of Judgment).— We have seen 8
that this plea is the only method for taking advantage of the
former conviction or acquittal. For example, it cannot be ob-
jected in arrest of judgment.®

§ 814. What allege. — The plea must, and it need only, charge
those facts which, prima facie, constitute in law a bar. Hence
it must set out the record of the former proceeding, including
the indictment, with whatever of caption is legally requisite,Y
and aver the identity alike of the offences and the two defend-
ants.2 To be more specific as to some parts of this proposi-

tion, —

1 Pritchford v. The State, 2 Texas Ap.
69; The State v. Johnson, 11 Nev. 273;
Clem v. The State, 42 Ind. 420; Faulk v.
The State, 52 Ala. 415.

2 For example, Dominick v. The State,
40 Ala. 680. See further, on this ques-
tion, Commonwealth v. Merrill, 8 Allen,
645; Commonwealth v. Goddard, 13 Mass.
455. As to the effect of the lowa code
upon it, see The State v. Green, 16 Iowa,
239, 242. As to Tennessee, Crippen v.
The State, 8 Heisk. 25. And see cases
cited to the next section.

3 Commonwealth v. Bakeman, 105
Mass. 58, 58; Nauer v. Thomas, 13 Allen,
572.

4 Bird v. The State, 53 Ga. 602.

5 Ante, § 752; Commonwealth v. De-
muth, 12 S. & R. 889; Lee v. The State,
26 Ark. 260; Faulk v. The State, 52 Ala.
415; Rex v. Roche, 1 Leach, 4th ed. 134;

Commonwealth v. Merrill, 8 Allen, 545;
Dominick v. The State, 40 Ala. 680; Fos-
ter v. The State, 89 Ala. 229; Clem v.
The State, 42 Ind. 420.

6 Pritchford v. The State, 2 Texas Ap.
69; Davis v. The State, 42 Texas, 494;
People v. Kinsey, 51 Cal. 278. See Crip-
pen v. The State, 8 Heisk. 25; Fulkner
v. The State, 8 Heisk. 33.

7 Davis v. The State and People v.
Kinsey, supra; Solliday v. Commonwealth,
4 Casey, Pa. 13, 14; Nonemaker v. The
State, 34 Ala. 211. See Commonwealth
v. Demuth, 12 S. & R. 389.

8 Ante, § 806.

9 The State v. Barnes, 32 Maine, 680.

10 The State v. Clenney, 1 Head, 270.

1 Ante, § 657, 658, 663, 664, and other
places.

12 Rex v. Wildey, 1 M. & S. 183; Rex
v. Vandercomb, 2 Leach, 4th ed. 708;

489
§ 815 BETWEEN INDICTMENT AND TRIAL. [BOOK VI.

Identity of Person. — As there may be more than one of the
same name, or one may be charged by different names in the
two indictments, it is not sufficient that the names in the record
of the former and present case are alike; the identity of the
defendants must be averred.! If in the one case the party was
indicted jointly with others, and in the other case alone, this
is no impediment to relying on the prior proceeding in bar.?

Identity of Offence. — For the like reason, the identity of the
offence must be averred,? even though the two indictments are
identical in terms. Much more must it be in the large class of
cases wherein the offences are apparently different yet legally
the same ;° as, for example, where by one act a man utters sev-
eral forged instruments, and, after a conviction or acquittal as
to one, is indicted as to another;® or, where he steals various
articles together, and the State after trying him for one under-
takes to prosecute him for another.’ Moreover, —

Jurisdiction. — It must in some way be apparent, that the court,
at the former trial, had jurisdiction. Perhaps ordinarily the rec-
ord will sufficiently show this; but there may be circumstances
in which more will be required.®

§ 815. Record. — The record of the former proceedings must

be set out.®

And, by the prevailing opinion, nothing short of

a showing thereby of a conviction or acquittal will sustain the

plea.?

8.c.nom. Rex v. Vandercom, 2 East P. C.
519; The State v. Atkinson, 9 Humph.
677; McQuoid v. People, 3 Gilman, 76 ;
Henry v. The State, 83 Ala. 389; Rex v.
Taylor,5 D.& R. 422,3 B. & C. 602;
Foster v. The State, 39 Ala. 229, 234;
Quitzow v. The State, 1 Texas Ap. 47;
Brill v. The State, 1 Texas Ap. 152. And
see Wortham v. Commonwealth, 5 Rand,
669.

1 And see Faulk v. The State, 52 Ala.
415.

2 Rex v. Dann, 1 Moody, 424. “Upon
the result of all the authorities,” it was
observed, “the question is, whether the
prisoner could have been convicted on
the former indictment; for, if he could,
he must be acquitted on the second.”
p. 426.

8 The State v. Wister, 62 Misso. 592;
King v. The State, 48 Texas, 351.

490

A verdict or plea of guilty constitutes in law a convic-

4 Page v. Commonwealth, 27 Grat.
954. And see Commonwealth v. Suther-
land, 109 Mass. 342.

5 Clem v. The State, 42 Ind. 420;
United States v. Harmison, 3 Saw. 556.

6 The State v. Egglesht, 41 Iowa, 574.

7 Quitzow v. The State, 1 Texas Ap.
47; Wilson v. The State, 45 Texas, 76;
Foster v. The State, 89 Ala. 229.

8 The State v. Spencer, 10 Humph.
431, 433 ; The Statev. Hodgkins, 42 N. H.
474; The State v. Salge, 2 Nev. 821;
Quitzow v. The State, 1 Texas Ap. 47;
Brill v. The State, 1 Texas Ap. 152.

§ Ante, § 814; Crocker v. The State,
47 Ga. 568; Smith v. The State, 52 Ala.
407.

10 Bailey v. The State, 26 Ga. 579. But
see Ex parte Clements, 50 Ala. 459;
O'Brian v. Commonwealth, 9 Bush, 388.
CHAP. LVI. ] FORMER JEOPARDY. § 816

tion! But, according to Lord Hale, this alone is not enough:
there must also be a recorded judgment thereon; “ though,” he
adds, “the acquittal regularly is a warrant for entry of the
judgment at any time after.”? The result of which would seem
to be, that, if a lower court refuses. judgment on the verdict, the
prisoner must by mandamus? compel it, before he can support
by the verdict his plea of autrefois acquit. In reason, as the
rendition of the judgment is mere form, and as this is a favored
plea,’ the court should not insist upon the formality. And it is
settled law in England and our States, that, as foundation for
the plea of autrefois convict, sentence on the verdict is not essen-
tial,® though perhaps it may be necessary to show in some way,
by the record, that the cause is ended.6 From all which it fol-
lows, that, should a plea go beyond the foregoing requirements,
and aver the reversal of the judgment and dismissal of the in-

dictment, it will be bad.’

And a record will be worthless in

evidence if it shows that the indictment was quashed.®
§ 816. sJury Trial. — This plea is of a mixed nature, embracing
in general both law and fact; ordinarily, therefore, requiring a

trial by jury.®

1 Stat. Crimes, § 348.

2 2 Hale P. C. 243.

8 Rex v. Middlesex Justices, 3 Nev. &
M.110. “It strikes us,” said Denman,
C. J., in this case, “that the prisoner has
a right to have a record of that which
took place, regularly made up, in order
that he may see whether he can make use
of it for his advantage.” p. 118.

4 Ante, § 808.

5 Shepherd v. People, 25 N. Y. 406;
People v. Goldstein, 82 Cal. 482; The
State v. Elden, 41 Maine, 165, and the
authorities, English and American, there
cited. In this case, after a verdict of
conviction, and before sentence, “the
attorney of the State for the county of
York suggested to the court, that he
would no further prosecute the said in-
dictment. It was therefore considered
by the court, that the indictment be dis-
missed, and that the defendant go thereof
without day.” p. 168. The prisoner was
then indicted anew ; he pleaded the former
conviction; the State demurred; the
court overruled the demurrer, holding
the plea to be good. And the court laid

down the broad doctrine, that, to sustain
the plea either of autrefois acquit or autre-
Jois convict, judgment on the verdict is
not necessary. p. 170.

8 According to an English case, a plea
of autrefois convict can be proved only by
the record; and the indictment, with the
finding of the jury, &c., indorsed by the
proper officer, is not sufficient, even though
it appears also that no record has been
made up. But the court, on affidavit of
the facts, will postpone the second trial
to give the prisoner time to apply fora
mandamus compelling the making up of
the record. Rex v. Bowman, 6 Car. & P.
101. See also Commonwealth v. Goddard,
18 Mass. 455; Reg. v. Ackroyd, 1 Car. &
K. 158.

7 The State v. Thurston, 3 Heisk. 67.
See The State v. Ingram, 16 Kan. 14;
Bedee v. People, 73 Ill. 320.

8 Faulk v. The State, 52 Ala. 415.
And see Steck v. The State, 28 Ark. 113.

9 Quitzow v. The State, 1 Texas Ap.
47; Miller v. The State, 3 Ohio State,
475; Commonwealth v. Chilson, 2 Cush.
15; Page v. Commonwealth, 27 Grat. 954.

491
§ 817 BETWEEN INDICTMENT AND TRIAL. [Book VI.

Law and Fact distinguished — (Record — Parol).— The former
record is produced ; and, for what is provable thereby, it is con-
clusive.1 Nor can the matter of the record be proved otherwise
than by itself? There must be no variance between it and the
plea.3 The identity of the parties and of the offence is estab-
lished by parol testimony.*

Other Evidence. — The burden of proof is on the defendant to
establish the identity. It is so even though the two indictments
are alike.6 One method is to show by a person who’ was
present at the previous trial what it was which was there in-
vestigated ;’ and, if the offence thus appearing accords with
the allegations in the present indictment, a prima facie case is
made, to be overcome only by proof, from the other side, of the
diversity of the two offences. The witnesses need not neces-
sarily be those who testified at the previous trial; any person

who was present will do, even though the former'are within.

reach of process.? If sentence was rendered, the identity of the
party is sufficiently shown by evidence that he is the person who
underwent the sentence. If the identity alike of the parties
and of the offence is conceded, it becomes a question for the
court whether or not there has been a previous conviction or

acquittal.U

§ 817. Demurrer or Replication to Plea. —If the plea is inade-
quate in form,” or if the two indictments are such that the offences

1 Douglass v. Wickwire, 19 Conn.
489 ; Commonwealth v. Goddard, 13 Mass.
455. ,

2 Robbins v. Budd, 2 Ohio, 16. See
The State v. Cheek, 25 Ark. 206; Rex v.
‘Vandercomb, 2 Leach, 4th ed. 708, 711.

8 Reg. v. Bissett, 1 Cox C. C. 148.

“ Page v. Commonwealth, supra; Com-
monwealth v. Chilson, supra; Common-
wealth v. Conner, 9 Philad. 591; Hick-
erson v. Mexico, 58 Misso. 61; Bainbridge
v. The State, 80 Ohio State, 264.

5 Cooper v. The State, 47 Ind. 61;
Commonwealth v. Daley, 4 Gray, 209;
Commonwealth v. Hoffman, 121 Mass.
869.

®§ Commonwealth v. Sutherland, 109
Mass, 342.

1 Page v. Commonwealth, supra; Roc-
co v. The State, 87 Missis. 357.

8 Reg. v. Bird, 2 Den. C. C. 94, 5 Cox
C. C. 20, 2 Eng. L. & Eq. 448; Duncan v.

492

Commonwealth, 6 Dana, 295; The State
v. Andrews, 27 Misso. 267; The State v.
Small, 31 Misso. 197; Boyer v. The State,
16 Ind. 451; Porter v. The State, 17 Ind.
415; Marshall v. The State, 8 Ind. 498.
See The State v. Isham, 8 Hawks, 185;
Merkle v. Bolles, 6 Blackf. 288; White v.
Elkin, 6 Blackf. 123. But see Common-

‘wealth v. Daley, 4 Gray, 209. See Bain-

bridge v. The State, 830 Ohio State, 264.
As intimating that the mere production
of the record may under some circum-
stances make out a prima facie case, see
The State v. Smith, 22 Vt. 74. See also
Rake v. Pope, 7 Ala. 161; The State v.
De Witt, 2 Hill, S. C. 282.

® The State v. Smith, 11 Ire. 33.

1 Reg. v. Crofts, 9 Car. & P. 219.

11 The State v. Haynes, 86 Vt. 667.

2 The State v. Ingram, 16 Kan. 14.
The plea, for example, should not be
double. Rex v. Sheen, infra. That a
CHAP. LVI.] FORMER JEOPARDY. § 817

cannot be the same,! the prosecuting officer demurs. Otherwise
he tenders his replication. And he should be careful not to
demur when he ought to reply; for the demurrer admits the
truth of all that has been well pleaded.2~ The nature of the
replication will vary with the facts; as, for example, it is good
in reply, that the present is not the same offence as the former,
or that the parties are not the same, or that the indictment in
the former case was bad, or a conviction could not be had on it
for what is charged in the present one,® or that there is no such

record. as is alleged.§

plea is inadequate does not render it null.
Deaton v. The State, 44 Texas, 446.

1 The State v. Horneman, 16 Kan. 452;
Rex v. Vandercomb, 2 Leach, 4th ed. 708.

2 Commonwealth v. Myers, 1 Va. Cas.
188, 282. In one case Gray, C. J., said:
“The plea not necessarily showing that
the two offences were distinct, nor that
the Municipal Court had no jurisdiction,
the attorney of the Commonwealth, if he
had intended to deny their identity, should
have joined issue on the plea, and sub-
mitted that fact to the determination
of a jury. By demurring to the plea, he
admitted the truth of the allegation there-
in that the offence now charged against
the defendant was the same of which he
had been already acquitted.” Common-
wealth v. Bosworth, 113 Mass. 200, 201.

8 The State v. Conlin, 27 Vt. 318;
Duncan v. Commonwealth, 6 Dana, 295.

4 Rex v. Sheen, 2 Car. & P. 684.

5 Henry v. The State, 33 Ala. 389.

6 See Miller v. The State, 3 Ohio State,
475. A plea of autrefois convict averred a
conviction at a session of the peace ‘duly
holden by adjournment on the 65th of
July”; replication, nul tiel record. The
record produced in evidence stated, that
the indictment was found at a session
commenced and holden on Monday the
1st of July, and that the court was ad-
journed till Tuesday the 2d; that the
court, having reassembled on Thursday
the 4th, was adjourned to Friday the 5th,
when the prisoner was tried and convict-
ed. It was held, that the plea was not
proved by the record; the want of ad-
journment from Tuesday to Thursday
rendering proceedings on Friday coram
non judice and a nullity. Rex v. Bowman,

6 Car. & P.387. See also Rex v. Taylor,
5 D. & R. 422,3 B. & C. 502; Hite v.
The State, 9 Yerg. 357. To an indict-
ment for a larceny in a dwelling-house,
there was a plea of a former conviction
by the police court for pilfering the same
articles; replication, that the pilfering
was in a dwelling-house, and not within
the jurisdiction of the police court. A
rejoinder that it was not in a dwelling-
house, is not a departure. And, though
the plea was defective in form, for not
directly traversing the charge of larceny
in a dwelling-house, the defect was cured
by the pleading over. The proper plea
would have been former conviction of the
larceny, and not guilty of the residue of
the charge. Commonwealth v. Curtis, 11
Pick. 134. Indictment for assault and
battery. Plea of a former conviction be-
fore a justice of the peace. Demurrer,
for that the plea does not aver that the
proceeding before the justice was not had
by the procurement of the defendant.
Held, that the plea is good, and that if
the State intend to rely on a case of fraud
in the former proceeding to avoid the
force of the plea, it must be by replica-
tion, not by demurrer. The State v.
Clenny, 1 Head, 270. And see further, as
to cases of fraud, The State v. Lowry,
1 Swan, Tenn. 84; The State v. Reed, 26
Conn. 202. If the offences charged in the
two indictments are legally capable of
being the same, it is for the jury to deter-
mine, whether, in fact, they are, as the
plea has alleged. Hence, the replication
ought to conclude to the country. But
where the plea of aufrefois acquit, upon its
face, shows that the offences are legally
distinct, and incapable of identification

493
[BOOK VI.

§ 821 BETWEEN INDICTMENT AND TRIAL.

Statutes. — In many of our States, and in England at present,
there are statutes greatly modifying common-law rules, and ren-
dering the plea of a former conviction or acquittal quite simple.

II. The Methods where the foregoing Pleas are not available.

§ 818. In General. — We saw, in “Criminal Law,” that, by
the better opinion, if a man has pleaded to a valid indictment
before a competent tribunal, and a jury has been impanelled and
sworn to try him, and there is neither any latent nor patent
impossibility in the way of the case proceeding to a verdict, he
is exempt from any further prosecution for the same offence
whether in fact a verdict is reached or not.) If, in these cir-
cumstances, the prosecuting power does not procure a verdict,
there is some authority for holding that this is equivalent to an
acquittal, and he may defend himself from a second prosecution
under the plea of autrefois acquit.2 But, as we have seen,’ the
doctrine generally held does not permit this. And there is some
contrariety of opinion as to how this defence shall, in these cir-
cumstances, be made. And, —

§ 819. Various Methods — Choice. — By most opinions, there
are more methods than one, each adapted to its particular stage
of the cause, or correction of its special error, or to be pursued or
not at the election of the defendant.

§ 820. Taking a Verdict. — If the evidence against the prisoner
fails at the trial, he is entitled to a verdict of acquittal. He
should demand it. And the court has no right to discharge the
jury and hold him to answer before another.* If the inferior
tribunal refuses the verdict, there may be a way of taking the
error for correction to a higher court, but this will depend upon
the course of practice in the individual State.

§ 821. Discharge of Prisoner without Verdict. — If, after the jury

by averments, the replication of nul tiel
record may conclude with a verification,
and the court may decide the issue. Hite
v. The State, 9 Yerg. 807.

1 Crim. Law, I. § 1014, 1015, and ac-
companying sections ; Nolan v. The State,
65 Ga. 621.

2 O’Brian v. Commonwealth, 9 Bush,
883 (disapproving ‘Commonwealth uv.
Olds, 6 Litt. 187, and O’Brian v. Com-

494

monwealth, 6 Bush, 563) ; Ex parte Clem-
ents, 50 Ala. 459. In California, by
construction of the Code, this defence
should be made under the plea of not
guilty. People v. Cage, 48 Cal. 823. See
Ex parte Cage, 45 Cal. 248, And see Ex
parte Maxwell, 11 Nev. 428.

3 Ante, § 815.

* Crim. Law, I.§ 1016. And see ante,
§ 815; post, § 825.

ee
CHAP. LYI.]

FORMER JEOPARDY. § 824

has been sworn and thus the jeopardy has begun, the court, con-
trary to the true practice, discharges them without a verdict,
this is in law equivalent to an acquittal; and, on motion, with-
out plea, the prisoner is entitled to be set at liberty.! But, —

Habeas Corpus — Appeal. — Should the court refuse this, habeas
corpus will not lie;? neither, in some localities, will an appeal,
for an appeal is from a final judgment.

§ 822. Plea Puis Darrein Continuance. — In an English case of
misdemeanor, after the jury had been discharged, as the defendant
contended, improperly, he offered a plea in the nature of a former
acquittal, puis darrein continuance. He did not ask leave to
withdraw his plea of not guilty, hence the reception of this
one would have rendered the pleadings double, contrary to the
English rule in misdemeanor ;* for which reason, and because
it amounted, as some of the judges suggested, to a pleading of
the very record of which it constituted a part, it was rejected.5

§ 823. Continued. — The objection to the double pleading would
not be good in all our States. As to the other objection, the
record did not in fact contain the matter of the plea, the judges
merely deeming that the prisoner might demand its insertion
there. If the court had refused such insertion, it, in rejecting
this plea, would take from the prisoner a substantial right, con-
trary to a fundamental doctrine already considered in this vol-
ume.’ Hence, —

§ 824. American Doctrine. — In some of our States, if the
judge in these circumstances will hold the prisoner for a second
trial instead of discharging him, he is deemed entitled to his
plea, puis darrein, analogous to that of former acquittal, to be
tendered in the same cause.’ If double pleading is not allow-

1 Crim. Law, I. § 1016; Wright ».
The Staté, 7 Ind. 324; Reese v. The
State, 8 Ind. 416; Morgan v. The State,
13 Ind. 215; McCorkle v. The State, 14
Ind. 39; People v. Barrett, 2 Caines, 304;
Ned v. The State, 7 Port. 187; McCauley
v. The State, 26 Ala. 185. See The State
v. Nelson, 7 Ala. 610; Williams v. Com-
monwealth, 2 Grat. 567 ; Dye v. Common-
wealth, 7 Grat. 662.

2 Wright v. The State, supra; Ex
parte Ruthven, 17 Misso 541.

3 Miller v. The State, 8 Ind. 825.

4 Ante, § 749.

Zz Reg. v. Charlesworth, 1 B. & S.
A60,9 Cox C.C. 40. And see the two

‘cases relied on by the defendant, namely,

Conway v. Reg. 7 Irish Law, 149, 1 Cox
C. C. 210; Reg. v. Davison, 8 Cox C. C.
860, 2 Fost. & F. 250. See also Reg. v.
Newton, 3 Car. & K. 85, 88.

6 Ante, § 750.

7 Ante, § 118 et seq.

8 Grant v. People, 4 Parker C. C. 527;
Atkins v. The State, 16 Ark. 568; Wil-
son v. The State, 16 Ark. 601; McCauley
v. The State, 26 Ala. 135. Sce Klock ».
People, 2 Parker C. C. 676; McCreary v.

495
§ 827 BETWEEN INDICTMENT AND TRIAL. [BOOK VI.

able, he may withdraw a former plea to make way for this
one.!

_§ 825. Having Record made. —In England it is deemed, that,
in all cases where a jury is discharged without verdict and with-
out the prisoner’s consent, it is his right to have the record so
made up as to show the facts in detail. He can then rely upon
it on an application to have judgment entered for him, and to
be discharged ; or, after conviction upon a second trial, he can
move in arrest of judgment; or, after sentence, he can bring a
writ of error.2 The right of a prisoner to proceed in this way
would seem, on principle, to be unquestionable.’

§ 826. How with us. — There appear to be no American cases
wherein the right of a prisoner to demand the making of the
record has been drawn in question. In principle, a party would
seem entitled to require any admitted fact in the proceeding,
which in good faith he deems important to his protection, to be
made of record; because the record is for the benefit of the
parties, whose rights are not protected unless it is as full as
they reasonably demand. Practically, a record as written up
by the clerk omits much, which, by common consent, is not
important. But when one is proposing to rely on what is
done, in a proceeding to be instituted, every thing which he
wishes to avail himself of becomes material, whatever its effect
is finally adjudged to be. Assuming the record to be so made
as to show the facts, it is plainly within the American doctrine
to give it effect without the help of a pleat And, in such a
case, a plea setting up the special facts has been allowed.®

§ 827. Fresh Indictment brought. — If, after a Jeopardy without
verdict, a fresh indictment is preferred, another step in the in-
quiry as to methods of defence is reached. Perhaps the fact
that neither of the common-law pleas is available then, may
create a doubt whether this is matter of defence at the common
law.6 But under our written constitutions it is admitted to be;

Commonwealth, 5 Casey, Pa. 823; Har- 8 Compare ante, § 815 and 820.
tung v. People, 26 N. Y. 167, 28 N. Y. 400, # Ante, § 821; Crim. Law, I. § 1084;
23 How. Pr. 314. The State v. Jefferson, 66 N. C. 809.

1 The State v. Salge, 2 Nev. 821, 824. 5 Nolan v. The State, 55 Ga. 521.

2 Reg. v. Charlesworth, 1 B. & S. 460, 6 Winsor v. Reg. Law Rep. 1 Q. B.
9 Cox C. C. 40; ante, § 822. Foraform 289, 890, 395.
of record for this purpose, see Winsor v. .
Reg. Law Rep. 1 Q. B. 289, 290-292, 390.

496
CHAP. LVI.] FORMER JEOPARDY. § 831

and the doctrine applies, that, since the prisoner has unquestioned
rights, the court must allow him some procedure whereby to ren-
der them available. And the natural procedure is by extend-
ing the scope of the common-law plea to meet the altered law.?
Hence, —

§ 828. Plea in Nature of Autrefois Acquit.— Among courts that .
do not deem the plea of autrefots acquit permissible,’ some allow
to the defendant a plea framed on the special facts, in the nature
of autrefois acquit. There are various cases in which this method
has been adopted unquestioned, — in principle, it is plainly per-
missible, — and there is believed to be not much direct authority
against it.

§ 829. What to be averred in Plea.— This plea, it has been
deemed, should aver, that the defendant was put upon his trial
on a valid indictment, that a jury was duly impanelled and
sworn and charged with the case, and was without necessity or
his consent discharged without rendering a verdict.®

§ 830. Revising Refusal to discharge. — Though, in a case where
there has been a jeopardy and no verdict has been reached, it is
the duty of the presiding judge to discharge the defendant, the
course on his refusal is, should the judicial practice permit, as
probably it does not in all the States, to take the case directly
to a higher tribunal for revision. And where this was not done,
it was held to be error for the presiding judge at a subsequent
term of the same court to reverse the decision of refusal, and
discharge the prisoner. Said Pearson, C. J.: “That decision,
until reversed on appeal, or by writ of certiorari to this court,
must stand as a thing settled.” *

§ 831. Conclusion. — The subject of this chapter, especially of
the present sub-title, has, at former periods of our law, appeared
quite obscure in our books of reports. But it is being rapidly
freed of its difficulties; until, at present, it is in most of our
States reasonably plain.

1 Ante, § 113 et seq. 5 Lyman »v. The State, 47 Ala. 686;
2 Ante, § 114, 115. Canter v. People, 1 Abb. Ap. 805.
3 Ante, § 818. 6 Ante, § 820; The State v. Moon, 41

4 Jones v. The State, 55 Ga. 625; Wis. 684, 687.
Josephine v. The State, 39 Missis. 613; 7 The State v. Evans, 74 N. C. 824,
Lyman v. The State, 47 Ala. 686; Can- 825.
ter v. People, 1 Abb. Ap. 305.

VOL. I. 82 ‘497
§ 835 BETWEEN INDICTMENT AND TRIAL. [Book VI.

CHAPTER LVI.
THE PLEA OF PARDON.

§ 832. Already considered. — The law of pardon has been al-
ready discussed.}

In General. — A pardon, to be effectual, must be brought to
the attention of the court.2 The plea is among the favored
ones ;8 therefore the proceeding is practically simple, and it is
not much illustrated by modern decisions.

§ 833. Waiver of Pardon. — Hawkins — some of whose exposi-
tions of the old law it will be well to retain *— says: “A gen-
eral pardon by Parliament cannot be waived; because no one
‘by his admittance can give a court a power to proceed against
him when it appears there is no law to punish him. But it is
certain that a man may waive the benefit of a pardon under the
great seal; as, where one who has such a pardon doth not plead
it, but takes the general issue, after which he shall not resort to
the pardon.” Still, —

§ 834. Continued. — “If any persons are excepted out of” a
statutory pardon, he deems it settled that “the court is not
bound, and some have holden that it hath no power in discre-
tion, to give any person the benefit of it, unless it be pleaded.”

§ 835. How plead Statutory Pardon with Exceptions. — A stat-
utory pardon with exceptions must, therefore, be pleaded. If
it excepts persons by name, the plea must show that the defend-
ant is not one of them, if, by description, that he is not within
the description. “ But,” he continues, “if the body of a statute
be general as to all persons whatsoever, and afterwards some are
excepted in the provisos, perhaps it may be sufficient to plead
such a pardon, without any averment that he who pleads it is
none of the persons so excepted; it being a general rule, that,
where a man is within the general words of the body of a rec-

1 Crim. Law, I. § 807 et seq. 3 Ante, § 828, 824, 745.
2 United States v. Wilson, 7 Pet, 150. * 2 Hawk. P. C. c. 37, § 58 et seq.

498
CHAP. LVI. ] PLEA OF PARDON. § 840

ord or deed which is qualified by subsequent provisos, it is
sufficient for him to bring his case within such general words,
and that the exceptions in such provisos ought to be shown of
the other side.” 4

§ 836. Statutory Pardon without Exceptions. —— Where a stat-
utory pardon “extends to all persons in general without ex-
ception,” the court must take notice of and be governed by it,
though it is not pleaded, and even though the party “does all
he can to waive it. Also, —

§ 837. Particular Crimes excepted. — ‘‘ Where a general act
of pardon excepts certain kinds of crimes, there is no need to
aver that the crime whereof a person is indicted is not one of
such excepted crimes; but the court ought judicially to take
notice whether it be excepted or not. Also, —

One Person excepted. —‘* Where such a statute excepts only
one particular person, it hath been said, that there is no need of
an averment that a person indicted is not such person; but that
the court is to take notice whether he be or not.” ?

§ 838. Executive Pardon — (Pleaded).— An executive pardon’
must be pleaded.’

§ 839. Produced. — It must also be produced in court.*

§ 840. Variance between Record and Pardon. — If between the
record of conviction and the pardon there is a formal variance,
yet the same person or thing is meant, it should be explained
in the plea; as, “if one be indicted by the name of ‘J.5S., yeo-
man,’ and pardoned by the name of ‘J.S., gentleman’; or in-
dicted by the name of ‘B, the tasker,’ and pardoned by the
name of ‘B, the son of W.’” So, if a stroke which produced
death is laid in the indictment as given “on the first of August,”
and in the pardon as “on the third,” the plea should aver that
it is the same stroke in each. “And if such a variant pardon be
pleaded without any such averment, it seems that the court may,
in discretion, give the party a farther day either to perfect his

1 Compare with ante, § 631-641; St.
Louis Street Foundry, 6 Wal. 770.

2 Holt, C. J., once said: “ This court
-is not obliged to take notice of an act of
pardon, unless the act compel this court
to take notice of it (for an act of pardon
is not a general act), which this act does
not compel us to do. And it is no con-
sequence, that, because a man may give

it in evidence upon the general issue
pleaded, that therefore this court shall
take notice of it in collateral cases.” In-
gram v. Foote, 1 Ld. Raym. 708, 709.

8 2 Hawk. P. C. c. 37, § 64; United
States v. Wilson, 7 Pet. 150; Lee ov.
Curveton, Cro. Eliz. 153.

4 Hawk. ut sup. § 65; Rex v. Anon-
ymous, 4 Mod. 61; post, § 847.

499
BETWEEN INDICTMENT AND TRIAL. [BooK VIL

‘

plea or to purchase a better pardon. And there are some in-
stances, in old books, where, upon such variance, the court took
an inquest of office, whether the same person were meant in
both records.” }

§ 847.2 When plead — Avoid Waiver. — One, to avoid waiving
his pardon,? should not interpose another plea in advance of this.
He may plead it, according to the time when it was issued and
received, “in bar to the indictment; or, after verdict, in arrest
of judgment; or, after judgment, in bar of execution.” *

Form of Plea.— The plea should set out the pardon, with
profert, and conclude, according to the English form, thus:
“By reason of which said letters patent, the said J. S. prays
that by the court here he may be dismissed and discharged from
the said premises in the said indictment specified.”® As the
pardon of one offence is no ground of release from another,® and
the same of the person, it would seem to result that the plea
should-aver the identity of person and offence,’ except in cases
where such identity sufficiently appears of record. And under
the amnesty proclamation, containing exceptions, a negation that
the party was within an exception was required.®

Evidence. — The letters of pardon must be produced in court;
it not being sufficient, when its loss is not shown, to present
extracts from the governor’s minutes stating that a pardon was
granted." If the warrant of pardon appears under the great
seal of the State, it proves itself, no other evidence being
necessary. ,

§ 848. Oral Plea.— Perhaps it may be pleaded orally, espe-
cially if no objection is made.#

§ 848

! Hawk. ut sup. § 66; Bellengeham’s 7 See ante, § 814.
Case, 1 Dy. 84 a. 8 Ante, § 742.
2 § 841-846 omitted from this edition. § St. Louis Street Foundry, 6 Wal.

3 Ante, § 833. 770.

4 Archb. Crim. Pl. & Ev. 18th Lond.
ed. 124; Rex v. Anonymous, 4 Mod. 61;
Webb’s Case, Palmer, 39, 40; Rex v.
Hales, 2 Stra. 816. See also The State v.
Stalnaker, 2 Brev. 44.

5 Archb. ut sup. p. 125.

8 The State v, Creech, 1 Misso. Ap.

870.
500

10 Ante, § 839.

Nl Spalding v. Saxton, 6 Watts, 338.

12 1 Greenl. Evy. § 6, 608. But see The
State v. Baptiste, 26 La. An. 134.

18 Rex v. Garside, 4 Nev. & M88, 2 A.
& FE. 266.
j 14 As to oral pleading, see ante, § 788-

90.

e
CHAP. LVUI.] GENERALLY AND

BOOK

THE GRAND JURY

ORGANIZATION. § 850

VII.

AND ITS DOINGS.

CHAPTER LVIII.

IN GENERAL OF THE GRAND JURY AND HOW ORGANIZED.

§ 849. How selected at Common Law. — The English law,

when adopted in this country, required the grand jury to be
“returned,” says Hawkins, ‘by the sheriff or other proper
officer, without the nomination of any other person whatso-
ever.”1! In other words, the returning officer selected the
grand jurors.

§ 850. How with us. — This method has been done away with
by statutes in most if not all of our States; except, perhaps, as
to talesmen. But the statutory provisions, as to selecting and
bringing into court the grand jurors, are so diverse that any

expositions of them here would b

1 2 Hawk. P. C. c. 25, § 16.

* The following references, explana-
tory of the practice in different States,
may be helpful : —

Alabama.— The State v. Williams, 3
Stew. 454; The State v. Williams, 5 Port.
130; The State v. Ligon, 7 Port. 167;
The State v. Stedman, 7 Port. 495; The
State v. Allen, 1 Ala. 442; The State v.
Phillips, 2 Ala. 297; The State v. Clark-
son, 8 Ala. 378; Bass v. The State, 37
Ala. 469; Boulo v. The State, 61 Ala.
18; O’Byrnes v. The State, 51 Ala. 25;
Daniels v. Hamilton, 52 Ala. 105.

Arkansas. — Rutzell v. The State, 15
Ark. 67; Rogers v. The State, 15 Ark.
71; Straughan v. The State, 16 Ark. 37;
Runnels v. The State, 28 Ark. 121.

e out of place.”

California. — People v. Rodriguez, 10
Cal. 50; People v. Cuintano, 15 Cal. 327;
People v. Moice, 15 Cal. 329; People v.
Earnest, 45 Cal. 29; People v. Southwell,
46 Cal. 141; People v. Kelly, 46 Cal. 855;
People v. McDonell, 47 Cal. 134.

Colorado. — Mackey v. People, 2 Col.
Ter. 18.

Florida. — Dukes v. The State, 14 Fla.
499.

Georgia. — Boon v. The State, 1 Kelly,
631; Bird v. The State, 14 Ga. 43; An-
derson v. The State, 42 Ga. 9; Sims v.
The State, 51 Ga. 495; Finnegan v. The
State, 57 Ga. 427.

Illinois. — Barron v. People, 73 Ii.
256 ; Empson v. People, 78 Ill. 248.

Indiana. —The State v. Cain, 6 Blackf.

. 601
GRAND JURY AND ITS DOINGS.

§ 851 [Book vu.

§ 851. Qualifications. — The qualifications of the grand jurors
are, in the main, determined by the differing statutes of the
States! and the United States? At common law, each grand
juror “ought,” says Hawkins, “to be of the same county”
wherein the indictment is found, ‘to be a freeman, and a law-
ful liege subject; and, consequently, neither under an attainder
of any treason or felony, nor a villein, nor alien, nor outlawed,
whether for a criminal matter, or, as some say, in a personal
action.’ Probably, in some of our States, the statutory dis-
qualifications are exclusive of those of the common law,‘ but

they appear not to be so in all.

422; Harper v. The State, 42 Ind. 405;
Ward v. The State, 48 Ind. 289; Kelley v.
The State, 53 Ind. 311; Hughes v. The
State, 54 Ind. 95. 7

Iowa. — United States v. Cropper, Mor-
ris, 190; The State v. Pierce, 8 Iowa, 231 ;
The State v. Howard, 10 Iowa, 101; The
State v. Mooney, 10 Iowa, 506; The State
v. Knight, 19 Iowa, 94; The State v.
Rorabacher, 19 Iowa, 154; The State
v. Garhart, 35 Iowa, 315; The State v.
Brandt, 41 Iowa, 598.

Kansas. — Rice v. The State, 3 Kan.
141.

Maine. — The State v. Ward, 63 Maine,
225; The State v. Doherty, 60 Maine, 504;
The State v. Ward, 64 Maine, 545; The
State v. Flemming, 66 Maine, 142.

Massachusetts—Commonwealth v. Par-
ker, 2 Pick. 550; Commonwealth v. Rich,
14 Gray, 335; Crimm v. Commonwealth,
119 Mass. 326.

Minnesota. — The State v. Froiseth, 16
Minn. 313; The State v. Davis, 22 Minn.
423.

Mississippi. — Dowling v. The State,
5 Sm. & M. 664; Baker v. The State, 23
Missis. 243.

Missouri.— The State v. Barnes, 20
Misso. 413; The State v. Brown, 64
Misso. 367.

Nevada.— The State v. McNamara,
8 Nev. 70.

New Hampshire.— The State v. Brad-
ford, 57 N. H. 188.

New Jersey. — The State v. Rickey, 4
Halst. 298; Chase v. The State, Spencer,

218.
502

Thus, —
Alienage, — with us, disqualifies.®

Yet, in Indiana, an indict-

New York. — People v. General Ses-
sions, 20 Johns. 310; Dolan v. People,
64 N. Y. 485; United States v. Reed,
2 Blatch. 485:

Pennsylvania. — White v. Common-
wealth, 6 Binn. 179.

Tennessee. — Barnes v. The State, 5
Yerg. 186.

Texas. — Newman v. The State, 43
Texas, 525.

United States. — United States v. Reed,
2 Blatch. 435; United States v. Collins,
1 Woods, 499.

1 The State v. Easter, 30 Ohio State,
542; United States v. Reed, 2 Blatch.
435; Moran v. Commonwealth, 9 Leigh,
651; Commonwealth v. Willson, 2 Leigh,
739; Booth v. Commonwealth, 16 Grat.
519; Commonwealth v. Strother, 1 Va.
Cas. 186; Mahl v. The State, 1 Texas
Ap. 127; The State v. Willson, 2 McCord,
393; Rolland v. Commonwealth, 1 Nor-
ris, Pa. 806; Beason v. The State, 34
Missis. 602; Commonwealth vo. Ryan, 5
Mass. 90; Commonwealth v. Smith, 9
Mass. 107; United States v. Williams,
1 Dillon, 485; Brown v. The State, 5
Eng. 607; The State v. Ansaleme, 15
Towa, 44.

2 BR. S. of U.S. § 812, 820, 822.

3 2 Hawk. P. C. c. 25, § 16.

* The State v. Easter, supra.

5 Commonwealth v. Cherry, 2 Va.
Cas. 20; The State v. Cole, 17 Wis. 674.
See Harless v. United States, Morris, 169;
People v. Henderson, 28 Cal. 465.
CHAP. LVIII.] GENERALLY AND ORGANIZATION. ' § 852

ment is not ill under the statute because one of the grand jury
who found it was an alien! Again, —

Freeholder or Householder.— Under some of our statutes, a
grand juror must be a freeholder or householder;? but the want
of this qualification is not, at the common law, any objection,?
nor is it such by statute in all our States.*

§ 852. Compared, as to Qualifications, with Petit Jury. — Not in
all respects, it appears, are the disqualifying rules for grand
jurors the same, or so strict, as for petit jurors.5 Yet “no
person,” said Stevens, J., “should ever be permitted to take
a seat as a member thereof, except such good and lawful men
as will impartially and faithfully carry the true objects of the
institution into effect.””"& Hence, —

Conscientious Scruples. — One whose conscience? will not per-
mit him to condemn another for what will be followed by capital
punishment,’ or for polygamy,® is equally unfit to serve on a
grand as on a petit jury for the investigation of such a charge.
So, —

Expressed Opinion. — It is widely held, but not universally or
on so strong a reason, that one who has expressed an opinion
as to the guilt of a prisoner is not competent to investigate his
case as a grand juror. The question is analogous to that of the

competency of such person as a petit juror.

1 The State v. Taylor, 8 Blackf. 178;
Reich v. The State, 53 Ga. 73.

2 The State v. Rockafellow, 1 Halst.
832; The State v. Duncan, 7 Yerg. 271;
Stanley v. The State, 16 Texas, 557; The
State v. Herndon, 5 Blackf. 75; Jackson
v. The State, 11 Texas, 261; The State
v. Motley, 7 Rich. 327; Barney v. The
State, 12 Sm. & M.68; The State v. Mid-
dleton, 5 Port. 484; The State v. Ligon, 7
Port.167. Freeholder. — As to the mean-
ing of the term “ freeholder,” see post,
§ 921. One in possession of land under
a parol contract for its purchase, is a
freeholder qualified to be a grand juror
in Virginia, though a writ of right be
pending against him to recover it. Com-
monwealth v. Cunningham, 6 Grat. 695.
So is a reversioner of land held and oc-
cupied by a widow as dower. Wysor v.

ll The State v. Gillick, 7 Iowa, 287;

Commonwealth, 6 Grat. 711. See further
Commonwealth v. Burcher, 2 Rob. Va.
826; Aaron v. The State, 37 Ala. 106.

3 Anonymous, Russ. & Ry. 177. See,
as to this, 1 Chit. Crim. Law, 308; 2
Hawk. P. C. c. 25, § 19.

4 Palmore v. The State, 29 Ark. 248.

5 Compare 2 Hawk. P. C. c. 25, § 16
(ante, § 851), with ib. c. 48, § 12 et seq.;
The State v. Easter, 30 Ohio State, 542;
Musick v. People, 40 Ill. 268.

6 Jones v. The State, 2 Blackf. 475,
478.

7 Post, § 918.

8 Jones v. The State, supra; Gross v.
The State, 2 Ind. 829.

® United States v. Reynolds, 1 Utah
Ter. 226.

10 People v. Jewett, 3 Wend. 314; The
State v. Gillick, 7 Iowa, 287. See, how-

The State v. Quimby, 51 Maine, 395.
503
GRAND JURY AND ITS DOINGS. [Book VIL

§ 854

§ 853. Excuse does not disqualify. —A statute, or a judicial
discretion, excusing certain persons from service, — for example,
the Statute of Westm. 2, c. 88, whereby “old men above the
age of seventy years, persons perpetually sick, or infirm at the
time of the summons, &c., shall not be put in juries,” — does
not render such persons incompetent. They can avail them-
selves of the excuse or not as they please; a party cannot
object.1. Nor can the party ordinarily complain where the court
excuses a grand juror in the exercise of its discretion.?

§ 854. How Many. — At common law, a grand jury must con-
sist of not over twenty-three persons, and not under twelve.
And so it must, either by force of the common law or by stat-
utes, in many or most of our States. In some, the larger num-
ber is varied, — as, for example, reduced to sixteen, — but it

is nowhere over twenty-three, or under twelve.

ever, The State v. Clarissa, 11 Ala. 57.
And sce The State v. Hughes, 1 Ala.
655; The State v. Rickey, 5 Ialst. 88;
The State v. Easter, 30 Ohio State, 542,
647; Musick v. People, 40 Ill. 268; post,
§ 881. The court will not set aside a
grand juror because he originated a pros-
ecution which will come under consider-
ation. Tucker’s Case, 8 Mass. 286. And
see Musick v. People, supra.

1 Post, § 926; 2 Hawk. P. C. c. 25,
§ 20; Breeding v. The State, 11 Texas,
257; The State v. Brooks, 9 Ala. 9;
The State v. Adams, 20 Iowa, 486; The
State v. Wright, 53 Maine, 328; Booth v.
Commonwealth, 16 Grat. 519; Common-
wealth v. Pritchett, 11 Bush, 277; The
State v. Pierce, 8 Iowa, 231.

2 The State v. Bradford, 57 N. H.
188; Ridling v. The State, 56 Ga. 601;
Gladden v. The State, 12 Fla. 562;
Crimm v. Commonwealth, 119 Mass. 326 ;
Denning v. The State, 22 Ark. 131; Cot-
ton v. The State, 31 Missis. 504. In Mis-
sissippi it is deemed irregular to discharge
wu member after the body has been im-
panelled, sworn, and charged, because of
the sickness of his wife. Yet if a sufii-
cient number remain to do business, one
cannot complain of an indictment found
by them. If the court puts a substitute
in the place of the juror thus irregularly
discharged, the whole doings of the body
so corrupted will be void. The only case in

504

which the Cirouit Courts can add grand
jurors after the original panel has been
sworn, is where one has died or is sick or
absent. It may then order a substitute
from among the bystanders. Portis v.
The State, 23 Missis. 578. See also Box
v. The State, 84 Missis. 614; Baker v.
The State, 23 Missis. 248 ; Thompson v.
The State, 9 Ga. 210. In Virginia, on
the first day of the term, a grand jury
was impanelled’ and sworn, and pro-
ceeded in the discharge of its duties. On
the next day, one of the panel was dis-
covered to be disqualified, whereupon the
court discharged him, and ordered an-
other to’ be sworn. This was held to
be regular. Commonwealth v. Burton,
4 Leigh, 645. And see Jetton v. The
State, Meigs, 192; Lowrance v. The State,
4 Yerg. 145; Wadlin’s Case, 11 Mass.
142; Findley v. People, 1 Mich. 234;
The State v. Jacobs, 6 Texas, 99; Bald-
win’s Case, 2 Tyler, 473.

31 Chit. Crim. Law, 811; Rex »v.
Marsh, 1 Nev. & P. 187,6 A. & E. 236.

# Commonwealth v. Wood, 2 Cush.
149. And see Ridling v. The State, 66
Ga. 601.

5 The State v. Swift, 14 La. An. 827;
The State v. Hawkins, 5 Eng. 71; Hard-
ing v. The State, 22 Ark. 210; People v.
Gatewood, 20 Cal. 146; People v. Roberts,
6 Cal. 214; People v. Thurston, 5 Cal.
69; Keech v. The State, 15 Fla. 591; Bar-
CHAP. LVIII.] GENERALLY AND ORGANIZATION. § 855

Twelve concur.—In England and in all our States, twelve of
the grand jurors must consent in order to render a finding valid ;
nor need more than twelve, even though the grand jury should
consist of the full number of twenty-three.!

§ 855. Number under our Constitutions. — We shall see,? that,
where the constitution secures a trial by petit jury, it must, to be
a jury, consist of not less than twelve. Doubtless the like rule
applies to a grand jury; so that, if a statute should authorize a
finding by less than twelve concurring jurors, it would be void
as to cases wherein the party is constitutionally entitled to be
proceeded against by indictment. But, consistently with this
view, in a case of minor misdemeanor, wherein this constitu-
tional right did not exist, it was held that a statute may well
provide for a grand jury of fifteen, nine only of whom need
concur in the finding. So a statute may limit the number
below twenty-three, if it provides for the concurring twelve ;4
because, the smaller the number among whom the twelve are
to be found, the more secure is the defendant against being
indicted. The provision is in his favor. On the other hand,
in principle, if it allows of more than twenty-three jurors, and
permits an indictment to be found on the vote of twelve, it
increases his danger, and is consequently unconstitutional. It
is also, in principle, void as being contradictory and absurd;
because, by its terms, if the needful twelve find “A true bill,”
another needful twelve can find it “ Not a true bill,” by reason
of which the deliberations of this body will produce no result.§

ron v. People, 73 Ill. 256; United States 3 Thurman v. The State, 25 Ga. 220.

v. Reynolds, 1 Utah Ter. 226, 319; Pybos
v. The State, 3 Humph. 49; People v.
Green, 1 Utah Ter. 11; The State v. Os-
trander, 18 Iowa, 435; Gladden v. The
State, 12 Fla. 562; Leathers v. The State,
26 Missis. 73.

1 2 Hawk. P. C.c. 25,§ 16; The State
v. Miller, 8 Ala. 843; Johnston v. The
State,7 Sm. & M. 68; Dowling v. The
State,5 Sm. & M. 664; Hudson v. The
State, 1 Blackf. 317; The State v. Davis,
2 Ire. 153; Commonwealth v. Sayers, 8
Leigh, 722; Low’s Case, 4 Greenl. 439;
The State v. Clayton, 11 Rich. 581; The
State v. Symonds, 386 Maine, 128; People
v. Butler, 8 Cal. 435.

2 Post, § 897.

4 Brucker v. The State, 16 Wis. 833.

» In Brannigan v. United States, July
Term, 1869, pamph., the Supreme Court
of Utah held it not to be unconstitutional
to provide for a jury of twenty-four, and
authorize twelve to find an indictment.
“Tf,” said the learned judge, “ the statute
fixed the number less than twelve, instead
of more than twenty-three, there would
exist a stronger reason for questioning its
validity; for thereby individual liberty
and life would be placed in greater peril
than by the common law. But, in fixing
the number at twenty-four, individual
liberty and life are more strongly guarded,
and thereby the intent and spirit of the
constitutional safeguard are respected

505
§ 857 GRAND JURY AND ITS DOINGS. [Book vit.
§ 856. Swearing. — The grand jury, to be duly organized and
- authorized to act, must be sworn.

Form of Oath. — The form of the oath is established by com-
mon-law usage, ancient and modern, and in substance it must
be observed; yet the manner of its administration pertains to
mere practice, and is subject to change.? In England, the form

is as follows: —

“« Oath of the Foreman. Sir, you as foreman of this grand inquest, for our
sovereign lady the queen and the body of this county, shall diligently inquire,
and true presentment make, of all such matters and things as shall be given
to you in charge, or shall otherwise come to your knowledge, touching this
present service; the queen’s counsel, your fellows’, and your own, you shall
keep secret; you shall present no one through envy, hatred, or malice, neither
shall you leave any one unpresented through fear, favor, affection, gain, re-
ward, or hope thereof, but you shall present all things truly and indifferently
as they shall come to your knowledge, according to the best of your under-
standing. So help you God.

‘* Oath to the other Jurymen, four at atime. The same oath that your fore-
man hath taken on his part, you shall well and truly keep, and observe on
your respective parts. So help you God.’’8

§ 856 a. Unauthorized or Incompetent Juror. — One unauthor-
ized or incompetent person, acting with the grand jury, vitiates
the indictment, if the objection is duly taken.* But the mere
presence of such person, not acting, does not necessarily in all
circumstances have this effect.6 And a mistake in swearing in
grand jurors may be corrected without a fatal effect on the
entire body.§

§ 857. Secrecy. — The oath, it is perceived, contains a promise
of secrecy. And in some of our States there are, moreover,
statutes requiring it,’ and even providing specially a punish-
ment for the violation of this duty. So likewise the duty was
recognized by the common law, which, it appears, made the

and upheld, instead of being weakened.” 8 2 Gude Crown Pract. 588. And see
See People v. Green, 1 Utah Ter. 11. I Rex v. Shaftsbury, 8 Howell St. Tr. 759.
cannot think any reader will take this view 4 Kitrol v. The State, 9 Fla. 9; United

of a question within the sphere of mathe-
matical demonstration. See also Anony-
mous, 2 Bur. 1082; Conkey v. People, 1
Abb, Ap. 418.

1 Ridling v. The State, 56 Ga. 601;
Bird v. The State, 53 Ga. 602.

2 Brown v. The State, 5 Eng. 607;
Allen v. People, 77 Ill. 484.

506

States v. Hammond, 2 Woods, 197; The
State v. Clough, 49 Maine, 573.

5 The State v. Clough, supra. See
The State v. Froiseth, 16 Minn. 318.

6 The State v. Fee, 19 Wis. 562. And
see The State v. Froiseth, supra.

T People v. Tinder, 19 Cal. 539.

8 White v. The State, 44 Ala. 409.
CHAP. LVIII.] GENERALLY AND ORGANIZATION. § 858

breach of it heavily punishable.1 On the other hand, there are
States in which not even the promise of secrecy is in the oath.
Various reasons for this requirement have been assigned: one
is, to keep from an unarrested defendant the knowledge which
would induce him to escape; another, to prevent the indicted
persons from meeting the evidence at the trial by perjured testi-
mony; another, to render the witnesses before the grand jury
more free in their disclosures. Conseqtently, when the pur-
poses of the secrecy are accomplished, it is the better opinion,
contrary perhaps to some cases, but maintained in most, that
any revelations of the grand jury’s doings may be made which
justice demands.? The testimony may come from a third person
present, from a grand juror himself,> or from one who was a wit-
ness before the grand jury, who may be even questioned as to what
was his own evidence.’ For illustration, —

§ 858. Perjury — Malicious: Prosecution — Slander — Credit of
‘Witness — Confessions. — On an indictment for perjury,’ an ac-
tion for malicious prosecution ° or for slander,® or a question of
the credibility of a testifying witness !° or of a confession by the
defendant, it is competent to show what was said and done
before the grand jury. So, —

Who testified. — Evidence may be given that a particular per-
son did not testify before this body.“ But —

18 Russ. Crimes, 5th Eng. ed. by
Prentice, 556, note, referring to 2 Rol.
Abr. 77, (F) 1, where the offence is said
to be misdemeanor. The note pro-
ceeds: “In 27 Ass. pl. 63, a grand jury-
man was indicted as a felon for dis-
covering what took place before the grand
jury, but it was said that some justices
held that this was treason.. He was ar-
raigned, however, for felony only, and
acquitted; and a quere is added, as to
what the judgment would have been if
he had been convicted.” See also 1 Chit.
Crim. Law, 317, where the offence is,
doubtless correctly, said to be misde-
meanor. s. P. 2 Hale P. C. 161.

2 Sands v. Robison, 12 Sm. & M. 704;
Granger v. Warrington, 3 Gilman, 299.

33 Russ. Crimes, 5th Eng. ed. by
Prentice, 555; Commonwealth v. Mead,
12 Gray, 167, 170; Burnham »v. Hatfield,
5 Blackf. 21; The State v. Broughton, 7
Ire. 96; Jones v. Turpin, 6 Heisk. 181;

The State v. Brewer, 8 Misso. 878. And
see, under Missouri Statutes, Tindle v.
Nichols, 20 Misso. 826; Beam v. Link, 27
Misso. 261.

4 Little v. Commonwealth, 25 Grat.
921; Reg. v. Hughes, 1 Car. & K. 519.

5 The State v. Wood, 53 N. H. 484;
United States v. Charles, 2 Cranch C. C.
76; Crocker v. The State, Meigs, 127;
Commonwealth v. Hill, 11 Cush. 187.

8 Reg. v. Gibson, Car. & M. 672.

7 Reg. v. Hughes, 1 Car. & K. 519;
Crocker v. The State, Meigs, 127.

8 Jones v. Turpin, 6 Heisk. 181.

® Sands v. Robison, 12 Sm. & M. 704.

10 Commonwealth v. Mead, 12 Gray,
167; Perkins v. The Sthte, 4 Ind. 222;
Little v. Commonwealth, 25 Grat. 921;
The State v. Wood, 53 N. H. 484; Rex
v. Watson, 82 Yowell St. Tr. 1, 107.

11 The State v. Broughton, 7 Ire. 96;
United States v. Charles, 2 Cranch C. C. 76.

12 Commonwealth v. Hill, 11 Cush. 187.

507
§ 860 GRAND JURY AND ITS DOINGS.

Against Record — Invalidate. — Nothing is permitted to be pro-
duced against the record of the grand jury, or to invalidate its
doings! Yet it has been held to be permissible to invalidate
an indictment by proof that the indorsement “a true bill” was,
by mistake of the clerk of the grand jury, written for “not a
true bill.”’?

§ 859. Jurisdiction. — The jurisdiction of the grand jury is
local to the county, or district, and it cannot inquire of what
occurred elsewhere, unless specially authorized by statute? In
general, this body has cognizance of all offences, but in some of
our States various minor ones are withheld from it.‘

§ 860. Void or Voidable.— An indictment found by a grand
jury at a term of court not authorized by law is void6 And
there probably may be such radical imperfections in the con-
stitution of this body as to render absolutely null all its doings.®
But, in general, errors in its organization and action render its
findings only voidable ; and the objection, to be available, must
be taken in a particular time and method,’ as will be explained
in the chapter after the next.

[Book vit.

1 People v. Hulbut, 4 Denio, 183; The
State v. Fasset, 16 Conn. 457; Rex »v.
Marsh, 1 Nev. & P. 187, 6 A. & E. 236, 2
Har. & W. 866, 1 Jur. 38; The State v.
Morris, 86 Iowa, 272; Cotton v. The State,
48 Texas, 169; The State v. Oxford, 30
Texas, 428, 481; The State v. Little, 42
Iowa,51. See The State v. Flynn, 42 Iowa,
164; Hofler v. The State, 16 Ark. 584.

2 The State v. Horton, 63 N. C. 595.

32 Hawk. P. C.c. 25, § 84; Beal v.
The State, 15 Ind. 878; Wau-kon-chaw-
neek-kaw v. United States, Morris, 832.

508

4

4 The State v. Kehler, 6 Iowa, 398;
The State v. Shawbeck, 7 Iowa, 322;
The State v. Hunter, 5 Humph. 597.

5 Davis v. The State, 46 Ala. 80. See
Commonwealth v. Bannon, 97 Mass. 214;
Finnegan v. The State, 57 Ga. 427.

6 Post, § 888, 889; The State v. McNa-
mara, 8 Nev. 70; O’Byrnes v. The State,
51 Ala. 25.

7 Runnels v. The State, 28 Ark. 121;
Bass v. The State, 37 Ala. 469; The State
v. Williams, 3 Stew. 454, 456.
CHAP. LIX.] PROCEEDINGS BEFORE GRAND JURY. § 861

CHAPTER LIX.
THE PROCEEDINGS BEFORE THE GRAND JuRY.!

§ 861. Ready for Business — (Officer attending — Foreman ). —
After the grand jury is sworn, an officer is appointed and sworn
to attend it.2 But such attendant is not essential to the legal
constitution of the body, or the valid transaction of its business.?
So, also, a foreman is appointed or chosen ;‘ but, in the absence
of a mandatory statute, a foreman is probably not essential to
the valid transaction of business.®

Others present. — As to the presence of persons not of the
grand jury, a distinction appears to be made between the hear-
ing of the testimony and the deliberations thereon. In some
early instances, not as of common practice, but, it seems, at the
request of the officers prosecuting for the king, the evidence
was produced publicly in open court to the grand jury, yet their
deliberations were private.6 In modern times, the grand jury,
though deemed a part of the court, always sits by itself while
receiving testimony; and it is not believed that a departure
from this practice, even in an exceptional instance, would now
be allowed.’ Still if, while the testimony is being introduced,
a third person not participating is present under no suspicious
circumstances, — as, for example, a bailiff, or one drawn as a
grand juror, yet not in due form, — this will not vitiate the
finding. Such person is under the same obligation of secrecy
with the jurors.2 The authorities are not distinct as to the

1 See also the two chapters commenc-
ing ante, § 695 and 702. And see the
last chapter and the next.

2 2 Gude Cr. Pract. 583.

3 The State v. Perry, Busbee, 330.

4 Ante, § 697; Lung’s Case, 1 Conn.
428.

5 Ante, § 700 and note.

6 Rex v. Shaftesbury, 8 Howell St.

Tr. 759, 771, 774, 775, 820, 821; Poul-
terer’s Case, 9 Co. 55d.

7 The State v. Branch, 68 N. C. 186;
Grand Jury v. Public Press, 4 Brews.
818.

8 Ante, § 857; The State v. Kimball,
29 Iowa, 267; The State v. Clough, 49
Maine, 578; Little v. Commonwealth, 25
Grat. 921.

9 1 Chit. Crim. Law, 317.

509
§ 863 GRAND JURY AND ITS DOINGS. [Book vu.

effect of the presence of the third person while the jury delib-
erate on finding a bill; yet, at least, in the words of Hanna, J.,
“the better practice would be for the jury to exclude every
other person from their room at such time, but we are not
prepared to say that they may not in their discretion permit
the prosecuting attorney to remain.”! As to the —

Prosecuting Officer. — The practice as to the relations of this
officer to the grand jury is not uniform in our States. In South
Carolina, he does not, in general, and without leave of court,
even enter the room of the jurors. But in probably the greater
number of our States he is with them, when not deliberating
on their finding, assisting in the examination of witnesses, and
advising on questions of law. And his assistants may partici-
pate therein. Yet in Mississippi it is deemed that this privilege
does not extend to a mere private attorney employed to assist
in a prosecution.®

§ 862. Common-law Rules. — The grand jury, though consti-
tuted by statute, is to follow, in its procedure, the rules of the
common law, unless a statute has otherwise provided.®

§ 863. Practical Questions. — Many practical questions may
arise, as to care in drawing the indictment and preparing the
evidence by the prosecuting officer, instructions to the grand
jury by the court,’ and the like, which will depend, for their
solution, on a blending of common-sense, law, and the practice
of the particular tribunal.

Who move. — Practically the prosecuting officer, in most in-
stances, will lay before the grand jury their business, whether
he enters their room to advise them or not.6 But in the greater

1 Shattuck v. The State, 11 Ind. 473,
477; The State v. Kimball, supra; The
State v. Fasset, 16 Conn. 457.

2 The State v. Addison, 2 8. C. 366.

3 Shattuck v. The State, 11 Ind. 478;
Ex parte Crittenden, Hemp. 176.

4 United States v. Reed, 2 Blatch. 435.

5 Durr v. The State, 58 Missis. 425.
Connecticut — (Defendants, &c.).— In
Connecticut, no spectators, and no coun-
sel either for the State or the defendant,
are admitted to the grand-jury room. Yet
the prisoner himself may be present,
and cross-examine the witnesses. Lung’s
Case, 1 Conn. 428. “But,” said Williams,
C.J., “our Constitution and the oath of the

510

grand jury recognize presentments, as
well as indictments by the grand jury, in
which case the accused would not be

* present; and the accused is never present

at the deliberations of the grand jury; of
course, cannot know individual opinions.”

The State v. Fasset, 16 Conn. 457, 469.

And an indictment may be valid though
the prisoner was not present and had no
notice of the proceedings. ‘The State v.
Walcott, 21 Conn. 272.

® Gladden v. The State, 12 Fla. 562.

7 Anonymous, 9 Pick. 495; The State
v. Biscoe, 7 Eng. 688.

8 Lewis v. Wake, 74 N. C. 194.
CHAP. LIX.] PROCEEDINGS BEFORE GRAND JURY. § 866

number of our States, it is competent also for a mere private
person to take a case directly to them and ask an investigation.}
Yet in Pennsylvania, for example, this is not permitted ; “and,”
in the words of Agnew, J., “the better opinion is, that they can
act only upon and present offences of public notoriety, and such
as are within their own knowledge, such as are given to them
in charge by the court, and such as are sent up to them by the
district attorney, and in no other cases ee they indict without
@ previous prosecution before a magistrate.” ?

_§ 864. Knowledge of Grand Jury. — Grand jurors are author-
ized to find an indictment on their personal knowledge, with
no superadded testimony; and this they “ were anciently in the
habit of doing.”® Hence, —

Witness swearing falsely. — If a witness swears falsely before
them, they may, of their own motion and knowledge, indict him
for the perjury.*

§ 865. Legal Evidence — (Prima Facie Case). — In other cases, .
they can act only on evidence produced before them. And it
must be under oath,® and otherwise legal,§ and sufficient to
establish a prima facie case.’ As to the prima facie case, —

§ 866. Probable Cause. — The grand jury should, in reason,
and by abundant authorities,’ require, at least, the probable
cause of the committing magistrate,? as foundation for an in-
dictment. But, —

Special Defence. — Contrary to this, when, in England, a grand
jury ignored a bill against a woman for murder, because, as ob-
served to the court, the testimony of all the witnesses showed
her to be insane, Alderson, B., replied: ‘‘ Then, gentlemen, you

1 And see ante, § 239 a, 278, 690-694,
702.

2 McCullough v. Commonwealth, 17
Smith, Pa. 80, 33.

3 Reg. v. Russell, Car. & M. 247, See
The State v. Hatfield, 8 Head, 231; ante,
§ 863.

4 The State v. Terry, 80 Misso. 368.

5 United States v. Coolidge, 2 Gallis.

191. But see Reg. v. Bullard, 12 Cox
C. C. 358, 4 Eng. Rep. 603.

T People v. Hyler, 2 Parker C. C. 570;
1 Chit. Crim. Law, 318, 819; The State
v. Cowan, 1 Head, 280. See post, § 872;
Stewart v. The State, 24 Ind. 142.

8 Post, § 867 and note.

9 Ante, § 233. In Rex v. Shaftesbury,
8 Howell St. Tr. 759, 820, Pemberton,

864; The State v. Barnes, 7 Jones, N. C.
20; United States v. Reed, 2 Blatch. 435.

6 The State v. Froiseth, 16 Minn. 296;
Sparrenberger v. The State, 53 Ala. 481;
The State v. Walcott, 21 Conn. 272; Duke
v. The State, 20 Ohio State, 225; Reg. v.
Clements, 2 Den. C. C. 251, 5 Cox C. C.

C.J., said to the grand jury after the
evidence had been heard, “You are to
inquire here, whether it be fitting for the
king to call my lord Shaftesbury to ques-
tion upon this account of treasonable
words.”

511
§ 867 GRAND JURY AND ITS DOINGS. [BooK VII.

did wrong; you ought not to try that question, If you are of
opinion that the acts done by her were such as, if they had been
done by a person of sound mind, would have amounted to mur-
der, it is your duty to find the bill; otherwise you afford no
security to the public by the confinement of the insane person,”
— alluding to a statute which provided for, such confinement, if
insanity appeared at the arraignment, or on the trial... Such a
reason could not prevail in our country ; because we have stat-
utes providing for the confinement of the dangerous insane, as
well when they are not indicted as when they are. And, as
even the English jurors are sworn to make “ true presentment,” ?
one cannot see how they are justly called upon to present, as
guilty, a defendant whom they know to be innocent, for the
purpose, not of convicting him, but of having him lodged in
an asylum. In this case, the exculpatory defence was estab-
lished by the evidence for the prosecution; but, —

§ 867. Examining Witnesses for Defence. — In reason, though
no testimony to a special defence comes from the witnesses for
the prosecution, yet, should the jurors suspect such defence,
of a sort and to a degree removing the suspicion of guilt, they
ought to call for it, and conform their finding to the whole
evidence? Surely no good can proceed from following a tech-
nicality to the extent of compelling a man of known innocence
to stand his trial for crime. And, on the whole, —

The Rule. — The modern rule is believed to be, as expressed by
Field, J., of the Supreme Court of the United States, to a grand
jury, thus: “ You will receive all the evidence presented which
may throw light upon the matter under consideration, whether
it tend to establish the innocence or the guilt of the accused.
And, more: if in the course of your inquiries you have reason
to believe that there is other evidence, not presented to you,
within your reach, which would qualify or explain away the
charge under investigation, it will be your duty to order such
evidence to be produced. Formerly, it was held that an indict-
ment might be found if evidence were produced sufficient to
render the truth of the charge probable. But a different and a
more just and merciful rule now prevails. To justify the finding
of an indictment, you must be convinced, so far as the evidence

1 Reg. v. Hodges, 8 Car. & P. 195. ® And see ante, § 856.
2 Ante, § 856.

512
CHAP. LIX.] PROCEEDINGS BEFORE GRAND JURY. § 868

before you goes, that the accused is guilty; in other words, you
ought not to find an indictment unless, in your judgment, the
evidence before you, unexplained and uncontradicted, would war-
rant a conviction by a petit jury.” Still, as the grand jury is
the accuser while the trial is by the petit jury, the rule of “ rea-
sonable doubt” does not in reason apply to its deliberations, or
apply so fully, as it does to those of the petit jury.?

§ 868. Control of Court. — Though the grand jury sits in a
room separate from the judge, it constitutes a part of the court,
and is under the judicial control. Hence, —

Discharge. — A grand jury cannot dissolve itself. And as
the court may change and reverse its orders during a term,
if it discharges the jurors, it may recall them for duty before
they are dispersed, and probably at any time while the term
continues. If it dismisses them to a future day, on which they
fail to reassemble, they may come together on a day still later,

and transact business lawfully.?

1 Charge to the Grand Jury, 2 Saw.
667, 670, Treason and Rebellion, pamph.
San Francisco, 1863, p. 27, 28.

2 Consult 1 Chit. Crim. Law, 317, 318,
and the books there referred to. As ex-
pressing the old doctrine, see Respublica
v. Shaffer, 1 Dall. 236; United States v.
Blodgett, 35 Ga. 336, 339, 340. As to the
latter case,I have reason to know that
the learned judge laid down afterward to
a grand jury the rule of my text. Noone
pretends that a defendant may claim, of
right, to have his witnesses heard by the
grand jury. Neither has the law pro-
vided him with any means to make known,
as of right, to this inquest what his special
defence is. Yet one can hardly see how
these jurors discharge well their duty if
they refuse any testimony leading to the
real truth of a case. The fact that, after
their finding, if adverse to the prisoner,
comes a trial before twelve men, whose
verdict must be unanimous in order to
convict, when the prisoner will have the
opportunity to be heard by himself, his
witnesses, and his counsel, is entirely an-
other thing, having, it seems to me, no
relation to the question we are consider-
ing. Suppose, for example, the testimony
informs the grand jury, that a particular
person seized another, who resisted, and,

VOL. 1. 383

Hence, also, —

in the struggle, the former killed the lat-
ter. Here is prima facie evidence of a
felonious homicide. Now, suppose it is
suggested to the jurors, or they have rea-
son to suspect, that the accused person is
an officer who was seeking to arrest the
other on a warrant for a felony, —shall
they refuse to hear evidence of this, and
so, by finding an indictment, compel a
faithful officer to lie in jail and stand his
trial in recompense for having done his
duty? There can be but one answer, and
the principle involved in the answer will
point the way in other cases. Consist-
ently with this view, if the grand jury is
in doubt whether one who is morally
guilty is legally so, it may well, as has
been laid down, find the bill, and leave
the question of law for the court. Reg. v.
Copeland, 5 Cox C. C. 299, That one
should not be indicted unless, “ upon the
testimony before the grand jury, ex parte
and unexplained, the jury find he is
guilty,” see People v. Hyler, 2 Parker
C. C. 670, 675.

8 The State v. Cowan, 1 Head, 280.

4 Clem v. The State, 33 Ind. 418.

5 Post, § 1342.

® Reg. v. Holloway, 9 Car. & P. 48;
The State v. Reid, 20 Iowa, 418.

7 Clem v. The State, supra.

5138
§ 869 4 GRAND JURY AND ITS DOINGS. [Book VIL.

Witnesses — (Subpena — How sworn). — A subpena for a
witness directs him to appear, not before the grand jury, but the
court, to give evidence to the grand jury. Therefore, also,
under the common-law rules, the witnesses are sworn in open
court,! yet not necessarily in the actual presence of the judge.?
And if the term or session has lapsed, the oath is null. In
some of the States, the oath to witnesses may by statute be
administered in the grand-jury room by the foreman.* It is
there administered in Connecticut, by a magistrate, under the
common law of the State Again, —

§ 869. Contempt — (Refusing to testify). — A witness refusing
to testify may be proceeded against for contempt; the methods,

as to which, being not quite uniform in our States.®

So —

Grand Juror drunk. — A grand juror may be fined for drunk-
enness, as for a contempt of court, and may be discharged from

the panel.?

§ 869 a. Return into Court.— The grand jury, having found
bills, return them into open court, going personally and in a
body,’ a duty which is more or less regulated by statutes in

various States.?

Whereupon —

Record Entries — Indorsements. — The proper entries should
be made on the records of the court, with any indorsements

required by statute on the indictment.

1 The State v. Kilcrease, 6 S. C. 444;
Rex v. Shaftesbury, 8 Howell St. Tr. 759,
772; The State v. Butler, 8 Yerg. 83.

2 Jetton v. The State, Meigs, 192;
United States v. Reed, 2 Blatch. 435.

3 Middlesex Special Commission, 6
Car. & P. 90.

4 Mass Gen. Stats. c.171,§ 9; Heard
v. Pierce, 8 Cush. 338; The State v. Green,
24 Ark. 591; Bird v. The State, 50 Ga.
685. In Tennessee, the foreman cannot
swear a witness in felony, but otherwise
in various misdemeanors. Ayre v. The
State, 5 Coldw. 26.

5 The State v. Fasset, 16 Conn. 457.

6 Stat. Crimes, § 137; Crim. Law, IT.
§ 273; People v. Kelly, 24 N. Y. 74; Ex

11 The State v. Jolly, 7 Iowa, 15; The
State c. Axt, 6 Iowa, 511; People ».
Thompson, 4 Cal. 238; Williams v. The
State, supra; Thompson v. Common-

514

And, —

parte Rowe, 7 Cal. 175, 181; The State
v. Parrish, 8 Humph. 80; The State »v.
Blocker, 14 Ala. 450; Deshazo v. The
State, 4 Humph. 275; Doebler v. The
State, 1 Swan, Tenn. 473; People v.
Fancher, 4 Thomp. & C. 467 ; Reg. v. Ren-
dle, 11 Cox C. C. 209.

7 In re Ellis, Hemp. 10.

8 1 Chit. Crim. Law, 824.

§ Franklin v. The State, 28 Ala. 9, 11;
Williams v. The State, 55 Ga. 891; Fitz-
cox v. The State, 52 Missis. 923; Cachute
v. The State, 50 Missis. 165.

10 The State v. Willis, 8 Head, 157;
Terrell v. The State, 41 Texas, 463; Com-
monwealth v. Nutter, 8 Grat. 699; Kelly
v. People, 89 Ill. 167 ; Green v. The State,

wealth, 20 Grat. 724; Fitzcox v. The
State, 52 Missis. 928; Commonwealth v.
English, 6 Bush, 431.
CHAP. LIX.] PROCEEDINGS BEFORE GRAND JURY. § 8706

Bench Warrant. —If the defendant is not in custody, the
judge should cause a bench-warrant or other appropriate pro-
cess to issue for his arrest.) ‘

§ 870. Second Indictment. — The grand jury, at any time dur-
ing its term of organization and service, even though it be at a
subsequent term of the court, may find a second indictment as
a substitute for the first, without hearing the evidence anew.?
But the same body which has ignored a bill should not entertain
a second, in the same form, for the same offence.2 Hence, —

§ 870 a. Not indicted, discharged — (Continuance). — Where the
grand jury has ignored a bill, or the term of the court and the
grand jury’s service is closed, or the latter is discharged by
the court, one in prison or on bail to answer to such term is,
in general, entitled to his discharge, which should be duly made
by proclamation. Of course, he may be detained on another
or amended accusation. And, indeed, the court may continue
the case for examination at a future term,® or otherwise decline
the discharge if the witnesses have not appeared or the grand

jury has not acted on the particular case.’

§ 870 6. Jurors protected. — The grand jurors are protected
from any action at law for their finding, even though it was
malicious and without probable cause.®

19 Ark. 178; Holcomb v. The State, 31
Ark. 427; Willey v. The State, 46 Ind.
363 ; Jackson v. The State, 21 Ind. 79;
Speed v. The State, 52 Missis. 176; Corn-

well v. The State, 53 Missis. 885; Com-.

monwealth v. Tiernan, 4 Grat. 545 ; Good-
wyn v. The State, 4 Sm. & M. 520; Wes-
ley v. The State, 52 Ala. 182; Cachute
v. The State, supra. See Stewart v. The
State, 24 Ind. 142; Clark v. The State, 1
Ind. 253.

1 Shaw v. Commonwealth, 1 Duvall,
1; Reg. v. Downey, 7 Q. B. 281. And
see, as to entering the indictment on the
docket, &c.,in such case, The State v.
Corson, 12 Misso. 494.

2 Commonwealth v. Woods, 10 Gray,
477. See Sparrenberger v. The State,

538 Ala. 481; Parker v. Commonwealth,
12 Bush, 191.

3 Reg. v. Humphreys, Car. & M. 601;
Reg. v. Austin, 4 Cox C. C. 385.

4 Cro. C. C. by Ry. 7; 2 Gab. Crim.
Law, 276; Bennett v. The State, 27
Texas, 701. But see People v. Hessing,
28 Ill. 410.

5 Ante, § 229; Gab. ut sup.

6 Rex v. Palmer, 6 Car. & P. G52.

7 Anonymous, Russ. & Ky. 173; Peo-
ple v. Hessing, supra. And see Jones
v. Commonwealth, 19 Grat. 478; ante,
§ 264 ~264 k.

8 Hunter uv. Mathis, 40 Ind. 356 ; Floyd
v. Barker, 12 Co. 23; 1 Chit. Crim. Law,
823, 824. And see Crim. Law, I. § 460,

462.
o15
§ $72 GRAND JURY AND ITS DOINGS. [BooK viz.

CHAPTER LX.

METHODS FOR TAKING ADVANTAGE OF ERRORS IN THE GRAND

JURY’S ORGANIZATION AND DOINGS.

§ 871. Introduction.
872-874. General Doctrines.
875-881. By Challenge.
882. By Motion to quash.
883-885. By Plea in Abatement.
886. Raising the Question at the Trial.
887-889. After Verdict.

§ 871. How the Chapter divided. — We shall consider, I. Some
General Doctrines; II. Objecting by Challenge; HI. By Motion
to quash the Indictment; IV. By Plea in Abatement; V.. Rais-
ing the Question at the Trial; VI. How after Verdict.

I. Some General Doctrines.

§ 872. How the Authorities. — The decisions on this subject
appear, at the first impression, to be conflicting beyond all pos-
sibility of reconciliation. Not quite harmonious they are in fact;
but —

Reconciled. — They are in a measure reconciled by consider-
ations of the diverse general practice and differing statutes of
our respective States, so that the best method in one may be
objectionable in another. A leading doctrine is, that, —

Some Remedy. — The courts must afford some remedy for
every actual or attempted violation of the defendant’s rights;
yet, unless the precedents command, they need recognize only
one! So that, if a part of several remedies known to the gen-
eral law are forbidden or impracticable in a State, the defendant

1 Ante, § 118-115; Russell v. The 465. See The State v. Hoyt, 18 Minn.
State, 33 Ala. 866; People v. Hidden, 82 132; Chase v. The State, 46 Missis. 683 ;
Cal. 445; United States v. Hammond, The State »v. Larkin, 11 Nev. 814; Bart-

2 Woods, 197; Mershon v. The State, lett v. The State, 28 Ohio St. 669.
61 Ind. 14; People v. Henderson, 28 Cal.

516
CHAP. LX.] | ' AVAILING OF ERRORS. § 873

is entitled to one, at least, of the others, and it may not be the
one preferable on general considerations.!_ But, —

Technical and Practical Difficulties. — In the way even of the
one remedy, there are sometimes difficulties rendering it un-
available. Thus, — ‘

Evidence illegal or inadequate. — Though, as we have seen,?
an indictment must be founded on legal evidence, the incom-
petency of one of several witnesses will not sustain a plea in
abatement; since it cannot be shown what weight, if any, the
testimony of this one had with the grand jury.? Indeed, the
doctrine appears to be general, that the court cannot inquire
into the sufficiency’ of the proof, or the mode of examining the
witnesses, to invalidate an indictment.* So —

Identity of Offences. — A defendant is not permitted to show,
on the trial, that the offence proved is not the same to which the
evidence before the grand jury pointed“ Yet, —

§ 873. Witnesses unduly sworn.— Where the swearing of the
witnesses is in open court,§ there is some reason to distinguish
the case from the foregoing, and to hold available the objection
that they were sworn unduly or not at all. But, to this, the
authorities are not conclusive.’ If the defect related only to a

1 Ante, § 114, 767, 786.

2 Ante, § 865.

8 Bloomer v. The State, 3 Sneed, 66;
The State v. Tucker, 20 Iowa, 508. But
see The State v. Froiseth, 16 Minn. 296.

4 Stewart v. The State, 24 Ind. 142;
Creek v. The State, 24 Ind. 151; United
States v. Reed, 2 Blatch. 435; The State
v. Boyd, 2 Hill, S. C. 288; Turk v. The
State, 7 Ohio, pt. 2, 240; The State v.
Burlingham, 15 Maine, 104; The State v.
Logan, 1 Nev. 509; The State v. Dayton,
8 Zab. 49. ‘But conceding,” said Green,
C. J., in the last cited case, “that the
proposition is fully established that there
was not legal and competent evidence be-
fore the grand jury, does that afford the
subject-matter to sustain either a motion
to quash or a plea in abatement? We
are clearly of opinion, that, in this State,
at least, it does not. If the position be
sound, that every indictment not found
upon the production of legal and compe-
tent evidence before the grand jury is
essentially vicious, it follows that, in all

cases where the witnesses produced be-
fore the grand jury are from any cause
legally disqualified or incompetent to
testify, or where any essential link in
the chain of testimony is sustained by
evidence not in itself legal, the indict-
ment cannot be sustained, although there
be ample competent testimony, not pro-
duced before the grand jury, to sustain
the charges of the indictment.” p. 56.
But see The State v. Logan, 1 Nev. 509;
The State v. Froiseth, 16 Minn. 296.

5 Spratt v. The State, 8 Misso. 247.
And see Rocco v. The State, 37 Missis.
357.

6 Ante, § 868.

7 Middlesex Special Commission, 6
Car. & P. 90. Where, after conviction,
it appeared that the witnesses had gone
before the grand jury unsworn, the Eng-
lish judges recommended «a pardon, ex-
pressly reserving the question of the
validity of the objection. Rex v. Dick-
inson, Russ. & Ry. 401. See also Reich
v. The State, 68 Ga. 73.

517
§ 875 GRAND JURY AND ITS DOINGS. _, [BOOK VII.

part of the witnesses, the consequence would appear to be as
stated in the last section. And some judges have deemed, that,
“cas the grand jury were at liberty to find a bill upon their own
knowledge merely, and were anciently in the habit of doing so,”
and may have done so in any given instance, this sort of objec-
tion cannot be made available.! Again, as a practical consider-
ation, —

§ 874. Grand Jurors as the Witnesses. — The rule of evidence,
familiar as to the petit jury, that the testimony of a juror will be
received to sustain a verdict but not to impeach it,? applies also
to the grand jury.2 So that the want of legal evidence to jus-
tify the finding of a bill,‘ or the non-concurrence of a needful
juror,® or the lack of any other essential fact,® cannot be shown
in this way, and no other is ordinarily practicable.”

II. Objecting by Challenge.

§ 875. Objections not available to Defendants. — Not only mere
exemptions from service, personal to grand jurors, cannot be in-
terposed by defendants,® but so also they cannot object to some
other departures from law. Thus, —

Directory Statutes. — A statute may be only directory to the
officers, — as, that the grand jurors shall “be summoued at
least five days before the first day of the court,” or that the
court shall impanel the grand jury on the first day of the term,”
—a non-compliance with which is no ground for setting aside
the proceedings on application of the defendant. So, —

Statute as to Formalities. — Where a statute provided, that
persons impanelled should be the grand jury “ notwithstanding ”
irregularities in selecting and summoning them, this was held
to bind defendants, and to be constitutional.”

1 Reg. v. Russell, Car. & M. 247. 368, 864. And see The State v. Bleek-

2 Bradford v. The State, 15 Ind. 347; ley, 18 Misso. 428; The State v. Brooks,
Vance v. Haslett, 4 Bibb, 191. 9 Ala. 9.

3 Commonwealth v. Skeggs, 8 Bush, 19. 1 The State v. Davis, 14 La. An. 678.

4 The State v. Beebe, 17 Minn. 241. 12 Commonwealth v. Brown, 121 Mass.

5 The State v. Gibbs, 39 Iowa, 318. 69. And, to the like effect, see Head v.
6 The State v. Davis, 41 Iowa, 311. The State, 44 Missis. 781; Durrah »v.
7 See People v. Naughton, 7 Abb. Pr. The State, 44 Missis. 789; Logan v. The

n. 8. 421, 38 How. Pr. 430; post, § 1270. State, 50 Missis. 269; The State v. Os-
8 Ante, § 853. trander, 18 Iowa, 485; The State v. Reid,
® Stat. Crimes, § 225, 256. 20 Iowa, 418; People v. Southwell, 46
10 Johnson v. The State, 33 Missis. Cal. 141.

518
CHAP. LX.] AVAILING OF ERRORS.

§ 878

§ 876. Challenge. — A familiar mode of objecting to grand
jurors, individually or as a body, is by challenge. It is, at com-
mon law, the right, says Hawkins, of “any one who is under
a prosecution for any crime whatsoever.”! In perhaps the
greater number of our States it is practised, but not in all.

To the Array — To the Polls. — A challenge is either to the
array or to the polls. The former is for some imperfection in
the constitution of the panel; the latter, for some disqualifica-
tion of a particular juror?

§ 877. By Whom. — Doubtless it is competent for the court
to permit an amicus curie to suggest an imperfection in the
impanelling of a grand jury;* but, of right, those, and those
only, can object who are held to answer to what may be found
against them,‘ or against whom in some other form there is pend-
ing an accusation liable to come before such jury.6 Even —

Notified. — One notified by the prosecuting officer of a pur-
pose to lay a particular charge against him before the particular
grand jury, may present his challenges, the same as though under
bonds to appear. Hence, —

§ 878. Present and object. — All such persons may be pres-
ent at the organization, and make their challenges, either to the
array or to the polls.’ And, —

Effect of not objecting. —If such a person chooses not to avail
himself of this opportunity, and an indictment is found against
him, he cannot afterward, according to the more common rulings,
and by statute in many of our States, take an objection to the
panel or a particular juror which he then was entitled to, but

neglected to bring forward.®

1 2 Hawk. P. C. c. 25, § 16.

2 Vanhook v. The State, 12 Texas,
252; Boles «. The State, 24 Missis. 445;
People v. Jewett, 3 Wend. 314; The State
v. Brooks, 9 Ala. 9; Bellair v. The State,
6 Blackf. 104.

8 Commonwealth v. Smith, 9 Mass.
107, 110.

4 Thayer v. People, 2 Doug. Mich.
417; Hudson v. The State, 1 Blackf.
817; Mershon v. The State, 51 Ind. 14.

5 People v. Hyler, 2 Parker C. C. 566;
People v. Horton, 4 Parker C. C. 222;
The State v. Corson, 12 Misso. 404; Com-
monwealth v. Clark, 2 Browne, 3238;
People v. Romero, 18 Cal. 89; Hudson v.

But, —

The State, 1 Blackf. 317; Musick v. Peo-
ple, 40 Ill. 268.

6 United States v. Blodgett, 85 Ga.
836.

7 Commonwealth v. Clark, 2 Browne,
828; Hudson v. The State, 1 Blackf.
817; The State v. Herndon, 5 Blackf.
75; Commonwealth v. Smith, 9 Mass.
107; People v. Roberts, 6 Cal. 214; Maher
v. The State, 8 Minn. 444; The State v.
White, 17 Texas, 242; Mershon v. The
State, 51 Ind. 14; People v. Southwell,
46 Cal. 141.

8 Ante, § 872; The State v. Ostrander,
18 Iowa, 485; The State v. Reid, 20
Iowa, 413 ; Logan v. The State, 50 Mis-

519
§ 881 GRAND JURY AND ITS DOINGS. [Book vu.

§ 879. No Challenge. — There are circumstances, such as where
the grand jury was organized before the offence was committed,
and various others, wherein the defendant could not have par-
ticipated in the organization, yet the indictment was rightfully
found.2- Some method of taking an objection, other than by
challenge, must, therefore, be open in such a case.

§ 880. Peremptory.— There are no peremptory challenges to
the grand jury, the challenge to the polls must be for cause.*

§ 881. Causes. — The causes for challenge are numerous;5 as
to which, something has already been said.6 There are more or
less judicial and statutory restrictions on what would seem to
be the general right,’ and some nice questions relating thereto.
Thus, —

Juror having expressed Opinion. — If a grand jury is to sit
through a term of court on numerous cases, it would seem
practically impossible to weed it of all who had expressed an
opinion on any one case, and leave a working body. Therefore
some of our courts have refused to entertain this objection on
challenge ;® either deeming it not available, or ta be taken by

sis. 269; Head v. The State, 44 Missis.
731; Durrah v. The State, 44 Missis. 789;
People v. Earnest, 45 Cal. 29; Horton v.
The State, 47 Ala. 58; The State v. Cole,
19 Wis. 129; The State v. Howard, 10
Iowa, 101; The State v. Klingman, 14
Iowa, 404; Mahl v. The State, 1 Texas
Ap. 127; Reed v. The State, 1 Texas
Ap. 1; Musick v. People, 40 Ill. 268;
Rolland v. Commonwealth, 1 Norris, Pa.
806; Lee v. The State, 45 Missis. 114;
The State v. Connell, 49 Misso, 282;
The State v. Felter, 25 Iowa, 67; The
State v. Douglass, 63 N. C. 500; The
State v. Welch, 33 Misso. 83; The State
v. Hinckley, 4 Minn. 345; People »v.
Henderson, 28 Cal. 465; People v. Hid-
den, 82 Cal. 445; United States v. Butler,
1 Hughes, 457; The State v. Hart, 29
Iowa, 268.

1 People v. Beatty, 14 Cal. 566.

2 Thayer v. People, 2 Doug. Mich.
417. It was deemed in California, that,
where the binding over of the defendant
is before the grand jury is impanelled, he
must challenge the panel while being
formed; if not arrested until afterward,
he may challenge it when arraigned.
People v. Beatty, 14 Cal. 666.

520

8 Ante, § 872; Russell v. The State,
83 Ala. 866.. See The State v. Hoyt, 13
Minn. 132.

4 Jones v. The State, 2 Blackf. 475.

5 Musick v. People, 40 Ill. 268; Rol-
land v. Commonwealth, 1 Norris, Pa. 306.

§ Ante, § 851, 852.

7 United States v. Reed, 2 Blatch.
435; The State v. Davis, 41 Iowa, 311;
Carpenter v. People, 64 N. Y. 483; The
State v. Larkin, 11 Nev. 314.

8 Musick v. People, 40 Ill. 268; The
State v. Clarissa, 11 Ala. 57, 61, Ormond,
J., observing: “In The State v. Hughes,
1 Ala. 655, it was held, that the grand
jury could not be asked, before they were
sworn, whether they had not formed and
expressed an opinion as to the guilt or
innocence of one whose case they would
probably have to pass upon. Such was
also the opinion of the court in Tucker’s
Case, 8 Mass. 286. In Hughes’s Case,
supra, this court intimated, that chal-
lenges for causes not operating a univer-
sal disqualification might be made after
the jury was elected and sworn. It was
not intended by this suggestion, that the
grand jury should be called at the pleas-
ure of any one, expecting to have a charge

oe
CHAP. Lx. ] AVAILING OF ERRORS. § 882

plea in abatement. Other courts, and perhaps the greater num-
ber, have held the challenge to be available, and some of them
have denied all other methods.!_ The difficulties attending either
form of taking the objection are very great; and, at least, it is
worthy of serious consideration whether this is a sort of objection
which ought to prevail against a grand juror?

III. By Motion to quash the Indictment.

§ 882. Sometimes available. — This motion is sometimes re-
sorted to successfully ; but, as we have already # considered the
principles concerning it, no special discussion of it is required
here.t “ We regard it,” the court observed in one case, “as bad

practice.” &

Still there are exceptional circumstances in which
undoubtedly it is quite appropriate.

For example, —

Seal. — If a seal to the venire facias is necessary,$ a motion to
quash would seem to be a proper form for the objection.”

preferred against him, and compelled to
expurgate themselves of any supposed
bias; but that, after indictment found,
the objection might be made. This was
afterwards provided for, in the penal
Code, by restricting a plea in abatement
to the array of the grand jury, or to the
disqualification of any of its members,
to the term at which the indictment is
found.” And see The State v. Cameron,
2 Chand. 172; Dowling v. The State, 5
Sm. & M. 664; Boyington v. The State,
2 Port. 100; observations of Wright, J.,
in The State v. Easter, 30 Ohio State, 542.

1 People v. Jewett, 8 Wend. 814, 3821;
Commonwealth v. Clark, 2 Browne, 323;
The State v. Hinkle, 6 Iowa, 880.

2 As to the Evidence and Burden of
Proof, see The State v. Gillick, 10 Iowa,
98; Beason v. The State, 34 Missis. 602;
Holloway v. The State, 53 Ind. 554.

3 Ante, § 758-774.

4 McCullough v. Commonwealth, 17
Smith, Pa. 30; The State v. Lightbody,
88 Maine, 200 ; Commonwealth v. Chaun-
cey, 2 Ashm. 90; Thayer v. People, 2
Doug. Mich. 417; Boles v. The State, 24
Missis. 445; The State v. Newfane, 12
Vt. 422; The State v. Norton, 3 Zab. 33;

The State v. Baker, 20 Misso. 838; Nich-
olls v. The State, 2 Southard, 539; Com-
monwealth v. Williams, 5 Grat. 702;
Thompson v. The State, 9 Ga. 210; Peo-
ple v. Harriot, 8 Parker C. C. 112; The
State v. Hensley, 7 Blackf. 324; The
State v. Bolt, 7 Blackf. 19; Jillard v. Com-
monwealth, 2 Casey, Pa. 169; The State
v. Foster, 9 Texas, 65; Pierce v. The
State, 12 Texas, 210; The State v. Day-
ton, 3 Zab. 49; The State v. Burlingham,
15 Maine, 104; The State v. Loving, 16
Texas, 558; Low’s Case, 4 Greenl. 439;
The State v. Cole, 17 Wis. 674; Davis v.
The State, 46 Ala. 80. See Rex v. Marsh,
1 Nev. & P. 187,6 A. & E. 236.

5 Durr v. The State, 58 Missis. 425,
427. And see The State v. Griffice, 74
N. C. 816; The State v. Haywood, 73
N. C. 487.

6 As to which, see ante, § 227; The
State v. Marshall, 86 Misso. 400; Maher
v. The State, 1 Port. 265; White v. Com-
monwealth, 6 Binn. 179; Bennett v. The
State, Mart. & Yerg. 183; The State v.
Bradford, 57 N. H. 188.

7 The State v. Lightbody, 38 Maine,
200.

521
§ 884 GRAND JURY AND ITS DOINGS. [Book VIL.

IV. By Plea in Abatement.

§ 883. Common Method. — This, where the objection is not to
be taken by challenge, is the common and appropriate method.
In some States, it is available where, in others, challenge is the
only way.? Illustrations of its use are —

§ 884. Juror incompetent. — If a grand juror is personally in-
competent to serve as such, — as, if he is an alien,® or is nota
freeholder or householder? where the statute requires this quali-
fication, — this defect, when the court does not deem it to have
been waived, vitiates the whole finding, and the defendant may
avail himself of the objection by a plea in abatement. So, like-
wise, —

Illegal Constitution or Organization. — Where the court does not
hold that a waiver has taken place, this plea may show that the
jury consisted of too many members,* or too few,’ or that it was

1 The State v. Carver, 49 Maine, 588; to be available. The State v. Rockafel-

McCullough v. Commonwealth, 17 Smith,
Pa. 30, 88; Durr v. The State, 53 Missis.
425; Mershon v. The State, 51 Ind. 14;
United States v. Hammond, 2 Woods,
197.

2 Dixon v. The State, 8 Iowa, 416;
The State v. Hinkle, 6 Iowa, 380; Com-
monwealth v. Smith, 9 Mass. 107 (as to
which see Commonwealth v. Parker, 2
Pick. 550) ; People v. Roberts, 6 Cal. 214;
Bellair v. The State, 6 Blackf. 104; The
State v. Cole, 17 Wis. 674. Kinsey, C.J.,
observed in the New Jersey court: “It
frequently occurs that the accused is alto-
gether ignorant of the complaint when
the grand jury is called; if he should
chance to be present, he cannot be assured
that the prosecution will proceed ; and, at
any rate, it would be most extraordinary
for him to make his challenges when
there is no certainty that his case will
come under their cognizance. In most
cases of a capital nature, the person
charged with the offence is actually in
confinement, and has not the physical
capacity to make his challenges; he is
never brought up, and confronted with
the grand jurors; nor is he served with a
list of the persons who are to compose it.”
Therefore the plea in abatement was held

522

low, 1 Halst. 382, 340. And see Boying-
ton v. The State, 2 Port. 100; Common-
wealth v. Chauncey, 2 Ashm. 90.

3 Ante, § 851.

4 Ib.

5 Vanhook v. The State, 12 Texas,
252; Jackson v. The State, 11 ‘Texas,
261; Stanley v. The State, 16 Texas, 557;
The State v. Rockafellow, 1 Halst. 332;
The State v. Duncan, 7 Yerg. 271; Com-
monwealth v. Long, 2 Va. Cas. 318; The
State v. Ligon, 7 Port. 167; The State v.
Middleton, 5 Port. 484 (where see a form
of the plea, &c.); Barney v. The State,
12 Sm. & M. 68; Day v. Commonwealth,
2 Grat. 562; Moore v. Commonwealth, 9
Leigh, 689; The State v. Brooks, 9 Ala.
9; Martin v. The State, 22 Texas, 214;
United States v. Hammond, 2 Woods,
197; Mershon v. The State, 51 Ind. 14;
The State v. Rickey, 5 Halst. 83. See
The State v. Brown, 64 Misso. 367; Rex
v. Sheridan, 81 Howell St. Tr. 548, 576.

§ Shropshire v. The State,7 Eng 190;
Harding v. The State, 22 Ark. 210; Mont-
gomery v. The State, 3 Kan. 263. And
see ante, § 854; Miller v. The State, 33
Missis. 856.

T Doyle v. The State, 17 Ohio, 222.
CHAP. LX. ] AVAILING OF ERRORS.

§ 886

otherwise incompetent. Even an irregularity in the summoning
or impanelling of the jury,? or selecting of the jurors,’ may, in
these circumstances, be taken advantage of in this way.

§ 885. Contrary to Record. — A plea alleging matter contrary
to the record is bad. Hence, —

Improper Oath. — It is not good in abatement that an impropet
oath was administered to the grand jury; because this is matter
of record, and the record is before the court, and the court and
not the jury is to judge of it.

V. Raising the Question at the Trial.

§ 886. Waivea.—JIn general, objections of the kind we are
considering are waived, if not by a failure to challenge, at least
by a plea to the merits.6 Therefore —

Not at Trial. — They cannot be taken at the trial.”

1 McQuillen v. The State, 8 Sm. & M.
687 ; Rawls v. The State, 8 Sm. & M. 599;
Newman v. The State, 14 Wis. 393.

2 Brown v. The State, 13 Ark. 96;
Green v. The State, 28 Missis. 687; Rawls
v. The State, 8 Sm. & M. 599; Baker ».
The State, 23 Missis. 243; The State v.
Greenwood, 5 Port. 474; The State v.
Newer, 7 Blackf. 307; Sayle v. The State,
8 Texas, 120; Stokes v. The State, 24
Missis. 621; Gladden v. The State, 13
Fla. 623; The State v. Seaborn, 4 Dev.
805; The State v. Freeman, 6 Blackf.
248; The State v. Williams, 5 Port. 130,
Hopkins, C. J., saying: “As to the ques-
tion, whether the plaintiff in error ought
not to have made his objection to the ju-
rors at the time they were impanelled,
we are of opinion, that, where men are
without authority, no person is bound to
appear and except to their want of au-
thority to inquire into his conduct.”
p. 185.

3 Vattier v. The State, 4 Blackf. 73;
Barger v. The State, 6 Blackf. 188; Har-
din v. The State, 22 Ind. 347. And see
Boulo v. The State, 51 Ala. 18.

* Turk v. The State, 7 Ohio, pt. 2,
240.

5 Smith v. The State, 28 Missis. 728.
Grand Juror’s, Name. — The Tennessee
court held, that a variance between the
name of a grand juror as appearing in
the record of the impanelling, and as
signed to a presentment, was not, in the
particular case, good in abatement.
“For,” said the court, “if, contrary to
our impressions, such apparent variance
could be made available as the subject-
matter of a plea in abatement, it is enough
to say that the plea in this case is not so
framed as to present that question.” The
State v. Wills, 11 Humph. 222. See also,
as to similar points, The State v. Brooks,
9 Ala. 9; The State v. Mahan, 12 Texas,
288.

6 The State v. Carver, 49 Maine, 588;
The State v. Martin, 2Ire. 101; The State
v. Lamon, 3 Hawks, 175; The State v.
Wolcott, 21 Conn. 272; Dixon v. The
State, 29 Ark. 165; The State v. Sea-
born, 4 Dev. 305.

7 People v. Hulbut, 4 Denio, 1383. And
see Smith v. The State, 19 Conn. 493;
Bird v. The State, 58 Ga. 602.

523
§ 889 [BOOK. vi.

GRAND JURY AND ITS DOINGS.

VI. How after Verdict.

§ 887. Too Late. — A fortiori, it is too late after verdict to
raise an objection of this class ;! as, that the grand jury was not
lawfully constituted,? or a particular member was disqualified,?
especially if the imperfection was known before. But, —

New Trial. — If the defect was not known until after verdict,
there appears to be some authority for making it ground for
a new trial. And —

§ 888. Matter of Record. — There may be defects of this kind,
which, if they appear of record, will be available in arrest of
judgment or inerror. Of this sort has been deemed the show-
ing that the grand jury was summoned without authority.6 A
mere silence of the record might not have the same effect; the
presumption being, that all had been done rightly.7 And —

§ 889. Not Legal Body. — Any thing, appearing of record, and
going to the extent of showing that the grand jury was not a
legal body, lawfully attached to the court, will doubtless be
available in error or in arrest. Of this sort, for example, is a
showing that the indictment was found at a term held at a time

not authorized by law.®

1 The State v. Stedman, 7 Port. 495;
Young v. The State, 28 Ohio State, 577;
Barron v. People, 78 Ill. 256; Anderson
v. The State, 42 Ga. 9; The State v. Mar-
shall, 36 Misso. 400.

2 Green v. The State, 28 Missis. 687;
People v. Griffin, 2 Barb. 427; The State
v. Swift, 14 La. An. 827; Brantley v.
The State, 18 Sm. & M. 468; People v.
Robinson, 2 Parker C. C. 235; Bass v.
The State, 37 Ala. 469.

’ Fenalty v. The State, 7 Eng. 630;
The State v. Motley, 7 Rich. 827; Grubb
v. The State, 14 Wis. 484; The State v.
Carver, 49 Maine, 588.

524

4 The State v. Rand, 33 N. H. 216.

5 Bennet v. The State, 24 Wis. 57.

6 O’Byrnes v. The State, 51 Ala. 25.

7 Holloway v. The State, 58 Ind. 554;
Floyd v. The State, 30 Ala. 511; The
State v. Pile, 5 Ala. 72; The State v.
Vahl, 20 Texas, 779. But see The State
v. Felter, 25 Iowa, 67.

8 Ante, § 860; The State v. Harden, 2
Rich. 533; Miller v. The State, 83 Missis.

856; The State v. Felter, 25 Iowa, 67..

See Commonwealth v. Chauncey, 2
Ashm. 90; Conkey v. People, 1 Abb.
Ap. 418.

® Davis v. The State, 46 Ala. 80.
CHAP. LXI.] RIGHT OF JURY TRIAL.

§ 891

BOOK VIII.

THE TRIAL BY PETIT JURY.

CHAPTER LXI.
THE RIGHT OF JURY TRIAL,

§ 890. Grand Jury already.— We have already considered to
what extent our constitutions protect people from being tried
otherwise than on indictment from a grand jury.! As to the
petit jury, —

§ 891. Under United States Jurisdiction. —- The Constitution of
the United States provides, in its original part, that “the trial
of all crimes, except in cases of impeachment, shall be by jury ;”’?
and, in the amendments, that “no person shall, &c., be deprived
of life, liberty, or property, without due process of law,” and
“in all criminal prosecutions the accused shall enjoy the right
to a speedy and public trial by an impartial jury,” &c.4 What
are crimes and a criminal case we saw in “Criminal Law.’’®
Doubtless these provisions are of authority coextensive with
the jurisdiction of the national government, — for example, they
control the action of Congress in the District of Columbia,’ and
Congressional action and perhaps territorial in the territories,’ —
but they do not bind the States. Yet, —

1 Ante, § 145. And see The State »v.
Starling, 15 Rich. 120; The State v. Mil-

ford, 19 How. U. S. 393; Bollard v. Ha-
gan, 3 How. U. S. 212.

lain, 3 Nev. 409.

2 Const. U. S. art. 8, § 2.

3 Const. U. S. amend. art. 5.

4 Const. U. S. amend. art. 6.

5 Crim. Law, I. §32. And see a para-
graph in the next section and the cases
there cited.

6 In re Dana, 7 Ben. 1.

T See the principles in Scott v. Sand-

8 Boring v. Williams, 17 Ala. 510;
Murphy v. People, 2 Cow. 815, 818 ; Wood
v. Wood, 2 Cow. 819, note; Prescott v.
The State, 19 Ohio State, 184; The State
v. Shumpert, 1 8. C. 85. As to the con-
struction of these provisions, see also
Hollingsworth v. Duane, Wal. C. C. 77,
106 ; Rawson v. Brown, 18 Maine, 216.

526
§ 891 TRIAL BY PETIT JURY. [Book VIII.

United States Constitution over States. —In 1868, one of these
provisions was extended over the States; thus, — ‘Nor shall
any State deprive any person of life, liberty, or property, with-
out due process of law.”! The like provision, not in every
instance in the exact words, was already in the constitutions
of the several States.2 The meaning of the term “due process
of law,” or its equivalent “the law of the land,” has been a good
deal discussed with respect to other questions than that of jury
trial in criminal cases; and the utterances upon it are not quite
uniform. Not to enter upon questions of the former class, pretty
plainly, as to criminal procedure, it “secures to the individual
those fundamental rights of trial which previous usage had
established.” And wherever the common law prevails, no
right was and is more fundamental than that of an open trial
by a petit jury for crimes; so that, for example, “ whenever,”
in England, “an act of parliament makes an offence, and is
silent on the manner of trying it, it shall be intended to be a
trial per pais according to Magna Charta.”* On principle,
therefore, this provision secures jury trial in the States in all
cases in which, at the time of its adoption, such trial was
deemed a fundamental right. But deemed such where? The
majority of the Supreme Court of the United States appear to
have answered, in the State of the trial. Said Waite, C. J.:
“This requirement of the Constitution is met if the ‘trial is had
according to the settled course of judicial proceedings. Due
process of law is process due according to the law of the land.
This process in the States is regulated by the law of the State.” §
And due when? We cannot suppose the court to mean, that
a “process” so fundamental as a jury trial could, in circum-
stances wherein by State Jaw it was “due” when this provi-
sion was adopted, be afterward withheld; because, among other
objections, such an interpretation would impute to Congress and
the States the folly of having made an amendment which amended
nothing and meant nothing,

1 Const. U.S. amend. art. 14, § 1. State v. Simons, 2 Speers, 761, 767 ; Clark

2 Cooley Const. Lim. 2d ed. 851, 852 v. Mitchell, 64 Misso. 564; The State v.
and note; Wynehamer v. People, 18 Burnett, 6 Heisk. 186; Webb v. Rein-
N. Y. 878, 3892. hard, 23 Smith, Pa. 870; Ex parte Ah

3 Ante, § 145. Andsee1 Kent Com. Fook, 49 Cal. 402.

18; and, for other expositions of the 4 Reg. v. Sturney, 7 Mod. 99.

meaning, Wynehamer v. People, supra; 5 Walker v. Sauvinet, 92 U. S. 90, 98.
Taylor v. Porter, 4 Hill, N. Y. 140; The

526

ae
CHAP. LXI.]

RIGHT OF JURY TRIAL. § 892

§ 892. In States, under State Constitutions, — Though, as just
said, the last-mentioned provision has prevailed in the State
constitutions, there have been also others in them, more direct,
upon which the right of jury trial has generally been discussed.
Thus, —

Heretofore used. — Some of the State constitutions provide,
that trial by jury shall remain inviolate “in all cases in which
it has heretofore been used.’’1 They do not, therefore, secure it
in all circumstances, but in such and such only as usage allowed
it in, at the time of the adoption of the constitution.2 Even, —

Remain inviolate. — Where the provision is simply, as in some
States, that the right of jury trial shall “remain inviolate,” the
construction is the same; namely, that it secures such trial as,
and only as, it existed in the State when the constitution was
adopted.? The Alabama court has refused to extend its pro-
tection to offences subsequently created by statute;* but the
doctrine elsewhere is believed to be, that it requires jury trial
in new cases analogous to the old ones wherein it was a right.®

Criminal Cases — Criminal Offences. — Some of the State con-
stitutions, in terms similar to that of the United States,® extend
the protection of a jury trial to all ‘‘ criminal cases” or “ criminal
offences.” A proceeding in the form of a civil action for the
violation of a city ordinance is not criminal within this provi-

sion.”

1 Wynehamer v. People, 13 N. Y. 378,
894, 426, 457, 458; People v. McCarthy,
45 How. Pr. 97; Livingston v. New York,
8 Wend. 85; People v. Kennedy, 2 Par-
ker C. C. 312, 317; Knight v. Campbell,
62 Barb. 16.

2 Jb.; People v. Phillips, Edm. Sel.
Cas. 886; Walter v. People, 32 N. Y. 147,
159; Warren v. People, 8 Parker C. C.
644; Flint River Steamboat v. Foster, 5
Ga. 194; Harper v. Elberton, 23 Ga. 566;
Williams v. Augusta, 4 Ga. 509; Floyd
v. Eatonton, 14 Ga. 354.. See further, as
to New York, People v. Fisher, 20 Barb.
652, 2 Parker C.C. 402.

3 The State v. McClear, 11 Nev. 39;
The State v. Raymond, 11 Nev. 98; Ross
v. Irving, 14 Ill. 171; Work v. The State,
2 Ohio State, 296; Lake Erie, &c., Rail-
road v. Heath, 9 Ind. 658. And see In re
Pennsylvania Hall, 6 Barr, 204; Louisi-

But an indictment for the keeping of a house of ill fame

ana, &c., Plankroad.v. Pickett, 25 Misso.
535.

4 Tims v. The State, 26 Ala. 165. And
see Boring v. Williams, 17 Ala. 510; Field
v. Walker, 17 Ala. 80.

5 See the cases generally, cited to this
paragraph and the last. In Wynehamer
v. People, supra, A. S. Johnson, J., said,
of the provision cited in the last para-
graph: “It does not limit the right to
the mere instances in which it had been
used, but extends it to such new and like *
cases as might afterwards arise. For in-
stance, felonies were triable only by jury.
I do not doubt that all new felonies must
be tried in that way.” p. 426. And see
Plimpton v. Somerset, 23 Vt. 283.

6 Ante, § 891.

7 Williams v. Augusta, 4 Ga. 609;
Trigally v. Memphis, 6 Coldw. 882; Floyd
v. Eatonton, 14 Ga. 354. See Fire Depart-

527
§ 893 TRIAL BY PETIT JURY. [Book VIII.

is.1 By some courts, this provision is held not to protect prose-
cutions for petty misdemeanors and trivial breaches of the peace ;
and properly under some forms of the provision,? among which
are forms even making this exception in express words? In
another connection, we saw more exactly what are crimes and
criminal offences. And, by the better doctrine, if an offence,
however small, is prosecuted by indictment, this provision,
when not limited in its terms or by the context, secures a jury
trial.

§ 893. Legislative Regulation. — This constitutional right must
necessarily, in some degree, be under legislative regulation and
control, though the substance of it cannot be impaired.6 Thus, —

Appeal to Jury. — Providing preliminary steps to a jury trial
is not unconstitutional; as, if a statute directs a trial without
jury, then permits to convicted defendants an unobstructed ap-
peal to a court proceeding de novo by jury, it does not violate the
Constitution by erecting this vestibule to pass through to the jury
beyond.’ If, on the other hand, one does not choose to appeal,

ment v. Harrison, 2 Hilton, 455; Emporia Peen, 51 Cal. 280; Lewis v. Garrett, 5

v. Volmer, 12 Kan. 622.

1 Slaughter v. People, 2 Doug. Mich.
334, note. And see Barter v. Common-
wealth, 3 Pa. 258, 260; Burns v. La Grange,
17 Texas, 415.

2 The State v. McCory, 2 Blackf. 5;
Clark v. Ellis, 2 Blackf. 8; The State v.
Conlin, 27 Vt. 318; In re Dougherty, 27
Vt. 825. And see Johnson v. Barclay, 1
Harrison, 1; The State v. Beneke, 9 Iowa,
203; The State v. Hailstock, 2 Blackf.
257; The State v. Ledford, 8 Misso. 102;
Commonwealth v. Horton, 1 Va. Cas. 885;
Frost v. Commonwealth, 9 B. Monr. 862;
Cowles v. Brittain, 2 Hawks, 204; Carson
v. Commonwealth, 1 A. K. Mar. 290;
Dalgleish v. Grandy, Conference, 22;
Burket v. Boude, 8 Dana, 209; Murphy
v. People, 2 Cow. 815; The State v. Guti-
errez, 15 La. An. 190. In Delaware, the
mayor’s court may constitutionally try
by information, and without a jury, as-
sault and battery. Gray v. The State, 2
Harring. Del. 76. In North Carolina, the
intendant of police of a town cannot,
The State v. Moss, 2 Jones, N. C. 66.

3 The State v. Mead, 4 Blackf. 809,

* Crim. Law, I. § 82; Ex parte Ah

528

How. Missis. 434; Prescott v. The State,
19 Ohio State, 184; Weston v. People, 6
Hun, 140; People v. Noll, 20 Cal. 164;
Duffy v. People, 1 Hill, N. Y. 355.

5 People v. Baird, 11 Hun, 289; The
_ State v. Peterson, 41 Vt. 504; The State
v. Simons, 2 Speers, 761; The State v.
Hollin, 12 La. An. 677. See Santo v. The
State, 2 Iowa, 165; In re Northern Lib-
erty Hose Co., 1 Harris, Pa. 198; The
State v. Cox, 3 Eng. 486; Work »v. The

. State, 2 Ohio State, 296.

6 Commonwealth v. Whitney, 108
Mass. 5, 6,7; Plimpton v. Somerset, 33
Vt. 283; Rafe v. The State, 20 Ga. 60;
Jesse v. The State, 20 Ga. 156; Gibbs v.
The State, 3 Heisk. 72; The State v.
Wilson, 48 N. H. 398; post, § 894.

tT The State v. Brennan’s Liquors, 25
Conn. 278; Steuart v. Baltimore, 7 Md.
500; Emerick v. Harris, 1 Binn. 416;
Biddle v. Commonwealth, 18 S. & R. 405;
Keddie v. Moore, 2 Murph. 41; Wilson v.
Simonton, 1 Hawks, 482; Morford v.
Barnes, 8 Yerg. 444; Beers v. Beers, 4
Conn, 685; The State v. Beneke, 9 Iowa,
203, 207; Emporia v. Volmer, 12 Kan.
622; The State v. Everett, 14 Minn. 439,

*
CHAP. LXI.] RIGHT OF JURY TRIAL. § 894

or to prosecute his appeal after it is. taken,! he waives his right
to a jury trial. So, again, — q

Without Jury by Consent. — If a statute authorizes the court
to try, with the consent of defendants, their cases without a
jury, a defendant who thus consents and is thus tried has thereby
waived his rights, and he cannot complain.2- Such waiver must
be personal; the defendant’s attorney, not specially empowered,
cannot make it.2 And, —

Waiver — (Jurisdiction). — Though some of the cases are. ob-
scure and perhaps adverse, it appears to be at least the better
doctrine that defendants can make any waiver for which the
statutes provide, of a jury trial. But without such statutory

‘ provision, a waiver is not always competent; as, for example, it
cannot give the court a jurisdiction. Hence, —

‘When cannot waive Jury. — As, without statutory authorization,
a court has no power to try a prisoner otherwise than by jury,
a party cannot give it the jurisdiction by consent.6 And, within
this general doctrine, there are minor ones the further discussion
of which is not important here.’ -

§ 894. Inadmissible Regulations. — Not every attempted regu-

lation by statute is valid. Thus, —

Clogging Appeal. — If an appeal to a jury from a magistrate’s
finding without jury is allowed only on conditions which amount

446. See Pollard v. Holeman, 4 Bibb,
416; Head v. Hughes, 1 A. K. Mar. 372.
But see Singleton v. Madison, 1 Bibb,
842.

1 Commonwealth v.
Mass. 5.

2 Jones v. Robbins, 8 Gray, 829; Ward
v. People, 30 Mich. 116; Darst v. People,
61 Ill. 286; League v. The State, 36 Md.
257; The State v. Moody, 24 Misso. 560;
Vaughn v. Scade, 30 Misso. 600; Bau-
rose v. The State, 1 Iowa, 374; Bailey v.
The State, 4 Ohio State, 57; Dilling-
ham v. The State, 5 Ohio State, 280. And
see People v. Lane, 65 Barb. 168. It is
not essential that the prisoner be told by
the court of his right, or waive it by ex-
press words. People v. Goodwin, 5 Wend.
251; The State v. Larger, 45 Misso. 510.
But see Brown v. The State, 16 Ind. 496;
The State v. Van Matre, 49 Misso. 268 ;
ante, § 112.

VOL. I. 84

Whitney, 108

3 Brown v. The State, 16 Ind. 496.

* Commonwealth v. Whitney, supra;
Sarah v. The State, 28 Ga. 576; Lang-
bein v. The State, 37 Texas, 162; United
States v. Rathbone, 2 Paine, 578; Arm-
strong v. The State, Minor, 160. And
see People v. Goodwin, 5 Wend. 251;

‘Madison and Indianapolis Railroad v.

Whiteneck, 8 Ind. 217; Willets v. Ridg-
way, 9 Ind. 367; Lake Erie, &c., Railroad
v. Heath, 9 Ind. 558.

5 Ante, § 112.

® The State v. Maine, 27 Conn. 281;
Neales v. The State, 10 Misso. 498; Peo-
ple v. Smith, 9 Mich. 193; Wilson v. The
State, 16 Ark. 601; Bond v. The State,
17 Ark. 290. See post, § 898.

7 People v. O’Neil, 48 Cal. 257; Bell
v. The State, 44 Ala. 393; The State v.
Mansfield, 41 Misso. 470; The State v.
Lockwood, 43 Wis. 403.

8 See ante, § 893; Colt v. Eves, 12

529
§ 894 TRIAL BY PETIT JURY. [BOOK VIII.

to a denial, the provision for such trial by the magistrate will be
unconstitutional! Yet, —

Statute and Constitution interpreted together.— Since both stat-
utes and constitutions are laws, to be, like other laws, inter-
preted together,’ if a statute authorizing a trial without jury by
an inferior court is silent on the question of appeal, while the
constitution guarantees a jury trial, the two writings — namely,
the statute and the constitution — may be compared; and, in
proper circumstances, the latter be permitted to supply the
deficiency in the former, by authorizing an appeal to a higher
court wherein the trial is by jury. So it was in a Maine case;
the right of appeal was held to proceed from the right to a jury
trial, as a necessary consequence, in order to give effect to the
provision of the constitution.®

Conn. 243; Alfred v. The State, 37 Mis-
sis. 296; Perry v. The State, 9 Wis. 19.

l See and compare McDonald v. Schell,
68. & R. 240; Greene v. Briggs, 1 Curt.
Cc. C. 811; The State v. Brennan’s
Liquors, 25 Conn. 278; People v. Carroll,
8 Parker C. C. 22; Saco v. Woodsum, 39
Maine, 258; Saco v. Wentworth, 37 Maine,
165; Flint River Steamboat v. Foster, 5

5380

Ga. 194; Littlefield v. Peckham, 1 R. L
500; The State v. Beneke, 9 Iowa, 203,
207, 208; Jones v. Robbins, 8 Gray, 829;
Lamb v. Lane, 4 Ohio State, 167; The
State v. Gurney, 87 Maine, 156; Lord vw.
The State, 87 Maine, 177; The State v.
Everett, 14 Minn. 439.

2 Stat. Crimes, § 89.

3 Johnson’s Case, 1 Greenl. 230.
CHAP. LXII.] JURORS AND QUALIFICATIONS. § 897

CHAPTER LXII.

THE PETIT JURORS AND THEIR QUALIFICATIONS.

§ 895, 896. Introduction.
897-899. Number and Unanimity.
900-930. Qualifications.

§ 895. What for this Chapter.— It is impossible completely to
separate the subject of this chapter from that of the next, wherein
the impanelling of the petit jury will be treated of. But, antici-
pating so much of that subject as may be necessary to an under-
standing of the present one, —

§ 896. How the Chapter divided. — We shall consider, I. The
Number and Unanimity of the Petit Jurors; II. Their Qual-
ifications.

I. Number and Unanimity.

§ 897. Jury Trial defined. — A jury trial is a judicial trial
wherein the issues of fact! are decided by the unanimous find-
ing of twelve impartial men, termed jurors, and possessing the
qualifications which the law has prescribed. Thus, —

How Many. — At common law, a trial jury consisted of twelve
men; hence, by all our courts, it is held that a less number
will not satisfy the constitutional guaranty of a jury trial?
And, —

1 The State v. Woodward, 23 Vt. 92.

2 May v. Milwaukee and Mississippi
Railway, 8 Wis. 219; Bowles v. The State,
5 Sneed, 360; Dixon v. Richards, 2 How.
Missis. 771; Carpenter v. The State, 4
How. Missis. 164; The State v. Burket,
2 Mill, 155; People v. Kennedy, 2 Parker
Cc. C. 812; Doebler v. Commonwealth, 8
8S. & R. 237; The State v. Cox, 8 Eng.
436; Jackson v. The State, 6 Blackf. 461;
Foster v. Kirby, 31 Misso. 496; Brown v.

The State, 16 Ind. 496; Lamb v. Lane,
4 Ohio State, 167; Shaver v. Starrett, 4
Ohio State, 494, 500; Vaughn v. Scade,
30 Misso. 600; Knight v. Campbell, 62
Barb. 16; The State v. McClear, 11 Nev.
89. And see Bibel v. People, 67 Ill. 172.
As to whether it is competent for legisla-
tion to make the number of jurors more
than twelve, see Anderson v. The State,
6 Pike, 444; Tillman ». Ailles, 5 Sm. &
M. 878; Wolfe v. Martin, 1 How. Missis.

531
§ 898 TRIAL BY PETIT JURY. [Book VIII.

Unanimous. — At common law, all the twelve jurors must
concur in a verdict to make it valid; consequently they must
under our constitutions, and a statute providing otherwise is
void! But, —

Jury of Six.— For cases in which a jury trial is not a con-
stitutional right, a jury of a less number — for example, of six —
is not objectionable,? nor need the statute establishing it require
unanimity in the finding.’

§ 898. Less than Twelve by Consent. — The decisions seem
not entirely harmonious as to the effect of a party’s consenting
to be tried by a less number of jurors than twelve. We have
seen, that, where the consent is to a trial by the court, and a
statute authorizes such trial, the proceeding is valid; but, with-
out such authorization, it is invalid from want of jurisdiction
in the tribunal. But not every departure from prescribed for-
malities ousts a court of jurisdiction; hence by some it is held,
that, if for a good reason a prisoner consents to be tried by eleven
jurors instead of twelve, a verdict against him will be permitted
to stand, especially in a case of misdemeanor, though no statute
has so directed. By others, the right to alter the constitution

30; Bone v. McGinley, 7 How. Missis.
671; Bullard v. The State, 38 Texas,
604.

1 Work v. The State, 2 Ohio State,

296. The New Hampshire judges, after
saying that the Constitution secures to
parties whatever was understood to per-
tain to a jury trial at the time of its adop-
tion, proceed: ‘A jury for the trial of a
cause was a body of twelve men, described
as upright, well qualified, and lawful men,
disinterested and impartial, not of kin,
nor personal dependants of either of the
parties, having their homes within the
jurisdictional limits of the court, drawn
and selected by officers free from all bias
in favor of or against either party, duly
impanelled under the direction of a com-
petent court, sworn to render a true ver-
dict according to the law and the evidence
given them; who, after hearing the par-
ties and their evidence, and receiving the
instructions of the court relative to the
law involved in the trial, and deliberating
when necessary apart from all extraneous
influences, must return their unanimous

582

verdict upon the issue submitted to them.”
Opinion of Justices, 41 N. H. 550, 551.

2 Work v. The State, supra; Bryan v.
The State, 4 Ohio, 349; People v. Fisher,
20 Barb. 652, 2 Parker C. C. 402. And
see Knight v. Campbell, 62 Barb. 16.

3 See Soens v. Racine, 10 Wis. 271.

4 Ante, § 898.

5 Commonwealth v. Dailey, 12 Cush.
80. Said Shaw, C. J.: ‘But it is asked,
if consent will authorize a trial before
eleven jurors, why not before ten, or six,
orone? It appears to us that it is a good
answer to say, that no departure from
established forms of trial in criminal cases
can take place without permission of the
judge, and no discreet judge would per-
mit any such extravagant or wide de-
parture from these salutary forms as the
question supposes, nor any departure un-
less upon some unforeseen or urgent exi-
gency.” p. 83. Followed in The State
v. Borowsky, 11 Nev. 119, 128. Tu the
same effect, see Murphy v. Common-
wealth, 1 Met. Ky. 865; Tyra v. Com-
monwealth, 2 Met Ky. 1.

oe
CHAP. LXIl.] JURORS AND QUALIFICATIONS. § 901

of the tribunal in this way is denied. Others permit it in mis-
demeanor and deny it in felony?

§ 899. Other Departures from Form. — Under the next sub-
title and in our next chapter, we shall see that various minor
departures from the forms of the common law have been sanc-
tioned by the courts when authorized by statutes. And, for
cases in which the defendants consent to them, they may be
nearly or quite unlimited. But, without such consent, the old
forms can be abrogated only in things not vital to the jury trial
as practised before and at the time of the adoption of our con-
stitutions?

Il. The Qualifications of the Jurors.

§ 900. How far Unchangeable. — Plainly, according to the prin-
ciple stated under our last sub-title, the fundamental qualifica-
tions of the jurors — those deemed essential to the purity of a
jury trial— cannot be rendered needless by statute. Distin-
guishable from mere personal exemptions,‘ they are as precisely
pointed out by the ancient law as is the number which shall
constitute the panel. In their nature they are as important;
and, indeed, some of them are even more so; consequently they
are no more changeable by statute, where the Constitution guar-
antees a jury trial, than is the number. But to measure them
is not so easy or exact a process as to count the jurors, hence
there will be queries under this sub-title less easily answered
than those considered under the last. .There are also distinctions
to be drawn between the fundamental qualifications, and such
as, not being so, are in a greater or less degree subject to the
legislative control. — :

The qualifications are —

§ 901. First. Freedom from the Bias of Near Relationship : —

How Near. — “If the juror,” says Chitty,5 “is related to either

1 Cancemi v. People, 18 N. Y. 128; to the preceding sections; The State v.
People v. O’Neil, 48 Cal. 257; Bell v. The McClear, 11 Nev. 39; The State v. John-
State, 44 Ala. 398; Allen v. The State, son, 11 Nev. 148; Gibbs v. The State, 3
64 Ind. 461; Hill v. People, 16 Mich. 351, Heisk. 72; The State v. Clayton, 11

354. Rich. 581.
2 The State v. Mansfield, 41 Misso. 4 Ante, § 853; post, § 926.
470. 5 1-Chit. Crim. Law, 641.

3 See the authorities cited in the notes

533
§ 902 TRIAL BY PETIT JURY. [BOOK VIIL

party within the ninth degree, though it is only by marriage,

a principal challenge will be admitted.! So also if he has acted.

as godfather to a child of the prosecutor or defendant, he may
be challenged for that reason.”? Hence, —

Affinity — (Death). — The relationship by affinity is the same
as by consanguinity. But affinity ceases with the dissolution,
by death, of the marriage creating it! Therefore a cousin of
the prisoner’s deceased wife, who left no offspring, is competent.5
So is one, the sons of whose wife by a former husband were
cousins to the deceased, competent in a murder case.6 And
here is another principle; namely, that the kindred of the married.
parties are not in affinity to one another. It exists only between
a party to the marriage and the other party’s relations by con-
sanguinity.”

Divorce. — On principle, a dissolution of the marriage by divorce
results the same as by death, a question probably not adjudged.

§ 902. Secondly. Other Civil and Social Connections : —

Summoned as Witness. — One summoned by the prisoner as a
witness should not sit as juror to try the cause, being not im-
probably biassed in his favor.8 So, —

Dependent on, or favored by, Party. — “If the juryman,” says
Chitty,® “be under the power of either party, or in his employ-
ment; or, if he is to receive part of a fine upon conviction ; or,
if he has been chosen arbitrator, in case of a personal injury, for
one of the parties; or has eaten and drank at his expense; he

may be challenged by the other.”

1 Co. Lit. 157 a; Finch, 401; Bac.
Abr. Juries, E, 5; 3 Bl. Com. 863; Burn
Just. Jurors, VIII. 1; Williams Just. Ju-
rors, V.; Dick. Sess. 186; O’Connor v.
The State, 9 Fla. 215; Brown v. The
State, 28 Ga. 489; The State v. Anthony,
7 Tre. 234; The State v. Perry, Busbee,
830. In this case, Nash, C. J., illustrates
the doctrine thus: “The great-grand-
mother of the juror Ray was the sister
of the grandmother of the prisoner... .
From the grandmother were three de-
grees, and from the great-grandmother
four, making in the whole seven degrees,
which was a cause of principal challenge
on the part of the State, and the juror
was properly rejected.” p. 831. See
The State v. Andrews, 29 Conn. 100. It
has been adjudged no ground of chal-

5384

So, —

lenge for cause in a civil case, that the
juror is brother-in-law of one of the coun-
sel. Funk v. Ely, 9 Wright, Pa. 444.

2 Co. Lit. 157 5; Burn Just. Jurors,
VI. 1.

3 The State v. Perry, supra; Oneal
v. The State, 47 Ga. 229.

41 Bishop Mar. & Div. § 814.

5 The State v. Shaw, 3 Ire. 582. See
Jaques v. Commonwealth, 10 Grat. 690.

8 Moses v. The State, 11 Humph. 282.

T 1 Bishop Mar. & Div. § 314.

8 Commonwealth v. Jolliffe, 7 Watts,
589. See Buchanan v. The State, 24 Ga.
282.

® 1 Chit. Crim. Law, 541, 542.

10 Co. Lit. 157 b; Bac. Abr. Juries, E, 5;
Burn Just. Jurors, VIII. 1; Williams Just.
Juries, V.; Dick. Sess. 186, 187; Tidd, Pr.
CHAP. LXII.] JURORS AND QUALIFICATIONS.

§ 904

Lawsuit. — “If there are actions depending between the jury-
man and one of the parties, which imply hostility, that will be a
ground of principal challenge; though other actions only warrant
challenges to the favor.,”’}

Client and Friend. — Where, in England, the defendant was
an attorney, it was deemed no cause of challenge by the crown,
that the juror was his client, who, also, had visited him as a
friend while in prison.?

§ 903. Thirdly. A General Bias for or against a Party : —

In General. — This is an indefinite disqualification, depending,
under the common-law practice, less on any absolute rule of law
than on the discretion of triers,? as will now be explained.

Nature of Cause — (Challenge to the Favor).— The objection,
at common law, is usually taken in the peculiar form known as
a challenge to the favor.‘ It is “when,” says Chitty,® though
the juror is not so evidently partial as to amount to a principal
challenge, yet there are reasonable grounds to suspect that he
will act under some undue influence or prejudice.6 The cases
of such a challenge are manifestly numerous, and dependent on
a variety of circumstances; for the question to be’ tried is, whether
the juryman is altogether indifferent as he stands unsworn ;” be-
cause he may be, even unconsciously to himself, swayed to one
side, and indulge his own feelings, when he thinks he is influ-
enced entirely by the weight of evidence.” §

§ 904. Continued. — A challenge to the favor may be supported
by the same evidence which would sustain a challenge for prin-
cipal cause,? or by evidence which would not.!0 Thus Chitty
mentions, as ground for challenge to the favor, what he also
sets down as for principal cause," where the juror has been en-

5th ed. 846. While a trial was progress-
ing, one of the prosecuting counsel kept
a juror’s horse over night free of charge.
This was believed not to have in fact in-
fluenced the juror, still a verdict against
the prisoner was set aside. Springer v.
The State, 34 Ga. 379.

1 Co. Lit. 157; Dick. Sess. 187.

2 Reg. v. Geach, 9 Car. & P. 499.

3 Carnal v. People, 1 Parker C. C. 272,
277.

4 People v. Doe, 1 Mich. 451, O’Brien
v. People, 86 N. Y. 276, 279; Copenhaven

v. The State, 14 Ga. 22; Robinson v. The
State, 1 Kelly, 563.

5 1 Chit. Crim. Law, 544.

6 Co. Lit. 157 b; Bac. Abr. Juries, E,
6; Williams Just. Juries, V.; Dick. Sess.
188.

7 Co. Lit. 157 b; Bac. Abr. Juries, E,
5; Williams Just. Juries, V.; Dick. Sess.
188.

8 Ib.

® People v. Allen, 43 N. Y. 28.

10 Atlas Mining Co. v. Johnston, 23
Mich. 36.

1 Ante, § 903.

535
§ 906 [Book VIII.

TRIAL BY PETIT JURY.

tertained in the party’s house, or “has been appointed arbitrator
by both the parties to terminate their differences.” !

§ 905. Issue to the Favor, and how decided. — The question, on
the challenge to the favor, is quite different from any which
can ‘arise on the challenge for principal cause. It is — and so
the triers are sworn to determine — whether the juror is indiffer-
ent as to the issue, and impartial between the parties.2 And
this question “ must,” says Coke, “be left to the conscience and
discretion of the triers, upon hearing their evidence, to find him
favorable or not favorable. Yet,” he adds, “*some of them
come nearer to a principal challenge than other.”® On the
trial of this question, therefore, the triers should not be told
by the court that such or such a thing will disqualify the juror,
but they are to look at all the evidence, and decide whether or

not as of fact he is indifferent.*

And there may be a great

variety in the evidence to this question.®
§ 906. Triers or Court. — Not in all our States, it is believed,

have triers been known.

which were for them are decided by the judge.

Where they are not, the questions

And in-States

where the common-law usage prevails, it is still competent for
the parties, and is often practised, to submit to the court ques-

tions of this class.

The mere neglect to ask for triers is by some

deemed such submission. Some States have by statute remitted

1 Co. Lit. 157 b; Bac. Abr. Juries, E,
6; Burn Just. Jurors, VIII. 1; Williams
Just. Juries, V.

2 Freeman v. People, 4 Denio, 9.

% Co. Lit. 157 b.

4 People v. Allen, 48 N. Y. 28; Carnal
v. People, 1 Parker C. C. 272; People v.
McMahon, 2 Parker C, C. 668. And see
March v. Portsmouth and Concord Rail-
road, 19 N. H. 872; Galloway v. The
State, 25 Ga. 596; Sanchez v. People, 22
N. Y. 147; United States v. Wilson, Bald.
78; People v. Colson, 49 Cal. 679; Costly
v. The State, 19 Ga. 614; People v. Vas-
quez, 49 Cal. 560.

5 See and compare People v. Allen,
supra; People v. Hardin, 37 Cal. 258;
Carnal v. People, supra; The State v.
Ayer, 3 Fost. N. H. 801; People v. Mc-
Gungill, 41 Cal. 429; Fitzgerald v. Peo-
ple, 1 Col. Ter. 56; The State v. Henley,
R. M. Charl. 505; The State v. Wyatt,
50 Misso. 809; People v. Fair, 43 Cal. 187;

586

Freeman v. People, 4 Denio, 9; Common-
wealth v. Buzzell, 16 Pick. 153; Cancemi
v. People, 16 N. Y. 501; The State v. Wil-
son, 88 Conn. 126; People ». Cotta, 49
Cal. 166; Davis v. Hunter, 7 Ala. 185;
The State v. McAfee, 64 N. C. 3389;
Thompson v. People, 8 Parker C. C. 467;
People v. Reynolds, 16 Cal. 128; The
State v. Dumphey, 4 Minn. 488; Ash v.
The State, 56 Ga. 583; Kroer v. People,
78 Ill. 294; Williams v. The State, 82
Missis. 889; The State v. Holmes, 63
N. C. 18; Bishop v. The State, 9 Ga. 121.
For the practice, see People v. Voll, 48
Cal. 166; People v. Rathbun, 21 Wend.
509; The State v. Creasman, 10 Ire. 895;
People v. Dewick, 2 Parker C. C. 230;
Whaley v. The State, 11 Ga. 123; Peo-
ple v. Doe, 1 Mich. 451; Friery v. People,
64 Barb. 319.

6 O’Brien v. People, 86 N. Y. 276;
O'Connor v. The State, 9 Fla. 215; Peo-
ple v. Doe, 1 Mich. 451; Sanchez v. Peo-
CHAP. LXII. ]

these questions to the court.!

JURORS AND QUALIFICATIONS.

§ 909

Such legislation is constitutional.?

Yet the change of practice cannot extend to the law, and the
old disqualifications must remain unalterable under the new

procedure.

§ 907. Fourthly. That the Juror has a Pecuniary Interest in

the Result of the Cause.8

Thus, —

Forfeiture. —If a forfeiture is to come to the juror on the
defendant’s conviction, he is incompetent.

Inhabitant of Town. — The interest of the inhabitant of a town
to which a penalty goes, is deemed, at least by some courts, too
remote to disqualify ;° and, if not, still the disability may be
constitutionally removed by statute.®

§ 908. Fifthly. Bias as to whether or not the Prisoner is

Guilty : —

Important. — This disqualification is oftener discussed in our

American courts than all others.

Old Form of the Doctrine. — Hawkins states it to be, that the
juror “hath declared his opinion beforehand that the party is.
guilty, or will be hanged, or the like.”’7

§ 909. Present Forms. — In substance, the doctrine thus stated
by Hawkins prevails, in all our States, to the present day. But
it has been more or less expanded and qualified, yet not uni-
formly, in the States. ‘It has, therefore, no form which may be

fitly termed the modern American doctrine.

The reader will

see, in a note, some collected cases and utterances.®

ple, 22 N. Y. 147; People v. Rathbun, 21
Wend. 509. See also People v. Bodine,
1 Denio, 281; People v. Mather, 4 Wend.
229; People v. Honeyman, 3 Denio, 121;
Schoeffler v. The State, 8 Wis. 823; Stout
v. People, 4 Parker C. C. 71; Williams v.
The State, 3 Kelly, 453.

1 Licett v. The State, 23 Ga. 57; Jor-
dan v. The State, 22 Ga. 545.

2 Weston v. People, 6 Hun, 140.

3 See Booby v. The State, 4 Yerg.
111.

4 2 Hawk. P. C. c. 48, § 28; The State
v. Williams, 80 Maine, 484. See Com-
mu nwealth v. Eagan, 4 Gray, 18.

5 Middletown v. Ames, 7 Vt. 166, 169.
See Phillips v. The State, 29 Ga. 105.

6 Commonwealth v. Reed, 1 Gray, 472.

72 Hawk. P. C. c. 48, § 28. He adds:
“Tf it shall appear that the juror made

such declaration from his knowledge of
the cause, and not out of any ill will to
the party, it is no cause of challenge.”
For this qualification of the doctrine, he
refers to ancient authorities, extending
back to the time when the jurors were
the witnesses. Ante, § 863. They had
ceased to be such, and the right to put
witnesses on the jury had ceased, when
our ancestors adopted the common law
from England. Hence, with us, there is
no scope for this qualifying proposition,
and we have no occasion to inquire
whether it was ever sound or not.

8 Alabama — An opinion formed and
expressed, from conversations held with
jurors who tried the case on a previous
occasion, disqualifies. Ned v. The State,
7 Port. 187. As early as 1831, a statute
declared an expressed opinion to be no

587
§ 910

TRIAL BY PETIT JURY.

[Book VII.

§ 910. How in Principle. — In the nature of things, it is im-
possible, in any case, to obtain a jury, the mind of every one

disqualification, if founded on mere rumor.
Still such opinion, based on facts authen-
ticated by persons in whom the juror
has confidence, was deemed good cause
for challenge. Quesenberry v. The State,
8 Stew. & P. 808. For rumor as distin-
guished from observation, &c., see The
State v. Williams, 3 Stew. 454, 465, 466.
An opinion on mere rumor, but never ex-
pressed, is not cause for challenge. The
State v. Morea, 2 Ala. 275. Later legis-
lation in this State has wrought further
changes. As to what is a “fixed” opin-
ion, within § 4080 of the code, see Carson
v. The State, 50 Ala. 134; Hall v. The
State, 51 Ala. 9.

Arkansas. — The Bill of Rights secures
an “impartial jury.” Ifa juror ina cap-
ital case says he has formed an opinion
on rumor, he may be asked if it would
bias his mind. Should he state that he

. has conversed with persons about the
case, he may be asked if they professed
personal knowledge of it. If he admits
that he has formed an opinion, he is prima
facie incompetent; and the State, not
the prisoner, has the burden to make it
appear that the opinion was founded on
rumor, and was not such as to bias his
mind. Meyer v. The State, 19 Ark. 156.

California. — Where a question of ac-
tual bias comes before triers, any testi-
mony leading to the conclusion is compe-
tent. Prejudice, oftener founded on
passion than on reason, may exist with
or without cause. The juror’s mind must
be free from it. The simplest way to
the fact is to ask him, and whether it
is such as would prevent his trying the
prisoner fairly. People v. Reyes, 5 Cal.
347. Astatute makes the disqualification
consist in having “ formed or expressed an
unqualified opinion.” Therefore if the
juror says, that, from rumor, he has
deemed the defendant guilty, and it would
require proof to change the opinion, though
he could try the cause impartially, he
should be excluded. “The fact,” said
Terry, C. J., “that the juror further said,
that he could try the case impartially, was
entitled to no consideration; few men
will admit that they have not sufficient
regard for truth and justice to act impar-

538

tially in any matter however much they
may feel in regard to it, and every day’s
experience teaches us that no reliance is
to be placed in such declarations.” Peo-
ple v. Gehr, 8 Cal. 359, 862; s. p. People
v. Weil, 40 Cal. 268. And see People v.
Cottle, 6 Cal. 227; People v. McCauley, 1
Cal. 379; People v. Stonecifer, 6 Cal. 405;
White v. Moses, 11 Cal. 68; People v.
Williams, 6 Cal. 206; People v. Mortimer,
46 Cal. 114. The opinion is equally a
disqualification whether for or against
the prisoner. People v. Williams, supra.
An unqualified declaration as to guilt is
fatal to the juror’s fitness. People v.
Plummer, 9 Cal. 298; People v. Edwards,
41 Cal. 640; People v. Brotherton, 43.
Cal. 5380. See, further, People v. Williams,
17 Cal. 142. Either the opinion must in
fact exist, or it must have been expressed.
People v. King, 27 Cal. 507. But a mere
hypothetical opinion, or impression, pro-
ceeding from no ill will, is not alone cause
for rejecting a juror, People v. Symonds,
22 Cal. 848; People v. Murphy, 45 Cal.
137 ; the opinion not being unqualified, and
he being willing to give the prisonera
fair trial. People v. Brown, 48 Cal. 263.
One who had received an impression
from rumor that the prisoner was a bad
man, whom he should deem more likely
to commit a crime than a person of whom
he had heard nothing, and it would re-
quire evidence to remove this impression,
yet said he was not conscious of any bias
to prevent his giving him a fair trial, was
held to be competent. People v. Maho-
ney, 18 Cal. 180. And see People v.
Johnston, 46 Cal. 78.

Colorado. — See, under the statute of
1872, Jones v. People, 2 Col. Ter. 841.

Connecticut. — One is not disqualified
who has no settled opinion, though he
has read accounts which led him to be-
lieve, that, if they were true, an offence had
been committed; observing, while he
read, that the offence would probably
turn out quite differently at the trial. He
stated in court, that he could render an
impartial verdict. The State v. Potter,
18 Conn. 166. And see The State c.
Tuller, 834 Conn. 280.

Delaware. — An opinion derived from
CHAP. LXI.]

JURORS AND QUALIFICATIONS.

§ 910

of whom shall be free from all that might incline it more toward

the one side than the other at the trial.

the evidence on the trial of another per-
son for the same murder, in the juror’s
mind conclusive unless overcome by tes-
timony, is a good cause for challenge.
But it is otherwise of a mere impression,
not founded on evidence, if the juror is
not sensible of bias prejudicial to the de-
fendant. The State v. Anderson, 5 Har-
ting. Del. 493.

Florida.— A fluctuating opinion, de-
rived from rumor, is not sufficient against
a juror who deems that he can render a
fair verdict, based on the evidence.
O’Connor v. The State, 9 Fla. 215.

Georgia.— The adjudications, in this
State, seem to outward appearance not
entirely harmonious, though doubtless
they are so when their facts and minor
distinctions are accurately considered.
An opinion formed, but not expressed,
Baker v. The State, 15 Ga. 498; especially
if from rumor, Thompson v. The State,
24 Ga. 297; Griffin v. The State, 15 Ga.
476; Hudgins v. The State, 2 Kelly, 173,
does not disqualify. But if it is a fixed
opinion, and continues to the time of the
trial, Willis v. The State, 12 Ga. 444, it
does, even though produced by hearsay,
Maddox v. The State, 32 Ga. 581. An
opinion both formed and expressed dis-
qualifies. Reynolds v. The State, 1 Kelly,
222; Anderson v. The State, 14 Ga. 709;
Wade v. The State, 12 Ga. 25; Ray v.
The State, 15 Ga. 223; Epps v. The State,
19 Ga. 102. See Buchanan». The State, 24
Ga. 282; Martin v. The State, 25 Ga. 494.
Therefore a juror is incompetent who
was heard to say, before the trial, that,
“from what he knew, he would stretch
the prisoner.” Monroe v. The State, 5
Ga. 85. See also Thomas v. The State,
27 Ga. 287; Mitchum v. The State, 11
Ga. 615. But the opinion, to disqualify,
must be settled and abiding. Wright v.
The State, 18 Ga. 883. Its disqualifying
effect comes from its nature and strength,
not its origin. Boon v. The State, 1
Kelly, 631. It may disqualify though
founded on hearsay. Boon v. The State,
1 Kelly, 618. But not, when from hear-
say, if the juror could give the prisoner
a fair trial. Westmoreland v. The State,
45 Ga. 226. A juror who had formed

Hence, in looking for

and expressed a decided opinion cannot,
after verdict, show himself to have been
competent by swearing that his finding
was induced solely by the evidence. Mc-
Guffie v. The State, 17 Ga. 497. The
words, in reply to a third person, “ if that
is so, the prisoner deserves to be hung,”
spoken by a juror before trial, do not
imply a fixed opinion, sufficient to require
a new trial. Mercer v. The State, 17 Ga.
146. And see Jim v. The State, 15 Ga.
535; John v. The State, 16 Ga. 200. An
opinion, formed and expressed, on a single
element in the case against the defendant,
does not disqualify the juror. Loyd »v.
The State, 45 Ga. 57. In this State,
statutes have considerably influenced the
question; as, see Willis v. The State, su-
pra; Rouse v. The State, 4 Ga. 136; Rafe
v. The State, 20 Ga. 60; Boon v. The
State, 1 Kelly, 618; Mercer v. The State,
17 Ga. 146; Mitchell v. The State, 22 Ga.
211; Pines v. The State, 21 Ga. 227;
King v. The State, 21 Ga. 220; Monday
v. The State, 32 Ga. 672.

Illinois. — One who has formed no
opinion is not disqualified merely from
having talked with a witness whom he
believed. Thomson v. People, 24 IIl. 60.
Duplicity of expression as to belief of
guilt, and getting on the jury by trick}
disqualifies. Sellers v. People, 3 Scam.
412. An opinion, formed from rumor,
and expressed, but depending on the
truth of the rumor, and not fixed and
definite, does not disqualify. Baxter v.
People, 8 Gilman, 868. And see Noble v.
People, Breese, 29. But a decided opin-
ion, however derived, does. Neely v.
People, 13 Ill. 685. And so does such an
opinion, as to the entire offence charged,
though it does not extend to whether or
not the defendant is the guilty person.
Gray v. People, 26 Ill. 344. “The sub-
stance of the rule,” said Breese, C. J., “is,
that a juror is disqualified if he has ex-
pressed a decided opinion on the merits
of the case. But if a juror says he has
no prejudice or bias of any kind, for or
against either party, that he has heard
rumors in relation to the case but has no
personal knowledge of the facts, and from
the rumors has formed and expressed an

539
§ 910

TRIAL BY PETIT JURY.

[Book VIII.

artule, the court should be guided as well by the consideration
of what can be, as by the dictates of abstract justice. It may

opinion in a particular way, if they are
true, without expressing any belief in
their truth, he would not be disqualified.”
Leach v. People, 58 Ill. 811, 317.

Indiana. — Having heard talk and read
about the case, and inclining to believe
that if all this is true the defendant is
guilty, does not disqualify one whose con-
versation has not been with the witnesses,
who has not formed or expressed an opin-
ion, has no ill will to the prisoner, and can
give him a fair trial. Rice v. The State,
7 Ind. 382. And see Bradford v. The
State, 15 Ind. 847; McGregg v. The State,
4 Blackf. 101; Romaine v. The State, 7
Ind. 63; Morgan v. Stevenson, 6 Ind.
169; Fahnestock v. The State, 23 Ind.

231; Clem v. The State, 83 Ind. 418. One.

who has formed and expressed an opin-
ion is disqualified, Holloway v. The State,
53 Ind. 554; one who never heard of the
case, and knows nothing of it, is not,
Meyers v. The State, 20 Ind. 511. As
the result of authorities examined, Per-
kins, J., once stated the following to be
the “grounds of challenge for cause: 1.
That the juror is interested in the pend-
ing or # similar suit. 2. That he does
not possess the statutory qualifications.
&. That he is of kin to one of*the parties.
4. Personal hostility. 5. A pending law-
suit between the juror and the party. 6.
That the juror is master or servant, land-
lord or tenant, of the opposite party, or
has eaten or drank at his expense since
being summoned as a juror, or has prom-
ised to find a verdict for him. 7. That
he has formed or expressed an opinion in
the cause, is a witness in it, or has been a
juror on a former trial of it.” Fleming
v. The State, 11 Ind. 234, 236,

ZIowa.— An unqualified opinion,
whether for or against the. prisoner is
immaterial, renders the juror incompe-
tent, and the objection may be taken as
well by the State as by the defendant.
The State v. Shelledy, 8 Iowa, 477. It is
so even though formed on rumor. Wau-
kon-chaw-neek-kaw v. United States, Mor-
ris, 332; Trimble v. The State, 2 Greene,
Iowa, 404; The State v. Wilson, 8 Iowa,
407. But an opinion qualified, and de-
pending on whether what was heard will

540

be proved at the trial, does not render
unfit an unprejudiced juror, who can find
according to the law and evidence.
The State v. Sater, 8 Iowa, 420. The
question, in this State, is considerably
under statutory regulation. And see
The State v. Thompson, 9 Iowa, 188;
The State v. Gillick, 10 Iowa, 98; The
State v. Arnold, 12 Iowa, 479; The State
v. Ostrander, 18 Iowa, 485; The State v.
Leicht, 17 Iowa, 28; The State v. Bryan,
40 Iowa, 379.

Kansas. — An impression, derived from
the newspapers, and not amounting to an
opinion, does not disqualify. The State
v. Medlicott, 9 Kan. 257; The State »v.
Crawford, 11 Kan. 32. By statute, it is
ground of challenge that the juror “has
formed or expressed an opinion on the
issue, or any material fact to be tried.”
And, in a murder case, the opinion “ that
the deceased was killed, and that the de-
fendant killed him,” is within the statute.
The State v. Brown, 15 Kan. 400.

Louisiana. — A mere impression is not
sufficient to disqualify. The State v.
Ward, 14 La. An. 678; The State v. Hu-
gel, 27 La. An. 875; The State v. Cole-
man, 27 La. An. 691. See also The State
v. Bennett, 14 La. An. 651; The State v.
Schnapper, 22 La. An. 48. Nor is an
opinion from rumor, unaccompanied by
bias or prejudice. The State v. Bunger,
14 La. An. 461; The State v. Caulfield,
23 La. An. 148. An opinion as to the
proper punishment, should the verdict be
guilty, does not disqualify. The State v.
Bill, 15 La. An. 114.

Maine. — An opinion expressed, or
even formed and not expressed, disquali-
fies ina murder case. The State v. Jewell,
83 Maine, 588. It must, to authorize a
new trial, be distinct and positive, “upon,”
in the words of the statute, “ issues of fact
arising in the case.” The State v. Ben-
ner, 64 Maine, 267.

Massachusetts. — An opinion, not
amounting to a prejudging of the cause,
or strong enough to prevent a candid
hearing and finding on the evidence, does
not disqualify. Commonwealth v. Web-
ster, 5 Cush. 295. And see Common-
wealth v. Gee, 6 Cush.174. A juror who
CHAP. LXII.]

JURORS AND QUALIFICATIONS.

§ 910

only demand that a disqualification, to prevail, shall be of

some standard magnitude, dictated by practical wisdom.

had formed an opinion from what he had
heard, but said he did not know ,how
much it would influence him, was deemed
disqualified. Commonwealth v. Knapp,
9 Pick. 496. One who says he has heard
of the case, but not enough to form
any opinion, and is not sensible of bias
or prejudice, is competent. Common-
. Wealth v. Thrasher, 11 Gray, 57. An
opinion as to the credibility of a witness
is not to be inquired into. To allow it
“would,” said Thomas, J., “be a great
relief to persons indicted, who are anxious
not to be tried; for just in the degree
that the character of the witnesses to be
called was known and respected, would
the objection prevail.” Commonwealth
v. Porter, 4 Gray, 423.

Michigan. — An opinion, not positive,
derived from rumor, does not disqualify.
Holt v. People, 18 Mich. 224. And see
Bronson v. People, 32 Mich. 34. Nor
does the mere belief that the crime
charged has been committed by some
one. Stewart v. People, 23 Mich. 63.

Mississippi.— An opinion based on in-
formation from witnesses, whether de-
rived directly or indirectly, disqualifies ;
but one formed on rumor does not. Nelms
v. The State, 18 Sm. & M. 500. And see
The State v. Johnson, Walk. Missis. 892;
King v. The State, 5 How. Missis. 730;
White v. The State, 52 Missis. 216; Lee
v. The State, 45 Missis. 114; Cotton v.
The State, 31 Missis. 504; Cody v. The
State, 3 How. Missis. 27. A mere im-
pression is notenough. “To disqualify,”
it was observed, ‘the juror must have
formed and expressed an opinion, or have
such acknowledged prejudice or bias as
would disable him from doing justice, ac-
cording to the evidence, between the State
and the accused.” Noev. The State, 4 How.
Missis. 330, 832. Each case depends so
far on its circumstances as to exclude any
absolute rule. But, in general terms, one
is incompetent who is so far prejudiced
as to require evidence to annul an opinion
formed. Sam v. The State, 13 Sm. & M.
189. Even though it is formed from
rumor, it disqualifies if evidence is re-
quired to remove it. Alfred v. The State,
87 Missis. 296; Ogle v. The State, 83 Mis-

Now,

sis. 888. And see White v. The State, 52
Missis. 216; Lee v. The State, 45 Missis.
114. A distinction is, that, if a juror has
formed an opinion from rumor, but it is
not fixed, and no testimony would be re-
quired for its removal, it does not dis-
qualify him ; but an opinion derived from
hearing the witnesses on « former trial
disqualifies, even though the juror should
claim that he is unbiassed, and it would
not influence his verdict. Logan v. The
State, 50 Missis. 269. A juror found to
have formed an opinion may be set aside
before either party has had the opportu-
nity to challenge him. Marsh v. The
State, 80 Missis. 627. And see Sam v.
The State, 31 Missis. 480.

Missouri. — A statute makes it “good
cause of challenge to a juror, that he has
formed or delivered an opinion on the
issue, or any material fact to be tried;
but, if it appear that such opinion is
founded only on rumor, and not such as

to prejudice or bias the mind of the juror,

he may be sworn.” Baldwin v. The State,
12 Misso. 223. And see Stoner v. The
State, 4 Misso. 868; The State v. Martin,
28 Misso. 530; The State v. Davis, 29
Misso. 391; The State v. Ross, 29 Misso.
82; The State v. Rose, 82 Misso. 346;
The State v. Burnside, 37 Misso. 348;
The State v. Wyatt, 50 Misso. 309.

Nebraska, — The question is regulated
by a statute which has been expounded
in several cases; as, Palmer v. The State,
4 Neb. 68; Curry v. The State, 4 Neb.
545; Carroll v. The State, 5 Neb. 31;
Smith v. The State, 5 Neb. 181; Curry
v. The State, 5 Neb. 412.

Nevada.— The State v. Millain, 8 Nev.
409; The State v. Anderson, 4 Nev. 265.

New Hampshire. — Jurors who have
heard the prisoner tried on another in-
dictment before another jury, and have
thence formed an opinion of his guilt
upon the present one, are incompetent.
The State v. Webster, 18 N. H. 491. And
see The State v. Pike, 20 N. H. 344. It is
no objection that a juror has heard much
about a case, if he has not formed an opin-
ion. The State v. Howard, 17 N. H.
171,

New Jersey. — Merely to have formed

541
a

§ 910

TRIAL BY PETIT JURY.

[Book vit.

the terms of our constitutions differ, so that what would be

admissible under one may not be under another.

and expressed an opinion does not dis-
qualify a juror in a capital case. He
must have declared such an opinion as
to imply malice against the prisoner.
The State v. Fox, 1 Dutcher, 566.

New York.—In 1872, the legislature
regulated this subject by a statute (1
Laws of 1872, v. 475, p. 1133) in sub-
stance, that an opinion or impression as
to the circumstances, or as to the guilt or
innocence of the prisoner, shall not be
adequate ground of challenge, if the ju-
ror declares on oath that he can render
an impartial verdict, and the court is
satisfied that he entertains no such pres-
ent opinion as will influence his verdict.
And this has been adjudged not uncon-
stitutional. Stokes v. People, 53 N. Y.
164. See, also, post, Ohio. This enact-
ment does not interfere with challenges
for favor. Thomas v. People, 67 N. Y.
218. Prior to this statule, either the
formation or the expression of an opinion,
even from rumor, and though unaccom-
panied by ill will to the prisoner, and
though the juror declared that he should
change it if the circumstances inducing
it were not proved, disqualified. People
v. Mather, 4 Wend. 229, 241, 242; People
v. Vermilyea, 7 Cow. 108; People v. Rath-
bun, 21 Wend. 509; Allen v. People, 57
Barb. 338. Yet a mere impression that
the defendant was guilty did not. Peo-
ple v. Honeyman, 3 Denio, 121; O’Brien
v. People, 48 Barb. 274. And see Phelps
v. People, 6 Hun, 401; People v. Mallon,
8 Lans. 224; People v. Bodine, 1 Denio,
281; Lohman v. People, 1 Comst. 379;
Stout v. People, 4 Parker C. C. 71, 182;
Sanchez v. People, 4 Parker C. C. 535.

North Carolina. — A juror who has not
definitively made up and expressed his
mind is competent, though he has
read and heard of the case. The State
v. Benton, 2 Dev. & Bat. 196. And see
The State v. Scott, 1 Hawks, 24; The
State v. Ellington, 7 Ire. 61; The State
v. Bone, 7 Jones, N. C. 121; The State v.
Dove, 10 Ire. 469. An opinion which
it would require evidence to remove,
founded on mere rumor, does not dis-
qualify one who can still unhesitatingly
find on the evidence a contrary verdict.

542

But in none

The State v. Cockman, Winston, No.
II. 95.

Ohio. — Statutes, passed at different
times, have made the rule in some degree
variable in this State. See Frazier v.
The State, 23 Ohio State, 551. Under
a provision which simply permitted the
juror to be challenged for “any cause
that may render him, at the time, an un-
suitable juror,” one who had formed an
opinion was deemed incompetent, though
he did not think it would influence his
verdict. Fouts v. The State, 7 Ohio State,
471. In 1860, it was provided that, if
such opinion, formed or expressed, pro-
ceeded from newspaper reading or from
hearsay, and not from what the witnesses
had said, it would not disqualify a juror
who deemed himself able to render an
impartial verdict, should the court also
be satisfied that he will. And this was
by the majority of the court held not
repugnant to the clause in the Constitu-
tion guaranteeing to every one accused
a trial by an impartial jury. Cooper v.
The State, 16 Ohio State, 828. See,
also, ante, New York. In 1869, this stat-
ute of 1860 was superseded by another,
establishing, in effect, the former rule.
But, in 1872, something like the statute
of 1860 was re-established. Frazier v.
The State, supra. An opinion dependent
on facts as to which no opinion was ex-
pressed, is no ground for a new trial ina
capital case. Loeffner v. The State, 10
Ohio State, 598. See also Parks v. The
State, 4 Ohio State, 284; Busick v. The
State, 19° Ohio, 198.

Pennsylvania. — See Commonwealth v.
Flanagan, 7 Watts & S. 415; Common-
wealth v. Gross, 1 Ashm. 281; Respub-
lica v. Dennie, 4 Yeates, 267. One who,
from reading the testimony given on a
former trial, has formed an_ opinion
“which it would take some evidence to
remove,” is incompetent, though he de-
clares himself able and willing to act
solely on the evidence produced, uninflu-
enced by such opinion. Staup v. Com-
monwealth, 24 Smith, Pa. 458. An opin-
ion, to disqualify, must be so firm and
fixed as probably to control the judg-
ment, or must have been formed on the
»

CHAP. LXII.]

JURORS AND QUALIFICATIONS.

§ 910

is it declared that the jury shall be an impossible one, of per-

fect men.

evidence which will be given at the trial.
O’Mara v. Commonwealth, 25 Smith, Pa.
424; Ortwein v. Commonwealth, 26 Smith,
Pa. 414. And see Myers v. Common-
wealth, 29 Smith, Pa. -308; Common-
wealth v. Berger, 3 Brews. 247; Com-
monwealth v. Work, 3 Pittsb. 493; Com-
monwealth v. Lenox, 8 Brews. 249.

South Carolina. — See The State v.
Hopkins, 1 Bay, 372; The State v. Due-
stoe, 1 Bay, 877; The State v. Sims, 2
Bailey, 29; The State v. Crank, 2 Bailey,
66; The State v. Baldwin, 1 Tread. 289,
8 Brev. 309.

Tennessee. — One who has expressed an
opinion is not competent. Troxdale v.
The State, 9 Humph. 411. But an opin-
ion formed merely from rumor, not relied
on as true, does not disqualify. Major v.
The State, 4 Sneed, 597; Moses v. The
State, 11 Humph. 232, 10 Humph. 456.
See also Howerton v. The State, Meigs,
262. But, if the rumor is believed, the
opinion disqualifies. Green, J., thus ex-
plains: “If a juror have heard only the
general conclusions of his informants, —
such as, that A. B. has stolen a horse, or
that C. D. has killed a man, —and forms
and expresses an opinion upon that, with-
out hearing the facts and circumstances
attending the homicide or the theft, his
mind is not preoccupied by the case he is
ealled to try, and any vague opinion he
had formed vanishes as the evidence ex-
hibiting the facts and circumstances of
the case is unfolded to his mind. Nor
will vague and floating rumors, of whose
origin he has no information, and of whose
authenticity he has no just grounds of
belief, although they put on the form
of a narrative and circumstantial detail
of the facts, produce such an impres-
sion on the juror’s mind as to affect his
impartiality.” Payne v. The’ State, 3
Huinph. 875, 377. At the same time, the
rule, as stated in a previous case, is reaf-
firmed; namely, —“‘If it appear to the
judge, who, under our system, is the
trier of the competency of the juror, that
he has heard the circumstances of the
case, and, believing the statements he
has heard to be true, has formed, or
formed and expressed, an opinion, — that

Still, in reason, the formation and expression of

is, has made up his mind as to the guilt
or innocence of the prisoner, —he ought
to be rejected.” McGowan v. The State,
9 Yerg. 184, 193. See also Alfred v. The
State, 2 Swan, Tenn. 581; Brakefield v.
The State, 1 Sneed, 215; Norfleet v. The
State, 4 Sneed, 340.

Texas. — See Monroe v. The State, 23
Texas, 210; Burrell v. The State, 18
Texas, 713; Hanks v. The State, 21
Texas, 526; Henrie v. The State, 41
Texas, 5738. Those light impressions,
which leave the mind open and yield to
testimony, do not disqualify; but the
deep ones, which close it to the evidence,
and combat and resist its force, do.
Black v. The State, 42 Texas, 377.

Utah. — United States v. Reynolds, 1
Utah Ter. 319.

Vermont. — Merely forming an opinion
does not disqualify, but the expressing of
it does. Nor, as to the latter, will it re-
move the disqualification for the juror to
declare, at the trial, that he bas then no
opinion, and he can try the case impar-
tially. The State v. Clark, 42 Vt. 629;
The State v. Phair, 48 Vt. 866; The State
v. Godfrey, Brayt. 170.

Virginia. — A decided opinion, whether
from rumor or the evidence, disqualifies.
“Some minds,” said Scott, J., “are so
sceptical that they receive nothing as
true, which is not proved by plain and
direct evidence, or established upon
mathematical demonstration; while others
readily adopt the most absurd notions,
though unsupported by any thing like
evidence, and destitute of all foundation
in reason and in the nature of things. And
we not unfrequently find opinions of the
latter class as immovable as those which
are the result of the most laborious in-
vestigation. The mind is, however, in
both cases, made up; the question is
settled; it is deetded. And although both
classes of persons may say, and believe
they say truly, that they are open to con-
viction, willing to hear evidence and lis-
ten to reason, and either adhere to or
abandon their opinions as these may dic-
tate, few would be willing to stake their
lives and fortunes on the success of an
attempt to overturn opinions which their

548
»

§ 910 TRIAL BY PETIT JURY.

an: opinion from rumor, which is leniently regarded by many
of our tribunals, should be deemed specially of the disqualify-
ing sort. The law esteems every man innocent until he is
proved guilty. So does common sense; so does the better in-
stinct of every upright citizen. Therefore one who leaps in
advance both of evidence and the law, and settles in his own
mind the question of guilt, whether by reason of rumor which
he has read or heard and of whose truth he knows nothing, or
by reason of an inner impulse which condemns before it hears,
is not fit to be a juror in the cause; for his mind, which ought
at least to be a blank whereon the evidence may write its con-
clusion, is already preoccupied. There are doubtless objections,
of another sort, to one who, having acquainted himself with the
evidence, has formed an opinion thereon; but he is, at least, a
reasonable being, while the former is not. He acts on evidence,
a quality of mind needed in a juror; while the other is controlled,
as no juror should be, by impulse. The result of which is, that
neither the one nor the other should be put upon the prisoner
to try him. Nor should the juror’s belief that he can render
an impartial verdict, deriving it solely from the evidence, alter
the case. A man may believe an untruth of himself, as well as
of any thing else; and it is not in human nature for one who
has made up his mind, especially for one who has done it on
rumor, to try the question de novo and impartially, like one who

possessors fancy themselves to be thus Poore v. Commonwealth, 2 Va. Cas. 474;

[Book vIm..

willing to abandon at the command of
truth and justice.” Armistead v. Com-
monwealth, 11 Leigh, 657, 660; Jackson
v. Commonwealth, 23 Grat. 919. But an
opinion merely hypothetical, and de-
pending on the truth of rumors or infor-
mation, does not disqualify. Jackson v.
Commonwealth, supra; Epes’s Case, 5
Grat. 676. And see Lithgow v. Common-
wealth, 2 Va. Cas. 297; Sprouce v. Com-
monwealth, 2 Va. Cas. 875; Kennedy v.
Commonwealth, 2 Va. Cas. 510; McCune
v. Commonwealth, 2 Rob. Va. 771; Heath
v. Commonwealth, 1 Rob. Va. 785; Hen-
drick v. Commonwealth, 6 Leigh, 707;
Osiander v. Commonwealth, 3 Leigh, 780;
Brown v. Commonwealth, 2 Leigh, 769;
Brown v. Commonwealth, 2 Va. Cas. 516;
Smith v. Commonwealth, 7 Grat. 698;

544

Moran v. Commonwealth, 9 Leigh, 651 ;
Smith v. Commonwealth, 2 Va. Cas. 6.
Also, hasty expressions from one who
swears that he has formed no opinion
and feels no prejudice will not disqualify.
Commonwealth v. Hailstock, 2 Grat. 664.
“Tf he [the prisoner] killed the man, he
ought to be hanged,” is not a declaration
of guilt, disqualifying. Commonwealth v.
Hughes, 5 Rand. 665.

Wisconsin.— See Schoeffler v. The State,
3 Wis, 823.

United States. — Having formed or ex-
pressed an opinion is good cause for re-
jecting a juror. United States v. Wilson,
Bald. 78. See also United States v. Han-
way, 2 Wal. Jr. 189; United States v.
Burr, Burr’s Trial; United States v. Me-
Henry, 6 Blatch. 603.
CHAP. LXIl.] JURORS AND QUALIFICATIONS. § 912

has not. And this reasoning applies as well to the unexpressed
opinion as to the expressed.

§ 911. Sixthly. Zhe Juror having passed upon the same Ques-
tion-while serving in some other Capacity : —

Opinion formed. — Since, as just seen, an opinion which one
forms without occasion disqualifies him to be a juror, equally
does an opinion formed in the discharge of a duty. Thus, —

Grand Juror.— A member of the grand jury that found an
indictment, having necessarily arrived at a conclusion on the
question of guilt, cannot afterward be on the petit jury to try
it.1 Not only is this so on common-law principles, but the rule
was expressly confirmed by 25 Edw. 3, stat. 5, c. 8, which pro-
vides, “that no indictor shall be put in inquests, upon deliver-
ance of the indictees of felonies or trespass, if he be challenged
for that same cause by him which is so indicted.” The mere
appearance of his name on the grand-jury list will not exclude
him; he must be of those by whom the bill was found? Of
course, —

Waiving Objection. — A defendant, not taking this objection
before the juror is sworn, knowing it, or, perhaps, even having
the means of ascertaining it, waives it; so that it is not usually,
but may be, available, for instance, on a motion for a new trial.
The practice appears to be not quite uniform on this question.®

§ 912. Same Matter. — “This exception against a juror,” says
Hawkins, “hath been adjudged good, not only upon the trial
of such indictment, but also upon the trial of another indictment
or action wherein the same matter is either in question or hap-
pens to be material, though not directly in issue” ;* as, where
a petit juror tendered had been of the grand jury who found
another indictment against the defendant, he was held in-

1 Rex v. Percival, 1 Sid. 248; Rice v.
The State, 16 Ind. 298; Stewart v. The
State, 15 Ohio State, 155; Greenwood v.
The State, 34 Texas, 334; Birdsong »v.
The State, 47 Ala. 68; The State v. Mc-
Donald, 9 W. Va. 456; Young v. Slaugh-
terford, 11 Mod. 228.

2 Rafe v. The State, 20 Ga. 60; Rouse
v. The State, 4 Ga. 136. And see Wil-

_Jliams v. The State, 55 Ga. 391.

3 Barlow v. The State, 2 Blackf. 114;
The State v. O’Driscoll, 2 Bay, 153; Dil-
VOL. I. 35

worth v. Commonwealth, 12 Grat. 689;
Edmondson v. Wallace, 20 Ga. 660; Ben-
net v. The State, 24 Wis. 57; Beck v.
The State, 20 Ohio State, 228; Gillespie

‘v. The State, 8 Yerg. 507; Rice v. The

State, 16 Ind. 298; Commonwealth v. Hus-
sey, 13 Mass. 221; Jefferson v. The State,
62 Missis. 767; Franklin v. The State, 2
Texas Ap. 8; Reg. v. Sullivan, 8 A. & E.
831, 1 Per. & D. 96.

42 Hawk. P. C. c. 48, § 27; Willis’s
Case, 15 Howell St. Tr. 618, 615.

545
§ 916 TRIAL BY PETIT JURY. [BOOK VIII.
competent; for, said the court, ‘‘he cannot be impartial.”!
Again, —

§ 918. Juror at Mistrial. — One who has served as a petit
juror at the mistrial of a cause is incompetent at the second
trial.2 But one is not, who was merely sworn, a nolle prosequi
being then entered and a new indictment found.?

Identity of Offences. — Though two cases are not identical, yet,
if the issues, evidence, and defendants are the same, a juror
serving in one is presumed to be disqualified in the other.* If
two cases against the same party involve different facts, depend-
ing on different evidence, service in one does not disqualify for
service in the other, even though they are similar.65 And —

Other Defendants. —“‘It hath been adjudged to be no good
cause of challenge,” says Hawkins, “that the juror hath found
others guilty on the same indictment; for the indictment is, in
judgment of law, several against each defendant, for every one
must be convicted by particular evidence against himself.” 6

§ 914. Coroner’s Jury. — Having been of the coroner’s jury is
adequate ground of challenge;’ but one who merely presided
over such jury as coroner, and neither formed nor expressed an
opinion, is competent.®

§ 915. Preliminary as to Insanity. — A ‘juror is not incapacitated
from having listened to the evidence on the preliminary question
of the prisoner’s sanity.®

§ 916. Seventhly. Bias from Peculiar Views of the Law : —

Deeming Statute constitutional. — If it is judicially held that
the statute on which an indictment is drawn is constitutional, it
does not disqualify a juror to be of the same opinion. _ Nor will
the court permit him to be questioned, whether, holding this

1 Oates’s Case, 10 Howell St. Tr. 1079,
1081.

2 Edmondson v. Wallace, 20 Ga. 660.
And see Brill v. The State, 1 Texas Ap.
572.

3 Reid v. The State, 50 Ga. 556.

4 Garthwaite v. Tatum, 21 Ark. 836.

5 Commonwealth v. Hill, 4 Allen, 591.
Liquor Nuisance.—JIn this case, jurors
who had convicted one for keeping a
liquor nuisance contrary to a statute, were
adjudged competent to try an indictment
against him for keeping a like nuisance
at a subsequent date. ‘The offences,”

546

said Bigelow, C. J., “although of the same
nature, were entirely separate and dis-
tinct.... Nor would the same evidence
be competent in support of the second
indictment which had been offered at the
previous trial to sustain the first indict-
ment.” p. 692.

6 2 Hawk. P. C. c. 48, § 29. And see
The State v. Sheeley, 15 Iowa, 404.

T Young v. Slaughterford, 11 Mod.
228.

8 O’Connor v. The State, 9 Fla. 2165.

® The State v. Arnold, 12 Iowa, 479.
CHAP. LXII.] JURORS AND QUALIFICATIONS. § 918

opinion, “he could hear, appreciate, and give due weight to,
and be fairly influenced by, the arguments of the defendant’s
counsel,” that the statute is not of force and is not constitu-
tional.! Moreover, —

Bias against Crime.— A bias or prejudice against crime does
not disqualify a juror.2- Nor does an opinion generally unfavor-
able to persons accused of crime.? On the other hand, —

§ 917. Deeming Statute unconstitutional. — One who deems the
statute on which an indictment is framed to be unconstitutional
and consequently void is, if by reason of the opinion he cannot
find against the defendant, whatever be the evidence, incompetent
to sit as juror in the cause. Also, —

No Crime. — A juror is incompetent who, from any other
reason, thinks it not a crime to do what the prisoner is charged
with; for this amounts to an opinion as to his guilt, and a pre-
judging of the cause. Likewise, —

Circumstantial Evidence. — If a juror’s opinion of the law is
such that he cannot render a verdict on circumstantial evidence

“however strong, he is incompetent. Again, —

§ 918. Scruples as to Capital Punishment. One cannot sit as
juror in a capital case, who, from conscientious scruples as to
the rightfulness of capital punishment, cannot find a defendant
guilty in such a case, or try it fairly.’ But a mere opinion
adverse to the policy of such punishment does not disqualify

1 Commonwealth v. Abbott, 138 Met.
120. And see Commonwealth v. Buzzell,
16 Pick. 153.

2 Williams v. The State, 3 Kelly, 453.

3 People v. Reynolds, 16 Cal. 128.

4 Commonwealth v. Austin, 7 Gray,
61.

5 Commonwealth v. Buzzell, 16 Pick.
153. “The Court said, that, if the juror
should think it was not a crime to destroy
the convent in the manner above men-
tioned, he would entertain a prejudice in

the cause; and the question was asked of

the juror, before he was put upon the
panel, whether he had expressed or
formed an opinion as to the general guilt
or innocence of all concerned in the de-
struction of the convent.” p. 155. To
the like effect is United States v. Rey-
nolds, 1 Utah Ter. 226.

6 Gates v. People, 14 Ill. 488. And
see Chouteau v. Pierre, 9 Misso. 3.

7 Martin v. The State, 16 Ohio, 364;
Commonwealth v. Lesher, 178. & R. 155;
White v. The State, 16 Texas, 206; Hyde
v. The State, 16 Texas, 445; Burrell v.
The State, 18 Texas, 713; United States
v. Wilson, Bald. 78; People v. Wilson, 3
Parker C. C. 199; Joy v. The State, 14
Ind. 189; The State v. Jewell, 33 Maine,
683; Driskill v. The State, 7 Ind. 338;
Williams v. The State, 8 Kelly, 453; Peo-
ple v. Tanner, 2 Cal. 257; Stalls v. The
State, 28 Ala. 25; People v. Damon, 138
Wend. 851; Williams v. The State, 32
Missis. 889; Fahnestock v. The State, 23
Ind. 231, 287; The State v. Ward, 39 Vt.
225; Lewis v. The State, 9 Sm. & M. 115;
Mercer v. The State, 17 Ga. 146 ; O’Brien
v. People, 48 Barb. 274.

547
§ 920 TRIAL BY PETIT JURY. [Book VUI.

the juror! This question is in some of our States regulated by.

statutes.?

§ 919. Eighthly. The Juror’s Connection with the Prosecution
or Defence, or with a like Offence : —

Prosecution or Defence. — One who has been active in bringing
about the crime or its prosecution is not a competent juror at
the trial; especially if under a pecuniary liability contingent on
the result.

Charged with Same. — A juror under indictment for the same
offence is incompetent.‘

§ 920. Ninthly. Technical Qualifications required by Statutes : —

Legislation in Aid of Unwritten Law..— It is proper, and to some
extent necessary, for legislation to help judicial decision in puri-
fying and perfecting the jury system. The essential rights are
those pointed out in the foregoing sections; but, as auxiliary
to what the common law has provided and our constitutions
have confirmed as there shown, and contributing to the same

end of impartial justice, statutes have been added. Thus, —

1 Atkins v. The State, 16 Ark. 568;
People v. Stewart, 7 Cal. 140; Common-
wealth v. Webster, 5 Cush. 295. In North
Carolina it is deemed that the challenge
should be for favor, not for cause. The
State v. Mercer, 67 N. C. 266.

2 Waller v. The State, 40 Ala. 325;
Murphy v. The State, 87 Ala. 142.

3 Reg. v. Swain, 2 Moody & R. 112, 2
Lewin, 116; Commonwealth v. Eagan, 4
Gray, 18; Fleming v. The State, 11 Ind.
234; Pierson v. The State, 11 Ind. 341;
The State v. Wilson, 8 Iowa, 407; Com-
monwealth v. O’Neil, 6 Gray, 343; Peo-
ple v. Reyes, 5 Cal. 347; Fletcher v. The
State, 6 Humph. 249. See Lavin v. Peo-
ple, 69 Ill. 803; Rex v. Dolby, 1 Car. &
K. 238.

4 McGuire v. The State, 87 Missis.
869; Crockett e. The State, 18 Ala. 387
(under a statute). See also United States
v. Reynolds, 1 Utah Ter. 819; Boggs v.
The State, 45 Ala. 30.

5 Said Thacher, J.: “The jurors
should be as impartial and independent
as the lot of humanity will admit, and be
allowed to judge upon the matter submit-
ted to them freely and without fear or
favor.... Any legislation,’ therefore,

548

which merely points out the mode of
arriving at this object, but does not rob
it of any of its essential ingredients, can-
not be considered an infringement of the
right.” Dowling uv. The State, 5 Sm. &
M. 664, 685. Minor differences of opin-
ion as to where the line is to be run be-
tween what of the old law is unchange-
able and what is not, under our constitu-
tions, are unavoidable. But certainly
they protect defendants from being com-
pelled to answer before jurors who have
prejudged the cause, or disqualified them-
selves by prejudice or passion for passing
on it impartially. In a case of great no-
toriety or public interest, it is sometimes
so difficult to secure qualified jurors, that,
looking at such case alone, one is tempted
to ask for a relaxation of the rule; yet, if
the legislature does relax it, the whole
mischief which the constitutional guaranty
was ordained to prevent has been done in
an hour when the nation or State was
weighed and found wanting; the barriers
are down, and there is no jury trial, in its
true sense, afterward. A bad precedent,
which will extend its influence down
through all time, is too high w price to
pay for a particular good. It is better,
JURORS AND QUALIFICATIONS.

§ 921. Tenthly. Qualifications of Freehold and the like : —

In General — (Freeholder — Householder). — It is doubtful
whether, under the old common law, a juror need be a free-
holder or householder; but there are English statutes, some of
which are early enough in date to be common law with us, mak-
ing such qualifications necessary.! It is uncertain whether any
of them are common law in any of our States. Yet, in some,
legislation has made such qualifications necessary ;? in others,
unnecessary.®

Freeholder. — A freeholder is one who holds a freehold estate ; 4
the term includes a mortgagor in possession,’ but not one who
has rented land for twelve months.®

Householder — is not so exact a word in meaning; one who
occupies a dwelling-house as the head of a family is such ;7 but
not the occupier of a mere sleeping apartment on a yearly rent.8

§ 922. Eleventhly. Mon-residence in the County ; Non-voter : —

Non-residence. — Non-residence in the county was by the Stat-
ute of Westminster 2, c. 88, made an excuse from serving, of
which the juror could avail himself, not a cause of challenge.®
It is by statute a ground of challenge in some of our States, but

CHAP. LXII.] § 922

probably in none is the objection available later.’
Non-voter. — Of late, in some States, a statute," or even the

therefore, that both legislators and judges
should accept the jury law as the past has
transmitted it to us, than, in a doubtful
case, suffer a new precedent to take away
any right of defendants. As to tle con-
struction of a statute regulating the quali-
fications, see Guy kowski v. People, 1 Scam.
476; Carter v. The State, 56 Ga. 463.

1 Rex v. Russel, 2 Show. 810; 2 Hawk.
P. C. ¢. 48, § 12-24.

2 Bradford v. The State, 15 Ind. 347;
Byrd v. The State, 1 How. Missis. 163 ;
The State v. Bryant, 10 Yerg. 527; Nel-
son v. The State, 10 Humph. 518; Dowdy
v. Commonwealth, 9 Grat. 727; Day v.
Commonwealth, 8 Grat. 629; Kerby v.
Commonwealth, 7 Leigh, 747; Hendrick
v. Commonwealth, 5 Leigh, 707; Aaron
v. The State, 37 Ala. 106; Iverson v. The
State, 62 Ala.170. See Kelley v. People,
55 N. Y. 565; Frank v. The State, 39
Missis. 705; The State v. Madoil, 12 Fla.
151; Estep v. Waterous, 45 Ind. 140.

8 Ladd v. Prentice, 14 Conn. 109.

4 Ante, § 851, note; Toml. Law Dict.
tit. Freeholders.

5 The State v. Ragland, 75 N. C. 12.

6 Iverson v. The State, 52 Ala. 170.

7 Toml. Law Dict. and Bouv. Law
Dict. tit. Householder.

8 Aaron v. The State, 87 Ala. 106.
And see cases in a preceding note.

9 2 Hawk. P. C. c. 43, § 26.

10 Anonymous, cited 1 Pick. 41; The
State v. Brown, 5 Eng. 78; Anderson v.
The State, 5 Pike, 444; People v. Stone-
cifer, 6 Cal. 405; Epps v. The State, 19
Ga. 102; Meeks v. The State, 57 Ga. 329;
The State v. Bullock, 63 N. C. 570; The
State v. Madoil, 12 Fla. 151.

11 Iverson v. The State, 52 Ala. 170;
The State v. Salge, 1 Nev. 455; The State
v. Waterman, 1 Nev. 548; The State v,
McLean, 21 La. An. 546.

549
§ 926 [BOOK VIII.

TRIAL BY PETIT JURY.

constitution,! requires the juror to be a voter. In Tennessee,
this statutory provision was held to violate the constitution.?

§ 923. Twelfthly. Alenage : —

Challenge only. — Alienage will sustain a challenge, but it is
not available later;? for example, it is not ground for a new
trial, though unknown till after verdict.*

§ 924. Thirteenthly. Infamy : —

How far incapacitates. —“ It is,” says Hawkins, “a good chal-
lenge of a juror that he is outlawed, or that he hath been ad-
judged to any corporal punishment whereby he becomes infamous,
or that he hath been convicted of treason, or felony, or perjury,
or conspiracy, or of forgery on 5 Eliz. c. 14, or attainted in an

attaint for giving a false verdict.
that such exceptions are not salved by a pardon.”

And it hath been holden,
But the

record must be produced, else the challenge will be “only to

the favor.” ®

§ 925. Fourteenthly. Want of Mental Capacity and the like : —
Insanity — Drunkenness. — An insane person is incompetent; °

so is one who is drunk.’

Likewise, —

Deaf —Ignorant of English.— One deaf,® or unacquainted with
our language,” is more or less disqualified according to the extent
of the incapacity and the time and manner of taking the objection.

§ 926. Fifteenthly. Exemptions Personal to Jurors : —

In General. — Statutes exempting particular classes of persons
from service as jurors do not generally render them incompetent;
one may avail himself of the exemption, or not, at his pleasure,
but a party cannot object Thus, —

1 Sands v. Commonwealth, 21 Grat.
871; Sands v. Commonwealth, 20 Grat.
800; Chahoon v. Commonwealth, 20 Grat.
7383.

2 Gibbs v. The State, 8 Heisk. 72.

3 Rex v. Sutton, 8 B. & C. 417; 8. c.
nom. Rex v. Despard, 2 Man. & R. 406;
Schumaker’ v. The State, 5 Wis. 824;
Hollingsworth v. Duane, Wal. C. C. 147;
Judson v. Eslava, Minor, 2; The State v.
Quarrel, 2 Bay, 150; Seal v. The State,
13 Sm. & M. 286; People v. Chung Lit,
17 Cal. 320; Borst v. Beecker, 6 Johns.
832; Siller v. Cooper, 4 Bibb, 90; Kee-
nan v. The State, 8 Wis. 182; The State
v. Vogel, 22 Wis. 471; Jordan v. The
State, 22 Ga. 646.

550

4 Presbury v. Commonwealth, 9 Dana,
208 ; Hollingsworth v. Duane, supra; The
State v. Nolan, 13 La. An. 276.» But see
Guykowski v. People, 1 Scam. 476; Hill
v. People, 16 Mich. 351.

5 2 Hawk. P. C. c. 43, § 25; ante, § 851;
Crim. Law, I. § 977.

6 The State v. Scott, 1 Hawks, 24.
And see Hogshead v. The State, 6 Humph.
59, 60.

7 Thomas v. The State, 27 Ga. 287.

8 Jesse v. The State, 20 Ga. 156, 164;
United States v. Baker, 3 Ben. 68.

® Lyles v. The State, 41 Texas, 172;
The State v. Push, 23 La. An. 14.

1 The State v. Forshner, 43 N. H. 89;
Glassinger v. The State, 24 Ohio State,
CHAP. LXII.]

JURORS AND QUALIFICATIONS. § 927

Age. — One past a specified age of service, as under the Stat-
ute of Westminster 2, c. 38,! and like statutes in our States, is
not therefore incompetent? And, —

Officers. — Where the statute of a State exempts officers of the
United States from jury service, they may still serve if they
please ; a party cannot complain.2 So, —

Court excusing. — Under various circumstances, by statute or
otherwise, the court has authority to excuse a juror;* then,
should it err in excusing or refusing to excuse one, this error
is not, by the better opinion, available to the party, unless per-
haps in a clear case of abuse of the power.®

§ 927. Sixteenthly. The Jury de Medietate Lingue when the
Defendant is a Foreigner : —

28 Edw. 3.— When our country was settled, Stat. 28 Edw. 3,
ce. 18, § 2, was in force in England. It provides “that, in all
manner. of inquests and proofs which be to be taken or made
amongst aliens and denizens, &c., although the king be party,
the one half of the inquest or proof shall be denizens, and the
other half of aliens, if so many aliens and foreigners be in the
town or place where. such inquest or proof is to be taken, that
be not parties nor with the parties in contracts, pleas, or other
quarrels whereof such inquests or proofs ought to be taken.
And if there be not so many aliens, then shall there be put in
such inquests or proofs as many aliens as shall be found in the
same towns or places, which be not thereto parties, nor with
the parties, as afore is said, and the remnant of denizens, which

206, 208; The State v. Morningstar, 23
La. An. 8; Powell v. The State, 48 Ala.
154. But see Christie v. The State, 44
Ind. 408. Legislative Power.—A stat-
ute cannot exempt pereons perpetually
from jury service, in consideration of
services in a fire company ; for what one
legislature does another may undo. Bragg
uv. People, 78 Ill. 828.

1 Ante, § 853.

2 2 Hawk. P. C. ec. 48, § 26; Davis v.
People, 19 Ill. 74; Mulcahy v. Reg. Law
Rep. 8 H. L. 806. See Thomas v. The
State, 27 Ga. 287. Contra, Burroughs »v.
The State, 33 Ga. 403; Williams v. The
State, 37 Missis. 407.

8 The State v. Quimby, 51 Maine, 395. -

4 Commonweatth v. Hayden, 4 Gray,

18; Stewart v. The State, 1 Ohio State,
66; The State v. Craton, 6 Ire. 164; The
State v. Ingraham, Cheves, 78; Monta-
gue v. Commonwealth, 10 Grat. 767; The
State v. Marshall, 8 Ala. 802; Parsons v.
The State, 22 Ala. 50.

5 Dodge v. People, 4 Neb. 220; King
v. The State, 1 Misso. 717;.Isaac v. The
State, 2 Head, 458; People v. Lee, 17
Cal. 76; The State v. Whitman, 14 Rich.
118; ante, § 853 and note; The State v.
Kelly, 1 Nev. 224; The State ». Ward,
89 Vt. 225; The State v. Ostrander, 18
Iowa, 485, And see Hines v. The State,
8 Humph. 597; Nolen vu. The State, 2
Head, 520. Yet see Boles v. The State,
18 Sm. & M. 898; Parsons v. The State,
22 Ala. 50.

551
§ 930 [Book vu.

TRIAL BY PETIT JURY.

‘

be good men, and not suspicious to the one party nor to the
other.” ?

§ 928. Petit Jury only. — This statute applied only to the petit
jury, not to the grand jury. And, —

Treason. — By 1 & 2 Phil. & M. c. 10, § 7, treason was ex-
cluded from its operation.?

§ 929. Procedure — Who the Jurors. — An alien, to have the
advantage of this statute, must pray it in due time; “and,”
says Hawkins, “if he have neglected to pray it before the return
of a common venire, he can neither except to such venire, nor
pray a tales or other process de medietate lingue. . . . Some of
the precedents for the award of a venire of a jury of half denizens
and half aliens, in pursuance of 28 Edw. 8, mention, that the
aliens shall be of the same country whereof the party alleges
himself; and others direct generally, that one half of the jury
shall be aliens, without specifying any country in particular.
And this form seems most agreeable to the statute, which speaks
of aliens in general; and it seems to be confirmed both by late
practice and the greater number of authorities.” 8

§ 930. How with us.— This part of the English system seems
to have been accepted in some of our States as common law,
and in some others to have been re-enacted ;* but, in others, and
probably in most, it has been in one form or another rejected.5
We rarely or never see any mention of its use in the current
reports, though indictments against foreigners are tried daily.

1 For a historical view of this pro-
vision, see Forsyth Hist. Trial by Jury,

C. C. 467, 2 Car. & K. 887, 4 Cox C.C.
31.

228. By 8 Hen. 6, c. 29, the statute
requiring a freehold qualification was
declared inapplicable to these cases of for-
eigners.

22 Hawk. P. C. c. 48, § 86, 37.

8 2 Hawk. P. C. c. 438, § 40,42. And
see Reg. v. Giorgetti, 4 Fost. & F. 546;
Reg. v. Burke, 11 Cox C. C. 188; Lev-
inger v. Reg. Law Rep. 3 P. C. 282, 11
Cox C. C. 618; Reg. v. Manning, 1 Den.

502

4 Respublica v. Mesea, 1 Dall. 78;
Richards v. Commonwealth, 11 Leigh,
690; Brown v. Commonwealth, 11 Leigh,
711; People v. McLean, 2 Johns. 381;
United States ». Carnot, 2 Cranch C. C.
469.

5 The State v. Antonio, 4 Hawks, 200;
People v. Chin Mook Sow, 51 Cal. 597.
And see the cases cited in the last note.
CHAP. LXII.] IMPANELLING AND CHALLENGING. § 981

CHAPTER LXIII.

IMPANELLING THE PETIT JURY AND CHALLENGING THE
JURORS AND THE PANEL.

§ 931. How definea.— A panel of jurors is a list of them. “A
jury,” says Coke, “is said to be impanelled when the sheriff hath
entered their names into the panel, or little piece of parchment,” !
which he returns into court for the trial of a cause, in obedience
to its command.? In most of our States, the jury not being
selected by the sheriff, there is no panel in this exact sense, but
the word denotes the list however made.’ And the final list,
selected through a course of challenging, is also called the panel ;
andthe word impanelling more often means, in the American
practice, the act of making such final list; that is, of selecting
from the panel put upon the prisoner the twelve jurors for the
trial.4 i

How selected and brought into Court. — The manner of selecting
the jurors and bringing them into court differs in our States.
A discussion of what is so varying would be inappropriate here,

but a reference to some of the cases may be helpful.®

1 Co. Lit. 158 8.

2 Jacob Law Dict. Panel.

3 And see People v. Coyodo, 40 Cal.
586; Jordan v. The State, 22 Ga. 545;
Revel v. The State, 26 Ga. 275; Thomas
v. The State, 27 Ga. 287; The State v.
Klinger, 46 Misso. 224.

4 And see The State v. Shelledy, 8
Jowa, 477; The State v. Howard, 10 Iowa,
101; People v. Rogers, 13 Abb. Pr. n. 8.
870; Horbach v. The State, 48 Texas,
242 ; post, § 960, note.

5 Alabama.—Prince v. The State, 3
Stew. & P. 253; The State v. Sted-
man, 7 Port. 495; The State v. Monk, 3
Ala. 415; Parsons v. The State, 22 Ala.
60; Wilson v. The State, 31 Ala. 371;
Brazier v. The State, 44 Ala. 387; Hall v.
The State, 51 Ala: 9; Drake v. The State,

51 Ala. 30; Fields v. The State, 52
Ala. 848; Sellers v. The State, 62 Ala.
368.

Arkansas. — Hurley v. The State, 29
Ark. 17, 22.

California. — People v. Stuart, 4 Cal.
218; People v. Rodriguez, 10 Cal. 50;

‘People v. Vance, 21 Cal. 400; People v.

Scoggins, 37 Cal. 676; People v. Coyodo,
40 Cal. 586; People v. Sandford, 43 Cal.
29; People v. Devine, 46 Cal. 45; Peo-
ple v. Welch, 49 Cal. 174.
Georgia. — Judge v. The State, 8 Ga.
178; Conner v. The State, 25 Ga. 515;
Revel v. The State, 26 Ga. 275; Thomas
v. The State, 27 Ga. 287; Cobb v. The
State, 27 Ga. 648; Phillips v. The State,
29 Ga. 105; Lingo v. The State, 29 Ga.
470; Westmoreland v. The State, 45 Ga.

508
§ 9814

TRIAL BY PETIT JURY.

[BooK VIII.

§ 931 a. Furnishing Prisoner with Panel. — In some or most

States and offences, under laws

225; Clifton v. The State, 538 Ga. 241;
Brinkley v. The State, 54 Ga. 871.

Idaho. —People v. Dunn, 1 Idaho Ter.
75.
Illinois. — Mapes v. People, 69 Il. 523.
Indiana. — Fuller v. The State, 1 Blackf.
63; Jones v. The State, 8 Blackf. 87; The
State v. Bodly, 7 Blackf. 355; Wilson v.
The State, 42 Ind. 224.

Iowa. — Suttle v. Batie, 1 Iowa, 141;
Claussen v. La Franz, 1 Iowa, 226; The
State v. Gillick, 7 Iowa, 287; The State
v. Green, 20 Iowa, 424.

Kentucky. — Vicaro v. Commonwealth,
6 Dana, 604; Buford v. Commonwealth,
14 B. Monr. 24.

Louisiana.— The State v. Bunger, 14
La. An. 461; The State v. Bennett, 14 La.
An. 651; The State v. Ferray, 22 La. An.
423.

Maine.— The State v. Neagle, 65 Maine,
468.

Massachusetts. — Commonwealth  v.
Knapp, 10 Pick. 477.

Michigan. — People v. Williams, 24
Mich. 156.

Mississippi.— Shaffer v. The State, 1
How. Missis. 288; Woodsides v. The
State, 2 How. Missis. 655; Thomas v.
The State, 5 How. Missis. 20; Kelly v.
The State, 3 Sm. & M. 518; Boles v. The
State, 24 Missis. 445; Sumrall v. The
State, 29 Missis. 202; Durrah uv. The
State, 44 Missis. 789; Logan v. The State,
53 Missis. 481.

Missouri.— Samuels v. The State, 3
Misso. 68; The State v. Buckner, 25
Misso. 167; The State v. Klinger, 46
Misso. 224; The State v. McCarron, 51
Misso. 27; The State v. Pitts, 58 Misso.
556; The State v. Breen, 59 Misso. 413;
The State v. Jones, 61 Misso. 282; The
State v. Waters, 62 Misso. 196.

Nebraska. — Dodge v. People, 4 Neb.
220; Smith v. The State, 4 Neb. 277.

Nevada. — The State v. Roderigas, 7
Nev. 828; The State v. Rigg, 10 Nev. 284.

New York.— People v. General Sessions,
20 Johns. 310; People v. Vermilyea, 7
Cow. 369; People v. Ransom, 7 Wend.
417; Powell v. People, 5 Hun, 169; Fer-
ris v. People, 85 N. Y. 125; Carpenter v.
People, 64 N. Y. 488; People v. Rogers,

504

not quite uniform, the prisoner

18 Abb. Pr. n. s. 870; Colt v. People, 1
Parker C. C. 611; People v. Fuller, 2
Parker C.C. 16; People v. Thurston, 2
Parker C. C. 49; People v. Cummings, 3
Parker C. C. 343.

North Carolina. — The State v. Lamon,
8 Hawks, 175; The State v. Benton, 2
Dev. & Bat. 196; The State v. Shaw, 3
Ire. 532; The State v. Nash, 8 Ire. 35;
The State v. Simmons, 6 Jones, N. C. 309;
The State v. McCurry, 63 N. C. 88; The
State v. Douglass, 63 N. C. 600.

Ohio. — Forsythe v. The State, 6 Ohio,
19; Sutton v. The State, 9 Ohio, 133;
Reed v. The State, 15 Ohio, 217; White-
head v.. The State, 10 Ohio State, 449.

Pennsylvania. — White v. Common-
wealth, 6 Binn. 179; Commonwealth v.
Smith, 2 S. & R. 300; Commonwealth v.
Lippard, 6 S. & R. 895; Dyott v. Com-
monwealth, 5 Whart. 67; Clark v. Com-
monwealth, 5 Casey, Pa. 129; Foust v.
Commonwealth, 9 Casey, Pa. 388; Com-
monwealth v. Green, 1 Ashm. 289; Com-
monwealth v. Spring, 1 Am. Law Reg.
424. -

South Carolina.— The State v. Sims, 2
Bailey, 29; The State v. Crank, 2 Bailey,
66; The State v. Williams, 2 Hill, 8. C.
881; The State v. Boatwright, 10 Rich.
407; The State v. McQuaige, 5 S. C. 429.

Tennessee. —The State v. Alderson, 10
Yerg. 523.

Texas. — Sayle v. The State, 8 Texas,
120; The State v. Ezell, 41 Texas, 35;
Bowman v. The State, 41 Texas, 417;
Horbach v. The State, 43 Texas, 242;
Mitchell cv. The State, 48 Texas, 512;
Williams v. The State, 44 Texas, 34;
Hasselmeyer v. The State, 1 Texas Ap.
690.

Virginia. — Gibson v. Commonwealth,
2 Va. Cas. 111; Stockley v. Common-
wealth, 10 Leigh, 678; Perry v. Common-
wealth, 8 Grat. 632; Wormeley v. Com-
monwealth, 10 Grat. 658.

Wisconsin. — Perry v. The State, 9
Wis. 19.

United States. — United States v. Fries,
3 Dall. 515; United States v. Shackleford,
18 How. U. S. 588; United States v.
Douglass, 2 Blatch. 207; United States
v. Reed, 2 Blatch. 485; United States v.
CHAP. LXIII.] IMPANELLING AND CHALLENGING. § 932

is entitled to have a list of the jurors from whom the twelve
are to be selected, furnished him a given time before the trial.
It enables him to prepare for his challenges.1 He may waive
this right ;? as, by not demanding the list, or not objecting to an
informality therein, in due time. So, —

§ 932. Waiver as to Jury.— A defendant may, if he chooses,
waive objections to the selecting of the jury, or to individual
jurors, and be tried by such as are put upon him. And, —

Objection known. — If, while the panel is being made up and
sworn for his trial, he knows of a cause of challenge and does
not take it, he cannot avail himself of the defect afterward.*

Unknown Objection. — If the defect is unknown, he will in
some circumstances, not in all, be permitted afterward to make
the objection in another form; his privilege as to which depend-
ing on the time and manner of bringing it forward, the nature

Devlin, 6 Blatch. 71; United States v.
Tallman, 10 Blatch. 21; United States v.
Loughery, 13 Blatch. 267; United States
v. Wilson, Bald. 78; United States v.
Dow, Taney, 34.

England. — Some cases on the English
practice, which may be helpful in under-
standing our own, are O’Connell v. Reg.
11 Cl. & F. 155; Stapleton’s Case, T.
Raym. 367; Reg. v. Banks, 6 Mod. 246;
Rex v. Duncomb, 12 Mod. 224; Faring-
ton’s Case, T. Jones, 222; Rex v. Bur-
ridge, 8 Mod. 245, 248; Rex v. Stone, 6
T. R. 527, 581; Rex v. Edmonds, 4 B. &
Ald. 471; Rex v. Dolby, 2 B. & C. 104, 3
D. & R. 311; Rex v. Tremearne, 5 B. &
C. 254; s. c. nom. Rex v. Tremaine, 7 D.
& R. 684; Reg. v. Hughes, 1 Car. & K.
235; Rex v. Hill, 1 Car. & P. 667; Reg.
v. Frost, 9 Car. & P. 129, 186; Rex »v.
Dolby, 1 Car. & K. 288; Reg. v. Cropper,
2 Moody, 18; O’Neill v. Reg. 6 Cox C. C.
495; Reg. v. Bolam, 2 Moody & R. 192.

1 Anonymous, 1 Mod. 15; Rex v. Gor-
don, 2 Doug. 591; Rex v. Collins, 5 Car.
& P. 305; Reg. uv. Mitchel, 8 Cox C. C. 1;
Reg. v. Dowling, 8 Cox C. C. 509; The
State ». Buckner, 25 Misso. 167; Edwards
v. The State, 58 Ga. 428; Eberhart v. The
State, 47 Ga. 598; Cobb v. The State, 45
Ga. 11; Hall v. The State, 61 Ala. 9;
Parsons v. The State, 22 Ala. 50; Rat-
teree v. The State, 53 Ga. 570; The State

v. Ward, 14 La. An. 678; Bugg v. The
State, 47 Ala. 50; Robertson v. The State,
43 Ala. 325; Aaron v. The State, 89 Ala.
75; Woodsides v. The State, 2 How.
Missis. 655; Friar v. The State, 8 How.
Missis. 422; Chaney v. The State, 31
Ala. 342; Aikin v. The State, 85 Ala.
899; The State v. Fisher, 2 Nott & McC.
261, 264.

2 The State v. Waters, 62 Misso. 196;
Jordan v. The State, 22 Ga. 545; Pressley
v. The State, 19 Ga. 192.

8 Bill v. The State, 29 Ala. 34; The
State v. Waters, 1 Misso. Ap. 7; The
State v. Jackson, 12 La. An. 679. And
see Colt v. People, 1 Parker C. C. 611.

4 People v. Stonecifer, 6 Cal. 405; Van
Blaricum v. People, 16 Ill. 364; The State
v. Hascall, 6 N. H. 352; Booby v. The
State, 4 Yerg. 111; Commonwealth »v.
Norfolk, 5 Mass. 435; Lisle v. The State,
6 Misso. 426; The State v. Ward, 2
Hawks, 448; Rice v. The State, 16 Ind.
298; Givens v. The State, 6 Texas, 343;
Hallock v. Franklin, 2 Met. 658; Wick-
ersham v. People, 1 Scam. 128; Keener
v. The State, 18 Ga. 194; Sellers v. The
State, 52 Ala. 868; The State v. Howard,
10 Iowa, 101; The State v. Klinger, 46
Misso. 224; The State v. Jones, 61 Misso.
232; The State v. Rigg, 10 Nev. 284;
The State v. Simmons, 6 Jones, N. C.

309.
555
§ 933

TRIAL BY PETIT JURY.

[Book VIII.

of it, his prior diligence, the jurisprudence of the particular
State, and the views of the individual judge.1 Something more
definite on this question will appear in the next chapter.

§ 932 a. Objecting by Challenge. — The regular time and man-
ner of objecting to a juror or the collective body is by challenge,
while the trial panel is being made up.? It should be done be-

fore the jurors are sworn.3

Array — Polls. — We have seen* that there are two sorts of

challenge, — to the array, and to the polls.

The former is where

the entire panel is objected to;® the latter, where a single

juror.

§ 933. Who object.—In general, the right of challenge per-

tains to prisoner and prosecutor alike.

But practically, in most

instances, only the party will interpose whose cause the sustain-
ing of the challenge may be supposed to benefit.6
Already considered. — We have already seen what are the law

1 Commonwealth v. Wade, 17 Pick.
895; Ogle v. The State, 33 Missis. 388 ;
Stoner v. The State, 4 Misso. 368; The
State v. Underwood, 6 Ire. 96; The State
v. Duncan, 6 Ire. 98; Commonwealth v.
Flanagan, 7 Watts & 8.415; The State
v. Hopkins, 1 Bay, 372; Rex ». Hunt, 4
B. & Ald. 480; The State v. Bunger, 14
La. An. 461; Cody v. The State, 8 How.
Missis. 27 ; Thompson v. Commonwealth,
8 Grat. 637; Ward v. The State, 1 Humph.
253; The State v. Morea, 2 Ala. 275;
Ripley v. Coolidge, Minor, 11; The State
v. Burnside, 87 Misso. 348. By accept-
ing a jury, the defendant waives all right
of objection to the jurors for bias or preju-
dice, but not for disqualification to act as
jurors, unless he knew of such disqualifi-
cation at the time. The State v. Groome,
10 Iowa, 308.

2 Ante, § 875-881; Huling v. The
State, 17 Ohio State, 583; Rex v. Ed-
monds, 4 B. & Ald. 471; Hasselmeyer v.
The State, / Texas Ap. 690; The State
v. Smith, 20 Minn. 876; The State v.
Brown, 8 Strob. 508; Commonwealth v.
Jones, 1 Leigh, 598; Givens v. The State,
6 Texas, 848; The State v. Fisher, 2
Nott & McC. 261; The State v. Thomas,
19 Minn. 484; United States v Baker, 8
Ben. 68; People v. Moice, 16 Cal. 829;
People v. Arnold, 15 Cal. 476; The State

556

v. Howard, 10 Iowa, 101; People v. Sand-
ford, 43 Cal. 29.

3 Post, § 945, 946; Wyatt v. Noble, 8
Blackf. 607 ; Glover v. Woolsey, Dudley,
Ga. 85; Commonwealth »v. Jones, 1 Leigh,
598; The State v. Patrick, 3 Jones, N.C.
443; United States ». Morris, 1 Curt.
C. C. 23; McFadden v. Commonwealth,
11 Harris, Pa. 12.

4 Ante, § 876, 880.

5 Woodsides v. The State, 2 How.
Missis. 655; Fields v. The State, 52 Ala.
348; Thomas v. The State, 27 Ga. 287;
People v. McKay, 18 Johns. 212; The
State v. Douglass, 63 N. C. 500; Forsythe
v. The State, 6 Ohio, 19; People v. Welch,
49 Cal. 174; People v. Coyodo, 40 Cal.
586; O’Byrne v. The State, 29 Ga. 86;
Thomas v. The State, 6 How. Missis. 20;
People v. Thurston, 2 Parker C. C. 49;
Rex v. Edmonds, 4 B. & Ald. 471; Rex
v. Savage, 1 Moody, 51. See Brazier v.
The State, 44 Ala. 887. For forms of
challenge to the array, see Reg. v. O’Con-
nell, 1 Cox C. C. 894; Reg. v. Mitchel, 8
Cox C. C. 1, 22; People v. Thurston, 2
Parker C. C. 49, 63-55.

6 United States v. Burr, Burr’s Trial,
Coombs ed. 188; Romaine v. The State,
7 Ind. 63; Jewell v. Commonwealth, 10
Harris, Pa. 94; Montague v. Common-
wealth, 10 Grat. 767.
CHAP. LXIII.] IMPANELLING AND CHALLENGING. § 934:

and practice of challenge for favor.1 This is a branch of the
broader subject of —

§ 984. Challenge for Cause : —

How Cause shown.— The usual and natural method is to re-
quire the juror to declare the matter, under oath, on the voir
dire.2 But what tends to a witness’s disgrace need not ordinarily
be answered by him; and this principle, in a general way, is
applied to the interrogated juror. Extrinsic evidence, in such
a case, must be resorted to,? as probably it may be in all cases.
Therefore, in England, the inquiry cannot be put to the juror
whether he has delivered an opinion adverse to the prisoner, but
this must be shown by other evidence.! The sane is held in
some of our States. But generally, with us, jurors are deemed
properly interrogated as to this, —a doctrine aided by statutes
in some of our States. So the fact objected to may be admitted
on the other side.’ In addition to the foregoing methods, or in
their stead, and without prejudice to them, the court may, and
sometimes does, call on the jurors collectively or singly to de-
clare if they know of any impediment to their serving, or if they
are obnoxious to a particular objection. It may also examine
the jurors on oath as to their qualifications.® And it is proper
for a witness who is not interrogated or challenged to state any

disqualification known to him.°

Formal Challenge. — Preliminary to the foregoing, a formal

1 Ante, § 903-906; People v. Fuller, 2
Parker C. C. 16.

2 O’Mara v. Commonwealth, 25 Smith,
Pa. 424; The State v. Wilson, 8 Iowa,
407; Epps v. The State, 19 Ga. 102;
Commonwealth v. Knapp, 9 Pick. 496 ;
The State v. Zellers, 2 Halst. 220; Lith-
gow v. Commonwealth, 2 Va. Cas. 297 ;
Lavin v. People, 69 Ill. 303; Morton v.
The State, 1 Kan. 468; The State v. Fox,
1 Dutcher, 566; Mimms v. The State, 16
Ohio State, 221.

3 Hudson v. The State, 1 Blackf. 317.

4 Rex v. Edmonds, 4 B. & Ald. 471;
Cook’s Case, 18 Howell St. Tr. 811, 837;
Rex v. Barbot, 18 Howell St. Tr. 1229,
1238. .

5 Respublica v. Dennie, 4 Yeates, 267;
The State v. Baldwin, 1 Tread. 289, 3
Brey. 809; The State v. Sims, 2 Bailey,
29; The State v. Crank, 2 Bailey, 66.

6 The State v. Godfrey, Brayt. 170;
The State v. Fox, 1 Dutcher, 566; Pierce
v. The State, 13 N. H. 586; People v.
Christie, 2 Parker C. C. 579; The State
v. Schoeffler, 3 Wis. 8283; The State v.

-Mullen, 14 La. An. 570; Boon v. The

State, 1 Kelly, 618; Mercer v. The State,
17 Ga. 146; Mitchell v. The State, 22 Ga.
211; Pines v. The State, 21 Ga. 227; King
v. The State, 21 Ga. 220.

™ The State v. Lautenschlager, 22
Minn. 614.

8 Cook’s Case, supra; Respublica v.
Dennie, supra ; Pierce v. The State, supra;
McCarty v. The State, 26 Missis. 299;
The State v. Marshall, 8 Ala. 802; Unit-
ed States v. Blodgett, 35 Ga. 336, 339;
The State v. Howard, 17 N. H. 171.

9 Montague v. Commonwealth, 10
Grat. 767.

10 Lewis v. The State, 9 Sm. & M. 116.

557
§ 937 TRIAL BY PETIT JURY. [BOOK VII.

challenge to the juror or jurors, specifying the objection, is in
some of our States required; in others, the examination on the
voir dire precedes the challenge.!_ The prevailing practice is
for the court to decide the question, but in some of the States
it may be submitted to triers.?

§ 935. Peremptory Challenge : —

How defined. — ‘ Peremptory challenges are those which are
made to the juror without assigning any reason, and which the
courts are compelled to allow.’’3

§ 936. By King under Ancient Common Law. — By the ancient
common law, “the king might challenge peremptorily as many
as he thought fit, of any jury returned to try any cause in which
he was a party.”* But, —

Under 33 Edw. 1.— In 13805, this was changed by 33 Edw. 1,
stat. 4, which provided, that, in all “inquests to be taken before
any of the justices, and wherein our lord the king is party, ...
notwithstanding it be alleged by them that sue for the king
that the jurors of those inquests or some of them be not indiffer-
ent for the king, yet such inquests shall not remain untaken
for that cause; but, if they that sue for the king will challenge
any of those jurors, they shall assign of their challenge a cause
certain, and the truth of the same challenge shall be inquired
of according to the custom of the court.”

§ 937. Evaded by Construction. — The courts, leaning to the
Crown, rendered this statute almost nugatory by construction.
For, says Hawkins, “if the king challenge a juror before a
panel is perused, it is agreed that he need not show any cause
of his challenge till the whole panel be gone through and it
appear that there will not be a full jury without the person so
challenged. And if the defendant, in order to oblige the king

1 The State v. Flower, Walk. Missis.
818; People v. Reynolds, 16 Cal. 128;
The State v. Knight, 48 Maine, 11; Paige
v. O'Neal, 12 Cal. 483; People v. Renfrow,
41 Cal. 87; Lyman v. The State, 45 Ala.
72; Crippen v. People, 8 Mich. 117 ; Peo-
ple v. Backus, 5 Cal. 275.

2 Stewart v. The State, 138 Ark. 720;
Powell v. The State, 48 Ala. 154. Ques-
tions of Practice. — And see, for various
questions of practice relating to the chal-
lenge for cause, McFadden v. Common-
wealth, 11 Harris, Pa. 12; Beauchamp v.

558

The State, 6 Blackf. 299; The State v.
Lautenschlager, 22 Minn. 514; Iverson v.
The State, 52 Ala. 170; Carter v. The
State, 56 Ga. 463; McGuffe v. The State,
17 Ga. 497; Nesbit v. The State, 48 Ga.
238 ; United States v. Porter, 2 Dall. 845;
The State v. Dumphey, 4 Minn. 488; Rex
v. Savage, 1 Moody, 51; The State v.
Fuller, 89 Vt. 74; People v. Bodine, 1
Denio, 281.

3 1 Chit. Crim. Law, 534,

42 Hawk. P. C.c. 48,§ 2. But see
United States v. Douglass, 2 Blatch. 207.
CHAP. LXIII.]

IMPANELLING AND CHALLENGING. § 938

to show cause, presently challenge touts paravaile, yet it hath
been adjudged that the defendant shall be first put to show all
his causes of challenge before the king need to show any.” !
Such is the origin of the practice, transmitted to us from Eng-
land as a part of our common law, of —

§ 938. Passing Jurors at Prosecuting Officer’s Request. — While,
in preparation for a trial, the list of jurors is being called, and
the prisoner is being required to challenge or accept them sev-
erally as presented, if the prosecuting officer objects to any, the
question as to them is not now tried, but they are simply required
to stand aside. In this way, the panel is gone through with;
and, if twelve are obtained without calling on those put aside,
the proceeding becomes a peremptory challenge by the State.
If a full jury is not thus obtained, the original panel, omitting
the accepted jurors and those rejected on challenge by the de-
fendant, is a second time called over, consisting now of the jurors
set aside and any who did not answer to the first call; and, this

time, the government can challenge only for cause.?

1 2 Hawk. P. C. c. 48, § 8.

2 Reg. v. Geach, 9 Car. & P. 499; Rex
v. Parry, 7 Car. & P. 886; Grey’s Case,
T. Raym. 473; s.c. nom. Gray’s Case,
Skin. 81; The State v. Bone, 7 Jones,
N. C. 121; United States v. Douglass, 2
Blatch. 207; Warren v. Commonwealth,
1 Wright, Pa. 45; Commonwealth v. Ad-
dis, 1 Browne, Pa. 285; Jewell v. Com-
monwealth, 10 Harris, Pa. 94; United
States v. Wilson, Bald. 78; The State v.
Wise, 7 Rich. 412. And see Wilson v
The State, 31 Ala. 371. In a modern
English case, it appeared on the record
of a capital trial at the assizes, that the
panel returned by the sheriff was read
over in order, omitting the names of
twelve jurors then deliberating on their
verdict in another case; several were
challenged peremptorily by the prisoner,
and several were, on request of the coun-
sel for the Crown, ordered to “stand by,”
the prisoner’s counsel insisting that they
should be sworn unless the Crown then
assigned cause. In going through the
panel, nine jurors were elected. Then
the name of L, the first who had been
ordered to “stand by,” was called a
second time, and he answered. The
counsel for the Crown prayed that he

Should

might again stand by; the counsel for
the prisoner objected. Before any thing
was done on this request [before any
judgment was given by the court.” Lord
Campbell, C. J., p. 73], the absent twelve
came in and rendered their verdict in the
other case. The counsel for the Crown
now prayed that I. be again directed to
stand by until these twelve were called.
The judge so directed, and from them a
complete jury was made up, to whom the
prisoner was given in charge. Verdict,
guilty. Sentence of death. The record,
with this showing, was removed into the
Queen’s Bench, and the judgment was
there affirmed, and it was again affirmed
in the Exchequer Chamber. The ques-
tion, Lord Campbell, C. J., observed,
depended “upon the right construction
of the ancient statute, 4 Stat. 33 Edw. 1,
entitled ‘An ordinance for inquests,’
which was re-enacted by 6 Geo. 4, c. 50,
§ 29. An abuse had arisen in the admin-
istration of justice, by the Crown assum-
ing an unlimited right of challenging
jurors without assigning cause, whereby
inquests remained ‘untaken.’ In this
way the Crown could, in an arbitrary
manner, on every criminal trial, challenge
so many of the jurors returned on the

559
§ 940 TRIAL BY PETIT JURY. [Book VIII.

the State assign cause for its challenges at the first call, the panel
may ‘still be gone through with before they are inquired into
and determined ;! so that, if the jury becomes full before the
panel is exhausted, all necessity for such inquiry is avoided?
This practice extends to all criminal cases, including misde-
meanor as well as treason and felony.’

§ 939. How with us. — This statute of Edward I. is plainly a
part of our common law.‘ To reject it could be only to fall
back on a less equitable prior practice. Still, in a part of our
States, this passing of jurors is, under statutes, or an early usage,
disallowed. For example, it is not permitted in Georgia since
the adoption of the penal code. But, —

§ 940. Peremptory Challenge by State. —In compensation for
the right to have jurors passed, thus taken away, the prose-
cuting power is, in some of the States, permitted by statute to
challenge peremptorily a limited number of jurors, where it is
allowed to the defendant.6 The statute may apply as well to
pending prosecutions as to subsequent ones.’ No attempt has

panel by the sheriff, that twelve did not
remain to make a jury; and the trial
might be indefinitely postponed. ... The
remedy was to give the party accused a
right to be tried by the jurors summoned
upon his arraignment, if, after the limited
number of challenges to which he was
entitled without cause assigned, there
remained twelve jurors of those returned
upon the panel to whose qualification
and unindifferency no specific objection
to be proved by legal evidence could be
made.... But there was no intention of
taking away all power of peremptory
challenge from the Crown, while that
power, to the number of thirty-five, was
left to the prisoner.”’ Mansell v. Reg. 8
E. & B. 54, 70, 71, Dears. & B. 875. To
the like effect, see the opinion of Cock-
burn, C. J., p. 104. This right of order-
ing jurors to stand by may be exercised
as well by a private prosecutor as by the
Crown. Reg. v. McCartie, 11 Ir. Com.
Law, 188, 207.

1 The State v. Craton, 6 Ire. 164; The
State v. Stalmaker, 2 Brev. 1; The State
v. Barrontine, 2 Nott & McC. 553.

2 The State v. Arthur, 2 Dev. 217.

8 Commonwealth v. Addis, supra; 2
Hawk. P. C. ¢. 48, § 3.

560

4 Kilty Rep. Stats. 214; Waterford
and Whitehall Turnpike v. People, 9
Barb. 161, 166, and American cases cited
to the last section.

5 Sealy v. The State, 1 Kelly, 213;
Reynolds v. The State, 1 Kelly, 222. And
see People v. Henrics, 1 Parker C. C. 579.
See further, as to the practice in particu-
lar States, The State v. Brown, 3 Strob.
508; The State v. Bowers, 17 Iowa, 46;
The State v. Shelledy, 8 Iowa, 477; The
State v Pierce, 8 Iowa, 231; The State
v. McClear, 11 Nev. 89; Commonwealth
v. Marra, 8 Philad. 440; United States v.
Butler, 1 Hughes, 457; Lamb v. The
State, 86 Wis. 424; The State v. Ezell,
41 Texas, 35.

8 Fouts v. The State, 8 Ohio State, 98;
Mallison v. The State, 6 Misso. 899;
Wiley v. The State, 4 Blackf. 458; Beau-
champ v. The State, 6 Blackf. 299; Ma-
han v. The State, 10 Ohio, 282; Schoeffler
v. The State, 8 Wis. 823; People v. Caniff,
2 Parker C. C. 686; Allen v. The State,
7 Coldw. 857; The State v. Earle, 24 La.
An. 88,

Tt Walston v. Commonwealth, 16 B.
Monr. 15; Lore v. The State, 4 Ala. 178.

ee
CHAP. LXII.] IMPANELLING AND CHALLENGING. § 942

ever been made to confer on the plaintiff State a power of per-
emptory challenge denied the defendant, and such legislation as
we have is held to be constitutional.!

§ 941. Prisoner's Right of Peremptory Challenge. — It is stated
by Chitty ? as follows: ‘The number, which in all cases of felony
the prisoner was allowed by the common law thus peremptorily
to challenge, amount to thirty-five, or one under the number of
three full juries.2 This number has, however, been altered by
several legislative provisions. Thus, by the 22 Hen. 8, c. 14,
§ 6, made perpetual by the 32 Hen. 8, c. 38, no person arraigned
for petit treason, high treason, murder, or felony, shall be per-
mitted peremptorily to challenge more than twenty of the jurors.
And by the 33 Hen. 8, c. 23, § 3, the same restriction is extended
to cases of high treason [as to which, query]. But as far as
these’ statutes respect either high or petit treason, it is agreed
that they were repealed by the 1 & 2 Phil. & M. c. 10, which, by
enacting that all trials for treason shall be carried on as at com-
mon law, has revived the original number, as far as it respects
those offences.” Subsequent English legislation is too recent to
be common law in the United States.

§ 942. When allowable. — “ The right of peremptorily chal-
lenging,” continues Chitty, “‘is admitted only in favor of life;
and, though it may be demanded even in clergyable felonies
{and in all felonjes though the punishment is not death®], it
can never be allowed to a defendant accused of a mere mis-

2 1 Chit. Crim. Law, 534.
8 Co. Lit. 156; Bro. Abr. Challenge,

1 Warren v. Commonwealth, 1 Wright,
Pa. 45; Hartzell v. Commonwealth, 4

Wright, Pa. 462; Walston v. Common-
wealth, 16 B. Monr. 15; Cregier v. Bun-
ton, 2 Strob. 487; Walter v. People, 32
N. Y. 147; Jones v. The State, 1 Kelly,
610; The State v. Wilson, 48 N. H. 898;
The State v. Ryan, 13 Minn. 370; Com-
monwealth v. Dorsey, 103 Mass. 412. See
further, on the general subject of this sec-
tion, and the practice, Commonwealth v.
Bailey, 7 J. J. Mar. 246; The State v.
Pierce, 8 Iowa, 231; The State v. Bowers,
17 lowa, 46; Wilson v. The State, 31 Ala.
871; Stewart v. The State, 50 Missis. 587 ;
Commonwealth v. Frazier, 2 Brews. 490;
United States v. Butler, 1 Hughes, 457;
United States v. Devlin, 6 Blatch. 71;
Smith v. The State, 4 Greene, Iowa, 189.
VOL. I. 86

70, 74, 75, 217; 2 Hale P. C. 268; 2
Hawk. P. C. c. 43, § 7; Com. Dig. Chal-
lenge, C. 1; Bac. Abr. Juries, E, 9; 4 BL.
Com. 854; 2 Woodes. 498; Burn Just.
Jurors, VIII. ; Williams Just. Juries, V.;
Dick. Sess. 185.

4 Co. Lit. 156; Bro. Abr. Challenge,
217; 3 Inst. 227; Foster, 106, 107; 2 Hale
P. C. 269; 2 Hawk. P. C. c. 48, § 8; Bac.
Abr. Juries, E, 9; Burn Just. Jurors,
VIII. ; Williams Just. Juries, V.; Dick.
Sess. 185.

5 Gray v. Reg. 11 Cl. & F. 427, 6 Ir.
Law, 482; Reg. v. Gray, 8 Crawf. & Dix
C. C. 288.

561
§ 945 TRIAL BY PETIT JURY. [Book VIII.

demeanor! [Yet, according to Hawkins, the peremptory chal-
lenge is also allowable in misprision of high treason,? which is
a misdemeanor.] Nor can they be allowed in any case, except
upon the plea of not guilty; for no peremptory challenges are

ever admitted on the trial of collateral issues.” 8
§ 948. In United States. — The number, with us, and to a
considerable extent the right itself, are variously regulated by

statutes in the different States.*

§ 944. Pull Panel. — The defendant may require the panel to
be full,5 and to be entirely called over once in his hearing,* be-
fore entering on his peremptory challenges; though, if he will,

he can waive these rights.’

Then —

Personally made. — He must utter the challenge personally, not

through his lawyer.

§ 945. Before Juror sworn. — Like all other challenges, this

1 Co. Lit. 156; Reading’s Case, 7
Howell St. Tr. 259, 264, 265; Oates’s
Case, 10 Howell St. Tr. 1079, 1080, note;
4 Bl. Com. 352, note; Burn Just. Jurors,
VIII.

2 2 Hawk. P. C. c. 43, § 5.

8 Rex v. Radcliffe, 1 W. Bl. 3, 6; s.c.
nom. Rex v. Ratcliffe, 1 Wils. 150; s. c.
nom. Ratcliffe’s Case, Foster, 40, 42;
Johnson’s Case, 46 ; 2 Hale P. C. 267.

4 The State v. Allen, 8 Rich. 448 ; The
State v. Humphreys, 1 Tenn. 306; Hay-
den v. Commonwealth, 10 B. Monr. 125;
Noles v. The State, 24 Ala. 672; Water-
ford and Whitehall Turnpike v. People,
9 Barb. 161, 166; The State v. Gainer, 2
Hayw. 140; Martin v. The State, 16 Ohio,
864; Hooper v. The State, 5 Yerg. 422;
Montee v. Commonwealth, 3 J. J. Mar.
182; The State v. Gayner, Conference,
805; Schumaker v. The State, 5 Wis.
824; The State v. Cadwell, 1 Jones, N.C.
289; The State v. Buckner, 25 Misso.
167; Shuster v. Commonwealth, 2 Wright,
Pa. 206; Beery v. United States, 2 Col.
Ter. 186; The State v. Holme, 54 Misso.
153; The State v. Smith, 20 Minn. 376;
United States v. Cottingham, 2 Blatch.
470; United States v. Devlin, 6 Blatch.
71; United States v. Shive, Bald. 510;
United States v. Magill, 1 Wash. C. C.
463; United States v. Johns, 1 Wash.
C. C. 363.

562

5 Rex v. Edmonds, 4 B. & Ald. 471;
Reg. v. Lacey, 3 Cox C. C. 517; The
State v. McCarron, 51 Misso. 27; The
State v. Waters, 1 Misso. Ap. 7. Seo
People v. Scoggins, 87 Cal. 676; Lamb ».
The State, 36 Wis. 424.

6 2 Hawk. P. C. c. 48, § 4.

7 The State v. Waters, 62 Misso. 196;
The State v. Lindsey, 14 La. An. 42.

8 2 Hawk. P. C. c. 43,§ 4. In The
State v. Price, 1Q Rich. 351, O’Neall, J.,
said: ‘A peremptory challenge, Haw-
kins tells us, must be ‘taken by the pris-
oner himself, even in such cases wherein
he may have counsel.’ This distinction
it would be well should be more strictly
attended to in practice. This challenge
proceeds upon the notion that the pris-
oner may, upon looking at the juror, be
unwilling he should try him. When he
has announced his rejection, I do not see
how he can revoke it, otherwise than that
he may be permitted, when his rejection
was the result of a sudden mistake, to
take him as one of his jury; or, when the
panel being exhausted, he elects to take
one whom he had previously rejected.”
p. 855. And see, as to this latter point,
Rex v. Parry, 7 Car. & P. 886. And see
Steele v. Commonwealth, 3 Dana, 84.

9 Ante, § 982 a.
CHAP. LXIII.]

IMPANELLING AND CHALLENGING.

§ 945

peremptory one can be made only before the juror is sworn;
unless, perhaps, on special leave of court, not ordinarily granted.1
Until the swearing, the right remains open.?

Other Questions of Practice. — There are some questions of prac-
tice, other than the foregoing, differing perhaps in the States, but
none of leading consequence.? Yet something further as to these

will appear in the next chapter.

1 Ante, § 15; Reg. v. Frost, 9 Car. &
P. 129, 186; Murray v. The State, 48
Ala. 675; People v. Russell, 46 Cal. 121;
Drake v. The State, 51 Ala. 30; People
v. Kohle, 4 Cal. 198; People v. Reynolds,
16 Cal. 128; People v. Jenks, 24 Cal. 11,
13.

2 Munly v. The State, 7 Blackf. 693;
Morris v. The State, 7 Blackf. 607. But
see The State v. Cameron, 2 Chand. 172;
People «. Rodriguez, 10 Cal. 50. See
Commonwealth v. Webster, 5 Cush. 295;
Commonwealth v. Rogers, 7 Met. 500.
How, in connection with the challenge for
cause, see the last two cases and Com-
monwealth v. Knapp, 9 Pick. 496 ; Hooker
v. The State, 4 Ohio, 348; Lithgow ov.
Commonwealth, 2 Va. Cas. 297; Baxter
v. People, 3 Gilman, 868; Freeman «.

People, 4 Denio, 9; People v. Bodine, 1
Denio, 281; People v. Knickerbocker, 1
Parker C. C. 802; McGowan v. The State,
9 Yerg. 184; Stewart v. The State, 13
Ark. 720; People v. McKay, 18 Johns.
212; Reg. vu. Geach, 9 Car. & P. 499;
Moore v. Commonwealth, 7 Bush, 191.

3 The prisoner is not entitled to be in-
formed, before making his peremptory
challenges, what the State will make.
The State v. Hays, 23 Misso. 287. In
what offences, under the New York stat-
ute, Dull v. People, 4 Denio, 91. As to
the practice in Louisiana, see The State
v. Lindsey, 14 La. An. 42; in South Caro-
lina, The State v. Boatwright, 10 Rich.
407. A juror, once challenged, cannot
be again summoned in the same cause.
Garner v. The State, 5 Yerg. 160.

563
§ 947

TRIAL BY PETIT JURY.

[Book VIII.

CHAPTER LXIV.

OBJECTING TO JURORS AFTER THEY ARE SWORN.

§ 946. Jury sworn.— The jury must be sworn,! not once for
the term, but in each individual case.?
Waived. — After which, any objection to a juror or the panel

is ordinarily deemed to have been waived.’

Even, —

Discharge of Juror or Panel. — If, while there is erroneously

believed to be ground for challenge, a juror is removed from the
panel, the defendant, who did not object, is not entitled to a
new trial on being convicted. A fortiori, he cannot object
where a juror is set aside at his request.6 And, at such request,
the judge may discharge the entire jury, and submit the case
to another, or continue it, without impairing the right of the
government to have it tried.6 Still, —

§ 947. Exceptional Circumstances. — There are exceptional cir-
cumstances wherein, after a juror has been sworn, his qualifica-
tions may be inquired into, especially if objected to before the
swearing, and even sometimes if not. Thus, —

Challenge by Permission. — Though there is no right of
challenge after the juror is sworn,’ the court may, and some-
times will, especially in a case of proposed challenge for cause,

permit it'in its discretion.’

1 Blair v. The State, 52 Ala. 343; Bart-
lett v. The State, 28 Ohio State, 669. See
Brewer v. The State, 12 Texas, 248.

2 Barney v. People, 22 Ill. 160; Com-
monwealth v. Sholes, 13 Allen, 554; Burn
Just. Jurors, Il. For the form of the oath,
see post, § 983.

3 Ante, § 117 et seq.; Crim. Law, I.
§ 997. And sce Billis v. The State, 2 Mc-
Cord, 12; Costly v. The State, 19 Ga. 614;
Commonwealth v. Jones, 1 Leigh, 598;
People v. Chung Lit, 17 Cal. 820; People
v. Coffman, 24 Cal. 230.

564

And this discretion is deemed even

4 Commonwealth v. Stowell, 9 Met.
572.

5 McAllister v. The State, 17 Ala. 484.
See also Spencer v. The State, 15 Ga.
662; The State v. Scarborough, 2 S.C.
439.

6 Crim. Law, I. § 998; Rex v. Stokes,
6 Car. & P. 151; post, § 966 d.

7 Ante, § 982 a, 946,

8 Tooel v. Commonwealth, 11 Leigh,
714; Commonwealth v. Jones, 1 Leigh,
598; Reg. v. Flint, 8 Cox C. C. 66; Jef-
ferson v. The State, 52 Missis. 767. See
CHAP. LXIV.] OBJECTING AFTER SWORN.

§ 949
to continue through the trial.’ Especially, therefore, there may
be a challenge for a cause arising subsequently to the adminis-
tration of the oath.2 And if in any way a juror is discovered,
before the trial commences, to be incompetent, he may be set
aside, and the panel filled in the ordinary course.?

§ 948. Juror sick. — If, during a trial, a juror becomes too sick
to proceed, the panel may be discharged and the cause retried
before another jury at the same or a subsequent term. Or
another juror from the original panel may be added; but the
prisoner should be offered his challenges over again as to the
eleven, the eleven should be sworn de novo, and the trial begin
again.©> Ina proper case, a sick juror, not absolutely unable to
proceed, may be granted special indulgences or medicine during
the trial.6 If sickness falls on a juror while the trial panel is
being made up, after he is elected and sworn, and the court
excuses him, one more juror is simply selected in the usual
course.7

§ 949. Objection taken to Higher Court. — If the trial court
overrules a challenge for cause, made in due time and form,
there is in probably most of our States a way in which the ques-
tion may be carried for revision before a higher tribunal. But
where the party, after saving an exception of this kind, takes
some subsequent step inconsistent with relying on it, or render-
ing it unimportant, as in various circumstances he may, the

McFadden v. Commonwealth, 11 Harris,
Pa. 12; Commonwealth v. Twombly, 10
Pick. 480, note; The State v. Cole, 19
Wis. 129; Hubotter v. The State, 32
Texas, 479.

1 United States v. Morris, 1 Curt.C. C.
23. And see Reg. v. Metcalfe, 3 Cox
C. C. 220.

2 People v. Bodine, Edm. Sel. Cas. 36.

3 People v. Damon, 138 Wend. 351;
McGuire v. The State, 87 Missis. 369;
The State v. Sternberg, 59 Misso. 410.

4 Crim. Law, I. § 1032. And see Ib.
§ 1037; Bates v. The State, 19 Texas,
122; Vanderkarr v. The State, 61 Ind.
91.

5 Rex v. Edwards, Russ. & Ry. 224, 2
Leach, 4th ed. 621, note, 8 Camp. 207, 4
Taunt. 809; Rex v. Scalbert, 2 Leach,
4th ed. 620; Reg. v. Beere, 2 Moody & R.

472; Reg. v. Ashe, 1 Cox C. C. 150. In
Tennessee, something like this is provided
by statute. Garner v. The State, 5 Yerg.
160.

§ Baxter v. People, 3 Gilman, 368, 379;
Reg. v. Newton, 3 Car. & K. 85, 90; The
State v. Morphy, 33 Iowa, 270; O’Shields
v. The State, 55 Ga. 696; The State v.
Tilghman, 11 Ire. 513.

7 Pannell v. The State, 29 Ga. 681.

8 The State v. Roderigas, 7 Nev. 3828;
People v. Bodine, 1 Denio, 281; Palmore
v. The State, 29 Ark. 248; Bronson v.
People, 82 Mich. 84; The State v. Fulton,
66 N. C. 682; Stewart v. The State, 13
Ark. 720; Solander v. People, 2 Col. Ter.
48; Nelson v. The State, 6 Ala, 894; The
State v. Bunger, 14 La. An. 461; Isham
v. The State, 1 Sneed, 111.

565
TRIAL BY PETIT JURY.

§ 9496 [Book VIII.

higher court will disregard it.! Otherwise it will be effectual,
if the objection is deemed to have been valid.?

§ 949 a. Unknown Objection. —If the objection was unknown
at the proper time for challenge, there is perhaps no way in
which in all circumstances and of strict right it can afterward
be availed of on being discovered; though, in the discretion of
the court, and as of favor, it may be. The court, thus appealed
to, will consider what diligence the party employed to ascertain
the objection at or before the time for challenge,® the nature of
the objection, and the other equities of the case. And still the
decisions will be more or less inharmonious on the question.*

§ 949 b. New Trial — The common method of taking an objec-
tion discovered after verdict is by motion for a new trial. This
is an appeal to the judicial discretion ;5 and, if the party has
been tried by an impartial jury, though incompetent from some
technicality or irregularly obtained,® or if otherwise he has re-
ceived no injury from what was contrary to legal rule,’ the ver-
dict will be permitted to stand. But if through undiscoverable
and unknown wrong the defendant has been tried and convicted

1 The Sfate v. McQuaige, 5 S. C. 429;
Mimms v. The State, 16 Ohio State, 221;
Preswood v. The State, 3 Heisk. 468;
The State v. Cockman, Winston, No. II.
95; Freeman v. People, 4 Denio, 9; Stew-
art v. The State, 138 Ark. 720; Morton ».
The State, 1 Kan. 468; Carroll v. The
State, 3 Humph. 815; McGuffie v. The
State, 17 Ga. 497; Benton v. The State,
80 Ark. 328; Johnson v. The State, 27
Texas, 758; Friery v. People, 2 Abb. Ap.
216.

2 Rex v. Edmonds, 4 B. & Ald. 471, 476 ;
Iverson v. The State, 52 Ala. 170; Peo-
ple v. Weil, 40 Cal. 268; Baxter v. Peo-
ple, 8 Gilman, 368; People v. McKay, 18
Johns. 212; McCann v. People, 3 Parker C.
C. 272. And see People v. Stewart, 7 Cal.
140; Moore v. Commonwealth, 7 Bush,
191; Reg. v. Metcalfe, 8 Cox C. C. 220.

3 Trueblood v. The State, 1 Texas Ap.
650; The State v. Fisher, 2 Nott & McC.
261; Kingen v. The State, 46 Ind. 132;
Croy v. The State, 32 Ind. 384.

4 People v. Williams, 24 Mich. 156;
The State v. Thomas, 19 Minn. 484; Has-
selmeyer v. The State, 1 Texas Ap. 690;
Bird v. The State, 14 Ga. 43; Samuels v.

566

The State, 3 Misso. 68; Jacobs v. The
State, 20 Ga. 889; Collier v. The State,
20 Ark. 36; Burroughs v. The State, 338
Ga. 408; Williams v. The State, 37 Mis-
sis. 407; Presbury v. Commonwealth, 9
Dana, 203; Monroe v. The State, 5 Ga.
85; Hurley v. The State, 29 Ark. 17;
United States v. Baker, 8 Ben. 68; Com-
monwealth v. Smith, 2S. & R. 300; Henry
v. The State, 4 Humph. 270; Eberhart v.
The State, 47 Ga. 598; Hall v. The State,
61 Ala. 9.

5 Rex v. Edmonds, 4 B. & Ald. 471,
4738, 476.

®& The State v. Breen, 59 Misso. 413;

Presbury v. Commonwealth, 9 Dana, 203;
Cobb v. The State, 27 Ga. 648; George v.
The State, 39 Missis. 570; Kingen v. The
State, 46 Ind. 132; People »v. Cummings,
3 Parker C. C. 843; The State v. Slack,
1 Bailey, 330.

7 The State v. Neagle, 65 Maine, 468;
Anonymous, cited 1 Pick. 42; Edwards v.
The State, 53 Ga. 428; Frank v. The State,
89 Missis. 705; Trueblood v. The State, 1
Texas Ap. 650 ; Ferris v. People, 85 N. Y.
125; The State v. Andrews, 29 Conn. 100;
The State v. Howard, 17 N. H. 171.
CHAP. LXIV. ]

OBJECTING AFTER SWORN.

§ 9495

by a panel containing an unfit juror,! the evidence of which must
be very distinct where the verdict is right,? a new trial will be

granted.

1 Sellers v. People, 3 Scam. 412; The
State v. Andrews, 29 Conn. 100; Brown
v. The State, 28 Ga. 439; Commonwealth
v. Spring, 1 Am. Law Reg. 424; The State
v. Taylor, 64 Misso. 358. Opinion ex-
pressed.— There is some apparent dif-
ference in the decisions as to the effect of
its being discovered after the trial that a
juror had formed and expressed an opin-
ion as to the defendant’s guilt. The ques-
tion should and does depend much upon
the particular facts. See Parks v. The
State, 4 Ohio State, 234; The State v.
Howard, 17 N. H. 171; The State v. Wy-
att, 50 Misso. 809; Sam v. The State, 31

Missis. 480; Bronson v. People, 82 Mich.
84; Kennedy v. Commonwealth, 2 Va.
Cas. 510; Romaine v. The State, 7 Ind.
68; Epps v. The State, 19 Ga. 102; Ray
v. The State, 15 Ga. 228; Anderson v.
The State, 14 Ga. 709; Wade uv. The
State, 12 Ga. 25; Mitchum v. The State,
11 Ga. 615; People v. Mortimer, 46
Cal. 114; Booby v. The State, 4 Yerg.
111; Busick v. The State, 19 Ohio, 198;
Troxdale v. The State, 9 Humph. 411;
Hanks v. The State, 21 Texas, 526; Hen-
rie v. The State, 41 Texas, 573; Heath v,
Commonwealth, 1 Rob. Va. 735.
2 Mann v. The State, 3 Head, 873.

567
§ 950} TRIAL BY PETIT JURY. [Book VIII.

CHAPTER LXV.

THE PREPARATIONS FOR THE TRIAL.

§ 950. Introduction.
950 a-950 d. Time and Order.
951-951 c. Continuances.
951 d-951f. Effect of Delays.
952-959. Arrangements within Court Room.
959 a-959 f. Other Preparations.

§ 950. How the Chapter divided. — We shall consider, I. The
Time and Order of bringing on the Cause; II. Continuances ;
III. Effect of Delays; IV. Arrangements within the Court
Room; V. Other Preparations.

I. The Time and Order of bringing on the Cause.

ae
§ 950 a. Matter of Practice. — This is matter of practice, in

some degree regulated by statutes and general rules of court,
and by the differing constitutions of the various tribunals; upon
which, therefore, the course of things is not identical in our
States, or quite the same in any of them as in England.

In General. — When an indictment is found and returned
into court and the defendant is arrested! and arraigned,? and
issue is joined,® the cause is, in theory, ready for trial,* and it
may be ready in fact. But, in the subsequent sub-titles of this
chapter, we shall see that there may be obstructions which must
first be removed. Moreover, where indictments and defendants
are numerous, all cannot be tried at once; there must be some
order therein. As to which, — '

§ 950 6. Notice of Trial. — Under some rules and circumstances,
a notice of trial, from the one party to the other, is required.®

1 Ante, § 869 a. 4 But see Rex v. Lamferne, W. Jones,
2 Ante, § 728 et seq. 879.
8 Ante, § 801. 5 Reg. v. Minshall, 8 Car. & P. 676;

568
CHAP. LXV.] PREPARATIONS FOR TRIAL. § 951

Prosecuting Officer determines Order. — Subject to any super-
vision which the court, for cause, may exercise, the prosecuting
officer, in probably most of our States, determines the order in
which he will bring on the several trials.) And —

Other Things. — There are other things, on which depends the
question of the cause being ready or not, mostly special to the
practice of particular States.?

§ 950 ¢ No Trial. — If the defendant is dead,? admitted or
proved to be insane,‘ or is drunk,> or from any other cause
incapable of understanding the proceedings and making his
defence,® the trial cannot go on.

§ 950 d. Proceedings in Another Court. — Under some circum-
stances, the judge will decline to try a cause while proceedings
are pending in another court.? But, —

Two Indictments. — After a defendant has been tried on an
indictment, he may, even at the same term, be tried on another.

II. Continuances.

§ 951. In General. — There are circumstances in which it would
be unjust to force the parties instantly to trial; and then, as a
general rule, the court on being applied to will continue the

Rex v. Hobby, Ryan & Moody, N. P. 241,
1 Car. & P. 660; The State v. Brennan’s
Liquors, 25 Conn. 278; Reg. v. Feather-
stonehaugh, 8 Car. & P. 109; Reg. v.
Gregory, 1 Car. & K. 208; Reg. v. Tren-
field, 9 Car. & P. 284; Barron v. People,
1 Barb. 136.

1 Shay v. Commonwealth, 12 Casey,
Pa. 805; Stone v. The State, Spencer,
404; Reg. v. Bond, 10 Cox C. C. 381;

Reg. v. Dunn, 1 Car. & K. 730; Watts v.-

The State, 26 Ga. 231; Reg. v. Fuller, 9
Car. & P. 35. See Reg. v. Landon, 1
Fost. & F. 381; post, § 1018, 1045.

2 Thomas v. The State, 36 Texas, 315;
Kemp v. Commonwealth, 18 Grat. 969;
Oneal v. The State, 47 Ga. 229; The State
v. Briggs, 1 Brev. 8; King v. The State,
21 Ga. 220; Pines v. The State, 21 Ga.
227; The State v. Harris, 83 Iowa, 356 ;
The State v. The Justices, 8 Har. & McH.
115; The State v. Hunt, Coxe, 287; The
State v. Graff, 1 Murph. 270; The State
v. Goode, 1 Hawks, 463; Turnbull v.

Commonwealth, 1 Binn. 45; Common-
wealth v. Pascalis, 1 Binn. 37; Curtis v.
The State, 6 Coldw. 9; Whitehead v.
The State, 10 Ohio State, 449; United
States v. Norton, 91 U. S. 558; Reg. v.
Simpson, Car. & M. 669; Commonwealth
v. Smith, 9 Mass. 531; People v. Genet,
59 N. Y. 80; Parsons v. The State, 22
Ala. 50; Reg. v. Landon, 1 Fost. & F.
881,

8 Herrington v. The State, 53 Ga. 552.

4 Crim. Law, I. § 896; Vol. II. § 667;
Reg. v. Dwerryhouse, 2 Cox C. C. 446;
People v. Ah Ying, 42 Cal. 18.

5 Taffe v. The State, 23 Ark. 84.

8 Reg. v. Berry, 1 Q. B. D. 447.

7 Rex v. Ashburn, 8 Car. & P. 50;
Peddell ». Rutter, 8 Car. & P. 337, 340;
Rex v. Rhodes, 1 Stra. 703; The State
v. Stein, 1 Rich. 189. See Reed’v. The
State, 12 Ind. 641; Crim. Law, I. § 264~
278.

8 Richardson v. The State, 43 Texas,
539; Ex parte Ryan, 10 Nev. 261.

569
§ 951 TRIAL BY PETIT JURY. [Book VIII.

cause to a future term, or postpone it to a later period in the
same term, and in some circumstances a continuance is due as
of right.1 When not of right, the motion is addressed to the
judicial discretion ; consequently the decision cannot be reviewed
by a higher tribunal, except, in some of the States, in a strong
case.2 It is sometimes held that the State may continue a cause
as of right, and without leave, because the prosecuting officer
could effect the same object by his nolle prosequi;® but, in at
least a part of our States, this officer must go before the court
and show cause like a defendant. The principles governing
continuances are substantially the same in criminal causes as in

civil’ The grounds on which they are applied for are numerous,

among which are —

1 Galloway v. The State, 25 Ga. 596 ;
The State v. Lawry, 4 Nev. 161; Reg. v.
Gordon, Car. & M. 410; The State v.
Smith, 8 Rich. 460; Ferguson’s Case, 3
Grat. 594; The State v. Williamson, 42
Conn. 261; Mask v. The State, 32 Missis.
405; The State v. Fraser, 2 Bay, 96;
The State v. Dayley, 2 Nott & McC. 121;
The State v. Painter, 40 Iowa, 298; Rex
v. Fitzgerald, 1 Ld. Raym. 706; Anony-
mous, 11 Mod. 5; United States v. Davis,
6 Blatch. 464; Lee’s Case, 2 Lewin, 276;
Lindville v. The State, 3 Ind. 580; Reg.
v. Rawlins, 6 Mod. 243; Hewson’s Case,
2 Lewin, 277; Reg. v. Johnson, 2 Car. &
K. 854; Rex v. James, 3 Car. & P. 222;
Reg. v. Arlett, 2 Car. & K. 596, 3 Cox
C. C. 431; The State v. Farr, 12 Rich. 24;
Reg. v. Wettenhall, 2 Moody & R. 291;
Rex v. Williams, 1 Moody & R. 508; Reg.
v. O'Neill, 1 Car. & K. 188; People v.
Fuller, 2 Parker C. C. 16; Common-
wealth v. Adcock, 8 Grat. 661; Common-
wealth v. Viers, 2 Duv. 377; Revel v.
The State, 26 Ga. 275; John v. The
State, 1 Head, 49; The State v. Barrett,
8 Iowa, 586; Cantu v. The State, 1 Texas
Ap. 402; Murray v. The State, 1 Texas
Ap. 417; Buie v. The State, 1 Texas
Ap. 452; Reg. v. Howell, 9 Car. & P.
437.

2 Lindsay v. The State, 15 Ala. 48;
Green v. The State, 18 Misso, 882; Starr
v. The State, 25 Ala. 49; Roberts v. The
State, 14 Ga. 6; The State v. Smith, 8
Rich. 460; The State v. Vigoreux, 18 La.
An. 309; Howell v. The State, 5 Ga. 48;
Ogle v. The State, 83 Missis. 383; Sealy

570

v. The State, 1 Kelly, 213; The State v.
Pike, 20 N. H. 344; Loeffner v. The State,
10 Ohio State, 598; Holt v. The State, 11
Ohio State, 691; The State v. Nicholson,
14 La. An. 785; The State v. Duncan, 6
Tre. 98; Baxter v. People, 8 Gilman, 868;
Frain v. The State, 40 Ga. 529; McDan-
iel v. The State, 8 Sm. & M. 401; Dem-
ing v. Ferry, 8 Ind. 418; Spence v. The
State, 8 Blackf. 281; The State v. Thomas,
8 Rich. 295; Moody v. The State, 54 Ga,
660; Skaro v. The State, 48 Texas, 88;
Commonwealth v. Donovan, 99 Mass.
425 ; Jenkins v. The State, 30 Texas, 444;
Long v. The State, 88 Ga. 491; Detro v.
The State, 4 Ind. 200; Meredith v. Lackey,
14 Ind. 529; Malone v. The State, 49 Ga.
210; The State v. Lindsey, 14 La. An.
42; The State v. Ward, 14 La. An. 678;
Austin v. The State, 42 Texas, 345; Din-
kens v. The State, 42 Texas, 250; Jones
v. The State, 40 Texas, 188; The State
v. Aaron, 1 Southard, 231; People v. Me-
Crory, 41 Cal. 458.

3 Watts v. The State, 26 Ga. 231. See
Turner v. The State, 25 Ga. 146; Rex v.
Osborn, 7 Car. & P. 799; Reg. v. Bridg-
man, Car. & M. 271; Reg. v. Fuller, 9 Car.
& P. 385.

4 The State v. Patterson, 1 McCord,
177; Commonwealth v. Carter, 11 Pick.
277; Reg. v. Mobbs, 2 Fost. & F. 18; Cal-
lahan v. The State, 80 Texas, 488 ; Nixon
v. The State, 2 Sm. & M. 497; McKay v.
The State, 12 Misso. 492; Reg. v. Sav-
age, 1 Car. & K. 75; The State v. Holmes,
8 Strob. 272.

5 People v. Vermilyea, 7 Cow. 369.
CHAP. LXV. ] PREPARATIONS FOR TRIAL.

4

§ 95la

§ 951 a. Witnesses absent. — A continuance may be granted
if the party has not had time to look up his testimony.1_ After
the lapse of such time, he is presumed to know who his witnesses
are and what they will swear to; and he will not be indulged by
reason of his own neglect. If a witness is absent or sick and
not to be procured till a future day or term, he must make affi-
davit setting forth the name and residence of the witness, the
facts which he is expected to prove, their materiality to his case,
—as, for example, that he cannot prove them otherwise, and
their relevancy to the issue, — why his presence cannot now
be had, and the reasons to believe it may be had then, together
with what will render apparent his own want of laches.? If the
court is satisfied on all these points, and deems that at the future
term the material and needful evidence may probably be had, it
will grant ‘the continuance ;* but not if the prosecuting officer
will undertake to admit, at the trial, the truth of what is ex-
pected to be proved.* A second or even third continuance may

1 The State v. Nash, 7 Iowa, 347;
Metts v. The State, 29 Ga. 271; The
State v. Files, 8 Brev. 304, 1 Tread. 234;
Gladden v. The State, 13 Fla. 623, 628 ;
Gibson v. The State, 9 Ind. 264; Lott
v. The State, 41 Texas, 121 (compare
with Craft v. Commonwealth, 24 Grat.
602).

2 Huebner v. The State, 8 Texas Ap.
458; Rhodes v. The State, 41 Ga. 215;
Binns v. The State, 38 Ind. 277; Jenks v.
The State, 39 Ind. 1; Jones v. The State,
11 Ind. 857; Steele v. People, 45 Ill. 152;
Dutton v. The State, 5 Ind. 583; Miller
v. The State, 42 Ind. 544; The State uv.
Burns, 54 Misso. 274; People v. Cleve-
land, 49 Cal. 577; The State v. Lange, 59
Misso. 418; Shirwin v. People, 69 Ill. 55;
Commonwealth v. Carter, 11 Pick. 277;
Rhea v. The State, 10 Yerg. 258; Mc-
Daniel v. The State, 8 Sm. & M. 401;
Attorney-General v. Laragoity, 3 Price,
221; People v. Baker, 1 Cal. 403; People

-v. Thompson, 4 Cal. 238; People v.
Quincy, 8 Cal. 89; Fleming v. The State,
11 Ind. 284; The State v. Farr, 33 Iowa,
553; People v. McCrory, 41 Cal. 458;
Guagando v. The State, 41 Texas, 626;
The State v. Tilghman, 6 Iowa, 296; The
State v. Sater, 8 Iowa, 420; Wall v. The
State, 18 Texas, 682; The State v. Wil-

liams, 8 Iowa, 583; Reg. v. Savage, 1 Car.
& K. 75; Murry v. The State, 1 Texas
Ap. 174; Townsend v. The State, 41
Texas, 184; King v. The State, 21 Ga.
220; Fox v. The State, 9 Ga. 373; Stud-
still v. The State, 7 Ga. 2; The State v.
Pettibone, T. U. P. Charl. 300; Rex v.
Jones, 8 East, 81; Griffin v. The State,
26 Ga. 498; Moody »v. People, 20 Ill. 315;
Freleigh v. The State, 8 Misso. 606; Peo-
ple v. Horton, 4 Parker C. C. 222; Com-
monwealth v. Gross, 1 Ashm. 281; Allphin
v. The State, 41 Texas, 79; Wise v. The
State, 34 Ga. 348; Gladden v. The State,
12 Fla. 662; Lofton v. The State, 14 Ind.
1; Reg. v. Macarthy, Car. & M. 625; Co-
penhaven v. The State, 14 Ga. 22; Rex
v. Savage, 5 Car. & P. 143; Cutler v. The
State, 42 Ind. 244; United States ». Little,
2 Wash. C. C. 159; Halbert v. The State,
81 Texas, 857; Wormeley v. Common-
wealth, 10 Grat. 658; VWanwey v. The
State, 41 Texas, 639; Reg. v. Mitchel, 3
Cox C. C. 1; Hyde v. The State, 16 Tex-
as, 445; Bledsoe v.’Commonwealth, 6
Rand. 678. /

3 The State v. Files, supra ; Common-
wealth v. Millard, 1 Mass. 6; McKay v.
The State, 12 Misso. 492; Rex v. D’Kon,
8 Bur. 1513, 1 W. Bl. 510.

4 Browning v. The State, 33 Missis. 47,

o71
§ 9516 TRIAL BY PETIT JURY. [Book vil.

be granted, but it will not be so readily as the first.1 And some
consideration, on a question of the party’s apparent dilatoriness,
will be given to poverty.2 Neglecting to serve the witness with
process is not dilatoriness barring a continuance, in a case of
good faith, where the witness has promised his voluntary pres-
ence.? An error in refusing a continuance is cured by the wit-
ness’s appearing at the trial Again, —

§ 951 . Public Excitement. — Continuances are frequently ap-
plied for on the ground that the public mind is excited against
the party, so that he cannot now have the fair trial which he
may when the excitement subsides. In some circumstances, this
appeal to the judicial discretion is successful,® but less frequently

71; Wheeler v. The State, 8 Ind. 113; Pan-
nelly. The State, 29 Ga. 681 ; People v. Wil-
son, 3 Parker C. C. 199. There is some
apparent difference as to the nature of
the required admission, and its effect. In
the foregoing cases, it was as stated in
thetext. ‘‘Weapprehend,” said Owsley,
J.,in a Kentucky case, “the admission
of the attorney ought not to be construed
otherwise than as an agreement to admit
the affidavit of Olds to have .the same
operation in proving the facts therein
mentioned, as if they had been proven
by the absent witness; and, if the facts
had been proven by the absent witness,
it would certainly have been competent
for the attorney for the Commonwealth
to have controverted the facts by the in-
troduction of other evidence.” Hence
such contradiction was permitted. Olds
v. Commonwealth, 8 A. K. Mar. 465, 467.
In some other cases, the admission has
been simply, that the witness if present
would testify as the affidavit states. The
State v. Mooney, 10 Iowa, 506; The State
v. Geddis, 42 Iowa, 264; The State v.
Sater, 8 Iowa, 420. But, on the other
hand, this form of the admission has been
adjudged inadequate. Van Meter v. Peo-
ple, 60 Ill. 168; Wassels v. The State, 26
Ind. 80; People v. Diaz, 6 Cal. 248; Mil-
ler v. The State, 9 Ind. 340; Hyde v. The
State, 16 Texas, 445. The Alabama
court deems that the judge may in his
discretion require the one form of admis-
sion or the other. Starr v, The State, 25
Ala. 49. Some courts have even denied
that any form of admission will cut off

572

the right to a continuance, Goodman ».
The State, Meigs, 195; unless, perhaps, .
in an extreme case, Dominges v. The
State, 7 Sm. & M. 475. See Williams v.
The State, 6 Neb. 334. On principle, the
admission must be of the truth of the
affidavit, because it is contrary to rule to
attack the testimony of a witness without
giving him the opportunity to explain,
which can only be where personally in-
terrogated.

1 Gladden v. The State, 13 Fla. 623;
Commonwealth v. Millard, 1 Mass. 6;
Burrell v. The State, 18 Texas, 713.

2 Reg. v. Langhurst, 10 Cox C. C. 353;
8. c. nom. Reg. v. Longhurst, 4 Fost. & F.
969.

3 United States v. Moore, Wal. C. C.
23; People v. Brown, 46 Cal. 102. See
Henderson v. The State, 22 Texas, 593.

4 Black v. The State, 47 Ga. 6589;
Mitchell v. The State, 22 Ga. 211; Calla-.
han v. The State, 30 Texas, 488; Cook v.
The State, 26 Ga. 593; Weeks v. The
State, 31 Missis. 490. Consult, further, on
the general subject of this section, Row-
land v. The State, 35 Texas, 487; Dacy
v. The State, 17 Ga. 489; Attorney-Gen-
eral v. Thacker, 2 Price, 116; Reidv. The
State, 23 Ga. 190; Bowman ». The State,
40 Texas, 8; Brady v. The State, 48 Ga.
811; Mendum v. Commonwealth, 6 Rand.
704; Reese v, The State, 7 Ga. 873; Rex
v. Doyle, 1 Esp. 125.

5 Bishop v. The State, 9 Ga. 121; Mad-
dox v. The State, 82 Ga. 681; Reg. vu.
Bolam, 2 Moody & R. 192; Roberts ».
The State, 14 Ga. 8.
CHAP. LXV. ] PREPARATIONS FOR TRIAL.

§ 951 f

or not at all after the first term.! Nor is mere excitement alone,
in ordinary cases, especially in cases not of a public character,
deemed adequate.?

§ 951 c. Some other Grounds, — more or less availing according
to circumstances, are —

Counsel. — Absence or sickness of counsel ;1

Witness ignorant.— The ignorance of a witness, rendering in-
struction as to the nature of an oath necessary.‘

III. Effect of Delays.

§ 951 d. Caused by Defendant.— An indicted person cannot
complain of any delay of the trial, caused by himself.5 But —

§ 951 e. Speedy Trial. — Every arrested person has.a natural
right, secured by our constitutions, to a speedy trial.6 And, —

§ 951 f. Legislative Provisions. — To make this right effectual,
statutes’ have been passed in most of our States, in effect, yet
in differing terms, providing that prisoners not tried within a
given time shall be discharged.§

1 Wright v. The State, 18 Ga. 383;
Revel v. The State, 26 Ga. 275.

2 Thomas v. The State, 27 Ga. 287;
Poole v. The State, 18 Ga. 567; Mitchell
v. The State, 41 Ga. 527; Brinkley v. The
State, 54 Ga. 371; Reese v. The State, 7
Ga. 373; Thompson v. The State, 24 Ga.
297.

3 Reg. v. Gurney, 11 Cox C. C. 414;
The State v. Dubois, 24 La. An. 309;
People v. Logan, 4 Cal. 188; Bagwell v.
The State, 56 Ga. 406.

4 Anonymous, 1 Leach, 4th ed. 430,
note; Reg. v. Nicholas, 2 Car. & K. 246, 2
Cox C. C. 186. Other Questions. — For
some other questions connected with this
sub-title, see Thompson v. The State, 24
Ga. 297; Wall v. The State, 18 Texas,
682; The State v. Linhart, 23 Iowa, 314;
Frain v. The State, 40 Ga. 529; White v.
The State, 31 Ind. 262; McCorkle v. The
State, 14 Ind. 39; United States v. Ful-
lerton, 6 Blatch. 275; The State v. Whit-
sell, 55 Misso. 480; Brinkley v. The State,
54 Ga. 371; Golden v. The State, 19 Ark,
590; Rex v. Radcliffe, 1 W. Bi. 8; 8. c.
nom, Rex v. Ratcliffe, 1 Wils. 150; The
State v. Lane, 11 Kan. 458.

5 Commonwealth v. Philadelphia Coun-
ty Prison, 4 Brews. 320; McKinney v.
People, 2 Gilman, 540; The State v. Po-
sey, 7 Rich. 484; Reg. v. Bowen, 9 Car.
& P. 509; Commonwealth v. Sheriff, 16
8. & R. 804.

8 Ante, § 258; Nixon v. The State, 2
Sm. & M. 497; Tims v. The State, 26
Ala. 165; Stewart v. The State, 18 Ark.
720.

7 See Rex v. Walter, 8 Mod. 5.

8 I do not deem any expositions of
these statutes essential here, but the fol-
lowing references will be helpful : —

Alabama. — The State v. Phil, 1 Stew.
31; Ex parte Simonton, 9 Port. 390;
Smith v. Strobach, 50 Ala. 462.

Arkansas. — Stewart v. The State, 18
Ark. 720.

Georgia. — The State v. Monaquo, T.
U. P. Charl. 24; Denny v. The State, 6
Ga. 491; Durham v. The ‘State, 9 Ga.
306; Kerese v. The State, 10 Ga. 95;
Jordan v. The State, 18 Ga. 582; Price v.
The State, 25 Ga. 133; Geiger v. The
State, 25 Ga. 667; Watts v. The State, 26
Ga. 231; Couch v. The State, 28 Ga. 64;
Christmas v. The State, 68 Ga. 81; Little

5738
§ 952 4 TRIAL BY PETIT JURY. [Book VIL.

IV. Arrangements within the Court Room.

§ 952. In General. — “The order of a court of justice,” it has
been said, “is a part of the law of the land. The different de-
partments of a court are the bench, the bar, the clerk’s box,
within, and behind the bar, and the area of the court. The
bench, bar, and clerk’s box are intended for the officers of the
court. They are peculiarly under the government of the court.
Strictly speaking, no person has a right to go into the bar but
attorneys. The people have a right to be anywhere in the
court house, except on the bench, in the bar, or clerk’s box,
so long as they demean themselves in a peaceable manner, ex-
cept sauntering or standing between the bench and bar. The
ordinary clients of lawyers sit by the side of their counsel, by
the general acquiescence of the bar. . . . In criminal cases, the
prisoner is either on bail or in custody on his trial. If the
former, his proper place is just within the bar, near his counsel.
If in custody, the officers of court place him behind the bar,
within sight of the court, where he is attended by the court and
its officers.” }

§ 952 a. Custody of Prisoner. — One on trial is in the custody
of the law.2, Hence it is competent for the court to direct in
what manner he shall be kept. When he is brought in from
prison by the sheriff or a deputy, he remains, subject to the
orders of the judge, in the keeping of this officer;® and, when,
being on bail, he comes in to take his trial, this officer is the

v. The State, 54 Ga. 24; Roebuck v. The

State, 2 Tread. 493; The State v. Spergen,
State, 57 Ga. 154.

1 McCord, 563; The State v. Fasket, 5

Iowa. — Brotherton v. Brotherton, 41
Towa, 112.

Massachusetts. — Glover’s Case,
Mass. 840.

Missouri. — Robinson v. The State, 12
Misso. 592; Fanning v. The State, 14
Misso, 386; The State v. Huting, 21
Misso. 464.

New Jersey. — The State v. Garthwaite,
8 Zab. 148.

Pennsylvania. — Clark v. Common-
wealth, 5 Casey, Pa. 129; Common-
wealth v. Prophet, 1 Browne, 135.

South Carolina. — The State v. Buyck,
2 Bay, 563, 1 Brev. 460; Logan v. The

574

109

Rich. 255.

Virginia. — Vance v. Commonwealth, 2
Va. Cas. 162; Commonwealth v. Cawood,
2 Va. Cas. 527; Green v. Commonwealth,
1 Rob. Va. 781; Bell’s Case, 7 Grat. 646;
Bell v. Commonwealth, 8 Grat. 600;
Commonwealth v. Adcock, 8 Grat. 661;
Jones v. Commonwealth, 19 Grat. 478;
Sands v. Commonwealth, 20 Grat. 800.

1 White and Overton, Justices, in The
State v. Underwood, 2 Tenn. 92.

2 Price v. The State, 36 Missis. 581, 2
Morris St. Tr. 1168, 1181.

® Ante, § 217. And see The State v.
Brown, 82 Missis. 276, 277.
CHAP. LXV. ] PREPARATIONS FOR TRIAL.

§ 954

proper one to execute the orders of the court concerning his
custody. Some deem, that, by mere operation of law, he is in
the sheriff's custody when on trial;! and it is by some others
regarded wise for the court, in a case of felony, to order the
bailed prisoner into such custody during trial.2 The tempta-
tions to escape, to say nothing of other considerations, are par-
ticularly pressing then. And it is believed that, in some of
our States, under some forms of recognizance, the liabilities of
bail cease when the trial, in the defendant’s presence, begins.®

§ 953. Prisoner's Place at Trial (English Practice). — By the
English practice, in all trials for felony, whatever be the rank
of the prisoners, and whether on bail or not, their place is at
the bar. Counsel may pass back and forth and freely com-
municate with them, but they may not sit beside counsel, either
as of right, or as of favor to the one or the other.* Yet where
a prisoner defends himself, and by reason of ill health or hearing
a change of position is essential to his making a proper defence,
it is permitted.> In trials for misdemeanor, prisoners are some-
times allowed a place at the table of the court while defending
themselves, or beside counsel, without reference to rank or bail ;®

yet this is not of right, and it has been denied.’
§ 954. Under American Practice. — The position of the prisoner,
therefore, is, in legal rule, quite within the discretion of the pre-

1 Hodges v. The State, 8 Ala. 55.

2 People v. Beauchamp, 49 Cal. 41,

42.
3 Ante, § 264 7.
4 Reg. uv. Egan, 9 Car. & P. 485, note;
Reg. v. St. George, 9 Car. & P. 483; Reg.
v. Zulueta, 1 Car. & K. 215, 1 Cox C.C.
20; Reg. v. Douglas, Car. & M. 193. In
the last cited case, the court, on applica-
tion of the prisoner, allowed three friends
to stand with him in the dock, but re-
fused to permit him to stand outside.

5 Horne Tooke’s Case, 25 Howell St.
Tr. 1, 6, commented upon by Maule, J.,
in Reg. v. Zulueta, supra, at p. 217, Car.
& K.; Huggins’s Case, 17 Howell St. Tr.
297, 311,815; Bambridge’s Case, 17 How-
ell St. Tr. 883, 887. See 1 Car. & K. 217,
note.

6 Reg. v. Vincent, 9 Car. & P. 463, note ;
Reg. v. Lovett, 9 Car. & P. 462; Reg. v.
St. George, supra.

7 In the case of Rex v. Carlile, 6 Car.

& P. 686, which was for a misdemeanor,
“Mr. Carlile, who,” says the reporter in
a note, “appeared to conduct his own
case, had taken his seat at the table of
the court, with the counsel; but, at the
sitting of the court, Mr. Justice Park said:
‘Mr. Carlile, the bar have a right to those
seats, and no one else can be allowed to
occupy them: you, therefore, must not
conduct your case in that part of the
court. In strictness, a defendant who is
on bail, and comes to take his trial, ought,
though not convicted, to stand in the dock
where the prisoners do; but that is not
usually insisted on, and there is no wish
that it should be so in the present case,
or that you should be put to inconveni-
ence; and Mr. Clark (the clerk of ar-
raigns) has been kind enough to say that
he will allow you a part of his place.’
The defendant left the table, and took his
seat at the right hand of Mr. Clark, and
there conducted the whole of his case.”

575
§ 957 TRIAL BY PETIT JURY. [Book vim.

siding judge. What the custom may be generally in our States
it is not in the power of an author to set down with certainty ;
but probably it is, in most of them, the same as, according toa
foregoing extract,! it is in Tennessee, the strict English usage
not being enforced.2 And so, the author submits, it should be.
A prisoner should be as free from restraint, and from every
mark of degradation, and have as free access to his counsel —
or, if he manages his own cause, be permitted to occupy a posi-
tion as convenient for the purpose —as may be consistent with
his safe custody and the orderly administration of justice.

§ 955. Not manacled. — It was long ago “resolved, that, when
prisoners come to the bar to be tried, their irons ought to be
taken off, so that they be not in any torture while they make
their defence, be their crime never so great.”8 Though the rule
at the arraignment, where only a plea is required, is less strict,4
a prisoner at the trial should have the unrestrained “use of
his reason, and all advantages, to clear his innocence.”® Our
American courts adhere pretty closely to this doctrine, yet
deem, that, in extreme and exceptional cases, where the safe
custody of the prisoner. and the peace of the tribunal impera-
tively demand, the manacles may be retained.®

§ 956. Sit or stand — Pen and Paper. — Chitty’ tells us, that,
as a rule, the English courts require the prisoner to stand during
his trial, but, as an “indulgence,” allow him “to sit if he seems
incapable of bearing the fatigue, or the trial be considerably pro-
tracted ;° and he is entitled to the use of pen, ink, and paper
during his trial.”? Not in all our States is even the standing
posture, in general, required. It adds to the discomfort of pris-
oners during the most anxious moments of their lives; hence,
in reason, where no special circumstances render it desirable,
they should be permitted, if they choose, to sit.

§ 957. Open Court.— By immemorial usage, wherever the
common law prevails, all trials are in open court, to which spec-
tators are admitted. Perhaps it may not be strictly so of the

1 Ante, § 952. § Lee v. The State, 51 Missis. 566;

2 United States v. Gibert, 2 Sumner, People v. Harrington, 42 Cal. 165; The
19, 91. State v. Kring, 1 Misso. Ap. 488, 64 Misso.

8 High Treason Case, J. Kel. 7, 10. 691.

4 Ante, § 731. 7 1 Chit. Crim. Law, 581.

5 Layer’s Case, 16 Howell St. Tr. 93, ® Rex v. Stone, 6 T. R. 627, 631.
100; Rex v. Waite, 1 Leach, 4th ed. 28, 94 Harg. St. Tr. 704; s. o. Rex v.
36. Cranburne, 13 Howell St. Tr. 221, 235.
576
CHAP. LXV. ] PREPARATIONS FOR TRIAL. § 959 a

preliminary examination.! Offences against the United States
are by the Constitution to be tried in “public,”? and so are
offences against the States by their constitutions. Some even
deem, and probably justly, that a trial by twelve good men in
private is not a jury trial, within constitutional guaranties.
And, —

§ 958. Why ?— In some circumstances, an open trial is indis- .
pensable as a means of securing fair dealing to one unjustly pur-
sued. * Evil-minded men shrink from the light; and, under the
fear of exposure, they may refrain in public from what they
would gladly do in private. Yet—

When corrupting.— Our public trials are sometimes corrupting
to the public morals, especially by reason of the publicity given
by newspapers to what should never be uttered except by com-
mand of justice. The courts ought to put some restraint upon
these abuses ; at least, to forbid the publication of minute details
of filthy evidence. Again, —

§ 959. Meaning of “ Public.” — Publicity does not absolutely
forbid all temporary shutting of doors,‘ or render incompetent a
witness who cannot be heard by the largest audience, or require
a court-room of dimensions adequate to the accommodation of
all desirous of attending a notorious trial, or vocal organs in
counsel and judge capable of reaching all. ‘And the require-
ment is fairly met, if, without partiality or favoritism, a reasonable
proportion of the public is suffered to attend, notwithstand-
ing that those persons whose presence could be of no service to
the accused, and who would only be drawn thither by a prurient
curiosity, are excluded altogether.” > Doubtless, therefore, youths
may be excluded from what would be corrupting to their years.

V. Other Preparations.

§ 959 a. Copy of Indictment and List of Witnesses. — Under the
statutes and practice of the several States and the United States,
differing somewhat in minor provisions, the prisoner may have
a copy of the indictment,® and a list of the witnesses examined

1 Ante, § 726, 891. 4 Stone v. People, 2 Scam. 826, 388.

2 Const. U. S. amendm. art. 6. 5 Cooley Const. Lim. 812.

8 As to the power and methods, see 8 Ben v. Tho State, 22 Ala. 9; Brister
Crim. Law, II. § 259, 260. v. The State, 26 Ala. 107; Dawson wv.

VOL. I. 87 517
§ 959 d TRIAL BY PETIT JURY. [Book vu.

before the grand jury or to be produced before the petit jury
(indorsed on the indictment or otherwise),! furnished at his pleas-
ure, or a given time before the trial. He should be careful not to
waive either right if he wishes to exercise it,” and should keep
himself within the terms of the statute of his own State. Under
the Constitution of the United States, the copy of the indictment
need not be at the expense of the government.?

§ 959 6. Attendance of Witnesses. — Proper steps should be
taken by subpeena‘ or otherwise, the subpcena to be followed by
attachment if necessary,> to procure the attendance of the wit-
nesses. A defendant’s constitutional right to compulsory process
does not require the State to pay their fees.§

§ 959 ¢. Notice to produce Papers. — Due notice, according to

the rules of evidence, to produce papers required at trial must
be given.’ So—

§ 959 d. Order of Inspection. — It may occasionally be desira-
ble to obtain from the court a preliminary order permitting
the inspection, before trial, of something in the opposite party’s
possession. For example, —

Threatening Letter.— On an indictment being found for sending
a threatening letter, the court, on the defendant’s motion, ordered

The State, 29 Ark. 116; The State v.
Fuller, 89 Vt. 74; United States v. Cur-
tis, 4 Mason, 282; Friar v. The State, 8
How. Missis. 422; Fouts v. The State, 8
Ohio State, 98; Aaron v. The State, 39
Ala. 75; Robertson v. The State, 43 Ala.
825; Reg. v. Hughes, 4 Cox C. C. 445;
Reg. v. Burke, 10 Cox C.C. 519. See
Rex v. Brangan, 1 Leach, 4th ed. 27.

1 Reg. v. Edwards, 8 Cox C. C. 82;
Reg. v. Frost, 9 Car. & P. 129, 147; Rex v.
Gordon, 2 Doug. 591; Reg. v. Chapman,
8 Car. & P. 558; Reg. v. Cassidy, 1 Fost.
& F.79; The State v. Gillick, 10 Iowa,
98; The State v. McClintock, 8 Iowa,
203; The State v. Stanley, 33 Iowa, 526;
United States v. Wood, 3 Wash. C. C.
440 ; Commonwealth v. Edwards, 4 Gray,
1; Gates v. People, 14 Ill. 488; Scott v.
People, 63 Ill. 508; The State v. Abra-
hams, 6 Iowa, 117; Gardner v. People, 3
Scam 83; Hill v. People, 26 Mich. 496;
People v. Bonney, 19 Cal. 426; Smith v.
The State, 4 Greene, Iowa, 189; Keener
v. The State, 18 Ga. 194; Commonwealth
v. Locke, 14 Pick. 485; Steele v. The

578

State, 1 Texas, 142; The State »v. Little,
42 Iowa, 51; United States v. Butler, 1
Hughes, 457; Wellar v. People, 30 Mich.
16; Commonwealth v. Knapp, 9 Pick.
496; Reg. v. Bull, 9 Car. & P. 22; Reg.
v. Vincent, 9 Car. & P. 91.

2 Ante, § 126; The State v. Winning-
ham, 10 Rich. 257; Lord v. The State, 18
N. H. 178; Reg. v. Frost, 9 Car. & P. 162,
1838, 2 Moody, 140; The State v. Norton, 45
Vt. 258; People v. O’Hare, 2 Mich. N. P.
170; Fouts v. The State, 8 Ohio State,
98; Cook v. The State, 26 Ga. 598; The
State v. Jackson, 12 La. An. 679; Bird v.
The State, 50 Ga. 585.

3 United States v. Bickford, 4 Blatch.
337.

* People v. Davis, 15 Wend. 602; Ex
parte Chamberlain, 4 Cow. 49.

5 Stephens v. People, 4 Parker C. C.
896.

® The State v. Waters, 39 Maine, 54.

7 Reg. v. Barker, 1 Fost. & F. 326;
The State v. Wisdom, 8 Port. 511; The
State v. Gurnee, 14 Kan. 111.

o
CHAP. LXV.] PREPARATIONS FOR TRIAL. § 959 f

the letter to be deposited with an officer of the court for the in-
spection of the witnesses for the defence.1 So, —

Homicide. — In a case of homicide by alleged poisoning, where
the contents of the deceased person’s stomach were in the posses-
sion of the police, having been examined by experts on the part
of the prosecution, the court, on the defendant’s application, made
an order permitting an expert nominated by the latter to examine
them in the presence of the other experts.” d

§ 959 e. Minors. — A minor is tried like an adult, he may
defend himself personally or by attorney, and no guardian ad
litem is to be appointed or appear for him.’ In Connecticut,
however, such guardian is required.

§ 959 f. Other Preparations. — In special cases, still other prep-
arations may be important; but it would be a mere repetition, or
useless enlarging upon what is familiar to the profession, to con-
tinue the enumeration here.

1 Rex v. Harrie, 6 Car. & P. 105. 4 The State v. James, 37 Conn. 355;
° Reg. v. Spry, 3 Cox C. C. 221. Fahay v. The State, 25 Conn. 205.
3 Word v. Commonwealth, 3 Leigh, ;

743.

579
TRIAL BY PETIT JURY. viii.

§ 960 [Book

CHAPTER LXVI.
THE TRIAL.

§ 959 g.
960-966 d.
967-978.

974-975 b.
976-982 a.

Introduction.

The Order, with some Particulars.
The Openings to Jury.

Summings up by Counsel.

Charge of Judge to Jury.

§ 959 g. How the Chapter divided. — We shall consider, I. The
Order and some Particulars of the Proceedings; II. The Open-
ings to the Jury; III. The Summings up by Counsel; IV.
The Charge of the Judge to the Jury.

I. The Order and some Particulars of the Proceedings.

§ 960. Submitting Cause to Jury.— We have seen, that, in
matter of law, a cause is deemed to be submitted to the jury —
in. other words, the jury is charged with it—-when the trial
panel! is full, and those whose names appear in it are sworn.?
As mere form, in cases of felony, the clerk of the court then
directs them to look on the prisoner, and hearken to their evidence.
And he states to them the substance of the indictment, the plea,
and their duty to find the defendant guilty or not guilty?

1 Meaning of Impanel.— For the
meaning of the words panel and impanel-
ling, see ante, § 931. Under the English
practice, the verb to impanel generally
“ signifies the writing and entering into a
parchment schedule, by the sheriff, the
names of a jury.” Totnlins Law Dict.
Impanel. Under the American, it oftener
denotes the final making up of a jury for
trial under the direction of the court. It
is the act which ascertains who are to be
sworn in the particular cause, — the last
act preceding the swearing. The State
v. Ostrander, 18 Iowa, 486, 446. And see

580

Commonwealth v. Sholes, 18 Allen, 554;
Wilson v. The State, 31 Ala. 871. The
apparent difference in meaning is ex-
plained by the fact, that there are, or
may be, two panels, —the one, of the
unorganized body of jurors who are sub-
mitted for challenge; the other, of the
selected twelve who are to try the cause.

2 Crim. Law, I. § 1014, 1017.

3 Dears. Crim. Process, 49 ; Dalt. Just.
ed. of 1727, p. 654. In Reg. v. Newton, 1
Car. & K. 469, the indictment was read
over in full to the jury at the defendant’s
request. In Reg. v. Dowling, 8 Cox C. C.
CHAP. LXVI.] THE TRIAL,

§ 962

§ 961. Jeopardy.— The jeopardy of our constitutional law has
now, according to the better opinion, begun.

Prosecutor ready — Nonsuit. — The prosecuting power is now
bound to be ready,? and there can be no nonsuit as in civil
cases.2 If the prisoner cannot be convicted, he is entitled to a
verdict of acquittal.4

§ 962. Defence personal or by Counsel.— The defence may be
conducted by counsel® or by the. defendant in person, at his
election. But, of strict right, and according to the common
course, it cannot be divided between the one and the other; in
the language of Patteson, J., “a prisoner defended by counsel
should be entirely in the hands of his counsel.”® Still, in Eng-
land, and it would seem in our own country, some departures
from this rule are allowed; perhaps chiefly as a favor under the
circumstances of particular cases, and perhaps some of them may
be deemed nearly or quite as of right. If, for example, a pris-
oner chooses to defend himself upon the facts, counsel may be
present and privately make suggestions to him, and argue ques-
tions of law to the court.’ But, after counsel have argued to
the jury, the party cannot address them in person.’ Nor can he
close to the jury, instead of counsel, where the cross-examination
has been by the latter; “for,” said Abbott, C. J., “if counsel
cross-examined, and the party spoke, great inconvenience would
ensue.”® Where, after a witness had been fully cross-examined
by the defendant’s lawyer, the court refused to let the defendant
examine him, this was held in Georgia not to violate a constitu-
tional right of defence by himself, his counsel, or both.1? Again, —

Statement by Prisoner.—In some exceptional cases for special
reasons, notin all and as of right, the English judges permit

609, it was permitted to be read once Roberts v. The State, 14 Ga. 18; post,

only, for the convenience of the defend-
ant in taking a copy, which had been de-
nied. This was before the jury were
selected from the original panel.

1 Crim. Law, I. § 1014-1019.

2 The State v. Edwards, 2 Nott &
McC. 18.

3 Rex v. Adamson, Savile, 56; People
v. Harris, Edm. Sel. Cas. 453; People v.
Bennett, 49 N. Y. 187.

* Ante, § 820; People v. Harris, supra.

5 Ante, § 296 et seq,

6 Reg. v. Rider, 8 Car. & P. 539. See

§ 974.

7 Rex v. White, 3 Camp. 98; Rex wv.
Parkins, 1 Car. & P. 648, Ryan v. Moody,
N. P. 166.

8 Reg. v. Boucher, 8 Car. & P. 141;
Reg. v. Burrows, 2 Moody & R. 124. And
see Newton v. Chaplin, 10 C. B. 356. As
to treason cases, see Rex v. Collins, 5
Car. & P. 805; Reg. v. Malings, 8 Car. &
P. 242.

® Rex v. Parkins, supra;
White, supra.

10 Roberts v. The State, 14 Ga. 18.

581

Rex ».
§ 963 TRIAL BY PETIT JURY. [Book VIII.

the defendant, before his lawyer addresses the jury, to make a
statement in his defence, limited to fact, not arguing on the evi-
dence adduced against him. It is not under oath, but counsel
may comment upon it as one of the circumstances in the case.
Something like this is: allowed, as of course, in a part of our
States, by statute, if not in some of them by usage.”

Side of Prosecution, as to Counsel.—In England, when, as in
most cases, the prosecution is carried on by a private person, it
may proceed without counsel on the government side; or the
prosecutor may employ counsel to conduct it; but he cannot
himself perform the part of advocate, though he may be con-
sulted by the judge as to the evidence.? With us, if the prose-
cuting officer does not appear in a cause before a jury, it is
common, if not universal, for the court to appoint a member of
the bar to act in his stead pro tempore.

§ 963. Steps where Private Person prosecutes.—In cases con-
ducted by a private prosecutor, the steps are nearly the same as
in others ; namely, first, the opening of the government’s evidence
to the jury, sometimes omitted ;5 secondly, the introduction of
such evidence ;° thirdly, an address to the jury on the prisoner’s
side. If in this address no new facts are opened, and if no wit-
nesses for the defence are called, the case, by the English practice
prior to 1865, now closes with a summing up by the judge to the
jury.” On the other hand, the introduction of new matter by
the defendant gives the prosecution the right to reply, before such
summing up, as well as, in proper circumstances, to produce
rebutting evidence. But where the new matter is slight, or only
to some collateral issue, or to character, the reply is not always
made or even permitted.$ ,

1 Reg. v. Malings, 8 Car. & P. 242;
Reg. v. Walkling, 8 Car. & P. 248; Reg.
v. Rider, supra. Some of the judges
deem this statement permissible in all
cases. Reg. v. Dyer, 1 Cox C. C. 118;
Reg. v. Williams, 1 Cox C. C. 863. See
Reg. v. Taylor, 1 Fost. & F. 585; Reg.
v. Stephens, 11 Cox C. C. 669.

2 Maher v. People, 10 Mich. 212;
People v. Annis, 18 Mich. 511; Defoe v.
People, 22 Mich. 224; Burden v. People,
26 Mich. 162; Farrow v. The State, 48
Ga. 30; Bird v. The State, 60 Ga. 585;
Miller v. The State, 15 Fla. 677.

582

8 Rex v. Stoddart, 11 Cox C. C. 422,
note; Rex v. Lancashire Justices, 1 Chit.
602; Rex v. Brice, 2 B. & Ald. 606; Reg.
v. Gurney, 11 Cox C. C. 414, 422; Rex
v. Watson, 6 Car. & P. 653. But see
Reg. v. Page, 2 Cox C. C. 221.

4 Ante, § 280, 285.

5 Post, § 967 et seq.

5 Post, § 966.

7 1 Chit. Crim. Law, 627.

8 1 Chit. Crim. Law, 628; Archb. New
Crim. Law Pro. 170; Reg. v. Butcher, 2
Moody & R. 228; Reg. v. Bignold, 4 D.
& R. 70, D. & R. N. P. 59; Rex v. Stan-
CHAP. LXVI.] THE TRIAL. § 964

' § 964. Steps if. Prosecuting Officer.— Where, in England, the
Attorney-General is present, conducting the prosecution in his
official capacity, the foregoing steps are so far varied as to per-
mit him to reply as of right, even though the defendant opens no
new matter and calls no witnesses.! And counsel representing
him have been accorded the same right;? though, on the other
hand, this has been denied.2

In England since 1865.— In 1865, the English practice was by
28 & 29 Vict. c. 18, § 2, so far modified in cases defended by
counsel, however prosecuted, as to require them, when the evi-
dence for the crown is all in, to state whether or not they shall
adduce evidence ; and, if not, the counsel for the prosecution may
again address the jury before the former make what now be-
comes the last address preceding the judge’s.t And if the defend-
ant produces evidence, whether defended by counsel or not,
the one or the other may open and close to it. Yet it has been
deemed that, where he calls no witnesses, counsel for the
prosecution should forbear to exercise their right to address the
jury a second time, unless, in their judgment, the ends of justice
demand.® :

In this Country.— As we have always a prosecuting attorney
present, sustaining to the cause the same relation which the At-
torney-General does in England, the English practice, if we
adopt it, gives to the prosecution in all cases the right of reply.
But an examination of the English decisions seems to show, that
the order of the addresses is in some degree flexible, and under
the control of the presiding judge; and so doubtless it is with
us, in the absence of positive law.6 In Georgia and Florida, by
statute, the defendant closes to the jury when he does not intro-

nard, 7 Car. & P. 673; Patteson’s Case, 2
Lewin, 262; Reg. v. Jordan, 9 Car. & P.
118; Rex v. Carlile, 6 Car. & P. 636;
Reg. v. White, 2 Cox C. C. 192; Reg. v.
Copley, 4 Fost. & F. 1097 ; Reg. v. Dowse,
4 Fost. & F. 492; Reg. v. Briggs, 1 Fost.
& F. 106; Rex v. Abingdon, 1 Esp. 226,
Peake, 236. And see Reg. v. Frost, 9 Car. &
P. 129, 160; Reg. v. Burdett, Dears. 431.

1 Rex v. Marsden, Moody & M. 439;
Reg. v. Toakley, 10 Cox C. C. 406; 1
Chit. Crim. Law, 628. See Reg. v. Taylor,
1 Fost. & F. 535.

2 Reg. v. Gardner, 1 Car. & K. 628, 635.

8 Reg. v. Christie, 1 Fost. & F. 75.
See, as to the order in later stages
of the cause, O’Connell v. Reg., 11 Cl. &
F. 155; Reg. v. Martin, 1 Den. C. C. 398,
8 Cox C. C. 447, 2 Car. & K. 950.

4 Reg. v. Madden, 12 Cox C. C. 239,
4 Eng. Rep. 528.

5 Reg. v. Berens, 4 Fost. & F. 842 ; Reg.
v. Webb, 4 Fost. & F. 862.

6 People v. Haun, 44 Cal. 96. And
see Abshire v. The State, 52 Ind. 99;
White v. Carlton, 52 Ind. 871.

583
§ 965 TRIAL BY PETIT JURY. [Book VIII.

duce evidence; when he does, the State closes. In other of our
States, either under statutes or by the common-law rule, the
State closes in all cases.2 And there are still other variations
in what is better understood by the practitioners in each State
than explained by an author on the general subject.?

§ 965. View.—It is within the discretion of.the court to
authorize the jury, properly attended, to go and examine — that
is, view — the premises where the offence is claimed to have been
committed, as a help to understanding and applying the evidence.‘
Formerly it was supposed that, in a criminal case, the view could
be only by mutual consent.6 But the modern practice leaves it
wholly within the discretion of the court. It may be at any
appropriate stage of the trial; in one case, the jury asked it after
the judge had summed up the evidence, and it was granted.§
The defendant has the right to be present if evidence is given,

and perhaps at all events.’

The court, in granting or refusing

it, will be governed mainly by the special circumstances.’
Models and Drawings — may be exhibited to the jury in proper

cases, either in connection with the view, or without.®

And —

Tools and Implements — and other like evidences of crime may,
when portable, be brought into court and thus exhibited.”

1 Reed Ga. Crim. Law, 25; Farrow v.
The State, 48 Ga. 30; Heffron v. The
State, 8 Fla. 73.

2 The State v. Smith, 10 Nev. 106;
The State v. Millican, 15 La. An. 557;
Doss v. Commonwealth, 1 Grat. 557.

8 See, further, People v. Haun, supra;
The State v. Felter, 32 Iowa, 49; Willey
v. The State, 52 Ind. 421; Craft v.
Commonwealth, 24 Grat. 602; The State
v. Brisbane, 2 Bay, 451; Loeffner v. The
State, 10 Ohio State, 598.

4 Reg. v. Whalley, 2 Cox C. C. 231, 2
Car. & K. 376. In the report of this case
in Cox, the forms are given. In some
States, this is so by statute. Chute v.
The State, 19 Minn. 271 ; Commonwealth
v. Webster, 6 Cush. 295, 298.

5 Anonymous, 1 Bur. 252; Rex »v.
Redman, 1 Keny. 384. See Common-
wealth v. Knapp, 9 Pick. 496.

5 Reg. v. Martin, Law Rep. 1 C. C.
878, 12 Cox C. C. 204.

7 Benton v. The State, 80 Ark. 328;

584

Carroll v. The State, 5 Neb. 31; The State
v. Bertin, 24 La. An. 46. See Common-
wealth v. Parker, 2 Pick. 550; The State
v. Claudius, 1 Misso. Ap. 551; People v.
Bonney, 19 Cal. 426.

8 Attorney-General v. Green, 1 Price,
180; Anonymous, 2 Chit. 422; Common-
wealth v. Parker, 2 Pick. 550. See Smith
v. The State, 42 Texas, 444.

® Attorney-General v. Green, supra;
The State v. Bertin, supra; The State v.
Jerome, 83 Conn. 265; Thomas v. The
State, 27 Ga. 287. See Rex v. Cornelius,
2 Stra. 1210.

10 Carroll v. The State, 3 Humph. 815;
Dunn v. People, 40 Ill. 465. As to the
Exhibition of Persons, —see The State
v. Jacobs, 5 Jones, N. C. 259; The State
v. Anderson, 19 Misso. 241; The State v.
Gavner, 30 Misso. 44; Rex v. Deering, 5
Car. & P. 165; Gilmanton v. Ham, 38
N. H. 108; Garvin v. The State, 52
Missis. 207; Reg. v. Jenkins, 1 Car. & K.
586; Pleasant v. The State, 18 Ark. 360;
CHAP. LXVI.] THE TRIAL. § 966

§ 966. Order of the Evidence. — The same usages, as to the order
in which the evidence shall be presented, prevail in criminal causes
as in civil. One, for example, who has closed his testimony and
rested, can ordinarily introduce further evidence only in rebut-
tal.1 But on this question, and all others relating to the order
of the evidence, the general rules yield to the justice of the par-
ticular case ; in other words, it is competent for the presiding
judge to permit any departure from them, which, in his discretion,
the ends of justice require.? If, for example, the announcement
of counsel or the party that his evidence is closed is inadvertent,
and he tenders further proofs immediately, they may be re-
ceived.? Indeed, in extreme cases, new evidence may be intro-
duced, or witnesses may be recalled to explain the old, even after
the time for hearing testimony has passed, after counsel have
begun or ended their addresses to the jury, after the judge has
instructed them, or after they have retired and returned or been
recalled into court, down to, but not after, the rendition of the
verdict.4. No such departure from rule can be demanded as of
right;® neither, as general practice, ought it to be allowed.é

Hopper v. Commonwealth, 6 Grat. 684;
Stephenson v. The State, 28 Ind. 272;
Ihinger v. The State, 58 Ind. 251.

1 Thomas v. The State, 27 Ga. 287;
Reg. py. Powell, Car. & M. 500; Rex v.
Stimpson, 2 Car. & P. 415; Reg. v. St.
George, 9 Car. & P. 483; Reg. v. Frost, 9
Car. & P. 129, 159; Schaser v. The State,
86 Wis. 429. And see Commonwealth v.
Eastman, 1 Cush. 189; Brown v. The
State, 28 Ga. 199.

2 The State v. Fox, 1 Dutcher, 566;
The State v. Main, 81 Conn. 572; Reid
v. The State, 28 Ga. 190; Ward v. The
State, 8 Blackf. 101; Herring v. The
State, 1 Iowa, 205; The State v. Iar-
rington, 9 Nev. 91; Thomasson v. The
State, 22 Ga. 499; Wallace v. The State,
28 Ark. 531; People v. Keith, 50 Cal.
187; The State v. Rash, 12 Ire. 382;
The State v. Linney, 52 Misso. 40.

8 Hoskins v. The State, 11 Ga. 92.

4 Kalle v. People, 4 Parker C. C. 691;
Reid v. The State, supra; Dave v. The
State, 22 Ala. 23; Harker v. The State,
8 Blackf. 540; Tarver v. The State, 43
Texas, 564; Thomas v. The State, 1
Texas Ap. 289; The State v. Silver, 3

Dev. 332; Freleigh v. The State, 8 Misso.
606; Armstead’s Case, 7 Grat. 599 ; Com-
monwealth v. Carey, 2 Brews. 404 ; Com-
monwealth v. Arrance, 5 Allen, 517; The
State v. Flynn, 42 Iowa, 164; Common-
wealth v. Ricketson, 5 Met. 412; Cash v.
The State, 10 Humph. 111; The State v.
Porter, 26 Misso. 201; The State v. Nob-
lett, 2 Jones, N. C. 418; Stephens v.
People, 19 N. Y. 549; Rex v. Remnant,
Russ. & Ry. 136 ; Dozier v. The State, 26
Ga. 156; Reg. v. Holden, 8 Car. & P. 606.
If, by mistake, the evidence applicable
to another indictment has been given,
the testimony may be commenced anew.
Reg. v. Wardle, Car. & M. 144.

5 Wilke v. People, 58 N. Y. 625 ; Nich-
olson’s Case, 2 Lewin, 151.

6 Vicaro v. Commonwealth, 5 Dana,
604. In Missouri, in a capital case, after
the evidence for the State was an-
nounced to be in, and it was agreed that
there was to be none for the defendant
and the testimony was closed, the jury
dispersed over night by consent. The
next day the court allowed witnesses to
be examined further for the State; and
this was held, by the higher tribunal, to

585
§ 966 a TRIAL BY PETIT JURY. [Book vu.

And it is the same of the re-examination of witnesses once fully
examined.!

§ 966 a. Election and Supervision as to such Order. — The court
will generally permit a party to introduce his evidence at its
proper stage in the cause, in any order he chooses,’ if its relevancy
is apparent from the pleadings and preceding testimony. But
practical convenience is in most instances promoted by having
each witness deliver all he knows of the issue at one examination,
while a part may be irrelevant unless something not yet proved is
assumed. Thereupon the presiding judge may, in his discretion,
accepting the assurance of counsel that the wanting link will be
supplied, receive now what such assumption alone makes rele-
vant.2 If the further proof fails, what is thus given is stricken
out, and the jury is directed not to regard itt A general prac-
tice of receiving evidence and afterward excluding it by in-
struction is vicious, and it may even be erroneous;° nor will
considerations of convenience always, as of course, induce the
court to receive evidence otherwise than in its natural order,
wherein one fact leads to and supports another All is within

the judicial discretion.”

be error. Said McGirk, J.: “I never
have yet seen a case-that goes as far as
this case goes. When the plaintiff has
closed his evidence in chief, if the de-

féndant gives none he cannot, merely on-

the ground that he forgot something, be
allowed to examine new witnesses, nor to
re-examine old ones. This is not allowed
for two reasons : first, because there must
be an end of the examination; and,
secondly, because to examine a witness
after he has been discharged, and after
the evidence is closed, is to allow him an
opportunity to fill up gaps by perjury ;
and to call others or the same after they
have mingled with the crowd is of most
dangerous consequence to truth and jus-
tice... . It is possible there may be
cases in which it might be allowed, but I
cannot now think of them.” Mary ». The
State, 5 Misso. 71, 81. And see Thompson
v. The State, 87 Texas, 121. But this
revising of a discretion, which the general
doctrine admits, would doubtless not be
permitted in some of our other States (as,
for example, see The State v. Haynes, 71
N. C. 79); nor, perhaps, would all courts

586

deem the discretion in this instance un-
duly exercised. Thus, in Livingston v.
Commonwealth, 7 Grat. 658, after the
jury had come into court and said they
could not agree, the prosecuting attorney
was permitted to question a witness on a
new point; and this proceeding was sus-
tained. And see other cases cited to this
section.

1 Jesse v. The State, 20 Ga. 156; Sar-
torious v. The State, 24 Missis. 602; The
State v. Weaver, 13 Ire. 491.

2 Byrd v. The State, 1 How. Missis.
247.

® The State v. McAllister, 24 Maine,
189; The State v. Black, 6 Jones, N. C.
510.

4 Dillin v. People, 8 Mich. 357; The
State v. McDonnell, 82 Vt. 491; Ban-
gor v. Brunswick, 80 Maine, 398; Luby
v. Commonwealth, 12 Bush, 1.

5 The State v. Mix, 15 Misso. 153;
People v. Long, 48 Cal. 444; Florey v.
Florey, 24 Ala. 241.

6 Reg. v. Brittain, 8 Cox C. C. 76;
Nicholson’s Case, 1 Lewin, 300.

7 Commonwealth v. Piper, 120 Mass.
CHAP. LXVI.] THE TRIAL. § 966 ¢

§ 966 6. When object — Curing Objection. — Objections to testi-
mony must be taken before it is delivered.1_ So, in general, must
exceptions to other errors at the trial be made when they occur,
and with sufficient distinctness to enable the judge to correct
them then ;? though there are errors which will be fatal even if
not excepted to. An erroneous ruling may be cured by matter
subsequent;* as, where evidence improperly excluded is after-
ward admitted.®

§ 966 c. Blection as to Witnesses. — In general, a party, whether
State or defendant, may exercise his choice either to call or de-
cline any competent witness. But if, for example, after the State
has made a prima facie case and rested, the defendant fails to
explain by evidence something which it is obviously in his power
to make clear for himself assuming him to be innocent, the
omission is proper matter of comment to the jury and considera-
tion by them.® Yet it is not against him that he omits to nega-
tive, by evidence, what the prosecutor was bound to prove and
did not... And there may be other like exceptions, real or ap-
parent. An omission of evidence for the prosecution may, in
like manner, be considered by the jury. Some courts deem that
a prosecuting officer ought, in murder and other like causes, to
call as witnesses all who were present at the transaction, what-
ever be the nature of their testimony ;° others regard it properly
within his discretion to produce such, and such only, as he thinks

best.

It is generally deemed that all witnesses whose names are

on the back of the indictment # should either be examined by the

185 ; United States v. Flowery, 1 Sprague,
109; Donnelly v. The State, 2 Dutcher,
463, 601; The State v. Whit, 5 Jones,
N. C. 224.

1 King v. The State, 21 Ga. 220; Mc-
Kay v. Lane, 5 Fla. 268; The State v.
Rohfrischt, 12 La. An. 382. See Creed
v. White, 11 Humph. 649, 552; Sanchez
v. People, 22 N. Y. 147.

2 The State v. Rabourn, 14 Ind. 300;
Turner v. People, 83 Mich. 363; People
v. Long, 48 Cal. 444; The State v. Wil-
son, 8 Iowa, 407 ; Mooring v. The State,
42 Texas, 85.

3 Post, § 980; Dempsey v. People, 47
Ill. 328.

4 Burden v. People, 26 Mich. 162;
Scott v. The State, 30 Ala. 503.

5 Dillin v. People, 8 Mich. 357; Bar-

ringer v. People, 4 Kernan, 593; Ste-
phens v. People, 4 Parker C. C. 396.

6 Commonwealth v. Cummings, 121
Mass. 63; Gordon v. People, 33 N. Y.
601.

7 Commonwealth v.
Gray, 136.

8 Knowles v. People, 15 Mich. 408;
Reg. v. Standen, 4 Jur. 702; Reg. v. nad
dick, 4 Fost. & F. 497.

® The State v. Smallwood, 75 N. ©
104; The State v. Moon, 41 Wis. 684; Wil-
ian v. Commonwealth, 5 Casey, Pa. 102.

10 Wellar v. People, 30 Mich. 16; Reg.
v. Holden, 8 Car. & P. 606. See Reg. v.
Pearce, 9 Car. & P. 667.

11 The State v. Martin, 2 Ire. 101. See
Reg. v. Heath, 18 Howell St. Tr. 1, 49.

22 Ante, § 959 a.

o8T

Hardiman, 9
§ 966d TRIAL BY PETIT JURY. [BOOK VII.

prosecuting counsel, or be present in court for the defendant to
examine them if he wishes ;! but on this sort of question opinions
are not quite uniform.?

‘Witness not indorsed. — A witness may in most localities testify
for the prosecution though his name is not on the back of the
indictment.’

§ 966 d. Adjournments. — The adjournment of a trial, after it
has opened, is: distinguishable from a continuance, already con-
sidered.4. The ancient idea was, that a criminal cause should be
finished at one sitting. But men must be refreshed by food, rest,
and sleep; hence adjournments of this sort are common in mod-
ern practice, though in earlier periods they were allowed only
from some very urgent necessity. The prisoner’s consent is not
essential. The objection, where in strict law it prevails, is, that
thereby the defendant is deprived of his right to be then acquitted
or convicted ;® hence he can complain of no adjournment made at
his request, for by asking it he has waived his right.’ It is impossi-
ble to find in the authorities an exact rule binding the judge’s dis-
cretion where the defendant does not consent, a violation whereof
will be error entitling him to his discharge. Such judicial intima-
tions as we have on the subject appear a little discordant; but, in
general, adjournments after the cause is given in charge to the
jury ® are not allowed to enable the government further to prepare
its case, or collect witnesses, unless in very special circumstances.?

1 Reg. v. Woodhead, 2 Car. & K. 520;
Reg. v. Cassidy, 1 Fost. & F. 79; Rex v.
Simmonds, 1 Car. & P. 84; Reg. v. Bull, 9
Car. & P. 22.

2 Rex v. Bodle, 6 Car. & P. 186; Reg.
v. Vincent, 9 Car. & P. 91; Rex v. Har-
ris, 7 Car. & P. 581; Reg. v. Edwards, 3
Cox C. C. 82. See Austin v. The State,
14 Ark. 555.

3 The State v. McClintock, 8 Iowa,
208 ; Rex v. Hollingberry, 6 D. & R. 345;
People v. Bonney, 19 Cal. 426; Gates v.
People, 14 Ill. 433; The State v. Gillick,
10 Iowa, 98; Hill v. People, 26 Mich. 496;
Gardner v. People, 3 Scam. 83.

4 Ante, § 951 et seq.

5 Rex v. Hardy, 24 Howell St. Tr.
199, 414; Rex v. Horne Tooke, 25 How-
ell St. Tr. 1, 129, 180; Rex v. Stone, 25
Howell St. Tr. 1155, 1295 and note, 6 T.
R. 627, 6380; Rex v. Clay, 7 Car. & P.

588

276; Commonwealth v. Titus, 38 Brews.
165; The State v. Kimbrough, 2 Dev.
431; The State v. Manuel, 64N. C. 601;
Vanderkarr v. The State, 51 Ind. 91.

8 Ante, § 961.

7 Crim. Law, I. § 995, 998; ante, § 946;
The State v. Williamson, 42 Conn. 261;
Reg. v. Fitzgerald, 1 Car. & K. 201; Cot-
ton v. The State, 4 Texas, 260. See
Brown v. The State, 88 Texas, 482.

8 Ante, § 960.

§ Vanderkarr v. The State, 51 Ind. 91;
Reg. v. Robson, 4 Fost. & F. 360; Reg.
v. Foster, 3 Car. & K. 201; Reg. v. Parr,
2 Fost. & F. 861; Reg. v. Tempest, 1
Fost. & F. 381; Reg. v. Wenborn, 6 Jur.
267; Reg. v. Lynch, 1 Cox C. C. 81;
Reg. v. Castro, Law Rep. 9Q. B. 350,
858, 12 Cox C. C. 454, 6 Eng. Rep. 817;
Briceland v. Commonwealth, 24 Smith,
Pa. 463.
CHAP. LXVI.] THE TRIAL. § 969

II. The Openings to the Jury.

§ 967. Prisoner without Counsel. — An opening is rather a
convenience than a necessity. And if the prisoner has no coun-
sel, the English practice appears to be for the prosecuting counsel
to omit it, proceeding at once to the evidence,! except in special
circumstances.2. But, —

§ 968. Defence by Counsel.— Where the prisoner defends by
counsel, “ you ought always,” said Parke, B., “to open the case,”
even though it is plain and not complicated.’

§ 969. Why the Opening. — The opening is to acquaint the
jurors with what will enable them to understand and apply the
evidence as delivered. Hence, —

Facts. — It should develop fully the facts which the testimony
is to establish,‘ but none which the party is not in a situation to
prove.5

Statements of Prisoner — Confessions. — Any statements of the
prisoner, therefore, which are to be proved, not amounting to
confessions, should be opened against him, though not necessarily
in detail.6 But a confession, to be admissible, must first be ad-
judged voluntary ;7 and, in reason, counsel for the prosecution
should not be permitted to prejudice a defendant’s cause with
the jurors by detailing to them confessions which the law may
exclude. Hence, by the better opinion, confessions should not be
opened. Yet some judges have permitted their general effect to
be stated, omitting particular expressions and exact words.°®

Wew Evidence. — If evidence is discovered out of its order, and
introduced by leave of the court, counsel have not the right to
open it in a set speech. But, —

1 Rex v. Jackson, 7 Car. & P. 773.

2 Rex v. Bowler, 7 Car. & P. 778.

3 Rex v. Gascoine, 7 Car. & P. 772.

4 Rex v. Smithies, 5 Car. & P. 382;
United States v. Mingo, 2 Curt. C. C.1;
Rex v. Hartel, 7 Car. & P. 778.

5 Reg. vo. Beard, 8 Car. & P. 142; Reg.
v. Butcher, 2 Moody & R. 228. See Reg.
v. Gardner, 9 Cox C.C. 282.

® Rex v. Davis, 7 Car. & P. 785; Rex
v. Hartel, 7 Car. & P. 773; Rex v. Orrell,

1 Moody & R. 467; Rex v. Deering, 5
Car. & P. 165.

7 Barnes v. The State, 36 Texas, 356 ;
Nicholson v. The State, 38 Md. 140;
People v. Rodriguez, 10 Cal. 50; Couley
v. The State, 12 Misso. 462; People ».
Barric, 49 Cal. 342.

8 Reg. v. Bodkin, 9 Cox C. C.-404;
Rex v. Davis, supra.

9 Rex v. Swatkins, 4 Car. & P. 548,
549.

10 Reg. v. Courvoisier, 9 Car. & P. 862.

589°
§ 978 TRIAL BY PETIT JURY. [BOoK vil.

Announcing what Witness will prove. — In all cases, when a
witness appears for examination, the court in its discretion may
require counsel to state what is to be proved by him, “in order,”
said Sutherland, J., “that, if irrelevant or improper, the evidence
may not be given.” ?

§ 970. Accusation and Law. — Not only the evidence should
thus be disclosed in the opening, but the accusation, as stated
in the indictment, and the law relating thereto.?

§ 971. Comments — Anticipating Defence. — The cases recog-
nize the right to comment in the opening on the evidence,’ and
to anticipate hypothetically what the other side may produce.t
But evidently a case in which there is to be a right afterward to
comment on the evidence should be distinguished from one in
which there is not. In reason, in the former, such comment
should not be allowed unlimited range. Every thing is best done
in its proper time and order.

§ 972. Opening for Defence. — The principles already stated dis-
close also the nature of the opening for the defence. Under the
old rules, forbidding the defendant to testify on his own behalf,
counsel cannot relate his story, or other facts not to be provedé

§ 978. More Counsel than One. — Where there are more coun-
sel than one on a side, the order of the openings varies in our
States ; and, in the absence of a rule, it is doubtless within the
discretion of the presiding judge. Chitty ® says, that, in the Eng-
lish practice, “the junior barrister usually states the outline of
the indictment, and pleadings thereon, but he cannot speak to
more than is upon the record; for it is the province of the lead-
ing counsel to state the circumstances of the offence.”’? It is
believed that there are not many of our States in which more
than one lawyer opens for the State or for one defendant.

1 People v. White, 14 Wend. 111, 114, 5 Reg. v. Beard, 8 Car. & P. 142; Reg.
115. v. Butcher, 2 Moody & R. 228.
2 United States v. Mingo, 2 Curt. C. C. § 1 Chit. Crim. Law, 555.
1; Morales v. The State, 1 Texas Ap. 494. 7 Rex v. Conspirators, 2 Howell St.
8 United States v. Mingo, 2 Curt. C. Tr. 159, 164; Rex uv. Acton, 17 Howell
©. 1. St. Tr. 461, 522, And see Rex v. Sach-
4 Reg. v. Courvoisier, 9 Car. & P. 862. _everell, 10 Howell St. Tr. 29.

590
CHAP. LXVI.] THE TRIAL. § 9756

III. The Summings up of Counsel.

§ 974, Waive Right — Defendant and Counsel. — A prosecuting
lawyer may exercise his right of reply, or not, as he deems best.
So may a defendant; and, in England, if he replies by counsel,
he cannot also himself address the jury in reply?

§ 975. Facts. — As, in the opening, counsel can state only the
facts which are to be proved; so, in the summing up, he is
limited to those which have been proved, or which, he contends,
the evidence tends to establish. And if he states “as fact what
has not been proved,” or otherwise misstates the evidence, “ the
court may, in its discretion, correct the mistake at the moment,
or in the charge to the jury.” Again, —

§ 975 a. Mlegitimate Argument. — Counsel are entitled to em-
ploy with the jury only legitimate argument.6 To indulge in
vituperation and abuse of the party,’ or urge that if the defend-
ant is not convicted the prosecutor will be ruined ® or be deemed
convicted of perjury,® or inflame them with the idea that justice
has not been well administered heretofore and therefore the de-
fendant must not be acquitted,” is irrelevant while it is unjust.
The jury “should decide,” said Crompton, J., “upon the case
solely upon the weight or credibility of the evidence, and not
with reference to the supposed consequences to one side or the
other.” Of the like sort is the expression, by a defendant’s
counsel, of belief in his client’s innocence.'

§ 975 6. Remedy for what is Improper. — If counsel undertake
what is thus inadmissible in argument, it is the right of counsel
on the other side to object.18 And whether objection is made or
not, the court may stop it; and, the author submits, a due re-

1 Rex v. Whiting, 7 Car. & P. 771. ®° The State v. Watson, 63 Maine, 128;

2 Ante, § 962; Reg. v. Boucher, 8 The State v. Williams, 65 N. C. 505.
Car. & P. 141; Reg. v. Burrows, 2 Moody 7 The State v. Smith, 75 N. C. 306.

& BR. 124. 8 Reg. v. Rudland, 4 Fost. & F. 495.

3 Ante, § 969, 972. ® Reg. v. Puddick, 4 Fost. & F.

4 Saunders v. Baxter, 6 Heisk. 369; 497.

Yoe v. People, 49 Ill. 410, 412; Davis v. 10 Ferguson v. The State, 49 Ind. 38.
The State, 88 Ga. 98; Ferguson v. The Ut Reg. v. Puddick, supra, at p. 499.
State, 49 Ind. 33, 34. 12 Ante, § 811.

5 Battle, J., in The State v. Whit, 5 18 The State v. Watson, 63 Maine, 128,
Jones, N. C. 224, 281; The State v. 138, an
O’Neal, 7 Ire. 251; Bill v. People, 14 Ill. M4 Ante, § 975; The State v. Williams,
432, ; 65 N. C. 605 ; Coleman v. Commonwealth,

591
§ 976 TRIAL BY PETIT JURY. [Book vm.

gard for the purity of public justice demands that courts should
oftener interfere in this way than is common. Not in all cir-
cumstances can an error of this sort in the presiding judge be
corrected by a higher tribunal ;1 but in some it can, as by grant-
ing a new trial.”

IV. The Charge of the Judge to the Jury. :

§ 976. In General — (Oral or Written). — The evidence being
in, and the respective counsel having made their final appeals to
the jury, the judge addresses to them what in some localities is
called his charge, in others his summing up. It is ordinarily
oral; except that in a few States there are statutes requiring it
to be, in specified circumstances, or always, in writing? We
shall see, in subsequent sections, that, in some of the States, its
original scope is restricted by statutes; but everywhere its gen-
eral purpose is to acquaint the jury with their duties in respect of
the verdict. Hence, —

Essential. — Though no particular form for it, or stage of the
cause for its delivery, is in law exclusive of all others,‘ yet, in
some manner and time, before the jury retire to consider of their
verdict, this information should be communicated to them by the

court.®

25 Grat. 865, 885; Sellers v. The State,
52 Ala. 368.

1 The State v. Hamilton, 55 Misso.
520; Cobb v. The State, 27 Ga. 648;
Davis v. The State, 83 Ga. 98; Com-
monwealth v. Byce, 8 Gray, 461; The
State v: Watson, 63 Maine, 128, 188.

2 The State v. Underwood, 77 N. C.
602; The State v. Smith, 75 N.C. 306;
Ferguson v. The State, 49 Ind. 33.

8 People v. Payne, 8 Cal. 841; People
v. Demint, 8 Cal. 423; People v. Beeler,
6 Cal. 246; People v. Prospero, 44 Cal.
186; Morris v. The State, 25 Ala. 57;
People v. Bumberger, 45 Cal. 650; Peo-
ple v. Max, 45 Cal. 254; People v. Kear-
ney, 43 Cal. 883; Thompson v. People, 4
Neb. 524; Hogg v. The State, 52 Ala. 2;
Blair v. The State, 52 Ala. 343; Stewart
v. The State, 50 Missis. 587; Gile v.
People, 1 Col. Ter. 60; The State »v.
Potter, 15 Kan. 802; Brown v. The State,
28 Ga. 199; Willets v. Ridgway, 9 Ind.

592

867; The State v. Cooper, 45 Misso. 64;
People v. Chares, 26 Cal. 78; Gibbs v.
The State, 1 Texas Ap. 12; Feriter v.
The State, 33 Ind. 288; People v. Wopp-
ner, 14 Cal. 437; Brown v. People, 4
Gilman, 439; Widner v. The State, 28
Ind. 894; Dixon v. The State, 13 Fla.
636; Payne v. Commonwealth, 1 Met.
Ky. 370; Williams v. The State, 32 Missis.
389; People v. Ah Fong, 12 Cal. 345;
The State v. Gilmore, 26 La. An. 599;
Commonwealth v. Barry, 11 Allen, 263;
Long v. The State, 11 Fla. 295; McJun-
kins v. The State, 10 Ind. 140.

* Gwatkin v. Commonwealth, 9 Leigh,
678; Blunt v. Commonwealth, 4 Leigh,
680.

5 The State v. Saliba, 18 La. An. 35;
The State v. Stonum, 62 Misso. 596; The
State v. Christmas, 6 Jones, N. C. 471;
Terry v. The State, 17 Ga. 204; Nelson
v. The State, 2 Swan, Tenn. 237. But
see Edwards v. The State, 47 Missis. 581.
CHAP. LXVI.] THE TRIAL. § OTT

§ 977. Directing Verdict. — If the evidence fails to show the
crime charged, the court should tell the jury so and order an
acquittal ; because, as a question of law, which is always for the
court, even in States wherein for the protection of defendants
the jury are permitted to judge of the law as well as the fact, no
one can be convicted except on proofs legally adequate! On the
other hand, it is never competent for the court, in a criminal
cause, to convict one, even though acknowledging his offence,
except on a plea of guilty; the evidence is exclusively for the
jury. However conclusive of guilt it may be, the judge can only
tell them, that, if they believe such and such to be the facts, the
law demands a verdict of guilty ;2 he cannot otherwise direct

such verdict.®

And see The State v. Wyatt, 50 Misso.
809. Where, under special and pressing
circumstances, the judge omitted a charge
though requested to make it, a new trial
was refused; there having been no dis-
pute about the law, and the omission not
having operated to the party’s prejudice.
People v. Gray, 5 Wend. 289. In this
case, it is perceived, the needed informa-
tion had in another form been communi-
cated to the jury during the trial.

1 Commonwealth v. Packard, 5 Gray,
101; Commonwealth « Merrill, 14 Gray,
415, 418; The State v. Banks, 48 Ind.
197, 200; The State v. Dishman, 74 N. C.
217; People v. Bennett, 49 N. Y. 187;
United States v. Fullerton, 7 Blatch.
177; Rex v. Robinson, 4 Fost. & F. 43;
The State v. Maxwell, 42 Iowa, 208;
Reynolds v. People, 41 How. Pr. 179. See
The State ». Wheeler, 35 Vt. 261; Skin-
ner v. The State, 80 Ala. 524; The State
v. Baker, 69 N. C. 147.

2 McInnis v. The State, 51 Ala. 23;
McGaffey v. The State,4 Texas, 156;
The State v. Elwood, 73 N.C. 189, 635;
The State v. Jones, 64 Misso. 391; Boyd
v. The State, 17 Ga. 194; The State v.
Joeckel, 44 Misso. 284; The State v.
Childers, 74 N. C. 180; Ward v. The
State, 56 Ga. 408; People v. Quincy, 8
Cal. 89; The State v. Kring, 64 Misso,
591; The State v. Baker, 63 N. C. 276;
The State v. Lenares, 12 La. An. 226;
Anderson v. The State, 31 Texas, 440;
Reg. v. Fuller, 14 Howell St. Tr. 517, 536.

.8 Tucker v. The State, 57 Ga. 503;
VOL. 1. 38

Sims v. The State, 43 Ala. 88. There is
a good deal of apparent confusion in the
cases on the subject of this section; and
I have stated the docfrine as it clearly
rests in the principles of the criminal
law, rather than on any attempted follow-
ing of the exact terms of the majority of
the decisions. There are cases in which
it is apparently laid down, that, if facts
conclusive of guilt are distinctly proved
and are undisputed, the court should
direct the jury to find the defendant
guilty. United States ». Anthony, 11
Blatch. 200; Commonwealth v. Magee,
12 Cox C. C. 549. Undisputed by whom 2
If the jury do not dispute but admit them,
and they are the facts which constitute
the crime, not mere evidence of it, the
doctrine of my text justifies the court in
telling them that they do constitute the
crime, and the law demands a conviction.
But even this direction would be error in
a case where the admitted facts were
merely evidence from which the crime
might beinferred. Whitley v. The State,
88 Ga. 60; Sims v. The State, supra;
United States v. Babcock, 3 Dillon, 577;
Breen v. People, 4 Parker C. C. 380;
Pfomer v. People, 4 Parker C. C. 558;
McFarlin v. The State, 41 Texas, 23;
Arnold v. The State, 29 Ala. 40; Craw-
ford v. The State, 44 Ala. 45; People v.
Roberts, 6 Cal. 214; Williams v. The
State, 47 Ala. 659. Jurors are under
no obligation of law to believe a wit-
ness. The State v. Smallwood, 75 N. C.
104. And’ it is error for the court to in-

593
§ 978 TRIAL BY PETIT JURY. [Book vu.

No Crime alleged. — An acquittal may be directed, whatever
the evidence, when the indictment does not show a crime.
And —

§ 978. Within Pleadings and Evidence. — The effect and suffi-
ciency of the pleadings is always a question of law. So likewise
it is a question of law whether or not the testimony before the jury
tends to establish a fact.2 All extraneous matter, therefore, may
and should be excluded by the judge? If testimony has been
given, which, on a consideration of the whole case, appears irrele-
vant or otherwise inadmissible, he should direct the jury to
disregard it. And he should not state to them, even though re-
quested, what the law is on any question not within the allega-
tions, or on a fact which, though within them, the evidence does
not tend to prove.5 Nor should he assume the existence of a fact

not in evidence.®

struct them that dny fact has been proved.
White v. The State, 138 Texas, 133. So
that, however clear the fact may appear
to the judge, he can have no just author-
ity to command the jury to find, there-
fore, the defendant guilty, or to tell them
that the law deems him guilty, unless
he is first assured that they are con-
vinced of the fact also. He cannot as-
sume that they ought to be convinced ; or,
if they ought, that, consequently, they
are. The fact is for them. And see
Hagan v. The State, 10 Ohio State, 459;
Adams v. The State, 29 Ohio State, 412;
Holder v. The State, 5 Ga. 441: Pfomer
v. People, 4 Parker C. C. 558; Rhodes v.
Commonwealth, 12 Wright, Pa. 396;
Roach v. People, 77 Ill. 25; Bond v. Peo-
ple, 89 Til. 26; Lane v. Commonwealth,
9 Smith, Pa. 371; Howell v. People, 5
* Hun, 620.

1 People v. Cook, 10 Mich. 164; Coney
v. The State, 43 Texas, 414.

2 Berry v. The State, 31 Ohio State,
219; Burrell v. The State, 18 Texas, 718 ;
People v. Vasquez, 49 Cal. 560.

3 Read v. The State, 2 Ind. 438.

* Ante, § 966a; Joy v. The State,

* Post, § 979; Hitesman v. The State,
48 Ind. 473; Du Bois v. The State, 50
Ala. 189; Skains v. The State, 21 Ala.
218 ; Thompson v. The State, 80 Ala. 28;

594

14 Ind. 189; The State v. Gregory, 5
Jones, N. C. 815; The State v. Walsh,
6 Nev. 815; People v. Parish, 4 Denio,
153.

5 Slatterly v. People, 58 N. Y. 354;
Higgins v. People, 58 N. Y. 877; The
State v. Arthur, 23 Iowa, 480; People v.
Roberts, 6 Cal. 214; O’Connell v. The
State, 18 Texas, 343; Gladden v. The
State, 12 Fla. 562; Commonwealth v.
McCann, 97 Mass. 580; Pugh v. The
State, 2 Texas Ap. 539; Williams v.
The State, 2 Texas Ap. 271; Pressley
v. The State, 19 Ga. 192; People vw.
Payne, 8 Cal. 841; People v. Hurley, 8
Cal. 890; Swallow v. The State, 22 Ala.
20, 22; People v. Cunningham, 1 Denio,
524; The State v. Glass, 5 Oregon, 78;
Wilkins v. Earle, 44 N. Y. 172,181; Tay-
lor v. The State, 48 Ala. 180; The State
v. Starr, 38 Misso. 270; Wynne wv. The
State, 66 Ga. 118; Holden v. The State,
1 Texas Ap. 225; Washington v. The
State, 1 Texas Ap. 647; The State v.
Coleman, 6 8. C. 185; Croft v. The State,
6 Humph. 817; Whitney v. Lynde, 16 Vt.
679; Stearns v. Janes, 12 Allen, 582;
Johnson v. Black, 82 Ga. 896; Farris v.

Minor v. The State, 56 Ga. 6830; Wesley
v. The State, 87 Missis. 827; Hogan
v. The State, 46 Missis. 274; People v.
Cotta, 49 Cal. 166.

a,
CHAP. LXVI.] THE TRIAL,

§ 979

Abstract Doctrine — Applied to Facts. — No mere abstract prop-
ositions of law, however correct, should be given in charge; not
only because they are confusing to the jury, who cannot know
how to apply them, but, in the language of Wagner, J.: “ Prop-
ositions of law may be abstractly correct, but erroneous in the
given case, because not applicable to the facts.” The charge
should simply develop the rules of law governing the particular
facts — all the facts, not a part only ?—— which the evidence tends
to establish ;* and it is to be interpreted and judged of, not in
any abstract way, but with reference to those facts.4 Hence the
same language may be correct or erroneous according to the facts
of which it is spoken.® :

§ 979. Stating the Evidence. — Under the common law prac-
tice, the leading object of this address to the jury is to recapitu-
late the evidence, placing it in such order as, while refreshing
their memories, to enable them to pass intelligently upon it.é

The State, 35 Ga. 241; Washington ‘v.
The State, 36 Ga. 222; Cocker v. The
State, 31 Texas, 498 ; Myers v. The State,
83 Texas, 525; Hudson wv. The State, 40
Texas, 12; The State v. Sayers, 58 Misso.
585; The State v. Bailey, 57 Misso. 181;
Martin v. The State, 47 Ala. 564; The
State v. Ware, 62 Misso. 597; The State
v. Fraunburg, 40 Iowa, 555; The State
v. Robinson, 39 Maine, 150; The State v.
Cain, 2 Jones, N. C. 201; Daniels v. The
State, 24 Texas, 889 ; Brown v. The State,
28 Ga. 199 ; Jones v. The State, 13 Texas,
168; Doonan v. Mitchell, 26 Ga. 472;
Johnson v. The State, 26 Ga. 611; Daniel

_v. Johnson, 29 Ga. 207; Dollner v. Wil-
liams, 29 Ga. 743; Brown v. Cockerell,
33 Ala. 88; Austin v. Talk, 20 Texas, 164;
Willis v. Bullitt, 22 Texas, 330; The State
v. Ross, 29 Misso. 82; Gibson v. Tong, 29
Misso. 183; McCoy v. The State, 15 Ga.
205; Drake v. Curtis, 1 Cush. 395.

1 The State v. Stockton, 61 Misso. 382,
885; Brister v. The State, 26 Ala. 107;
The State v. Hall, 89 Maine, 107; The
State v. Houser, 28 Misso: 233; Browning
v. The State, 30 Misso. 656; Long v.
The State, 12 Ga. 293; The State v.
Bailey, 57 Misso. 181; Clark v. The
State, 49 Ala. 87; The State v. Dunlop, 65
N. C. 288; The State v. McDonald, 65
Maine, 465; The State v. Pike, 65 Maine,

111; The State v. Smith, 65 Maine, 257;
Molette v. The State, 49 Ala. 18, 20; Mc-
Daniel v. The State, 8 Sm. & M. 401;
Ritte v. Commonwealth, 18 B. Monr. 35;
Burrell v. The State, 18 Texas, 713.

2 Williams v. Commonwealth, 9 Bush,
274; Carter v. The State, 33 Ala. 429.
And see People v. Levison, 16 Cal. 98;
Williams v. The State, 52 Ala. 26; Mur-
ray v. The State, 1 Texas Ap. 417.

8 Hudson v. The State, 40 Texas, 12;
Haynes v. The State, 40 Texas, 52; Mar-
shall v. The State, 40 Texas, 200; Peffer-
ling v. The State, 40 Texas, 487; Taliaferro
v. The State, 40 Texas, 523 ; Little Miami
Railroad v. Wetmore, 19 Ohio State, 110;
Pittsburg, &c. Railroad v. Slusser, 19
Ohio State, 157; Ritte v. Commonwealth,
supra; Wright v. The State, 41 Texas,
246 ; Keating v. The State, 44 Ind. 449,

4 People v. Scott, 6 Mich. 287, 291;
The State v. Bantley, 44 Conn. 637 ; King
v. The State, 21 Ga.' 220; Collins v.
Hutchins, 21 Ga. 270; Lyman v. Redman,
28 Maine, 289; Blake v. Irish, 21 Maine,
450; Burden v. People, 26 Mich. 162; Mc-
Bride v. Thompson, 8 Ala. 650.

5 The State v. Parker, Phillips, 473;
Norfleet v. Sigman, 41 Missis. 681.

6 1 Chit. Crim. Law, 632; Burn Just.
Sessions of Peace. “It may be neces-
sary, in some cases, to read over the whole

595
§ 980 TRIAL BY PETIT JURY. [BOOK VIII.

This would seem not to be permitted in Texas ;! but, in most of
our States, the judge may state the evidence,? even though a
statute forbids him to express an opinion upon its effect,? as ex-
plained further on.t Indeed, it would be nearly or quite im-
possible for him to show the application of the law to the
evidence, which it is always his duty to do,® if he were not
permitted to say what the evidence is. But —

Declaring the Facts. — The jurors are still to rely on their own
recollections as to what the evidence is.6 And they are the sole
judges of the credibility of the witnesses, the weight of it, and
what facts it establishes; and any form of charge the: effect
whereof is to take these from them, or obstruct the free exercise of
their judgments in passing upon these, is erroneous.’ The judge,
therefore, should not assume a fact as proved,® unless the parties,

in the course of the trial, have treated it so, and then he may.
§ 980. Correct and Full as to Law — (Degrees of Crime — Pun-
ishment). — The charge should state the law, in its application to

the facts as already explained, correctly and fully.”

evidence, and, when requested by the
jury, this will, of course, be done; but,
in general, it is better merely to state its
substance.” 2 Tasch. on Canada Crim.
Law Acts, 244. See, for illustrations, the
recorder’s suinming up in Rex v. White, 17
Howell St. Tr. 1079, 1089; and Holt’s in
Rex v. Butler, 13 Howell St. Tr. 1249, 1261.

1 Gibbs v. The State, 1 Texas Ap. 12,
18.

2 Mimms v. The State, 16 Ohio State,
221; The State v. Smith, 10 Nev. 106;
Cathcart v. Commonwealth, 1 Wright,
Pa. 108; Brady v. Commonwealth, 11
Bush, 282 ; The State v. Morris, 3 Hawks,
888. See The State v. Knight, 43 Maine,
11; The State v. Noblett, 2 Jones, N. C.
418. .

3 Barker v. The State, 48 Ind. 163,
167; People v. Welch, 49 Cal. 174; The
State v. Anderson, 4 Nev. 265; The State
v. Banks, 48 Ind. 197; The State v.
Green, 5 S. C. 65.

4 Post, § 981.

5 Ante, § 978.

6 The State v. Blackwell, 9 Ala. 79, 83.

7 Berry v. The State, 10 Ga. 511;
Noland v. The State, 19 Ohio, 181; At-
kins v. The State, 16 Ark. 568; Ruther-
ford v. Commonwealth, 2 Met. Ky. 887;

596

If, for ex-

Bill v. People, 14 Ill. 482; Newcomb »v.
The State, 37 Missis. 883; Coats v.
Elliott, 23 Texas, 606; Jim v. The State,
4 Humph. 289; Woodin v. People, 1
Parker C. C. 464; Burtles v. The State,
4 Md. 273 ; McGuffie v. The State, 17 Ga.
497; The State v. Presley, 13 Ire. 494,
495 ; Commonwealth v. Bosworth, 6 Gray,
479, 481; Brady v. Commonwealth, 11
Bush, 282; Long v. The State, 1 Texas
Ap. 466; The State v. Williamson, 16
Misso. 894; The State v. Lynott, 5 R. 1.
295 ; Stephens v. The State, 47 Ala. 696;
Horne v. The State, 1 Kan. 42; United
States v. Sarchet, Gilpin, 273; The State
v. Cushing, 29 Misso. 215; The State v.
McGinnis, 5 Nev. 337; Easterling v. The
State, 30 Ala. 46,

8 Ante, § 978; Smathers v. The State,
46 Ind. 447; Coffman v. Commonwealth,
10 Bush, 495; Bond v. People, 39 Ill. 26;
Herges v. The State, 80 Ala. 45,

® The State v. Rash, 12 Ire. 382; The
State v. Williams, 2 Jones, N. C. 194;
The State v. Angel, 7 Ire. 27. And see
The State ». Harrison, 6 Jones, N. C.
115; The State v. Banks, 48 Ind. 197.

10 Crawford v. The State, 4 Coldw. 190;
Keener v. The State, 18 Ga. 194; People
v. Lachanais, 32 Cal. 483; Strady v. The
CHAP. LXVI.] THE TRIAL.

§ 980

ample, there are different degrees of an offence, the law of each de-
gree which the evidence tends to prove should be given, but not of
any degree which it does not tend to prove.! And if the punish-
ment is for the jury, the judge should instruct them upon it; 2 but
not if it is for the court.2 While to state the law incorrectly is
error,‘ to state it correctly yet only in part is error or not accord-
ing to the circumstances Thus, —

Asked or not. — If the party or the jury® asks for an instruc-
tion on any question of law within the record and the testimony,
the court should give it.’ And, to an extent not easily defined,

instructions should be given unasked.®

State, 5 Coldw. 300; Payne v. Common-
wealth, 1 Met. Ky. 870; The State v.
Gillick, 7 Iowa, 287; Fulcher v. The
State, 41 Texas, 233; Bray v. The State,
41 Texas, 203; The State v. Brainard,
25 Iowa, 572; Cox v. The State, 32 Ga.
515; Stewart v. The State, 1 Ohio State,
66; Brown v. The State, 23 Texas, 195;
Anderson ». The State, 1 Texas Ap. 730;
Lister v. The State, 3 Texas Ap. 17.

1 Washington v. The State, 36 Ga.
222; Williams v. The State, 2 Texas Ap.
271; The State v. Bryant, 55 Misso. 75;
The State v. Conley, 39 Maine, 78; Fos-
ter v. People, 50 N. Y. 598; Hudson v.
The State, 40 Texas, 12; The State v.

Wyatt, 50 Misso. 309; Myers v. The

State, 88 Texas, 525; Cocker v. The State,
81 Texas, 498; Holden v. The State, 1
Texas Ap. 225; Washington v. The
State, 1 Texas Ap. 647; Wynne v. The
State, 56 Ga. 113; Taylor v. The State,
48 Ala. 180; People v. Quincy, 8 Cal.
89; O’Connell v. The State, 18 Texas,
343; The State v. Kring, 64 Misso. 591;
Slatterly v. People, 58 N. Y. 354; Cham-
bers v. The State, 42 Texas, 254; Maria
v. The State, 28 Texas, 698; Hill v. The
State, 41 Ga. 484; Wellar v. People, 80
Mich. 16; People v. Byrnes, 30 Cal. 206 ;
Crawford v. The State, 12 Ga. 142; Dozier
v. The State, 26 Ga. 156; Davis v. The
State, 10 Ga. 101; The State v. Gentry,
2 Jones, N. C. 406; Cicero v. The State,
64 Ga. 156; The State v. Hildreth, 9 Ire.
429; The State v. Packwood, 26 Misso.
840; People v. Taylor, 86 Cal. 255; Fitz-
gerrold +. People, 87 N. Y. 418; Lindsay
v. The State, 36 Texas, 837; Williams v.
The State, 43 Texas, 882 ; People v. Es-

But it is not practically

trado, 49 Cal. 171.
1 Idaho Ter. 75.

2 Buford v. The State, 44 Texas, 525;
Skains v. The State, 21 Ala. 218; People
v. Atherton, 51 Cal. 495.

3 Russell v. The State, 57 Ga. 420.

4 Territory v. Paul, 2 Mon. Ter. 314;
Armstrong v. People, 38 Ill. 513; Beau-
dien v. The State, 8 Ohio State, 634; The
State v. Anderson, 4 Nev. 265; Scott v.
The State, 37 Ala. 117; Maria v. The
State, 28 Texas, 698; The State v. War-
ner, 25 Iowa, 200; Purtell v. The State,
43 Texas, 483.

6 The State v. Floyd, 6 Jones, N. C.
392; Bowie v. The State, 19 Ga. 1; The
State v. Downer, 21 Wis. 274; The State
v. Johnson, 3 Jones, N. C. 266.

® O’Shields v. The State, 55 Ga. 696.

7 Boles v. The State, 9 Sm. & M. 284;
People ». Bonds, 1 Nev. 33; Line v. The
State, 51 Ind. 172. The State v. Dunlop,
65 N. C. 288 ; People v. Dick, 82 Cal. 213;
People v. Gleason, 1 Nev. 178; Aaron v.
The State, 89 Ala. 684; The State v.
Wilson, 2 Scam. 225; Davis v. The State,
10Ga.101.

8 Ante, § 976; Thomas v. The State,
40 Texas, 60; Sanders v. The State, 41
Texas, 806; Beaudien v. The State, 8
Ohio State, 634; Wilcox +. The State,
8 Heisk. 110; Bishop v. The State, 43
Texas, 390; Cole v. The State, 40 Texas,
147; Marshall v. The State, 40 Texas,
200; Lindsay v. The State, 1 Texas Ap.
827; Treadway v. The State, 1 Texas
Ap. 668; Falk v. People, 42 Ill. 381;
Brown v. People, 4 Gilman, 439 ; People
v. Hart, 44 Cal. 698; People v. Rodundo,
44 Cal. 638; Hinch v. The State, 25 Ga.

597

See People v. Dunn,
§ 980 TRIAL BY PETIT JURY. [Book vul.

important that they should cover every possible ground ;1 and,
in various circumstances, omissions which the judge was not re-
quested to supply have been deemed, therefore, not to be error.?

Formalities as to Instructions asked. — An instruction need not
be given in the terms asked ;# and, when the judge deems them
calculated to mislead the jury, it should not be.* But, if they
are unobjectionable, it is quite proper and perhaps sometimes
even his duty to adopt them; adding, when important, ex-
planations * and: modifications.’ Instructions once voluntarily
given need not be repeated on request,® though to do it would
not be error.2 If the judge declines, it has been deemed better,

699; Longnecker v. The State, 22 Ind.
247; The State v. McDonnell, 32 Vt. 491;
The State v. Walker, N. C. Term R.
230.

1 The State v. Roe, 12 Vt. 98; Leschi
v. Territory, 1 Wash. Ter. 23; The State
v. Byrne, 24 Misso. 151.

2 The State v. Rash, 12 Ire. 382;
Briggs v. Byrd, 12 Ire. 377; The State v.
Johnson, 8 Iowa, 525; Carr v. The State,
41 Texas, 543; Jones v. The State, 49
Ind. 549; The State v. Phinney, 42 Maine,
884; Farris v. The State, 35 Ga. 241;
Gillmore v. The State, 86 Texas, 334;
Jenkins v. The State, 36 Texas, 638;
Keech v. The State, 15 Fla. 591 ; Mooring
v. The State, 42 Texas, 85; The State v.
Smith, 10 Rich. 341; The State v. Scott,
12 La. An. 886; The State v. O’Neal, 7
Tre. 251; Dave v. The State, 22 Ala. 23;
Burns v. Commonwealth, 3 Met. Ky. 13;
People v. Ah Wee, 48 Gal. 236; The State
v. Avery, 44 N. H. 892; Mercer v. The
State, 17 Ga. 146; Mason v. People, 2
Col. Ter. 878; The State v. Bogain, 12
La. An. 264; The State v. Ingram, 16
Kan. 14; Commonwealth v. Costley, 118
Mass. 1.

8 Shultz v. The State, 18 Texas, 401;
Boles v. The State, 9Sm. & M. 284; Hays
v. Borders, 1 Gilman, 46; Campbell v.
Day, 16 Vt. 558; Long v. The State, 12
Ga. 293; The State v. Brantley, 63 N. C.
518; The State v. Barnes, 29 Maine, 561;
The State v. Massage, 65 N. C. 480;
Hawkins v. House, 65 N. C. 614; The
State v. Hargett, 65 N. C, 669; Bond v.
The State, 23 Ohio State, 349, 356; Ru-
loff v. People, 45 N. Y. 218; People v.
Rogers, 18 Abb. Pr. n. 8. 870; Newbern

598

v. Dawson, 10 Ire. 486; Petre v. The
State, 6 Vroom, 64.

4 Baxter v. People, 3 Gilman, 368;
The State v. Bunger, 14 La. An. 461;
The State v. Jones, 61 Misso. 232 ; Cicely
v. The State, 18 Sm. & M. 202; The Stato
v. Matthews, 20 Misso. 55; Thomas v.
The State, 27 Ga. 287.

5 Cotton v. The State, 31 Missis. 504;
Stanton v, The State, 18 Ark. 317. In
some States, it is so required by statute.
Eiland v. The State, 52 Ala. 822; Hogg
v. The State, 52 Ala. 2; Blair v. The
State, 52 Ala. 843; Carson v. The State,
50 Ala. 134; Gilliam v. The State, 50
Ala. 145. In The State v. Collins, 20
Towa, 85, 91, it was deemed the better
practice, in general, for the judge to put
aside the requests of counsel, and deliver
the instructions in his own language.

6 Lambeth v. The State, 23. Missis.
822.

7 Keithler v. The State, 10 Sm. & M.
192; The State v. Wilson, 2 Scam. 225;
Mask v. The State, 86 Missis. 77; The
State v. Wilson, 8 Iowa, 407; Abbott v.
Striblen, 6 Iowa, 191; Rusch v. Daven-
port, 6 Iowa, 443. :

8 The State v. Knight, 43 Maine, 11;
The State v. Bunger, supra; Hatcher v.
The State, 18 Ga. 460; Dunn v. Moody,
41 Maine, 239; Ruloffv. People, 45 N. Y,
213; The State v. Maxwell, 42 Iowa, 208;
The State v. Wissmark, 86 Misso. 592;
Stanton v. The State, 18 Ark. 817. And
see The State v. Anderson, 4 Nev. 265;
The State v. Waterman, 1 Nev. 548.

® Commonwealth v. Snelling, 15 Pick.
821, 838.
CHAP. LXVI.] THE TRIAL. § 980 a

or even essential, to state the reason in order to prevent misap-
prehension.1. When the instruction asked is partly correct and
partly erroneous, the whole may be rejected? or not? according
to the circumstances. An instruction complicated and involved,
calculated to confuse the jury, may be rejected. One cannot
complain of what is given at his own request.6 A request is too
late after the jury have retired to consider of their verdict.®

§ 980 a. Form of Charge and how interpreted. — The language
of the judge’s charge to the jury ought to be unambiguous, direct,
and comprehensible by persons not educated in the law, —such
as the men addressed will understand.’ It should be viewed
rather as a whole than in its parts; and, if adapted to leave on
the jury an impression reasonably accurate, it will not be treated
as erroneous, though not in all particulars scientifically exact.
Yet it will be so treated if liable practically to mislead. The
judge may correct his own error in it, and an error in one part
may be overcome by what appears in another part ; and whether
or not in a particular instance the correction is to be deemed
made will be determined from a consideration of the whole and

of all the circumstances.®

1 People v. Ramirez, 18 Cal. 172;
People v. Hurley, 8 Cal. 390, 892. See
People v. Murray, 41 Cal. 66.

2 Stanton v. The State, supra; Swal-
low v. The State, 22 Ala. 20; Atkinson
v. Snow, 80 Maine, 864; Munden v. The
State, 37 Texas, 353 ; Woodford v. People,
62. N. Y. 117; Heilbron v. The State, 2
Texas Ap. 537.

3 See the cases in the foregoing notes
to this section. And see Nels v. The
State, 2 Texas, 280.

4 The State v. Ott, 49 Misso. 326;
Boullemet v. The State, 28 Ala. 88. And
see Tompkins v. The State, 32 Ala. 569.

6 Dick v. The State, 80 Missis. 598 ;
The State v. Madison, 33 Maine, 267;
Slattery v. People, 1 Hun, 311; Daven-
port v. Commonwealth, 1 Leigh, 588.

6 The State v. Catlin, 8 Vt. 580, 534.

7 Roach v. People, 77 Ill. 25; Sum-
ner v. The State, 6 Blackf. 579; Golden
v. The State, 25 Ga. 627; The State v.
Floyd, 15 Misso. 349; The State v. Mix,
15 Misso. 153; Lancaster v. The State, 3
Coldw. 839; Hamilton v. People, 29 Mich.
178; Stoneman” v. Commonwealth, 25

Grat. 887; Mickay v. Commonwealth, 9
Bush, 598.

8 Cicero v. The State, 54 Ga. 156;
Phillips v. Ocmulgee Mills, 55 Ga. 638;
The State v. Donovan, 10 Nev. 86; People
v. Kelly, 28 Cal. 428; The State v. Brin-
yea, 5 Ala. 241; Fife v. Commonwealth,
5 Casey, Pa. 429; The State v. Maloy, 44
Iowa, 104; The State v. Shaw, 4 Jones,
N. C. 440; Browning v. The State, 1
Texas Ap. 96; Sharpe v. The State, 48
Ga. 16; Young v. Commonwealth, 12
Bush, 243; People v. Doyell, 48 Cal. 85;
People v. Cleveland, 49 Cal. 677; Galpin
v. Wilson, 40 Iowa, 90; The State v.
Taylor, 21 Misso. 477; Haile v. The State,
1 Swan, Tenn. 248; Jordan v. The State,
10 Texas, 479; People v. Pool, 27 Cal.
672; The State v. Simmons, 6 Jones,
N. C. 21; People v. Moore, 8 Cal. 90; Ro-
man v. The State, 41 Wis. 312; Monroe
v. The State, 23 Texas, 210; People »v.
Welch, 49 Cal. 174; Preisker v. People,
47 Ill. 882; Scarborough v. The State, 46
Ga. 26; Harris v. The State, 30 Ind. 181.

® Horne v. The State, 1 Kan. 42;
Eggler v. People, 66 N. Y. 642; People

599
§ 981 TRIAL BY PETIT JURY. [Book vim.

§ 980 8. Errors not available to Party. — One cannot object to
an instruction which has done him no harm;! as, for example,
that it is too favorable to him.2~ An announcement of a mere ab-
stract proposition, or an instruction on facts not appearing in the
case, may be injurious or it may not; if injurious it is error,?
otherwise it is treated as mere surplusage.!

§ 981. Judge's Opinion of Evidence. — The admissibility of the
evidence being exclusively for the judge; he should not express
to the jury a doubt of the competency of what he does not rule
out.5 Nor, as they alone are to determine what it proves, does it
seem just for him to attempt to influence them by stating his
opinion on this. Still, under the common-law rules, an expression
of such opinion is not error, if at the same time he informs them
that it is for them to decide.6 In some of the States, however,
there are statutes in varying terms denying this right; but, as
their expositions differ with their terms, a mere reference to cases

will suffice.”

v. Valencia, 48 Cal. 552; Mackey v. Peo-
ple, 2 Col. Ter. 13; Toledo, &c. Railroad
v. Shuckman, 50 Ind. 42; Murray o.
Commonwealth, 29 Smith, Pa. 311; Rice
v. Olin, 29 Smith, Pa. 391; Howard v.
The State, 50 Ind. 190; The State »v.
Robbins, 3 Jones, N. C. 249; The State
v. Mitchell, 64 Misso. 191; People v.
Anderson, 44 Cal. 65; Rosenbaum v. The
State, 88 Ala. 354; The State v. Bailey,
18.C.1; People v. Anderson, 44 Cal. 65.

1 Cox v. The State, 41 Texas, 1; Mc-
Guire v. The State, 37 Missis. 8369; Rideus
v. The State, 41 Texas, 199; Jackson v.
The State, 25 Texas, Supp. 229; The
State v. Johnson, 8 Iowa, 525; Kennedy v.
People, 40 Ill. 488; United States v. Gib-
ert, 2 Sumner, 19; Mackey v. People, 2
Col. Ter. 13.

2 People v. Ah Kong, 49 Cal. 6; The
State v. Hutchinson, 7 Nev. 68; People
v. Nichol, 84 Cal. 211; Bird v. The State,
55 Ga. 3817; Wright v. The State, 41
Texas, 246.

3 The State v. Collins, 8 Ire. 407; The
State v. Harrison, 5 Jones, N. C. 115;
Coughlin v. People, 18 Ill. 266; Corbett
v. The State, 31 Ala. 329; The State v.
Sizemore, 7 Jones, N.C. 206. See Craw-
ford v. The State, 12 Ga. 142.

4 Pate v. People, 3 Gilman, 644; Cor-

600

bin v. Shearer, 3 Gilman, 482; Johnson
v. The State, 80 Ga. 426; Skinner v. The
State, 30 Ala. 524; People v. Reynolds,
2 Mich. 422; People v. Robinson, 2
Parker C. C. 235; Garner v. Collins, Walk.
Missis. 518; Atkinson v. Lester, 1 Scam.
407; Robins v. Fowler, 2 Pike, 183;
United States v. Wright, 1 McLean, 509;
Rhett v. Poe, 2 How. U. S. 457; Hellems
v. The State, 22 Ark. 207.

5 Monroe v. The State, 5 Ga. 85;
Lambeth v. The State, 23 Missis. 822.

6 People v. Rathbun, 21 Wend. 509;
Gale v. Lincoln, 11 Vt. 152; Stevens v.
Talcott, 11 Vt. 25; Stephens v. People, 4
Parker C. C. 896; Keaton v. The State,
7 Ga. 189; People v. Quin, 1 Parker C. C.
340; United States v. Fourteen Pack-
ages, Gilpin, 235; The State v. Smith, 12
Rich. 480, 489; Kilpatrick v. Common-
wealth, 7 Casey, Pa. 198; The State v.
Lynott, 5 R. I. 295. See Warren v. The
State, 4 Coldw. 180; Shaw v. People, 81
Il. 160.

7 Alabama.—Carter v. The State, 33
Ala. 429; Edgar v. The State, 43 Ala.
812; Beasley v. The State, 50 Ala. 149.
Pe eas alae — People v. Welch, 49 Cal.
Georgia. — Bulloch v, The State, 10
Ga. 47; Fitzgerald v. The State, 12 Ga.
CHAP. LXVI.] THE TRIAL. § 982

§ 982. Other Observations to Jury. — Except what is thus for-
bidden by statute, the judge is permitted a considerable latitude
of observation to the jury, and it is sometimes proper. He may
exhort them, even in strong terms, to do their duty without fear
or sympathy, and render an honest verdict! regardless of conse-
quences.? There are observations upon the witnesses, their relations
to one another and the public, their testimony, and their manner
of testifying, which are legitimate, and others which are not, —
to be determined by good sense and the rules laid down in the
foregoing sections.2 And the jury may be told to consult their
general knowledge and experience in life, in coming to a verdict.
As their verdict must be unanimous, they may be reminded of
the respect due from each to the views of the others, and told that
a juror may properly be influenced by those of his fellows,® yet
not to the relinquishment of his own.6 Nor should the judge
attempt to coerce an agreement.”

218; Anderson v. The State, 14 Ga. 709;
O’Byrne v. The State, 29 Ga. 86; Ste-
phenson v. The State, 40 Ga. 291.

Indiana. — Barker v. The State, 48
Ind. 168; The State v. Banks, 48 Ind.
197; Greer v. The State, 53 Ind. 420.

Kentucky. — Blackburn v. Common-
wealth, 12 Bush, 181.

Louisiana. —The State v. Munco, 12
La. An. 625.

Massachusetts.— Commonwealth v. Bar-
ry, 9 Allen, 276.

Missouri. — The State v. Dunn, 18
Misso. 419; The State v. Cushing, 29
Misso. 215; The State v. Ostrander, 30
Misso. 13; The State v. Hundley, 46 Misso.
414; The State v. Smith, 53 Misso. 267,
271; The State v. Breeden, 58 Misso. 507.

Nevada, — The State v. Anderson, 4
Nev. 265; The State v. Duffy, 6 Nev. 188.

North Carolina. — Reed v. Shenck, 2
Dev. 415; The State v. Davis, 4 Dey.
612; The State v. Dixon, 75 N. C. 276.

South Carolina. — The State v. Green,
5S. C. 65.

Tennessee. — Claxton v. The State, 2
Humph. 181.

Texas. — Ross v. The State, 29 Texas,
499; Morrison v. The State, 41 Texas,
616; Walker v. The State, 42 Texas, 860 ;
Smith v. The State, 43 Texas, 103; Har-
ris v. The State, 1 Texas Ap. 74.

Virginia. —Gwatkin v. Commonwealth,
9 Leigh, 678.

1 The State v. Fulkerson, Phillips,
233. And see The State v. Vance, 17
Jowa, 138; Sarah v. The State, 28 Ga.
576; The State v. Lawrence, 88 Iowa, 51.

2 Reg. v. Bunn, 12 Cox C. C. 816, 350,
4 Eng. Rep. 564. See United States v.
Reynolds, 1 Utah Ter. 319.

3 Commonwealth v. Barry, 9 Allen,
276; The State v. Whit, 5 Jones, N.C.
224; The State v. Nat, 6 Jones, N. C.114;
The State v. Harris, 1 Jones, N. C. 190;
O’Halloran v. The State, 31 Ga. 206;
Lindsay v. The State, 1 Texas Ap. 827;
The State v. Moses, 2 Dev. 452; The
State v. Lipsey, 8 Dev. 485; The State
v. Clump, 16 Misso. 885; Brown v. The
State, 32 Missis. 433; The State v. Smith,
10 Rich. 841; Shirwin v. People, 69 III.
65.

4 Rosenbaum v. The State, 83 Ala.
864.

5 Commonwealth v. Whalen, 16 Gray,
25; Commonwealth v. Tuey, 8 Cush. 1;
The State v. Blackwell, 9 Ala. 79, 83.

6 Swallow v. The State, 20 Ala. 30;
The State v. Bybee, 17 Kan. 462.

1 Perkins v. The State, 50 Ala. 154;
The State v. Ladd, 10 La. An. 271; Fisher
v. People, 28 Ill. 288, As to reminding
them of a revising tribunal, see Falk v.

601
§ 982 a TRIAL BY PETIT JURY. [Book vin.

§ 982 a. What the Jury retiring take with them. — When the
jury retire to their private room to deliberate on their verdict,
they should take with them no books or papers, not even those
which were used in evidence and commented on by counsel and.
the court, without the permission of the judge. Nor should any
be conveyed to them by the attending officer. Whether a viola-
tion of this rule will justify a new trial will depend on the
equities of the particular case.1_ By permission, not probably as
of strict right, they may take the indictment or other records
which present the issues to be tried,’ the instructions of the court
when in writing,’ the duly identified instruments of the crime used
as exhibits at the trial;+ and the written evidence, not garbled
to the prejudice of one side, but entire,® and not evidence which
is inadmissible.6 Precisely how far the court may authorize the
taking of books of statutes and other law books having a sup-
posed relation to the case is not so clear ;7 but, on principle, as
they state the law abstractly while the instructions should be
shaped by the judge to the special facts,§ no such book should be
allowed unless with directions to read only a particular passage,
the application of which has been explained.

People, 42 Ill. 381; The State v. Benner,
64 Maine, 267; Monroe v. The State, 5
Ga. 85.

1 Pound v. The State, 43 Ga. 88; The
State v. Smith, 6 R. 1.33; People v. Page,
1 Idaho Ter. 114; Bersch v. The State,
13 Ind. 434; Newkirk v. The State, 27
Ind. 1.

2 Commonwealth v. Dow, 11 Gray,
816; Commonwealth v. Wingate, 6 Gray,
485 ; Rex v. Thistlewood, 33 Howell St.
Tr. 681, 954; Rex v. Sheridan, 81 Howell
St. Tr. 543, 752; Rex v. Hardy, 24 Howell
St. Tr. 199, 1383.

602

3 Benton v. The State, 830 Ark. 828.

4 Yates v. People, 88 Ill. 527.

5 Rainforth v. People, 61 Ill. 365; Rex
v, Watson, 82 Howell St. Tr. 1, 672; Rex
v. Eaton, 28 Howell St. Tr. 1018, 1054.

®§ Commonwealth v. Edgerly, 10 Allen,
184; Atkins v. The State, 16 Ark. 568;
Yates v. People, supra; Rex v. Bond, 27
Howell St. Tr, 528, 611.

7 Hardy v. The State,’ 7 Misso. 607;
The State v. Smith, 6 R. I. 833; Newkirk
v. The State, 27 Ind. 1.

8 Ante, § 978.
CHAP. LXVII.] PROVINCES OF COURT AND JURY. § 984

CHAPTER LXVII.

THE RESPECTIVE PROVINCES OF COURT AND JURY.

§ 982. Introduction.
983-988. As to Questions of Law.
989-989 b. As to Questions of Fact.

§ 982 6. How the Chapter divided. — We shall consider this
subject, I. As to Questions of Law; II. As to Questions of Fact.

I. As to Questions of Law.

§ 988. Oath of Jurors. — The oath of jurors in a criminal case
differs from that in a civil, by requiring them to render a verdict
according to the evidence, instead of the law and the evidence.
It is, in England, by immemorial usage : —

‘You shall well and truly try, and true deliverance make, between our
sovereign lady the queen and the prisoner at the bar whom you shall have in
charge, and a true verdict give according to the evidence. So help you God.’’!

Such, therefore, is the common-law oath in our States.2 Stat-
utes, in some of them, have established a form, but it does not
generally differ essentially from that of the common law.®

§ 984, Whether Jury judge of Law. — Partly because of this
divergence in the oath from the civil form, and partly from other
reasons, it is by some courts deemed, that, in criminal causes, the

12 Gude Crown Pract. 583; 1 Chit.
Crim. Law, 551; 2 Hale P. C. 293; Lord
‘Campbell, C. J. in Mansell v. Reg., 8 Ellis
& B. 54,79; Rex v. Penn, 6 Howell St.
Tr. 951, 954.

2 The State v. Jones, 5 Ala. 666, 673.

3 The State v. Rollins, 2 Fost. N. H.
628; The State v. Pearce, 14 Fla. 163;
Harper v. The State, 26 Ark. 88; John-
son v. The State, 47 Ala. 9; Palmore v.
The State, 29 Ark. 248, 249; Hendrix v.

The State, 50 Ala. 148; Smith v. The
State, 1 Texas Ap. 408, 516; Lewis v.
The State, 61 Ala. 1; Harriman v. The
State, 2 Greene, Iowa, 270. An oath
“the truth to speak,” &., but not “to
try the issue joined,” is not valid. Dixon
v. The State, 4 Greene, Iowa, 881. See
also The State v. Ostrander, 18 Iowa, 435,
452; Burrow v. The State, 7 Eng. 65;
Sandford v. The State, 6 Eng. 828.

6038
§ 985 TRIAL BY PETIT JURY. [Book vin.

jury may judge as well of the law as of the fact.! And it is so
provided by the constitution or a statute in some of our States.?
In other States, jurors are required to take the law from the
court, though contrary to their own opinions, the same in crim-
inal causes as in civil.2 And there is a middle doctrine, which
makes them judges in some sense of the law, but not fully.*

§ 985. How in Principle. — The oath of the jurors, wherein
they promise to find a verdict according to the “ evidence” given
them, is not violated by a finding contrary to the law given
them, should they deem the latter to be wrong. And the law
confers on them the power to return whatever verdict satisfies
their own consciences. If it differs from the opinion of the judge,

1 The State v. Jones, 5 Ala. 666; The
State v. Snow, 18 Maine, 846; Armstrong
v. The State, 4 Blackf. 247; Warren v.
The State, 4 Blackf. 150; McGuffie v. The
State, 17 Ga. 497; The State v. Jurche,
17 La. An. 71; The State v. Barron, 37
Vt. 57; The State v. Croteau, 23 Vt. 14
(compare with The State v. Woodward,

23 Vt. 92); Robbins v. The State, 8 Ohio.

State, 181. As to Alabama, see also
Batre v. The State, 18 Ala. 119; Pierson v.
The State, 12 Ala. 149; Thompson v. The
State, 21 Ala. 48, where the doctrine of
the first-cited case is somewhat modified.

2 Franklin v. The State, 12 Md. 236;
Wheeler v. The State, 42 Md. 563;
Schnier v. People, 23 Ill. 17; Fisher v.
People, 23 Ill. 288, 294; Lynch v. The
State, 9 Ind. 541; McCullough v. The
State, 10 Ind. 276; Williams v. The State,
10 Ind. 503; The State v. Sims, Dudley,
Ga. 213; Edwards v. The State, 53 Ga.
428; Habersham v. The State, 56 Ga. 61.

3 Hardy v. The State, 7 Misso. 607;
The State v. Schoenwald, 31 Misso. 147;
McGowan v. The State, 9 Yerg. 184;
Dale v. The State, 10 Yerg. 651; United
States v. Morris, 1 Curt. C. C. 23; The
State v. Drawdy, 14 Rich. 87; The State
v. Bowen, 16 Kan. 475; The State »v.
Wright, 53 Maine, 328. In Mississippi,
the trial court was held to be justified in
refusing to instruct the jury that “the
jury are not only the judges of the facts
in the case, but they are also the judges
of the law.” Smith, C. J. observed, that,
“in many of the colonies, immediately
preceding the Revolution, the arbitrary

604

temper and unauthorized acts of the
judges, holding office directly from the
Crown, made the independence of the
jury, in law as well as fact, a matter of
great popular importance.” Hence it
“grew into recognition; and for some
time after the adoption of the Federal
Constitution it was generally received.”
But he deemed it to have afterward fallen
into disfavor; and the courts have “ one
after another abandoned the doctrine.
In England, it has always been held that
the court were as much the judges of the
law in criminal as in civil cases.” Williams
v. The State, 32 Missis. 389, 396. But seeas
to this, Rex v. Burdett, 4B. & Ald. 95, 131.

4 Commonwealth v. Knapp, 10 Pick.
477; Commonwealth v. Porter, 10 Met.
263; Commonwealth v. White, 10 Met.
14; Thompson v. The State, 21 Ala. 48;
Pleasant v. The State, 18 Ark. 360;
Montgomery v. The State, 11 Ohio, 424;
Commonwealth v. Van Tuyl, 1 Met. Ky.
1; The State v. Peace, 1 Jones, N.C.
251; The State v. Scott, 12 La. An. 386;
The State v. Tally, 23 La. An. 677; The
State v. Jurche, 17 La. An. 71; Duffy v.
People, 26 N. Y. 588. For some other
New York opinions, not quite harmo-
nious, see People v. Pine, 2 Barb. 566;
Carpenter v. People, 8 Barb. 603; People
v. Finnegan, 1 Parker C. C. 147; Safford
v. People, 1 Parker C. C. 474; People v.
Thayer, 1 Parker C. C. 595; People v.
Videto, 1 Parker C. C. 608. As to the
constitutionality of a statute making the
jury judges of the law, see Common-
wealth v. Anthes, 5 Gray, 185.
CHAP. LXVII.] PROVINCES OF COURT AND JURY. § 986 a

he cannot punish them. Should it be an acquittal, he cannot set it
aside, but he can set aside a verdict of conviction. This power
of granting a new trial, therefore, furnishes, in reason, the test of
the right of the jury. They are so far required to take the law
from the court that they cannot find a defendant guilty contrary
to its direction ;! but they may return a verdict of not guilty, in
disobedience of instructions in matter of law, whenever their own
judgments and consciences demand. And still the judge may, in his
charge, convey to them his idea of their duties,? while it is not in
his power to do otherwise than leave them free to follow their own.

§ 986. Permitting Counsel to argue Law to Jury. — The right
of counsel to argue the law to the jury would seem to follow
from, and be limited by, their right to differ from the court upon
it. Still, in Maryland, where the jury are by the express words
of the Constitution “judges of law as well as fact” in criminal
cases, counsel are forbidden to argue the law to them; because,
it is said, this constitutional provision only affirms the prior law,
not being intended to change the relative powers of courts and
juries.2 The contrary is held under a like provision in Indiana ; #
and, even in Massachusetts, where the jurors are required to take
the law from the court, the right to argue it to them is conceded
to counsel.6 And —

§ 986 a. Meaning of Jurors judging of Law. — There is some dif-
ference of judicial opinion as to the meaning of jurors being
judges of the law. The common idea seems to be, that, in ascer-
taining the law which is to combine with the testimony in directing
their verdict, they may draw upon their own understandings as
well as upon the expositions of the court, and depart from the
latter if the former compel.’ But in Georgia, where a statute makes
the jury “ judges of law and fact on the trial of every offence,” 7
it is held of late, contrary, it appears, to former decisions,® that

1 Ante, § 977. sections; also Clem v. The State, 31 Ind.

2 Ante, § 982; post, § 987.

8 Franklin v. The State, 12 Md. 236.

4 Lynch v. The State, 9 Ind. 541.

5 Commonwealth v. Porter, 10 Met.
263; Commonwealth v. Austin, 7 Gray,
51. It is so also (see the next section) in
Georgia. Stephenson v. The State, 40
Ga. 291; Warmock v. The State, 56 Ga.
603.

6 See the cases cited to the foregoing

480; The State v. Buckley, 40 Conn. 246 ;
The State v. Jurche, 17 La. An. 71; Falk
v. People, 42 Ill. 381; Wheeler v. The
State, 42 Md. 563; The State v. Tally,
23 La. An. 677.

7 Reed’s Ga. Crim. Law, 235.

8 McDaniel v. The State, 30 Ga. 853;
Golden v. The State, 25 Ga. 527; Keener
v. The State, 18 Ga. 194, 230.

605
§ 988 TRIAL BY PETIT JURY. [Book vim.

they can judge of it only as given to them by the court, from
whose decision they are not permitted to dissent ;! thus, in
effect, nullifying the statute.

§ 987. Court instructs Jury in Law. — Permission to the jury to
judge of the law does not divest the court of judicial duties. The
prosecuting State seeks to punish men only for what violates her
laws as expounded by her own judges. They, therefore, are to
instruct the jury concerning the law, in these criminal causes, the
same as in civil.2 And —

Jury follow Law. — The jury are bound, as absolutely as any
judge, to follow what they understand the law to be, however
much they may dissent from its policy.2 Even though the Con-
stitution expressly makes them judges of the law, they violate
their oath by a verdict contrary in law to the judge’s charge, un-
less they believe him to be in error and the law to be otherwise.*
Again,—

Setting aside Verdict. — A verdict contrary to the law as un-
derstood by the court may be set aside by the judge, and a new
trial granted, the same where the jury are judges of the law as
where they are not.®

§ 988. Doctrine explained. — This permission for the jury to
judge of the law is a sort of compensation for the very harsh rule,
that, as well in criminal causes as in civil, every man is conclusively
presumed to know the law. One on trial is obliged to admit,
even contrary to the fact, that, when he did the thing, he knew
it to be a violation of law; though lawyers and judges, trained
to the investigation of juridical questions, may be doubtful of
this, until, after solemn argument, long consultations, immense
searchings of books, and deep ponderings, the question is, per-
haps by a divided court, judicially settled. The doctrine we are
considering mollifies the rule to the extent that, if, after a full

1 Brown v. The State, 40 Ga. 689; Donnell, 82 Vt. 491. And see Golden »v.

Kitchens v. The State, 41 Ga. 217;
Oneil v. The State, 48 Ga. 66; Edwards
v. The State, 53 Ga. 428; Habersham v.
The State, 56 Ga. 61.

2 Ante, § 976; Murphy v. The State,
6 Ind. 490; Grady v. The State, 11 Ga.
253.

3 The State v. Buckley, 40 Conn. 246.

4 Schnier v. People, 23 Ill. 17; Fisher
v. People, 23 Ill. 283; The State v. Mc-

606

The State, 25 Ga. 527; McPherson v.
The State, 22 Ga. 478; Carter ». The
State, 2 Ind. 617; Lynch v. The State,
9 Ind. 541; McCullough v. The State, 10
Ind. 276; Williams v. The State, 10 Ind.
603.

5 The State v. Sims, Dudley, Ga. 218;
Daily v. The State, 10 Ind. 536.

§ Crim. Law, I. § 294-800.
CHAP. LXVII.] PROVINCES OF COURT AND JURY. § 989 4

unfolding of the question to the jury, followed by an instruction
from a learned tribunal, they on their oath believe the thing done
not to have been illegal, the defendant shall not suffer for it as
crime.

II. As to Questions of Fact.

§ 989. What for Court. — Necessity is a part of the law of the
land, supreme within its sphere.!1 And there are facts upon
which, if a court does not pass, it cannot discharge its functions ;
such facts, therefore, are to be decided by the court. For ex-
ample, —

Connected with Evidence. — The judge, being the presiding
officer at a trial, must decide on the competency of a witness, and
of his testimony, and of the other evidence. The decision often
involves an inquiry into a fact; and, when it does, he alone deter-
mines it, the jury taking no part therein, and having no power to
revise his finding.2 But, —

§ 989 a, What for Jury. — When the court has once admitted
the evidence, and not afterward ruled it out,? the eredibility of
the witnesses and its effect as proving the issue or not are exclu-
sively for the jury; or, in the common form of the expression,
the fact is for them.4 Many questions are compounded of law
and fact, and then the court states the law and the jury find the
fact under its instruction5

§ 989 6. Fact and Law distinguished. — Particular questions, as
to what is law and what is fact in a given issue, are not for this
place. The line between them is often a nice one, on which judi-
cial opinions differ. But, in general terms, it is the law which
determines whether or not an alleged combination of act and
intent constitutes a crime; and the question whether or not

1 Crim. Law, I. § 54, 346 et seq., 824; 8 Ante, § 966 a, 978.

ante, § 498 et seq.

2 Jenkins v. Davies, 10 Q. B. 314, 328,
524; Washington v. The State, 53 Ala.
29; Miller v. The State, 40 Ala. 54; The
State v. Fidment, 35 Iowa, 541; Nichol-
son v. The State, 38 Md. 140; Townsend
v. The State, 2 Blackf. 151; People v.
Ah How, 34 Cal. 218; Wallace v. The
State, 28 Ark. 581; People v. Stonecifer,
6 Cal. 405; People v. Ivey, 49 Cal. 56.

4 Ante, § 978, 979; Easterling v. The
State, 30 Ala. 46; Berry v. The State, 10
Ga. 511; Whitten v. The State, 47 Ga.
297; Goss v. The State, 40 Texas, 520;
Brown v. The State, 23 Texas, 195.

6 Hasterling v. The State, supra; Lytle
v. Lee, 5 Johns. 112; The State v. Wil-
liamson, 42 Conn. 261; Long v. The
State, 52 Missis. 23.

607
§ 9895

TRIAL BY PETIT JURY.

[Book vu.

the defendant did the things and entertained the intent, is of

fact.

1 There is not much choice in cases to
illustrate this proposition, but the reader
may consult the following: The State v.
Williams, 30 Misso. 364; Rex v. Hart,
1 Moody, 486; The State v. Collins, 8
Ire. 407; Commonwealth v. Keenan, 17
Smith, Pa. 203; Commonwealth v. Beld-
ing, 138 Met. 10; McPherson v. The State,
22 Ga. 478; Turpin v. The State, 19 Ohio
State, 540; .Hess v. The State, 5 Ohio, 5;

608

Commonwealth v. Bush, 112 Mass. 280;
Skidmore v. The State, 43 Texas, 98;
People v. Woody, 48 Cal. 80; Reg. vo.
Cooper, 2 Q. B. D. 510; The State v.
Scott, 48 Misso. 422; Newton v. The
State, 15 Fla.610; Anderson v. The State,
2 Kelly, 370; Gallagher v. The State, 3
Minn. 270; People v. Hawley, 3 Mich.
330; United States v. Jackalow, 1 Black,
484.
CHAP. LXVIII.] JURY DURING TRIAL TO VERDICT. § 991

CHAPTER LXVIII.

THE JURY DURING THE TRIAL AND TO THE BRINGING IN OF
THE VERDICT.

§ 990. Distinctions and Differences. — The decisions on the sub-
ject of this chapter are in several particulars apparently or
actually discordant. They are partly reconciled by distinctions,
not all of which are admitted by every court, between what the
jury may do by permission, what without, and what even the
judge cannot authorize ; between irregularities which render,
the verdict ill, and those which do not; and, as to a part or all,
between capital felonies, felonies not capital, and misdemeanor.

What for this Chapter. — No good would come from attempting
to reproduce here every minute distinction and possible doctrine ;
so let us call to mind what is leading, not in the order of time,
but of convenience.

§ 991. In the Care of an Officer : —

Retiring to Deliberate — (Oath to Officer). — When the jury re-
tire to deliberate on their verdict, they are put in the care of an
officer to whom is administered an oath which, in the English
practice, is as follows: —

‘¢You shall well and truly keep this jury in some convenient and private
place, without meat, drink, or fire (candle light excepted); you shall not suffer
any person to speak to them, neither shall you speak to them yourself, unless

it be to ask them if they are agreed on their verdict, without leave of the
court. So help you God.’’!

Oath in Our States. — The keeping of the jury under the dep-
rivations specified in this form is not practised in our States,
therefore the oath is modified accordingly.?

God.” 1 Chit. Crim. Law, 632. But the
form in the text is from a later publica-

tion, and from actual practice. The date
of tle book is 1828.

i 2 Gude Crown Pract. 584. Chitty
gives the oath from Dalton’s Justice, c.
185, thus: “ You shall swear that you
shall keep this jury without meat, drink,

fire, or candle; you shall suffer none to
speak to them; neither shall you speak
to them yourself, but only to ask them
whether they are agreed. So help you
VOL. I, 89

2 See, for example, Lewis v. People,

‘44 Til. 452; Commonwealth v. Shields, 2

Bush, 81.

609
§ 994 TRIAL BY PETIT JURY. [BOOK VIII.

§ 992. Omitting Oath. — It has been even held in Ohio, that,
where the jury are committed to a sworn officer, this special oath
need not be administered to him.! But generally, in our States,
its omission is deemed error ;? though, in some of them, the ver-
dict will not be set aside when not affected thereby.’

§ 998. During Adjournment, &. — In those cases wherein the
jury are not to separate after the trial is begun, they should in
like manner be placed under the charge of a sworn officer at an
adjournment, or other occasion for keeping them together out of
the presence of the court. Perhaps an omission of this will not
always require a new trial where no harm is shown; but some-
times, at least, it will.®

§ 994. In the Presence of the Court : —

Under Control. — Jurors are at all times under the control of
the presiding judge ; especially, therefore, when in his presence
in open court.§

Conduct in Court. — Without his leave, a juror should not
separate himself from his fellows,’ converse with outside persons,®
fall asleep during the trial,® or take minutes of the evidence.”
But a mere inadvertent irregularity of this sort, not extreme,
where no corrupting influence has reached the juror and no harm
has been done, will not require the setting aside of the verdict.

In other circumstances, the irregularity will.¥
By Permission. — By some courts, if not by all, separations

1 Davis v. The State, 15 Ohio, 72. See
Bennett v. Commonwealth, 8 Leigh, 745.

2 Hare v. The State, 4 How. Missis.
187; Lewis v. People, 44 Ill. 452; Com-
monywealth v. Shields, 2 Bush, 81;
Brucker v. The State, 16 Wis. 333, 236.
A slight variance from the statutory
form of the oath has been held not to
require a disturbing of the verdict. Hitt-
ner v. The State, 19 Ind. 48. And it was
the same where the sheriff himself took
charge of the jury after his deputy had
been sworn. People v. Hughes, 29 Cal.
257.

3 McCann v. The State, 9 Sm. & M.
465.

4 Gibbons v. People, 28 Ill. 518; Me-
Intyre v. People, 88 Ill. 514; Stone v. The
State, 4 Humph. 27.

5 Jones v. The State, 2 Blackf. 475.

® Crim. Law, Il. § 254; Philips v.
Commonwealth, 19 Grat. 485.

610

7 McQuillen v. The State, 8 Sm. & M.
587; Cohron v. The State, 20 Ga. 752.

8 Riley v. The State, 9 Humph. 646;
Barlow v. The State, 2 Blackf. 114.

9 Cogswell v. The State, 49 Ga. 103.

10 Cheek v. The State, 85 Ind. 492.

11 Cohron v. The State, supra; Riley v.
The State, supra; Whitney v. The State,
8 Misso. 165; The State v. Carstaphen,
2 Hayw. 2388; The State v. Lytle, 5 Ire.
68; Porter v. The State, 2 Ind. 485;
Rowe v. The State, 11 Humph. 491; Nel-
son v. The State, 32 Texas, 71.

12 Cheek v. The State, supra; Cogswell
v, The State, supra; Hunter v. The State,
48 Ga. 483; The State v. Shippy, Brayt.
169; Stone v. The State, 4 Humph. 27;
Russell v. People, 44 Ill. 508; The State
v. Parrant, 16 Minn. 178; Hines v. The
State, 8 Humph. 597.
CHAP. LXVIII.] JURY DURING TRIAL TO VERDICT. § 996

creating no inconvenience are permitted while the trial panel is
being made up ;? and, even in a capital case, the entire jury has
been allowed to separate after being elected, but before the trial
commences2 For a necessary purpose, even while the trial is
progressing, a juror may be granted temporary absence from his
fellows and the court-room ;* but, at least in general, he should
be in the care of a sworn officer.!

§ 995. In what Cases the Jury may be permitted to leave the
Presence of the Court, unattended by an Officer, and separate : —

In Felony. — The English practice appears to be not to allow
such a separation, even at an adjournment over night, in any case
of felony, though not capital.6 With us, this rule is, as applied
to capital cases, nearly universal;® but, in some of the States,
even in capital trials, it is within the discretion of the court, not
necessarily to be exercised, to permit separations at adjournments.’
In other of our States, the rule forbidding a separation is applied.
also to felonies not capital, punishable in the State prison§
Otherwise than as above, the American doctrine in felony ® is the
same as —

§ 996. In Misdemeanor. — In misdemeanor, both by the Eng-
lish practice and the American, it.is within the discretion of the
presiding judge to permit the jury to separate and disperse at the

1 Frances v. The State, 6 Fla. 306;
‘Tooel v. Commonwealth, 11 Leigh, 714;
Martin v. Commonwealth, 2 Leigh, 745.
See Hunter v. The State, 43 Ga. 488.

2 The State v. Burns, 33 Misso. 483.
And see The State v. Brannon, 45 Misso.
829. But see People v. Meany, 4 Johns.
294. .

3 The State «. McElmurray, 3 Strob.
83; People v. Bonney, 19 Cal. 426.

4 People v. Bonney, supra; Jumpertz
v. People, 21 Hl. 875; Robbins v. The
State, 49 Ala. 394; Wilhelm v. People,
72 Ill. 468.

5 In a larceny trial, adjourned over
night, where the jury begged to be allowed
to go home, Martin, B. “said the law was
imperative, that, in a case of felony, a
jury must never separate until the case
was over.” Reg. v. Hore, 3 Fost. & F.
215, 817. And see Rex v. Kinnear, 2 B.
& Ald. 462.

6 Jumpertz v. People, 21 Ill. 375;

McLean v. The State, 8 Misso. 153; The
State v. Godfrey, Brayt. 170; Quinn ».
The State, 14 Ind. 589; The State v.
Frank, 23 La. An. 213; People v. Shafer,
1 Utah Ter. 260; Commonwealth v.
Boyle, 9 Philad. 592; The State v. Evans,
21 La. An. 321; Morgan v. The State, 48
Ala. 65; Williams v. The State, 48 Ala.
85; Woods v. The State, 43 Missis. 364.

1 The State v. Anderson, 2 Bailey,
565, 566; The State v. McKee, 1 Bailey,
651; The State ». Babcock, 1 Conn. 401;
The State v. Felter, 25 Iowa, 67; People
v. Stephens, 19 N. Y. 549, 553; People v.
Montgomery, 13 Abb. Pr. n. s. 207; The
State v. Ryan, 18 Minn. 370.

8 McLean v. The State, supra; Berry
v. The State, 10 Ga. 511; Wiley v. The
State, 1 Swan, Tenn. 256; Anonymous,
63 Maine, 590; Cochran v. The State, 7
Humph. 644.

9 The State v. Evans, supra; McCreary
v. Commonwealth, 5 Casey, Pa. 328.

611
§ 998 TRIAL BY PETIT JURY. ‘[BooK vim.

adjournments.! And, as intimated in the last section, ‘this doc-
trine extends, in more or less of our States, to the mass of crim-
inal cases, without reference to the degree to which the crime
‘belongs.?

Court caution Jury. — When such separation is permitted; the
judge should caution the jury not to converse with any person
about the cause, or suffer such conversation in their presence, or
read newspaper reports of it, or comments, and the like.®

§ 997. What the Court may permit to the Jury while in the

” Officer's Care :—

Necessaries. — The day of compelling juries to a verdict by
withholding from them the necessaries of life has gone by.!
While they are deliberating on it, therefore, and while they are in
the care of an officer during prior adjournments, the court may
and should allow them needful medicines,® opportunities to change
their raiment,’ and food.7 And in proper circumstances, they
may even be permitted to walk abroad for recreation and health ;
the officer going with them, they speaking to no one, and no

one being suffered to speak to them.®

§ 998. The Consent of the Prisoner : —

Its Effect. — There are cases in which a sort of effect appears
to have been given to the consent of the prisoner to a separation

not otherwise permissible.®

But the better doctrine is, that he is

not in a position to give consent, it should not be asked, and a
permission to separate granted in pursuance of it is null.”

1 Rex v. Woolf, 1 Chit. 401; Rex v.
Kinnear, 2 B. & Ald. 462.

2 Davis v. The State, 15 Ohio, 72;
Evans v. The State, 7 Ind. 271, where
it appears that this is so in Indiana by
statute.

8 McCreary v. Commonwealth, 5
Casey, Pa. 323, 827; Crocker v. Hoff-
man, 48 Ind. 207.

4 Pope v. The State, 36 Missis. 121.

5 Ante, § 948; O’Shields v. The State,
55 Ga. 696.

6 The State v. O’Brien, 7 R. I. 336;
The State v. Caulfield, 23 La. An. 148,

T O’Shields v. The State, supra; Com-
monwealth v. Roby, 12 Pick. 496; The
State v. Hamilton, 19 Ohio, 116; United
States v. Haskell, 4 Wash. C. C. 402;
People v. Kelly, 46 Cal. 855, 37.

8 The State v. Perry, Busbee, 380,

612

See The State v. Populus, 12 La. An.
710; Eastwood v. People, 8 Parker C. C.
25, 52; People v. Montgomery, 13 Abb.
Pr. x. 8 207.

® The State v. Mix, 15 Misso. 158;
Friar v. The State, 8 How. Missis. 422;
Quinn v. The State, 14 Ind. 589; Stephens
v. People, 19 N. Y. 549.

10 Ante, § 121, 271, 274; Rex v. Woolf,
1 Chit. 401, 420, 421; Wesley v. The
State, 11 Humph. 502; Berry «. The
State, 10 Ga. 511; Wiley v. The State,
1 Swan, Tenn. 256; People v. Backus,
6 Cal. 275; Peiffer v. Commonwealth,
8 Harris, Pa. 468; Rex v. Kinnear, 2 B. &
Ald. 462, 464; People v. Shafer, 1 Utah
Ter. 260; Woods v. The State, 48 Missis.
864; Cantwell v. The State, 18 -Ohio
State, 477. See Crim. Law, I. § 997.
CHAP. LXVIII.] JURY DURING TRIAL TO VERDICT. § 998 a

§ 998 a. The Jury deliberating on their Verdict : —

Communications with Officer. — The jury being in charge of an
officer,! he is consequently required to be in a position to com-
municate with them. But, in good practice, he ought not to be
in their room during the actual deliberations, though sometimes
he is, and his presence has not been deemed ground for setting
aside the verdict.2, They should not ask him for his opinion of
the law of the case, and he should not give it, or bring them law
books ;® but they may make known to him their desires for food
and other necessaries,* and transmit through him any proper com-
munications to the court.6

As to Verdict. — The conduct of the jury in arriving at their
verdict is occasionally a subject of review, though the rule for-
bidding them to impeach it by their own testimony ® renders
proof of known misconduct not always possible. If they do not
spontaneously agree, they should confer together, each speaking
in the hearing of all, not in clusters of two or three privately.’
Each should give due weight to the opinions of the others, but
not concur in that to which he cannot bring his own judg-
ment to consent. Any device by which the verdict is in any
degree determined by chance is, therefore, illegal, and renders it
void.2 No juror or combination of jurors should attempt to
coerce another.” The evidence should all, by the modern prac-
tice, be given in open court; and statements, by one juror to
the rest, of what he knows of the case should not be made or re-
ceived, and if acted on they will furnish ground for a new trial."

1 Ante, § 991.

2 Slaughter v. The State, 24 Texas,
410; ‘People v. Hartung, 4 Parker C. C.
256, 316; Wilson v. People, 4 Parker
C. C. 619, 682; The State v. Caulfield, 23
La. An. 148. See ante, § 861; Common-
wealth v. Shields, 2 Bush, 81; Caleb
v. The State, 89 Missis. 721; Kee v. The
State, 28 Ark. 155; People v. Kelly, 46
Cal. 355.

3 Ante, § 982 a; People v. Hartung,
4 Parker C. C. 256; Wilson v. People,
4 Parker C. C. 619.

4 Commonwealth v. Roby, 12 Pick.
496; Pope v. The State, 36 Missis. 121.

5 Fisher v. People, 28 Ill. 283, 295;
Commonwealth v. Jenkins, Thacher Crim.
Cas. 118, 128. :

6 Ante, § 874.

7 Monroe v. The State, 5 Ga. 85.

8 Ante, § 982; Rothbauer v. The State,
22 Wis. 468; Nelson v. The State, 10
Humph. 518. See Commonwealth »v.
Drew, 4 Mass. 391; Grinnell v. Phillips,
1 Mass. 580, 541; Cochran v. The State,
7 Humph. 644.

® Crabtree v. The State, 38 Sneed, 302;
Dooley v. The State, 28 Ind. 239; Com-
monwealth v. Wright, 1 Cush. 46; Gour-
lay v. Hutton, 10 Wend. 595.

10 Morrow v. McLennen, 2 Penning.
918. See Fletcher v. The State, 6 Humph.
249; Hall’s Case, 6 Leigh, 615; Newkirk
v. The State, 27 Ind. 1; Pope v«. The
State, 36 Missis. 121.

11 Sam v. The State, 1 Swan, Tenn.

613
§ 999 TRIAL BY PETIT JURY. [Book Vu.

But the jurors’ general knowledge of affairs may be consulted by
them.!

§ 999. The Consequences of Misbehavior by a Juror or the Panel
while Deliberating, or in the care of an Officer : —

In General. — We have seen? that not every irregularity in a
juror or the panel will require the setting aside of the verdict.
The question whether or not a particular one will, is partly of
law and partly of discretion, or the one or the other according to
the circumstances ; consequently the decisions are apparently
discordant, and some of them really so. The doctrine to be ex-
tracted from them is, that, if the defendant has been deprived of
a substantial right, or if he has suffered injury or been put in dan-
ger of suffering it from an irregularity, and is convicted, the

verdict will be set aside, otherwise not.?

61; Donston v. The State, 6 Humph.
275; Wharton v. The State, 45 Texas, 2.
And see the next note.

1 See, and compare, ante, § 982; Aus-
tin v. The State, 42 Texas, 355; Nolen v.
The State, 2 Head, 520; Taylor v. The
State, 52 Missis. 84; Rex v. Perkins,
Holt, 4038, 404; Schmidt v. New York
Union Mutual Fire Ins. Co., 1 Gray, 529;
Bushell’s Case, Vaugh. 135, 147; Rex v.
Sutton, 4 M. & S. 532; Jim v. The State,
4 Humph. 289.

2 Ante, § 992-994.

* People v. Carnal, 1 Parker C. C. 256;
The State v. Bowman, 45 Iowa, 418;
The State v. Parrant, 16 Minn. 178; The
State v. Evans, 21 La. An. 321; Morgan
v. The State, 48 Ala. 65; Williams v.
The State, 48 Ala. 85; The State uv.
Frank, 28 La. An. 213; The State v. Car-
lisle, 57 Misso. 102; The State v. Dough-
erty, 55 Misso. 69; The State v. Turner,
25 La. An. 573; The State v. Parsons, 7
Ney. 57; Philips v. Commonwealth, 19
Grat. 485; The State v. Brannon, 45
Misso. 329; The State v. Matrassey,
47 Misso. 295; Jenkins v. The State, 41
Texas, 128; Wakefield v. The State, 41
Texas, 556; In re Keenan, 7 Wis. 695;
The State v. Barker, 63 N.C. 276; Mad-
den v. The State, 1 Kan. 340; Brister v.
The State, 26 Ala. 107; Stanton v. The
State, 18 Ark. 317; Mathis v. The State,
18 Ga. 848; Burtine v. The State, 18 Ga.
634; Caleb v. The State, 39 Missis. 721;

614

For example, —

The State v. Cucuel, 2 Vroom, 249;
Woods v. The State, 43 Missis. 364;
Jack v. The State, 26 Texas, 1; The
State v. Dickson, 6 Kan. 209; The State
v. Evans, 21 La. An. 321; The State
v. Forney, 24 La. An. 191; Russell v.
People, 44 Ill. 508; Daniel v. The State,
56 Ga. 653; Early v. The State, 1 Texas
Ap. 248; The State v. Brown, 64 Misso.
867; March v. The State, 44 Texas, 64;
Eastwood v. People, 3 Parker C. C. 25;
Walker v. The State, 37 Texas, 366; The.
State v. Anderson, 4 Nev. 265; Common-
wealth v. Shields, 2 Bush, 81; Newkirk
v. The State, 27 Ind. 1; The State »v.
Madoil, 12 Fla. 151; The State v. Doll-
ing, 87 Wis. 396; People v. Kelly, 46
Cal. 355; Hines v. The State, 8 Humph.
597; The State v. Hascall, 6 N. H. 352;
Epps v. The State, 19 Ga. 102; Thompson
v. The State, 26 Ark. 828; McKenzie v.
The State, 26 Ark. 334; Williams v. The
State, 45 Ala. 57; McCluney v. Lock-
hart, 1 Bailey, 117; Monroe v. The State,
5 Ga. 85; Rowan v. The State, 30 Wis.
129, 143; Adams v. People, 47 Ill. 376;
People v. Turner, 39 Cal. 370; People v.
Gaffney, 14 Abb. Pr. n. 8. 86; The State
v. Bryant, 21 Vt. 479; The State u.
Whittier, 21 Maine, 841; The State v. .
Ayer, 3 Fost. N. H. 801; Brister v. The
State, 26 Ala. 107; The State v. Mil
ler, 1 Dev. & Bat. 500; Wyatt ov. The
State, 1 Blackf. 267; People v. Douglass,
4 Cow. 26; Commonwealth v. McCaul,

:
CHAP. LXVIII.] JURY DURING TRIAL TO VERDICT. § 1000

Drinking Ardent Spirits. — Ardent spirits are not necessary as
food, and are a dangerous stimulant to one in whose hands is the
life or liberty of a fellow-being. They may be useful or even
essential as a medicine.!' In general, they should not be furnished
to the jury. And it has been held that, if they are, in a capital
case, during the time of deliberating on the verdict, it will be set
aside.2 But most courts permit the verdict to stand if the drink-
ing was in small quantities, not in fact impairing the capacity of
the juror, and no harm to the purty is either shown or presum-
able.2 In more extreme cases, the verdict will be set aside unless

the absence of injury to the party is affirmatively shown.!
§ 1000. Communications between the Court and Jury : —
Permissible, and how. — After the jury have retired to deliberate
on their verdict, there may be further communication between

them and the court at the desire of ‘either.

If at the court’s,

an officer is sent for them, and it takes place in open court;® the
judge has no right to visit them for the purpose in their room,$ or

1 Va. Cas. 271; Parsons v. Huff, 38
Maine, 137; The State v. Hester, 2 Jones,
N. C. 88; Edrington v. Kiger, 4 Texas,
89; The State v. Barton, 19 Misso. 227;
The State v. Harlow, 21 Misso. 446; The
State v. Igo, 21 Misso. 459; Rex v. Kin-
near, 2 B. & Ald. 462; The State »v.
O’Brien, 7 R. I. 386; Jumpertz v. People,
21 Ill. 875; Roberts v. The State, 14 Ga.
8; The State v. Fox, 1 Ga. Decis. 35;
The State v. Peter, 1 Ga. Decis. 46; The
State v. Prescott, 7 N. H. 287; Keenan v.
The State, 8 Wis. 182; Cornelius v. The
State, 7 Eng. 782; Coker v. The State,
20 Ark. 58; Maher v. The State, 3 Minn.
444; McLean v. The State, 8 Misso. 153;
Commonwealth v. Roby, 12 Pick. 496,
519; Reins v. People, 30 Ill. 256; The
State v. Tilghman, 11 Ire. 518; People v.
Symonds, 22 Cal. 848; People v. Bonney,
19 Cal. 426; Whelchell v. The State, 23
Ind. 89; Jarnagin v. The State, 10 Yerg.
529; McLain v. The State, 10 Yerg. 241;
Boles v. The State, 13 Sm. & M. 898;
Organ v. The State, 26 Missis. 78; Com-
monwealth v. Wormley, 8 Grat. 712;
Luster v. The State, 11 Humph. 169;
Kennedy v. Commonwealth, 2 Va. Cas.
510; Thomas v. Commonwealth, 2 Va.
Cas. 479; People v. Backus, 5 Cal. 276;
Browning v. The State, 33 Missis. 47;

Ned v. The State, 33 Missis. 3864; People
v. Boggs, 20 Cal. 482; People v. Branni-
gan, 21 Cal. 8387; People v. Symonds, 22
Cal. 848; McElrath v. The State, 2 Swan,
Tenn. 878.

1 Pope v. The State, 36 Missis. 121.

2 Jones v. The State, 13 Texas, 168,
181, 182; March v. The State, 44 Texas,
64. See People v. Douglass, 4 Cow. 26;
Commonwealth v. McCaul, 1 Va. Cas.
271. That it will vitiate the verdict, see
also The State v. Baldy, 17 Iowa, 39;
The State v. Bullard, 16 N. H. 139.

8 Kee v. The State, 28 Ark. 155; Rus-
sell v. The State, 53 Missis. 867; Roman
v. The State, 41 Wis. 312; The State v.
Caulfield, 28 La. An. 148; Davis v. Peo-
ple, 19 Ill. 74, 78; Creek v. The State, 24
Ind. 151; The State v. Upton, 20 Misso.
897; Thompson v. Commonwealth, 8
Grat. 637 ; Rowe v. The State, 11 Humph.
491.

4 Westmoreland v. The State, 45 Ga.
225; Davis v. The State, 35 Ind. 496.
See Weis v. The State, 22 Ohio State,
486.

5 Hall v. The State, 8 Ind. 439; The
State v. Frisby, 19 La. An. 143.

& Hoberg v. The State, 3 Minn. 262,
270. See Rafferty v. People, 72 Ill. 87.

615
§ 1000

TRIAL BY PETIT JURY.

' [Book vin.

otherwise communicate with them in private! If at the jury’s,
they are conducted for the purpose into open court.? The coun-
sel and the parties should be notified; and their presence is a
right or necessity, the same as during the prior parts of the trial.?
The instructions desired, on the one side or the other, and re-
quired by the circumstances, will then be given.*

1 The State v. Patterson, 45 Vt. 308.

2 Commonwealth v. Ricketson, 5 Met.
412; Commonwealth ». Jenkins, Thacher
Crim. Cas. 118; Taylor v. The State, 42
Texas, 504; Fisher v. People, 28 Ill. 283.

% Hoberg v. The State, supra ;. Wade
v. The State, 12 Ga. 25; McNeil v. The
State, 47 Ala. 498; Collins v. The State,
88 Ala. 434; Kirk v. The State, 14 Ohio,

616

511; Witt v. The State, 5 Coldw. 11.
And see Goss v. The State, 40 Texas,
520; Plunkett v. Appleton, 41 N. Y. Su-
perior, 159; Gandolfo v. The State, 11
Ohio State, 114.

4 Taylor v. The State, supra; Fisher
v. People, 23 Ill. 288; The State v. Fris-
by, supra; Hudson v. The State, 9 Yerg.
408.
CHAP. LXIX.]

VERDICT AND ITS RENDITION.

§ 1001

CHAPTER LXIX.

THE VERDICT AND ITS RENDITION.

§ 1001. Judicial or Ministerial. — The receiving of a verdict is
by some judges spoken of as a judicial act, by others as minis-

terial.

Practically it is by all, or nearly all, treated as ministerial,
or, at most, as only guast judicial.

It may be done when no

strictly judicial act can be; as, —
On Sunday. — Though Sunday is dies non juridicus, wherein

no judicial act is valid, but ministerial acts are,! a verdict re-
ceived on Sunday is good,? yet not a judgment on the verdict.3
And on Sunday the court may find the fact that the jury cannot
agree, and discharge them. Again, —

Court adjourned. — Though, after a jury has gone out for de-
liberation, the court adjourns to a future day in the term, the
judge with his proper officers may receive their verdict in the open
court-room,® —a proposition to which, while sound in reason,

the authorities appear not to be quite uniform.®

After the ex-

piration of the term there can be no verdict.’ But, —
In Open Court or not. — At least in felony and treason, the
prescribed formalities can take place only in the presence of the

1 Ante, § 207; Broom Leg. Max., 2d
Eng. ed. 18; Fish v. Brocket, 1 Plow. 265,
2 Dy. 181; Swann v. Broome, 8 Bur.
1595.

2 McCorkle v. The State, 14 Ind. 39;
Reid v. The State, 58 Ala. 402, 4 Cent.
L. J. 154, and note at p. 156; Webber v.
Merrill, 84 N. H. 202, 209; Rosser v. Mc-
Colly, 9 Ind. 587; Cory v. Sileox, 5 Ind.
870; The State v. Ricketts, 74 N. C. 187;
Commonwealth v. Marrow, 8 Brews. 402;
Joy v. The State, 14 Ind. 189. But see
Davis v. Fish, 1 Iowa, 406. See also
Harper v. The State, 43 Texas, 481.

8 Shearman v. The State, 1 Texas Ap.

215; Davis v. Fish, supra; Baxter v.
People, 3 Gilman, 368, 884.

4 People v. Lightner, 49 Cal. 226 ; Mc-
Corkle v The State, supra.

5 Barrett v. The State, 1 Wis. 175;
Davis v. The State, 14 Ind. 858; In re
Green, 16 Ill. 234; McIntyre v. People,
88 Ill. 514.

§ Kennedy v. Raught, 6 Minn. 235;
Shamokin Coal Co. v. Mitman, 3 Barr,
3879. And see Person v. Neigh, 2 Smith,
Pa. 199.

7 Morgan v. The State, 12 Ind. 448;
Harper v. The State, 43 Texas, 431.

617
§ 1001 TRIAL BY PETIT JURY. [Book vim.

judge, the defendant,! the clerk of the court, and his record
docket; consequently the verdict must be rendered in what may
be deemed open court.2 There is some apparent authority for
distinguishing inferior and perhaps all misdemeanors ;? but a part
of the reasons in felony apply to them, and probably our courts
should not hold a verdict delivered to the judge. in private, even
in such a case, and with consent of parties, to be good, certainly
unless confirmed in open court afterward.*

Formalities at Rendition. — When, in treason or felony,® the
jury return into court, the clerk, according to the English prac-
tice, “calls them over by their names, and asks them whether
they agree on their verdict, to which they reply in the affirma-
tive. He then demands who shall say for them, to which they
answer their foreman. ‘This being done, he desires the prisoner
to hold up his hand, and addresses them: ‘ Look upon the
prisoner, you that are sworn; how say you, is he guilty of the
felony (or treason, &c.) whereof he stands indicted, or not guilty?’
[The answer being given, he] writes the word ‘guilty,’ or ‘not
guilty,’ as the:verdict is, after the words ‘ po se.’ on the record ;
and again addresses the jury: ‘ Hearken to your verdict as the
court hath recorded it; yousay that A. B. is guilty (or not guilty)
of the felony whereof he stands indicted, and so you say all.’’”’6
In misdemeanor, the proceeding is less formal, and especially
the direction to the jury to look on the prisoner is omitted.’

1 See ante, § 271-273.

® Rex v. Ladsingham, T. Raym. 193;
Nomaque v. People, Breese, 109; Waller
v. The State, 40 Ala. 825; The State v.
Mills, 19 Ark. 476 ; 2 Hawk. P. C.c. 47, § 2.

2 Bac. Abr. Verdict, B.; Rex v. Wood-
fall, 6 Bur. 2661, 2667; 2 Gab. Crim. Law,
527, 5380; 1 Chit. Crim. Law, 6386; Rex
v. Binns, 26 Howell St. Tr. 595, 652.

4 Goodwin v. Appleton, 22 Maine,
453; Baltimore and Ohio Railroad v.
Polly, 14 Grat. 447; Dornick v. Reichen-
back, 10 S.& R. 84. And see Saunders
v. Freeman, 1 Plow. 209 a, 211 a.

5 Burn Just. Sessions of Peace (vol,
v. 28th ed. p. 600).

6 1 Chit. Crim. Law, 635, 686; Rex »v.
Dawson, 13 Howell St. Tr. 451, 481; Rex
v. Arnold, 16 Howell St. Tr. 695, 766.

1 Reg. v. Tutchin, 14 Howell St. Tr.
1095, 1129; Rex v. Butler, 18 Howell St.

618

Tr. 1249, 1262; Rex v. Cellier, 7 Howell
St. Tr. 1183, 1208; Rex v. St. Asaph, 21
Howell St. Tr. 847, 950; Rex v. Reeves,
26 Howell St. Tr. 529, 594; Rex v. Hart,
30 Howell St. Tr. 1181, 1194. The com-
plete forms of taking the verdict are not
very plentiful in misdemeanor trials ; but,
in Rex v. The Seven Bishops, 12 Howell
St. Tr. 183, 480, we have, I think, the
whole, either in words or sufficiently
stated. When the jury had come in, —

“ Sir S. Astry [the clerk]. Crier, take
the appearance of the jury. Sir Roger
Langley.

“ Sir Roger Langley. Here.

“Crier. Vous avez, &c. And s0 all
the rest were called, and answered. Then
proclamation for silence was made.

“Sir S, Astry. Gentlemen, are you
agreed on your verdict ?
“Jury. Yes.
CHAP. LXIX.] | VERDICT AND ITS RENDITION.

§ 1002

The like forms, variously abridged, prevail generally in our
States. Doubtless they are in part essential and in part not.!
If inadvertently the jury say not guilty when they mean guilty,
they may immediately correct the error, though the prisoner has
been formally discharged and started to leave.?

§ 1002. Oral or Written. — We have assumed the verdict to be
oral, and it is generally so in fact. Indeed the New Hampshire
court has deemed the written form so irregular as to justify a re-
fusing to receive it, and requiring the oral utterance’ But a
special verdict, which the jury has always the option to render,*
may be in writing,® and in many cases it is so complicated that it
cannot well be otherwise ;® hence, in reason, the general verdict
in the written form would seem to be competent.? In some of
our States, statutes require it to be in writing ;® yet, under some
of the statutes, the court will by construction hold it good though
delivered orally, if not objected to at the time.® And,—

Sealed Verdict — (Polling). — In a part of our States, if not all,
by agreement of the parties, by order of the court without such
agreement, or by statutes, in misdemeanors, extended in some
States to felonies not capital,” if the court has adjourned when the
jury have agreed on their verdict, they may reduce it to writing,

“Sir S. Astry. Who shall say for
you?

» “ Jury. Foreman.

“Sir S. Astry. Do you find the
defendants, or any of them, guilty of
the misdemeanor whereof they are im-
peached, or not guilty ?

“Foreman. Not guilty.

© Sir §. Astry. Then hearken to your
verdict as the court hath recorded it.
You say, the defendants, and every of
them, are not guilty of the misdemeanor
whereof they are impeached ; and so you
say all?

“Jury. Yes.”

1 Ante, § 273; Commonwealth v.
Roby, 12 Pick. 496, 514; Commonwealth
v. Gibson, 2 Va. Cas. 70. The State v.
Burge, 7 Iowa, 255; Hall v. The State,
8 Kelly, 18; The State v. Reonmals, 14
La. An. 278; Mitchell »v. The State, 22
Ga. 211; Brister v. The State, 26 Ala.
107; People v. Rodundo, 44 Cal. 538;
Commonwealth v. Tobin, 7 Cent. L. J.
265.

2 Reg. v. Vodden, Dears. 229, 231,
6 Cox C. C. 226, 22 Eng. L. & Eq. 596.
And see Archer’s Case, cited 1 Plow.
211 a, 5 Mod. 350; Williams v. People,
44 Ill. 478; The State v. Whittier, 21
Maine, 341.

3 Lord v. The State, 16 N. H. 325.

4 Post, § 1006.

5 Rex v. Royce, 4 Bur. 2073, 2074;
Reg. v. York, 1 Den. C. C. 335, 386;
Commonwealth v. Call, 21 Pick. 509.

6 Saunders v. One Boat, 4 Went. Pl.
514, 516; Rex v. Francis, 2 Stra. 1015;
Rex v. Huggins, 17 Howell St. Tr. 309,
872, 2 Ld. Raym. 1574.

7 And see Roberts v. The State, 14
Ga. 8.

8 Morton v. The State, 3 Texas Ap.
510; Anderson v. The State, 5 Pike, 444;
The State v. Steptoe, 1 Misso. Ap. 19.

® Hardy v. The State, 19 Ohio State,
579.

10 Commonwealth v. Boyle, 9 Philad.
692; Commonwealth v. Carrington, 116
Mass. 37; Williams v. People, 44 Ill. 478.

619
§ 1003 “TRIAL BY PETIT JURY. [BOOK VIII.

seal it up, separate, and bring it into court on its opening.’ In
Massachusetts, such verdict must be orally and publicly stated
by the jury through their foreman ; it not being sufficient when
the clerk of the court merely reads it to them-and they do not
dissent. But this is perhaps because polling of the jury is not
here allowed.? In States wherein it is practised, the consent to
a sealed verdict is no waiver of the right to poll them.’

§ 1003. all be present. — All the jurors must be and remain
present till the formalities of receiving the verdict are com-
pleted.

Dissent or Change. — Until announced by the clerk of the court
as recorded, — or, at least, until some such period, as to which
the cases are not quite distinct and uniform,—the jury may
change their verdict at pleasure, or one may dissent and thereby
defeat it unless they afterward agree;® but, when they have dis-
persed, they cannot be recalled to alter or amend it.6 Nor cana
juror be afterward heard to object, that he did not consent to the
verdict thus rendered.? Hence, —

Polling. — To make all sure, “if,” says Lord Hale, “the jury
say they are agreed, the court may examine them by poll; and,”
he adds, what is not law now, “if in truth they are not agreed,
they are finable.”® This right of polling the jury, carrying with
it the right in each juror to dissent when questioned, even in the
case of a sealed verdict,? prevails in most of our States; and it
may be demanded by either party, or directed by the court of its

1 Nolan v. The State, 58 Ga. 137;
Anonymous, 63 Maine, 590; Common-
wealth v. Dorus, 108 Mass. 488; The
State v. Weber, 22 Misso. 821; Stewart
v. People, 23 Mich. 63; People v. Kelly,
46 Cal. 355; Commonwealth v. Durfee,
100 Mass. 146. See The State v. Bryant,
21 Vt. 479.

2 Commonwealth v. Tobin, 7 Cent. L.
J. 265. Is not their silence, when thus
required to speak, consent ?

3 Wright v. The State, 11 Ind. 569.
And see Reins v. People, 80 Ill. 256; The
State v. Engle, 13 Ohio, 490; Sanders v.
The State, 2 Iowa, 230; Friar v. The
State, 3 How. Missis. 422.

4 Rex v. Wooller, 2 Stark. 111; Com-
monwealth v. Gibson, 2 Va. Cas. 70.

5 Sledd v. Commonwealth, 19 Grat.

620

813; Rothbauer v. The State, 22 Wis.
468 ; Loeffner v. The State, 10 Ohio State,
598; Ford v. The State, 12 Md. 514;
Henderson v. The State, 12 Texas, 525;
Rex v. Parkin, 1 Moody, 45; Burk v.
Commonwealth, 5 J. J. Mar. 675; The
State v. Austin, 6 Wis. 205; The State
v. Harden, 1 Bailey, 3.

6 2 Hale P. C. 299, 309; Sargent v.
The State, 11 Ohio, 472; Mills v. Com-
monwealth, 7 Leigh, 751. See Rex v.
Simons, Say. 84.

7 Rex v. Wooller, 2 Stark. 111; Mercer
v. The'State, 17 Ga. 146; Stanton v. The
State, 13 Ark. 817.

8 2 Hale P. C. 299; Watts v. Brains,
Cro. Eliz. 778.

® United States v. Potter, 6 McLean,
186.
CHAP. LXIX.]

VERDICT AND ITS RENDITION. § 1004

own motion.! If demanded, it cannot be refused.2 The question
to the juror is simply, “Is this your verdict?” 8 He cannot be
asked as to misconduct of the jury! There are States in which
this practice is not received.®

§ 1004. Incomplete or Informal Verdict. — The verdict should be
a complete finding, in due form, upon the whole issue and all the
issues. If the jury come in with one which is ill in form or
substance, or is incomplete, the judge ought not to receive it,
but to point out its defects to them, inquire what their inten-
tions were, show them how to perfect it, permit them when neces-
sary and judicious to listen to. further evidence, make any other
explanations demanded by the occasion; and, should it not be
perfected in his presence, send them back to their private room
for further consultations. A verdict fully adequate and other-
wise unobjectionable, he should receive.’ Nor, if an insufficient
one is persisted in by them after every proper attempt at enlight-
enment is exhausted, can he compel them; even such a verdict
must be recorded.§

Who object. — If the court does not interpose an objection to
the verdict when rendered, the parties should, and have it cor-
rected. A defendant, failing to do this, waives his right not to

be retried.?

1 Harris v. The State, 31 Ark. 196;
The State v. Young, 77 N. C, 498.

2 Tilton v. The State, 52 Ga. 478;
Nomaque v. People, Breese, 109; Brister
v. The State, 26 Ala. 107; Mitchell v.
The State, 22 Ga. 211; and other cases
cited to this section.

3 The State v. Bogain, 12 La. An. 264 ;
The State v. John, 8 Ire. 330.

4 Bassham v. The State, 38 Texas, 622,
626.

5 Commonwealth v. Roby, 12 Pick.
496, 511, 518; Commonwealth v. Costley,
118 Mass. 1, 28; The State v. Wise, 7
Rich. 412.

6 The State v. Bishop, 73 N. C. 44;
Hughes v. The State, 12 Ala. 458; The
State v. Motley, 7 Rich. 327; Reg. v.
Maloney, 9 Cox C. C.6; McCoy v. The
State, 52 Ga. 287; Heller v. The State, 23
Ohio State, 682; The State v. Potter, 15
Kan. 802; Williams v. The State, 46 Ga.
647, 648; Alston v. The State, 41 Texas,
89; The State v. Conley, 39 Maine, 78;

Burk v. Commonwealth, 5 J. J. Mar. 675;
Cook v. The State, 26 Ga. 693; Rex v.
Suffolk Justices, 5 Nev. & M. 139; s.c.
nom. Rex v. Hughes, 1 Har. & W. 313;
Reg. v. Meany, Leigh & C. 2138, 214,
216, 9 Cox C. C. 231; The State v. Un-
derwood, 2 Ala. 744; McGregg v. The
State, 4 Blackf. 101; Straughan v. The
State, 16 Ark. 37; The State v. Shule,
10 Ire. 158; The State v. Arrington, 3
Murph. 571; People v. Marquis, 15 Cal.
38; People v. Bonney, 19 Cal. 426.

T Reg. v. Yeadon, Leigh & C. 81, 9 Cox
C.C.91; Henslie v. The State, 3 Heisk. 202.

8 Reg. v. Meany, supra; Rex v. Eaton,
22 Howell St. Tr. 768, 822; Rex v. St.
Asaph, 21 Howell St. Tr. 847, 954; The
State v. Wright, 5 R.I. 287; 2 Hale P. C.
816. Still, if the verdict is illegal, not
amounting to a conviction or an acquittal,
a venire de novo will be awarded. Nemo
v. Commonwealth, 2 Grat. 558.

® Crim. Law, I. § 998; Allen v. The
State, 26 Ark. 833; Murphy v. The State,

621
§ 1005 TRIAL BY PETIT JURY. [Book VIII.

§ 1005. Sorts of Inadequate Verdict distinguished. — The effect
of an inadequate verdict depends on the nature of the imperfec-
tion. Thus, —

Not Responsive. — If the verdict does not find the issue pre-
sented by the record but some other, or is silent on some element
of the offence, no valid judgment can be recorded upon it, and it
should be set aside! Or, —

Uncertain. — If the meaning of it is uncertain,?— as, for ex-
ample, if it does not show which of two defendants is meant to
be convicted,? or on which of two counts the conviction is, —
the consequence is the same. But, —

A Part and less than meant. — If, as fairly construed, it finds
the defendant guilty of something, which, being duly charged
in the indictment and constituting in law an offence, is less than
the whole and less than the jury intended, it must be treated, not
as void, but as a conviction of the part.6 So, —

Imperfect Indictment. — If an indictment does not sufficiently
set out all that was intended by the grand jury, yet is good for
something, a verdict of conviction on it will be adequate for what
is well alleged.6 But it will cure no defect in the allegation.’
Hence, —

The Test. — The test, as to the effect of an imperfect verdict
which has been received and recorded, is: if it sufficiently finds
any thing, whether for or against the defendant, it will be inter-
preted by the court, and judgment rendered, on the one side or

7 Coldw. 516; The State v. Rover, 10 Nev.
888, 899. But see Bell v. The State, 48
Ala. 684.

1 Westbrook v. The State, 52 Missis.
7717; Stephens v. The State, 56 Ga. 604;
Riflemaker v. The State, 25 Ohio State,
895, 398; Allen v. The State, 52 Ala. 391;
Gibbs v. The State, 24 Texas, 184; Shef-
field vu. The State, 1 Texas Ap. 640;
Lockwood v. The State, 1 Texas Ap. 749;
Manigault v. The State, 58 Ga. 118; The
State v. Lohman, Riley, 67; Long v. The
State, 84 Texas, 566; The State v. Davis,
20 La. An. 854; The State v. Edmund, 4
Dev. 340; Curran’s Case, 7 Grat. 619;
The State v. Rollins, 8 N. H. 650; Wynn
v. The State, 1 Blackf. 28; The State v.
White, 41 Iowa, 316; The State v. Behee,

17 Kan. 402; Wilson v. The State, 53
Ga, 205.
622

2 The State v. Coon, 18 Minn. 518.
And see Fallon v. People, 2 Abb. Ap. 83;
The State v. Nichols, 12 Rich. 672.

3 Favor v. The State, 54 Ga. 249.

4 Campbell v. Reg. 1 Cox C. C. 269,
2 Ib. 463, 11 Q. B. 799; Day v. People,
76 Ill. 880. And see O’Connell v. The
State, 55 Ga. 191.

5 Bedell v. The State, 50 Missis. 492;
Ex parte Max, 44 Cal. 579; Ex parte Ah
Cha, 40 Cal. 426; Wright v. People, 38
Mich. 800. Compare with Crim. Law, I.
§ 786-815, where the limitations of the
doctrine appear. :

6 Ante, § 478, 480; Gilliam v. The
State, 50 Ala. 145.

7 Ante, § 77 et seq.; Merrill v. The
State, 45 Missis. 651; Commonwealth v.
Morse, 2 Mass. 128, 180.
CHAP. LXIX. ]

VERDICT AND ITS RENDITION. § 10054

the other, for what is thus found;! otherwise it will be treated
as null, the judgment will be arrested, or be erroneous if rendered,
and the defendant may be tried anew.?

§ 1005 a. Form and Interpretation of Verdict. — The verdict,
being “ the finding of lay people,” need not be framed under the
strict rules of pleading,’ or after any technical form. Any words
which convey the idea to the common understanding will be
adequate.* And all fair intendments will be made to support it.
To say, therefore, that the defendant is “guilty,” or guilty of an
offence named which is less than the whole alleged, is sufficient,
without adding “as charged in the indictment’’; for the latter
will be supplied by construction.® * So likewise a general finding
of “guilty” will be interpreted as guilty of all that the indict-
ment well alleges.’ It is sometimes said that such finding, where
different grades of an offence are charged, means guilty of the
highest grade ;® but this is only another form of saying that it
means guilty of all, because a higher grade includes a lower. Sur-
plusage in a verdict may be rejected, being harmless, the same

as in a pleading.®
whole, not in separate parts.!

1 Reg. ». Smythies, 1 Den. C. C. 498,
2 Car. & K. 878; Mountain v. The State,
40 Ala. 344; Reg. v. York, 1 Den. C. C.
335; 8. c. nom. Reg. v. Yorke, 2 Car. &
K. 841; Bloomhuff v. The State, 8 Blackf.
205; Arnold v. The State, 51 Ga. 144;
People v. McCarty, 48 Cal. 557.

2 The State v. Hudson, 74 N. C. 246;
Searight v. Commonwealth, 13 S. & R.
801; Weikman v. Charleston, 2 Speers,
3871; Campbell v. Reg. 1 Cox C. C. 269,
2 Ib. 463, 11 Q. B. 799. And see cases
cited to the foregoing paragraphs. For
an apparent, not real, exception to this in
special verdicts, see post, § 1006, 1006 a.

3 Shrewsbury’s Case, 9 Co. 46 6, 516;
Plummer v. Whichcot, T. Jones, 60, 61;
Tustian v. Roper, T. Jones, 27, 28.

4 The State v. Ryan, 13 Minn. 370;
Benedict v. The State, 14 Wis. 423; Com-
monwealth v. McGrath, 115 Mass. 150;
Hart v. The State, 88 Texas, 8382; People
v. McCarty, 48 Cal. 557; Cook v. The
State, 26 Ga. 593.

5 Rex v. Davis, Say. 168, 164; Rex
v. Brookes, Say. 167, 168; Burges v.
Bracher, 8 Mod. 238, 240.

And the verdict must be construed as a

6 People v. Perdue, 49 Cal. 425;
Preuit v. People, 5 Neb. 877; Blount v.
The State, 49 Ala. 381; Arnold v. The
State, 51 Ga. 144; Bond v. People, 39 Ill.
26; The State v. Lawry,4 Nev. 161. See
The State v. Hudson, 74 N. C. 246.

1 Fife v. Commonwealth, 5 Casey, Pa.
429; Frasier v. The State, 5 Misso. 586;
People v. Magallones, 15 Cal. 426; Fitz-
gerald v. People, 49 Barb. 122; The State
v. Jones, 69 N. C. 864; The State v. Now-
lan, 64 Maine, 531; The State v. Wright,
58 Maine, 328; Lovell v. The State, 45
Ind. 550. See Rex v. Cockerell, Andr.
260, 262.

8 Curtis v. The State, 26 Ark. 489;
Adams.v. The State, 52 Ga. 565; Dean v.
The State, 48 Ga. 218. See Weighorst v.
The State, 7 Md. 442.

9 Dowdale’s Case, 6 Co. 466; Stephens
v. The State, 51 Ga. 236; Bittick v. The
State, 40 Texas, 117; Rex v. Urlyn, 2
Saund. 808; McEntee v. The State, 24
Wis. 43; Townsend’s Case, 1 Plow. 111.
And see Shaw v. The State, 40 Ga. 120.

10 The State v. Bowen, 16 Kan. 476,

477.
623
§ 1006 a TRIAL BY PETIT JURY. [Book vit.

§ 1006. Special Verdict :—

In General. A jury may always render their verdict special, if
they choose ;1 that is, set out the facts, and leave it with. the
court to draw the conclusion of law.? It “must state,” says
Archbold, “the facts themselves, and not merely the evidence
adduced to prove them ; and all the facts necessary to enable the
court to give judgment must be found; for the court cannot sup-
ply by intendment or implication any defect in the statement.*
Thus, —

Homicide. — “ Where the indictment alleged that the defendant
discharged a gun against the deceased, and thereby gave him a
mortal wound, and the special verdict stated only that the de-
fendant discharged a gun, and thereby killed the deceased, not
stating in terms that it was discharged against him ; it was held
that the court could not give any judgment against the defend-
ant So, —

Robbery. — “‘ Where the indictment charged a robbery from
the person, and the proof was of a taking up of the prosecutor’s
money from the ground in his presence; the special verdict,
though it stated that the defendant struck the money out of his
hand, and immediately took it up, was held insufficient, because
it did not expressly find that he was present at the taking up.’ ®
And, — .

County. — Though all the special facts are stated, it will still
be insufficient if silent as to the county.’

Not in Issue. — Finding what is not in issue is mere surplusage,
of no avail.8

§ 1006 a. Construed differently from General. — We see from the
foregoing, that, while a general verdict of guilty is a conviction

1 Post, § 1008; Commonwealth v.
Chathams, 14 Wright, Pa. 181; Dow-
man’s Case, 9 Co. 7 b.

2 The State v. Moore, 7 Ire. 228.

3 Archb. Crim. Pl. & Ev. 18th Lond.
ed. 147.

4 2 Hawk. P. C.c. 47,§ 9; 2 East P.
C. 708, 784; Loveday’s Case, 8 Co. 65 b;
Clay v. The State, 43 Ala. 360; Jones v.
The State, 2 Swan, Tenn. 399; The State
v. Custer, 65 N. C. 889; Commonwealth
v. Dooly, 6 Gray, 860; Rex v. Hayes, 2
Stra. 843; The State v. Newby, 64 .N. C,

624

23. See Waddill v. The State, 38 Texas,
843; Rex v. Francis, 2 Stra. 1015; Rex
v. Royce, 4 Bur. 2078; 1 Chit. Crim. Law,
643. The verdict cannot leave a question
of fact to the court. The State v. Lowry,
74.N. C. 121.

5 Rex v. Plummer, J. Kel. 109, 111.

8 Rex v. Francis, 2 Stra. 1016.

7 Commonwealth v. Call, 21 Pick.
609.

8 Ante, § 1005; United States v. Ste-
reoscopic Slides, 1 Sprague, 467.
CHAP. LXIX.] VERDICT AND ITS RENDITION. § 1008

of every thing well charged in the indictment,! a special verdict
is apparently the reverse. But this is because the former is the
complete conclusion of law and fact, and the latter is only the
material of fact from which the court is to draw the conclusion of
law.

§ 1007. Forms of Special Verdict. — “If,” continues Archbold,?
“the jury find all the substantial requisites of the charge, they
are not bound to follow in terms the technical language of the
indictment.2 Thus, —

Forgery. — “ Where the defendant was charged with forgery '
of a bank note, and the special verdict stated that he erased and
altered it by changing the word ‘two’ into ‘five,’ this was held
sufficient.”4 So, —

Homicide. — ‘‘ Where an indictment for murder enumerated
three wounds, and the special verdict mentioned one only, this
was held not to be a fatal variance.”

Order of Time. — “ If the verdict do not state the time when the
facts occurred, it seems the court will intend them to have hap-
pened in the order in which the jury have stated them.®

Drawing Conclusion of Law. — “ The jury need not, and indeed
ought not, after stating the facts, to draw any legal conclusion,
for that is the province of the court; and, if they do so, and the
inference drawn by them is an erroneous one, the court will re-
ject it as superfluous, and pronounce nevertheless the judgment
warranted by the facts stated.” *

§ 1008. Rare with us. — Though special verdicts are always
competent in our courts, practically they are employed but sel-
dom. And —

General. — The jury may always, if they please, render a gen-
eral verdict instead.®

Setting aside. — If insufficient, a new trial will be ordered.!°

1 Ante, § 1005 a. 17 Ga. 497; Jones v. The State, 2 Swan,
2 Archb. Crim. Pl. & Ev. 13th Lond. Tenn. 899; Peterson v. United States, 2
ed, 147. Wash. C. C. 36; The State ». Duncan,
3 Cook v. The State, 26 Ga. 593. 2 McCord, 139; Commonwealth v. Chat-
4 Rex v. Dawson, 1 Stra. 19. hams, 14 Wright, Pa. 181.
5 Rex v. Morgan, 1 Bulst. 84, 88. 9 Reg. v. Allday, 8 Car. & P. 186; 1
6 Rex v. Keite, 1 Ld. Raym. 138. Chit. Crim. Law, 637; People v. Antonio,
7 1 Chit. Crim. Law, 645; Townsend’s 27 Cal. 404.
Case, 1 Plow. 111. 10 Commonwealth »v. Call, 21 Pick. 509;

8 Ante, § 1006; McGuffiev. The State, The State v. Arthur, 21 Iowa, 322.
VOL. I. 40 ; 625
§ 1011 TRIAL BY PETIT JURY. [BOOK VIIE.

§ 1009. Partial Verdict : —

How defined. — A partial verdict is one of conviction as to a
part of the charge, and acquittal or silence as to the residue.

Permissible or not. — ‘*In general,” says Chitty, “‘ where from
the evidence it appears that the defendant has not been guilty to
the extent of the charge specified, he may be found guilty as far
as the evidence warrants, and be acquitted as to the residue.” ?
But this proposition has its limitations, stated in ‘‘ Criminal Law”
where the subject is explained at large,? and in various places in
these volumes. Assuming, then, that the partial verdict is per-
missible in a case, we are here to inquire as to its —

§ 1010. Form. — Any form of words which to the common
understanding * conveys the complete idea meant, the thing itself
being ‘allowable, will suffice, yet what is less will not. Thus, —

Numbered Counts. — The verdict may be of guilty on certain
counts by number, and not guilty on others.6 Or, —

Wame of Offence — (Larceny — Embezzlement —- Homicide). —
It may designate the offences of which it convicts and acquits by
their names.’ If, for example, there are counts for larceny and
for embezzlement, a verdict of “ guilty of embezzlement,” &c., is
plain, and .as good as if it specified the embezzlement count by
number. So, where homicide in its highest degree is charged,:
though in one eount only, a verdict mentioning the degree, or for

“manslaughter,” is adequate.®

§ 1011. Guilty of Part, as to Residue silent. — Where a verdict,

1 1 Chit. Crim. Lasv, 638.

2 Farll v. People, 78 Ill. 329; Howard
v. The State, 25 Ohio State, 899; The
State v. Matrassey, 47 Missa. 295; The
State v. Ham, 54 Maine, 194; Bard v.
The State, 55 Ga. 319; Dickerson v. Com-
monwealth, 2 Bush, 1; The State v.Gum.-
mell, 22 Minn 51; The State v. Steptoe,
1 Misso. Ap. 19; Reg. v, Birch, 1 Den.
C. C. 185; Rex v. Withal, 1 Leach, 4th
ed. 88.

3 Crim. Law, I. § 773-815.

4 Ante, § 1006 a.

5 The State v. Posey, 7 Rich. 484;
The State v. Bright, 2 Car. Law Repos.
634; Jennings v. Commonwealth, 105
Mass. 586; The State v. Izard, 14 Rich.
209; Miles v. The State, 3 Texas Ap. 58,

‘6 Carter v. The State, 20 Wis. 647;
Lynes v. The State, 46 Ga. 208; Harris

626

v. People, 64 N. Y. 148; Scully v. The
State, 89 Ala. 240; Day v. People, 76
Ill. 380; Girts v. Commonwealth, 10 Har-
ris, Pa. 851; Oxford v. The State, 33
Ala. 416. So, “guilty on the first charge”
is equivalent to guilty on the first count.
Nabors v. The State, 6 Ala. 200.

7 Mackey v. People, 2 Col. Ter. 18;
Wright v. People, 88 Mich. 300; People
v. Perdue, 49 Cal. 425; Gipson v. The
State, 38 Missis. 295.

8 Guenther v. People, 24 N. Y. 100;
Page v. Commonwealth, 9 Leigh, 683.

9 People v. McCarty, 48 Cal. 657; The
State v. Bowen, 16 Kan. 475; Rolls v.
The State, 62 Missis. 8391; Freel v. The
State, 21 Ark. 212; Carrick v. The State,
18 Ind. 409; The State v. Potter, 16 Kan.
80; People v. Buckley, 49 Cal. 241.
CHAP. LXIX.] VERDICT AND ITS RENDITION. § 1012

finding the defendant guilty of a part of the charge, is silent as to
the residue, it is probably universal doctrine that the court ought
not to receive it, but require the jury to pass on the whole, as al-
ready explained.! If, however, this is not done, but it is received
and recorded, the question of its effect is one on which judicial
Opinions are inharmonious. One can hardly doubt, on prin-
ciple, that such a verdict should sustain a judgment, if awarded,

for what is well found.?

And if the judgment is submitted to, it

would seem to be a protection from any second prosecution as to

the whole.

But the entire subject, including other questions,

is considered in anoth@r connection.

§ 1012. The Verdict as to the Punishment : —
Where fixed by Law or assessed by Court. — Where the law

fixes an exact punishment, or-it is assessed by the court, the

verdict properly makes no mention of it.®

Yet matter of this

sort,® or a recommendation to mercy,’ or to the severest penal-
ties,8 is mere surplusage, and the part which finds the defendant

guilty will stand. But, —

Assessed by Jury. — In those States and offences wherein the
jury assess the punishment in full or in part,® they must do what
is for them, which is generally to say what it shall be, in the ver-

dict.

1 Ante, § 1004; Crim. Law, I. § 1007;
Hurley v. The State, 6 Ohio, 399, 404.
And see Nelson v. People, 23 N. Y. 293.

2 Crim. Law, I. § 1006; Keedy v. Peo-
ple, 84 Ill. 569.

3 Crim. Law, supra; The State v. Mec-
Cue, 89 Misso. 112 ; Guenther v. People,
24.N. Y. 100..

4 Crim. Law, I. § 1004-1007. And see
The State v. Phinney, 42 Maine, 384;
Guenther v. People, 24 N. Y. 100; Latham
v. Reg. 9 Cox C. C. 516, 10 Jur. n. 8.
1145; Commonwealth v. Wood, 12 Mass.
813; Stephen v. The State, 11 Ga. 225,
241; Nancy v. The State, 6 Ala. 483;
Hayworth v. The State, 14 Ind. 590; Wil-
son v. The State, 20 Ohio, 26; The State
v. Valentine, 6 Yerg. 583; Girts v. Com-
monwealth, 10 Harris, Pa. 851; Rex »v.
Hayes, 2 Ld. Raym. 1518; People v.
Davis, 4 Parker C. C. 61; The State v.
Sutton, 4 Gill, 494; The State v. Kattle-
mann, 85 Misso. 105; Edgerton v. Com-
monwealth, 5 Allen, 614,

5 People v. Welch, 49 Cal. 174; The

To omit this will leave the verdict imperfect and insuffi-

State v. Potter, 15 Kan. 302; Stephens v.
The State, 51 Ga. 2386; ‘Wair v. The
State, 51 Ga. 808.

6 Harvey v. Commonwealth, 23 Grat.
941; Wickham v. The State, 7 Coidw.
525; Cropper v. United States, Morris,
259. And see Walston v. The State, 54
Ga. 242; Turner v. The State, 3 Heisk.
452.

7 Stephens v. The State, supra; Wair
v. The State, supra; The State v. Potter,
supra; The State v. O’Brien, 22 La. An.
27; Opinion of Justices, 120 Mass. 600.
See Rex v. Thirkell, 3 Bur. 1696; Stall-
ings v. The State, 47 Ga. 572; Hammett
v. The State,'52 Ga. 122; Archer v. The
State, 85 Ga. 1.

8 The State v. Hutchinson, 7 Nev. 63.

§ Crim. Law, I. § 934.

10 Wickham ce. The State, 7 Coldw. 525;
Walston v. The State, 54 Ga. 242; The
State v. Warne, 27 Misso. 418; Brown
v. The State, 16 Texas, 122; Waller v.
The State, 40 Ala. 325; Buster v. The
State, 42 Texas, 315. See Behler v. The

627
§ 1013 TRIAL BY PETIT JURY. [BooK. VIII.

cient.!_ To assess a punishment beyond the extreme limits of the
law will be ill, nor can the prosecuting officer cure the defect by
offering to remit the excess.2. And some courts deem it ill when
too small,3 others not. The verdict must. find the defendant
guilty, then add the punishment; the latter without the former
will be inadequate.®

§ 10138. Amending the Verdict :—

Distinguished. — What is here for consideration is to be distin-
guished from the jury’s unlimited power of amending their
own verdict on its rendition, as already explained. They can-
not amend it after it is recorded.’ How fa can the court?

Doctrine and Practice stated. — The cases seem confused and
contradictory ; but a little looking below the ‘surface, into the
principles which should govern them, will make all plain to the
reason, and harmonize most of the points adjudged. While
the functions of judge and jury are distinct, the former can have
no power to alter the substance of any thing which the latter,
acting within their proper:sphere, have, it is admitted, found.®
And this rule applies to a special or other verdict in writing,

confessedly comprehending the full meaning of the jury.®

State, 22 Ind. 345; Kistler v. The State,
54 Ind. 400; Eastman v. The State, 54
Ind. 441.

1 Weatherford v. The State, 43 Ala.
819; Commonwealth v. Scott, 5 Grat. 697;
Mills v. Commonwealth, 7 Leigh, 751.
See Commonwealth v. Frye, 1 Va. Cas.
19; People v. Littleficld, 5 Cal. 8355; The
State v. Rohfrischt, 12 La. An. 382;
Hammett v. The State, 52 Ga. 122.

* Allen v. Commonwealth, 2 Leigh,
727.

3 Jones v. Commonwealth, 20 Grat,
848.

4 Hoskins v. The State, 27 Ind. 470.
See Crim. Law, IL. § 980-932; Common-
wealth v. Shanks, 10 B. Monr. 804; The
State v. Evans, 23 La. An. 525.

5 Wynn v. The State, 1 Blackf. 28.
And see Bennett v. The State, 80 Texas,
521, 528; Peterson v. The State, 47 Ga,
624; Turner v. The State, 8 Heisk. 452;
David v. The State, 40 Ala. 69; Dooley
v. The State, 28 Ind. 239.

6 Ante, § 1008; Hobson v. Humphries,
2 Mill, 871; The State v. Steptoe, 1

628

But

Misso. Ap. 19; Patterson v. Cook, 8 Port.
66.

7 The State v. Yancy, 1 Tread. 287;
Williams v. People, 44 Ill. 478. See The
State v. Potter, 16 Kan. 80.

8 The State v. Yancey, 3 Brev. 142;
The State v. McBride, 19 Misso. 289;
Shapleigh v. Wentworth, 13 Met. 358;
Guenther v. People, 24 N. ¥. 100; The
State v. Cox, 6 Ire. 440.

9 United States v. Bird, 2 Brev. 85;
Walker v. Dewing, 8 Pick. 520; Bradstreet
v. Cannon, 2 Cow. 615; Rex 'v. Keat, 1
Salk. 47, Skin. 666; Bold’s Case, 1 Salk.
63; The State v. Reonnals, 14 La. An.
278; People v. Wells, 8 Mich. 104. Arch-
bold says: A special verdict “is not
amendable as to matters of fact; but a
mere error of form may be amended,
even, as it seems, in capital cases, in order
to fulfil the evident intention of the jury,
where there is any note or minute to
amend by.” Archb. Crim. Pl. & Ev. 18th
Lond. ed. 148, referring to 2 Hawk. P. C.
c. 47,§ 9; Rex v. Hayes, 2 Stra. 848, 844;
Rex v. Hazel, 1 Leach, 4th ed. 868, 382;
Rex v. Woodfall, 5 Bur. 2661.
CHAP. LXIX.] VERDICT AND ITS RENDITION. § 1014
the record of the verdict is distinguishable from the thing re-
corded. If, as in most instances, the jury deliver their finding
orally, it is but air, of whose spent undulations the record is the
evidence,! while the verdict itself has ceased to have a separate
existence. Even where the jury bring in a written verdict they
may alter or explain it at its delivery ; and the recorded finding,
not the writing upon the files, is the proper evidence of what
was done.2 The record of a verdict, therefore, often spoken of in
the books simply as the verdict, may be amended under the same
rules, and with the same effect, as any other part of the record.
There must be something, as the courts express it, to amend by,®
—as, for example, the minutes of the judge, but not generally his
mere recollection,* — the application must be made within proper
time, and the alteration must conform to what appears to have
been the intention of the jury. The court can strike out matter
not responsive to the issue,’ and other surplusage,’ determine
what the finding was, and put the verdict otherwise in due form
on the record.” It can also enter its own conclusion of guilty
or not guilty upon facts which the jury have returned.

§ 1014. Entering Verdict on Particular Count. — A common form
of amending the verdict in civil cases is to restrict a general find-
ing to, or in other words enter the verdict on, the particular count
or counts to which alone the evidence, according to the minutes of
the judge, applied.2 And, to correct a mistake, the court may even
transfer the finding from one count or part .of a count to another.”

1 Patterson v. Cook, 8 Port. 66.

2 Commonwealth v. Carritgton, 116
Mass..387; The State v. Steptoe, 1 Misso.
Ap. 19.

8 Brown v. Hillegas, 2 Hill, S. C. 447.

4 Reg. v. Virrier, 12 A. & E. 317,
337, 4 Per. & D. 161; Scougull v. Camp-
bell, 1 Chit. 283; Matheson v. Grant, 2
How. U. S. 263.

5 Cane v. Watson, Morris, 52.

6 Spencer v. Goter, 1 H. Bl. 78; Hay
v. Ousterout, 8 Ohio, 384; Evans v. Rog-
ers, 1 Kelly, 468; Pendleton v. Vandevier,
1 Wash. Va. 381.

7 Commonwealth v. Lang, 10 Gray, 11.

8 People v. Lee, 17 Cal. 76; The State
v. Douglass, 1 Greene, Iowa, 550; People
v. Boggs, 20 Cal, 482.

9 Henslie v. The State, 8 Heisk. 202.

10 Hay v. Ousterout, supra; Burhans

v. Tibbits, 7 How. Pr. 21; Martin v. The
State, 25 Ga. 494; Poindexter v. Com-
monwealth, 6 Rand. 667; Perkins v. Wil-
son, 8 Cal. 187; Rex v. Hungerford, 2
East P. C. 518.

11 Reg. v. York, 1 Den. C. C. 385; s.¢.
nom. Reg. v. Yorke, 2 Car. & K. 841; Peo-
ple v. Ah Ye, 81 Cal. 451; Rex v. Hayes,
2 Stra. 848; Reg. v. Sparrow, Bell C. C.
298, 8 Cox C. C. 8938, And see Common-
wealth v. Morgan, 107 Mass. 199.

12 Ferguson v. Mahon, 11 A. & E.
179; Williams v. Breedon, 1 B. & P.
829; Eddowes v. Hopkins, 1 Doug. 376;
Cooper v. Bissell, 15 Johns. 818; Corn-
wall v. Gould, 4 Pick. 444, 446.

18 Reg. v. Virrier, 12 A. & E. 817, 4
Per. & D.161. And see Cogan v. Ebden,

‘1 Bur, 383.

629
§ 1015 TRIAL BY PETIT JURY. [Book VIII.

There is not the same, or at least so frequent, necessity for resort-
ing to this practice in criminal causes ; but it is supported by the
same reasons as in civil, and the right is believed to prevail in
them equally.!. As to which, —

Applied on Count. — Since, in the criminal law, a count whereon
the finding is silent may by the better opinion be simply disre-
garded ;? so likewise, it would seem, may be a count where a
general verdict is by the court applied to the other counts. Con-
sequently, if the evidence at the trial did not tend to support a
particular count,? or such count is bad,‘ yet the jury. have returned
a general verdict of guilty on the whole, the court, not always
through the formality of an amendment, but sometimes simply at
the sentence, applies the verdict to, in other words treats it as
rendered on, the other and good counts, to which alone the judg-
ment by its terms is made to attach.6 Or —

A Nolle Prosequi — to the inadequate count is sometimes a
good remedy.®

§ 1015. Further as to the Verdict where there are more Counts
than One :—

Difficulties. — The fact that sometimes a plurality of counts in-
dicates as many distinct offences, sometimes as many separate
methods of charging one offence, and sometimes a mixture of
the two, while nothing.on the face of the indictment informs
us on what one of these patterns it is drawn,’ and the mist
with which this uncertainty not unfrequently blinds counsel
and the court, have led to apparent or real contradictions in the
decisions, and much obscurity on the subject. Let us take of
it a brief view, in the light partly of adjudication and partly of
juridical reason.

1 The State v. Smith, 5 Day, 175,177; See The State v. Tuller, 84 Conn. 280;

Reg. v. Sparrow, Bell C. C. 298, 8 Cox
C. C. 398.

2 Ante, § 1010.

8 The State v. Bugbee, 22 Vt. 82;
The State v. Long, 7 Jones, N. C. 24;
The State v. Posey, 7 Rich. 484; The
State v. Smith, supra.

4 Baker v. The State, 380 Ala. 621;
Brice v. The State, 2 Tenn. 254; Hiner
.v. People, 34 Ill. 297; Taylor v. The
State, 3 Heisk. 460; Frain v. The State,
40 Ga. 529; Mose v. The State, 35 Ala,
421; Arlen v. The State, 18 N. H. 563.

630

Reg. v. Evans, 7 Cox C. C. 151.

5 Post, § 1832-1834. Graded Of
fences. — This method cannot probably
be applied where differing grades of
crime are charged in one count. Thus,
where the indictment was for larceny
from the person, and simple larceny only
was proved at the trial, a venire de novo
was ordered. The State v. Eno, 8 Minn.
220. And see Wood v. People, 59 N. Y.
117.

& The State v. Whittier, 21 Maine, 341.
See Reg. v. Evans, 7 Cox C. C. 161.

7 Ante, § 422, 428, 444 et seq.
CHAP. LXIX.] VERDICT AND ITS RENDITION.

§ 1015

Bad Count objected to at Trial. — If one of several counts is bad,
the court has no right to receive evidence upon it, against the
objection of the defendant.1_ Properly it ought to be quashed.?
But if it is not, and the court refuses to exclude evidence appli-
cable only to it, and to direct the jury not to base any finding
upon it, a general verdict of guilty on the indictment should be
set aside2 And —

Erroneous Instructions. — It is the same where the instructions
on one of two good counts are erroneous, and there is a general
verdict of guilty.*

Good and Bad Counts at Sentence and on Error. — If the defend-
ant did not take the objection to a bad count at the trial, and
upon it evidence was given to which no exception was saved, the
case is the same as though any other incompetent evidence had
been introduced with his tacit consent. Still he can object to
being sentenced on such count, and the court should heed the
objection, as is elsewhere shown.’ But he can be sentenced on
the good counts; nor will a general sentence be reversible on error

if sustained by them, on the bad being treated as surplusage.®

1 The State v. Hinckley, 4 Minn. 345.

2 Ante, § 764.

8 The State v. Hinckley, supra; The
State v. Dooly, 64 Misso. 146; Wood v.
People, 59 N. Y. 117; Rand v. Common-
wealth, 9 Grat. 788. See The State
v. Boyle, 28 Iowa, 522; The State v.
Knouse, 29 Iowa, 118; The State v. Mc-
Nally, 82 Iowa, 580. It is otherwise if
the evidence was applicable equally to
the good counts. Rice v. The State, 3
Heisk. 215.

4 The State v. McCauless, 9 Ire. 375.

5 Ante, § 1014; post, § 1332.

8 Josslyn v. Commonwealth, 6 Met.
236; Stevens v. Commonwealth, 6 Met.
241; Johnson v. The State, 5 Dutchier,
458; Kirk v. Commonwealth, 9 Leigh,
627; The State v. Turner, 2 McMul.
899: Townsend v. People, 8 Scam. 326;
The State v. Davidson, 12 Vt. 300;
The State v. Lassley, 7 Port. 526; Friar
v. The State, 8 How. Missis. 422; Bailey
v. The State, 4 Ohio State, 440; Buford
v. Commonwealth, 14 B. Monr. 24; Har-
ris v. Purdy, 1 Stew. 281, 233; The State
v. Tisdale, Phillips, 220; Montgomery

‘y. The State, 40 Ala. 684; Jennings v.

Commonwealth, 17 Pick. 80; Arlen v.
The State, 18 N. H. 563; Frazer v. People,
54 Barb. 306; Murphy v. Commonwealth,
28 Grat. 960; The State v. O’Brien, 21
La. An. 265; Lyons v. People, 68 Ill. 271;
Brown v. The State, 5 Eng. 607; Parker
v. Commonwealth, 8 B. Monr. 30; The
State v. Jennings, 18 Misso. 435; Baron
v. People, 1 Parker C. C. 246; The State
v. Pace, 9 Rich. 855; Isham v. The State,
1 Sneed, 111; The State v. Shelledy, 8
Jowa, 477; Hudson v. The State, 34 Ala.
253; Roberts v. The State, 14 Ga. 8;
Commonwealth v. Howe, 13 Gray, 26;
Buck v. The State, 1 Ohio State, 61; The
State v. Montgomery, 28 Misso. 594;
Poole v. The State, 3 Brev. 416; Stough-
ton v. The State, 2 Ohio State, 662;
Turk v. The State, 7 Ohio, 2d pt. 240;
Bulloch v. The State, 10 Ga. 47; Stone
v. The State, Spencer, 404; People v.
Gilkinson, 4 Parker C. C. 26; United
States v. Burroughs, 8 McLean, 405; The
State v. Miller, 7 Ire. 275; The State v.
Connolly, 3 Rich. 337; Curtis v. People,
Breese, 197; West v. The State, 2 Zab.
212; People v. Curling, 1 Johns. 320;
The State v. Bean, 21 Misso. 269; United

631
§ 1015 a TRIAL BY PETIT JURY. [BOOK VII.

§ 1015 a. Verdict General or on each’ Separate Count. — Where
the indictment is for one offence only, charged in separate counts,
the jury cannot be required to pass on each count by itself, but
they may bring in a general verdict of guilty or not guilty on the
whole.! Yet where the counts are for distinct offences, though a
general verdict of guilty will operate as a conviction of all,? still
it has been held, and it seems in reason just, that the defendant
is entitled, on request, to have separate findings returned upon
them, or, at least, to have the jury in some way pass upon each
by itself? Nor is it in any case objectionable in point of law that
the jury return separate findings on the separate counts, acquit-
ting on some and convicting on others, or the one or the other on
all, and each separately,* or the one or the other on a part, and
disagreeing on the rest, the counts on which there is a disagree-
ment remaining to be submitted to another jury. Nor yet should
the verdict be general if the conviction is rendered thereby repug-

nant or absurd.®

States v. Burns, 5 McLean, 23; The State
v. Burke, 88 Maine, 574; Hazen v. Com-
monwealth, 11 Harris, Pa. 355; The State
v. Bean, 19 Vt. 580; The State v. Steb-
bins, 29 Conn. 463; Guenther v. People,
24.N. Y. 100. See, for a possible qualifi-
cation of the doctrine, Mowbray v. Com-
monwealth, 11 Leigh, 643; Clere v. Com-
monwealth, 8 Grat. 615. In England,
the doctrine is supposed to be somewhat
different since O’Connell’s Case. It is
stated in Archb. Crim. Pl. & Ev. 18th
Lond. ed. 62, thus: ‘If, where there are
several counts-charging different offences
in law, the judgment be entered up gen-
erally upon all, that the defendant, ‘ for
his said offences,’ be adjudged, &c., and it
appears that any count was bad in law,
the judgment will be reversed on error.
O’Connell », Reg. 11 Cl. & F. 155. To
prevent this, it is now usual, in cases of
misdemeanor, to pronounce and enter up
the same judgment separately on each
count of the indictment.” And see Reg.
v. Evans, 7 Cox C. C. 151; Holloway v.
Reg. 2 Den. C. C. 287; Reg. v. Holloway,
6 Eng. L. & Eq. 310.

1 Commonwealth v. Desmarteau, 16
Gray, 1,11; The State v. Baker, 63 N.C.
276; The State v. Hollenscheit, 61 Misso.

682

802; The State v. Williams, 9 Ire. 140;
The State v. Scripture, 42 N. H. 485;
Frasier v. The State, 5 Misso. 586; The
State v. Baker, 70 N. C. 530.

2 Ante, § 1005a; Wreidt v. The State,
48 Ind. 579; Estes v. The State, 55 Ga.
131; Scott v. The State, 31 Missis. 473,
480.

3 Commonwealth v. Carey, 103 Mass.
214. See The State v. Johnson, 75 N.C.
123; The State v. Merwin, 84 Conn. 118;
The State v. Tuller, 34 Conn. 280, 298;
The State v. Speight, 69 N. C. 72.

4 Mills v. Commonwealth, 1 Harris,
Pa. 634; Bissot v. The State, 53 Ind. 408;
The State v. Danina, 61 Misso. 477; The
State v. Andrews, 17 Maine, 108; Rex v.
Withal, 1 Leach, 4th ed. 88.

5 United States v. Davenport, Deady,
264.

8 See, and compare, ante, § 458; Reg.
v. Evans, 7 Cox C. C. 151; The State v.
Speight, 69 N. C. 72; Speers v. Com-
monwealth, 17 Grat. 570; Harris v. Peo-
ple, 64 N. Y. 148; Chambers v. People, 4
Scam. 351; Drury v. Dennis, Yelv. 106;
Anonymous, 8 Salk. 872, pl.1; Bell v.
The State, 48 Ala. 684; Pitcher v. People,
16 Mich. 142,

.
CHAP. LXIX.] VERDICT AND ITS RENDITION. § 1016

§ 1016. Conclusion’: — ’

Questions complicated. — The questions presented in this chapter
are largely complicated with those in several other chapters.
They are here made as plain as possible, but the reader should
not expect to gain a complete understanding of this subject with-
out acquiring some familiarity also with the others. Thus, —

New Trial. — Because a defendant waives his right by not ob-
jecting when an imperfect verdict is rendered,! if it is set aside
he shall not be discharged but tried anew.* The court cannot,
instead, make the verdict or judgment what it thinks it ought
to be.3

1 Crim. Law, I. § 998; ante, § 1004. Commonwealth v. Smith, 2 Va. Cas. 327;

2 Commonwealth v. Hatton, 3 Grat. Webber v. The State, 10 Misso. 4.

628; Campbell v. Reg. 11 Q. B. 799; 8 The State v. Curtis, 6 Ire. 247,
Commonwealth v. Scott, 5 Grat. 697;
633
§ 1018 TRIAL BY PETIT JURY. [Book VIII.

CHAPTER LXX.
THE TRIAL WHERE THERE ARE MORE DEFENDANTS THAN ONE.

§ 1017. Introduction.
1018-1026. Severance for, and ‘Separate Trial.
1027-1040. The Joint Trial.
1041. How when the Charge is Several.

§ 1017. How the Chapter divided. — We shall consider, I. The
Severance for, and Separate Trial; II. The Trial when Joint;
III. The Trial when the Charge is Several.

I. The Severance for, and Separate Trial.

§ 1018. Whether sever or not.— At the common law, persons
jointly indicted cannot demand, as of right, to be tried separately.
Yet, on cause shown, the judge in his discretion may permit it,
alike in treason, felony, and misdemeanor.1 The application gen-
erally, in practice, is made by the defendant, but it may proceed
equally from the State.2 And because the prosecuting officer is

1 Whitehead v. The State, 10 Ohio
State, 449; Maton v. People, 15 III. 536 ;
The State v. Soper, 16 Maine, 293; Com-
monwealth v. Manson, 2 Ashm. 31; The
State v. Yancey, 3 Brev. 806; Bixbe uv.
The State, 6 Ohio, 86; The State v.
Wise, 7 Rich. 412; The State v. Little-
john, 1 Bay, 816; McAllister v. The
State, 17 Ga. 618; United States v. Mar-
chant, 4 Mason, 158, 12 Wheat. 480;
Mask v. The State, 82 Missis. 405;
Hawkins v. The State, 9 Ala. 187; The
State v. Smith, 2 Ire. 402; The State v.
Conley, 89 Maine, 78; United States v.
Kelly, 4 Wash. C. C. 528; The State
v. Yancy, 1 Tread. 241; Commonwealth
v. Robinson, 1 Gray, 555; United States v.
Wilson, Bald. 78; United States v. Sharp,
Pet. C. C. 118; Hibbs v. The State, 24
Ind. 140; The State v. McGrew, 18 Rich.
816; Thompson v. The State, 25 Ala. 41;

634

Hess v. The State, 5 Ohio, 5; Boyd v.
The State, 17 Ga. 194; Parmer v. The
State, 41 Ala. 416; Wall v. The State,
51 Missis. 896 ; Commonwealth v. Lewis,
25 Grat. 938. See People v. Howell, 4
Johns. 296. Perhaps, in the English
practice, separate trials are grantable
only where the prosecutor consents or
the prisoners sever in their challenges.
Reg. v. Richards, 1 Cox C. C. 62. But,
it seems, the discretion of the court is
free in England, pretty much as here.
Reg. v. Littlechild, Law Rep. 6 Q. B.
298; Cockburn, C. J.,in Reg. v. Payne,
Law Rep. 1 C. C. 349, 854. And see
Rég. v. Clothier, 1 Cox C. C. 113; Reg.
v. Fisher, 3 Cox C. C. 68.

2 Allen v. The State, 10 Ohio State,
287; People v. Stockham, 1 Parker C.
C. 424; The State v. Marvin, 12 Iowa,
499; Stewart v. The State, 58 Ga. 577.
CHAP. LXX.]

MORE DEFENDANTS THAN ONE.

§ 1019

entitled to determine the order of trials,1 it is the doctrine of some

courts that he may sever defendants at pleasure.2 But, —
Under Statutes.—In some of our States, defendants are by

statute entitled as of right, on demand, to separate trials either

generally or in particular cases.?

By construction, the demand

comes too late after the jury are sworn and a part of the evidence

is heard.

§ 1019. Grounds for Severance.— The general fact being that
convenience and justice are alike promoted by trying defendants
together,® if the contrary appears in a case separate trials should

be allowed. Thus, —

Antagonistic Defences, —If the defences are antagonistic,’ or —
Evidence rendered admissible. — If important evidence, which
would be excluded on a joint trial, will be receivable on a

several,’ there should be a severance.

For example,— ,

Wife or Husband.— On a joint trial, the English and most
American courts refuse the testimony of the wife or husband

of one defendant, even for or against another.’

Hence, when

this evidence is important, a separate trial will generally be
awarded ;° for then the wife or husband of a defendant not on

trial will be admissible.!°

1 Ante, § 950 b.

2 Curran’s Case, 7 Grat. 619, 627; The
State v. Calvin, R. M. Charl. 151; The
State v. Nash, 7 Iowa, 347; Patterson v.
People, 46 Barb. 625. See post, § 1031;
Cruce v. The State, 59 Ga. 83.

8 People v. McIntyre, 1 Parker C. C.
871; Johnson v. The State, 14 Ind. 574;
Winkle v. The State, 20 Ga. 666; Law-
rence v. The State, 10 Ind. 453; Jones v.
The State, 1 Kelly, 610; People v. Labra,
5 Cal. 183; Greer v. The State, 54 Missis.
878; People v. White, 55 Barb. 606;
Horne v. The State, 37 Ga. 80; Trisler
v. The State, 39 Ind. 487; Cain v. The
State, 44 Ind. 435.

4 McJunkins v. The State, 10 Ind. 140,

5 Commonwealth v. James, 99 Mass.
438, 440.

§ Roach v. The State, 5 Coldw. 39.

T Anthony v. The State, 2 R. I. 305.

8 Reg. v. Thompson, Law Rep. 1C. C.
877, 12 Cox C. C. 202, 2 Eng. Rep. 252;
Rex v. Webb, 3 Russ. Crimes, 5th Eng.

But —

ed. 622; Reg. v. Denslow, 2 Cox C.C.
220; Commonwealth v. Easland, 1 Mass.
15; Commonwealth v. Robinson, 1 Gray,
555; Mask v. The State, 82 Missis. 405;
Collier v. The State, 20 Ark. 86; Rex v.
Smith, 1 Moody, 289; Rex v. Locker, 5
Esp. 107; Rex v. Frederick, 2 Stra. 1095.
There is a dictum, that ‘her incompe-
tency extends no further than to the
exclusion of any thing that might tend
to criminate her husband.” The State v.
Bradley, 9 Rich. 168; s. Pp. The State v.
Waterman, 1 Nev. 548. See, under the
Michigan statute, Morissey v. People, 11
Mich. 827.

® Commonwealth v. Manson, 2 Ashm.
31; Commonwealth v. Easland, 1 Mass. 15.

10 The State v. Worthing, 31 Maine,
62, 64; Thompson v. Commonwealth, 1
Met. Ky. 18; The State v. Drawdy, 14
Rich. 87; Moffit v. The State, 2 Humph.
99; United States v. Addatte, 6 Blatch.
76; Pullen v. People, 1 Doug. Mich. 48 ;
The State v. Burnside, 37 Misso. 343;

635
§ 1020 TRIAL BY PETIT JURY. [Boox ‘VIII.

Conspiracy. — The wife, for example, cannot thus be a witness
in a conspiracy or other like case, where the conviction or ac-
quittal of the other defendant will in effect convict or acquit
her husband; hence, in such a case, the severance will not be
granted.1. Again, —

§ 1019 a. Evidence against One prejudicial to Another. — If evi-
dence to be adduced against one defendant is, while inadmissible
against another, calculated to prejudice the cause of the latter
with the jury, the court should grant a severance.2 Of this sort
are —

Confessions — by one defendant, involving another. They are
admissible only against the one,’ and are calculated to prejudice
the jury against the other; therefore, if they are to be intro-
duced, the trials should be separate.‘

§ 1020. Defendants as Witnesses for or against One Another.—
One of two or more joint defendants cannot be a witness for or
against another, even on a separate trial, until the case as to
himself is disposed of, by a plea of guilty, or a verdict of convic-
tion or acquittal, or a ‘discharge on a plea in abatement; then he
may be. Sentence need not be rendered.® Of course, if the in-
dictments are separate, he may be a witness, though the offence
is supposed to be joint.6 And, in some of the States, the statutes
are interpreted to make him such, where the indictment is joint,

The State v. McCarron, 51 Misso. 27;
Workman v. The State, 4 Sneed, 425.
And see Reg. v. Williams, 8 Car. & P.
284; The State v. Mooney, 64 N. C. 54;
Commonwealth v. Reid, 8 Philad. 385.

1 Commonwealth v. Manson, 2 Ashm.
81; United States v. Addatte, 6 Blatch. 76.

2 White v. People,,81 Ill. 333.

3 Morrison v. The State, 5 Ohio, 488;
Draper v. The State, 22 Texas, 400;
Ake v. The State, 31 Texas, 416. See
Lyon v. The State, 22 Ga. 899; The State
v. McNamara, 3 Nev. 70; Reg. v. Swin-
nerton, Car. & M. 593; United States v.
Douglass, 2 Blatch. 207.

4 Commonwealth v. James, 99 Mass.
438.

5 Post, § 1166; Rex v. Sherman, Cas.
temp. Hardw. 303; Reg. v. George, Car.
& M. 111; The State v. Jones, 51 Maine,
125; The State v. Nash, 7 Iowa, 847;

636

Campbell v. Commonwealth, 2 Va. Cas.

3814; People ». McIntyre, 1 Parker C. C.

871; The State v. Roberts, 15 Misso. 28;
Moss v. The State, 17 Ark. 827, 330;
Reg. v. Owen, 9 Car. & P. 88; Chandler
v. Commonwealth, 1 Bush, 41; Edgerton
v. Commonwealth, 7 Bush, 142; Lee v.
The State, 51 Missis. 666; People v. Wil-
liams, 19 Wend. 877; Commonwealth v.
Marsh, 10 Pick. 57; Reg. v. Gallagher,
18 Cox C. C. 61, 18 Eng. Rep. 416;
Shay v. Commonwealth, 12 Casey, Pa.
805 ; Rex v. Lafone, 5 Esp. 154. And
see The State v. Young, 89 N. H. 283;
Wixson v. People, 5 Parker C. C. 119;
The State v. Phipps, 76 N. C. 208; De-
lozier v. The State, 1 Head, 45; The State
v. Bruner, 65 N. C. 499; Morgan v. The
State, 45 Ala. 64,

® United States v. Henry, 4 Wash.
C. C. 428.
CHAP. LXX.] MORE DEFENDANTS THAN ONE. § 1022

the trials being separate. There are even, perhaps, States in
which this is held to be so under their common law.) There-
fore, —

No Severance. — Where severance will not operate to admit
the joint defendant to be a witness, it will not be granted.?
But, — i

Acquitting by Court.— If, in the English practice, the prose-
cutor wishes to call a defendant as a witness, the court permits a
verdict of acquittal as to him to be taken at once, rendering him
competent.3

Nol. Pros. — With us, a readier method is a nolle prosequi by
the prosecuting officer.*

§ 1021. Acquitting when no Evidence — Slight Evidence. — In
both countries, if the trial commences joint, yet, when the evi-
dence for the prosecution is all in, none appears against one
defendant, the court, on request, should direct his acquittal that
he may testify for the others.5 If there is slight evidence, it may
so direct. But the line between duty and discretion, as to this,
is not very distinct in the cases.®

§ 1022. Conspiracy, again. — As already intimated,’ the peculiar
nature of conspiracy precludes separate trials in most circum-

1 People v. Labra, 5 Cal. 183; People
v. Newberry, 20 Cal. 439; Everett v. The
State, 6 Ind. 495; Marshall v. The State,
8 Ind. 498; Sloan v. The State, 9 Ind.
565; Hunt v. The State, 10 Ind. 69;
Noland v. The State, 19 Ohio, 131; Al-
len v. The State, 10 Ohio State, 287;
Brown v. The State, 18 Ohio State, 496,
510; The State v. Brien, 8 Vroom, 414;
Carroll v. The State, 5 Neb. 31. See
Telozier v. The State, 1 Head, 45, 46;
The State v. Rose, Phillips, 406. This
would seem even to be the late English
doctrine. Reg. v. Winsor, 10 Cox C. C.
276, 827, Law Rep. 1 Q. B. 390; Reg. v.
Deeley, 11 Cox C. C. 607.

2 United States v. Gibert, 2 Sumner,
19.

_ % Rex v. Rowland, Ryan & Moody

N. P. 401.

4 The State v. Phipps, 76 N. C. 203;
post, § 1076, note.

5 The Bounty Case, cited 1 East, 312;
The State v. Roberts, 15 Misso. 28; An-

thony v. The State, 2 R.T. 305; Bybee
v. The State, 36 Texas, 366. And see
The State v. Blennerhassett; Walk.
Missis. 7; Reg. v. O’Donnell, 7 Cox C. C.
337; Pennsylvania v. Leach, Addison,
852.

6 Commonwealth v. Eastman, 1 Cush.
189, 218; People v. Bill, 10 Johns. 95;
The State v. Bean, 86 N. H. 122; The
State v. McLendon, 5 Strob. 85; Jones v.
The State, 18 Texas, 168; Fitzgerald
v. The State, 14 Misso. 413; The State v.
Shaw, 1 Root, 134; The State v. O’Brien,
7 R.I. 836; The State v. Alexander, 2
Mill, 170; Pennsylvania v. Leach, Addi-
son, 8352; The State v. Gustave, 27 La.
An. 895; The State v. Underwood, 57
Misso. 40, 48; Rex v. Thanet, 27 Howell
St. Tr. 821, 952; Reg. v. Owen, 9 Car. &
P. 83. And see The State v. Carr, Coxe,
1; Shay v. Commonwealth, 12 Casey,
Pa. 805; The State v. Sutton, 10 R. 1
159.

7 Ante, § 1019.

6387
§ 1026 TRIAL BY PETIT JURY. [BooK VII.
stances wherein they are permitted for other offences.! But
should one only appear to an indictment,” or should the rest.
having appeared, die, he may be tried alone. Also, —

§ 1023. agray — Riot. —In affray and riot, governed by the
same rules as conspiracy, separate trials will not ordinarily be
granted. But, though no less than three can commit a riot, if
four are jointly indicted for it and two die, the other two may
be tried, convicted, and punished.6 Or if one only is appre-
hended, he may be tried and punished while the rest remain at
large.§

§ 1023 a. Indirect Severance — (Change of Venue — Continu-
ance). — Not only death may thus work an indirect severance,
but so also will a change of venue? or a continuance ® as to one
alone. If the court objects to the severance, it should order the
continuance as to both on cause being shown as to one.®

§ 1024. Jurors. — A juror who has served on the separate trial
of one is not, therefore, incompetent as to another.!? But such
may be a proper case for triers, on the question of indifference.!!

§ 1025. Different Pleas. — If one of two joint defendants pleads
guilty and is sentenced, the case may proceed as to the other as
though originally against him alone.2 But, —

Punishment.— While only the punishment of the former re-
mains to be assessed by the jury, the other cannot demand a
separate trial as of right.

§ 1026. Counsel.— In England, defendants who had severed,
having brought writs of error, were held entitled to appear by
separate counsel, and the latter might severally reply.

1 Commonwealth v. Manson, 2 Ashm.
81. See Rachels v. The State, 51 Ga.
874.

2 The State v. Buchanan, 5 Har. &
J. 500. And see Rex v. Kinnersley, 1
Stra. 193.

3 Reg. uv. Kenrick, 5 Q. B. 49, Dav. &
M. 208.

4 Hawkins v. The State, 13 Ga. 822.

5 Rex v. Scott, 3 Bur. 1262, 1 W. BI.
850. And see Turpin v. The State, 4
Blackf. 72; The State v. Allison, 3 Yerg.
428; Rex v. Sudbury, 12 Mod. 262; The
State v. Bailey, 3 Blackf. 209.

6 The State v. Pugh, 2 Hayw. 55,

638

7 Ante, § 75; Brown v. The State, 18
Ohio State, 496.

8 White v. The State, 31 Ind. 262.

® Krebs v. The State, 8 Texas Ap.
348.

10 High Treason Case, J. Kel. 7, 9;
ante, § 911-913.

11 United States v. Wilson, Bald. 78.
See ante, § 903-906.

? Klein vo. People, 31 N. Y. 229; Reg.
v. Gallagher, 13 Cox C. C. 61, 18 Eng.
Rep. 416. Costs.— As to the costs in
such a case, see Woodruff v. The State,
8 Ind. 521.

13 Thompson v. The State, 25 Ala. 41

M O’Connell v. Reg. 11 CL & F. 155.
CHAP. LXX.]

MORE DEFENDANTS THAN ONE. § 1031

II. The Joint Trial.

§ 1027. Challenges to Jurors : —

Same Jurors. — On a joint trial, the cases of all the defendants
are submitted to one jury. Hence, —

One Incompetent.— A juror challenged for cause by one de-
fendant, and found disqualified as to him, is set aside as to all.
Hence, also, —

§ 1028. Peremptory Challenge.— A peremptory challenge, by
one defendant, removes the juror from the panel as to all. And,
as the right is personal, not to be exercised by counsel,! a chal-
lenge by one does not count against another. Therefore the
tule; modified perhaps by statutes in some of our States, is,
that —

Rule as to. — Each of the defendants may make his full num-
ber of challenges, as though tried alone, while also he has the
benefit of those by his co-defendants.”

§ 1029. Difficulty from Rule, and Remedy. — The effect of this
rule might sometimes be, that the prisoners by combining would
exhaust the panel and the tales, and prevent a trial. As a par-
tial remedy, mentioned by Lord Hale, “they anciently used to
sever the prisoners, and so put them to challenge apart, whereby
they may possibly hit upon the same persons.”? But—

§ 1030. Remedy of Separate Trials — Joining in Challenges. — A
later and ampler remedy is, to put the prisoners to their election,
either to join in their challenges or be tried separately. And:
where the number of the peremptory challenges was “ differently
limited,” a compromise adapted to the special case was made.®
Moreover, —

§ 1031. Election by Prosecutor. — Hawkins says, the prosecutor

1 Ante, § 944.

2 See the places referred to in the
notes to the next two sections; also
Bixbe v. The State, 6 Ohio, 86; Bris-
ter ». The State, 26 Ala. 107; Maton v.
People, 15 Ill. 5836; Hawkins v. The State,
9 Ala. 187, 140; Washington v. The State,
17 Wis. 147; The State v. McLean, 21
La. An. 546. See likewise Anonymous,
Sir F. Moore, 18, pl. 48; Thymolby’s
Case, 2 Dy. 152; 2 Hawk. P. C. ¢. 41,

§ 9; The State v. Monaquas, T. U. P.
Charl. 16; The State v. Reed, 47 N. H.
466.

8 2 Hale P. C. 263.

4 Salisbury’s Case, 1 Plow. 100; 1
Chit. Crim. Law, 635; Charnock’s Case,
8 Salk. 81. See People v. Howell, 4
Johns. 296; Reg. v. Fisher, 8 Cox C. C.
68.

5 Swan’s Case, Foster, 104, 106, 107.

639
§ 1085

TRIAL BY PETIT JURY.

[Book VII.

may elect “either to take out joint venires against them all, or
several against each of them”! the trials being separate when

the venires are several.?

§ 1032. Statutory Remedy. — In California, by statute, “where
several defendants are tried together, they are not allowed to

sever in their challenges, but must join therein.”

By construc-

tion whereof, one defendant can make no challenge, even for
cause, if the others will not join in it.3

§ 1033. The Evidence : —

Each Other as Witnesses. — How far defendants can be wit-
nesses for and against one another has already been considered.*
There may be, in some localities, statutes under which one de-
fendant is admissible in behalf of another.®

New Trial on Acquittal of One.— Where one is acquitted, a new
trial has been refused * and has been granted’ to the others who
were convicted, to enable them to use his testimony.

§ 1034. Admissible as to Part.— Evidence admissible as to a
part only of the defendants should be received, and the jury
directed not to apply it to the others.®

§ 1085. The Verdict and Sentence : —

Punishment — Form of Sentence.— The punishment, we have
seen, is to be several; and the sentence is, in form, several, not

joint.

Jt requires each to render the full penalty, the same as

though he had done the criminal act, or had been convicted,

alone® But —

Costs — which depend mainly on the terms of the particular

statute, do not necessarily follow this rule.

So that, in some

States, a judgment may be several as to the fines, and joint —

12 Hawk. P. C.c. 41, § 8.

2 High Treason Case, J. Kel. 7, 9.
See McWhirt’s Case, 3 Grat. 594.

3 People ». McCalla, 8 Cal. 301. For
cases in other States, as to this, see Peo-
ple vo. Thayer, 1 Parker C. C. 695; The
State v. Phillips, 24 Misso. 475; Mahan
v. The State, 10 Ohio, 282.

4 Ante, § 1020, 1021.

5 The State v. Donovan, 41 Iowa, 587.
And see Reg. v. Payne, Law Rep. 1 C. C.
849,12 Cox C. C. 118; Reg. v. Deeley, 11
Cox C. C. 607. ;

6 The State v. Bean, 36 N. H. 122.

1 Rich v. The State, 1 Texas Ap. 206,
211; Lyles v. The State, 41 Texas, 172.

640

8 Commonwealth v. Bosworth, 6 Gray,
479,481; The State v. Brite, 73 N.C. 26;
Alsabrooks v. The State, 52 Ala. 24;
Tong’s Case, J Kel. 17,18; Fife v. Com-
monwealth, 5 Casey, Pa. 429; The State
v. Fuller, 39 Vt. 74; Strady v. The State,
5 Coldw. 800; Kelsoe v. The State, 47
Ala. 573; Commonwealth v. Briggs, 5
Pick. 429; Commonwealth v. Robinson,
1 Gray, 555, 560, 561; The State v. Phil-
lips, 24 Misso. 475; Commonwealth v.
Ingraham, 7 Gray, 46.

® Crim. Law, I. § 954-958; The State
v. Gay, 10 Misso. 440; Bennett v. The
State, 30 Texas, 621, 528; Johnson v. The
State, 6 Dutcher, 453.
CHAP. LXX.] MORE DEFENDANTS THAN ONE.

§ 1087

that is, for a single sum against all— as to the costs.!_ In other
States, the costs are regarded as mere incidents, and it is deemed
that such as properly belong to each defendant should be in-
cluded in his several sentence, recoverable against him alone.?

§ 1036. verdict.— The jury should be directed to consider the
question of each defendant’s guilt by itself. And the verdict
of guilty should be in a form which can be construed as several ;
though it will be so if it finds each guilty by name.*

Disagreeing, convicting, acquitting, as to Part. — The jury may
convict a part of the defendants and disagree as to the others,® or
acquit a part and convict or leave the charge open as to the
rest ;® and, in general terms, the case may proceed to verdict
and judgment against one or more in advance of others.’ But
where the offence and indictment are such that the acquittal of
one shows another to be innocent as charged, the one cannot be
found not guilty and the other guilty.®

§ 1037. Degrees. — Subject to the exception just suggested, if
several are charged with an offence in different degrees, all in-
cluded in one indictment, the verdict may find one defendant
guilty in one degree, another in another, and so on.? The Eng-
lish books seem a little confused on this question; yet, in

1 Calico v. The State, 4 Pike, 430;
Commonwealth v. Sprinkles, 4 Leigh,
650; Johnson v. The State, supra.

2 Moody v. People, 20 Ill. 315, 819;
The State v. Jolly, 3 Dev. & Bat. 110.
And see Boyken v. The State, 3 Yerg.
426; Searight v. Commonwealth, 13S. &
R. 301; Penland v. The State, 1 Humph,
888; Reg. v. Jewell, 7 Ellis & B. 140.

3 Hampton v. The State, 45 Texas,
154.

4 Allen v. The State, 84 Texas, 230;
Fife v. Commonwealth, 5 Casey, Pa, 429.

5 Rex v. Cooke, 7 D. & R. 673, 5 B.
& C. 538; Rex v. Thomas, Cas. temp.
Hardw. 278; Commonwealth v. Wood,
12 Mass. 818; The State v. Parham, 5
Jones, N. C. 416; Commonwealth v.
Cook, 6 S. & R. 577. And see The State
v. Martin, 2 Ire. 101; Reg. v. Ashmall, 9
Car. & P. 236.

6 Rex v. Taggart, 1 Car. & P. 201;
The State v. McClintock, 1 Greene, Iowa,
892.

1 Hall v. The State, 8 Ind. 489. And

VOL. I. 41

see Weatherford v. Commonwealth, 10
Bush, 196.

8 The State v. Mainor, 6 Ire. 340 (as
to which case see The State v. Parham,
supra); The State v. Bailey, 3 Blackf.
209.

9 Klein v. People, 81 N. ¥. 229; White
v. People, 82 N. Y. 465; Mask v. The
State, 82 Missis. 405; Shouse v. Com-
monwealth, 5 Barr, 88. Quite consist-
ently with this doctrine, where two were
indicted for grand larceny, and the proof
against both was the same, and the jury
found one guilty of grand and the other
of petit larceny, a new trial was granted.
The State v. Larumbo, Harper, 183.

10 The following is from Archb. Crim.
Pl. & Ev. 10th Lond. ed. 58: “Upon an
indictment against two persons, charging
them with a joint and single offence, as
stealing in the dwelling-house, both or
either may be found guilty, but they can-
not be found guilty of separate parts of
the charge; and, if they be found guilty
separately, judgment cannot be passed

641
§ 1038 TRIAL BY PETIT JURY. [Book VII.

reason, it cannot be otherwise than as just stated, while it is
sufficiently established in American authority.

§ 1088. Proceedings for Reversal : —

New Trial. — Any one of several convicted defendants, the
others not choosing to join, or one convieted while they were
acquitted, may alone have a new trial, the verdict remaining
undisturbed as to the rest. As to —

Conspiracy. — It is the same in conspiracy as in other offences.?
Formerly, in England, the presence, at least, of all the convicted
conspirators was deemed essential at a motion for a new trial,
‘to prevent,” it was said, “the most guilty from keeping out of

upon one, unless a pardon be obtained, or
a nolle prosequi be entered, as to the other.
Rex v. Hempstead, Russ. & Ry. 844.
So, Receiving Stolen Goods. —If two
be charged jointly with receiving stolen
goods, a joint act of receiving must be
proved: proof that one received in the
absence of the other, and afterwards de-
livered to him, will not suffice. Rex v.
Messingham, 1 Moody, 257. It seems
‘that several receivers may be charged in
the same indictment with separate and
distinct acts of receiving, Reg. v. Pulham,
9 Car. & P. 260; at least, it is too late after
verdict to object that they should have
been indicted separately, Reg. v. Hayes,
2 Moody & R. 155. Burglary and Lar-
ceny.— Where several persons are in-
dicted for burglary and larceny, one may
be found guilty of burglary and larceny,
and the others of the larceny only. Rex
v. Butterworth, Russ. & Ry. 520. See
Rex v. Turner, 1 Sid. 171.” Homicide.
—In 1 Stark. Crim. Pl. 2d ed. 87, 88, we
read: ‘It should seem, that, in some in-
stances, defendants jointly indicted may
be convicted of offences differing in de-
gree ; for, as two may be indicted jointly
for the death of a third, though it be
petit treason in the first, and but murder
or manslaughter in the second, — Foster,
106, 829; Com. Dig. Ind. F,—as alleged
in the indictment, and as in a joint indict-
ment it may be laid as murder in one
and but manslaughter in the other, there
seems to be no reason why the jury,
where two are jointly charged with mur-

der, should not find one guilty of murder’

and the other of manslaughter, should

642

the evidence warrant such a conclusion.
Burglary and Larceny. — It was holden,
indeed, in Turner’s Case, 1 Sid. 171,
where several were jointly indicted for
a burglary, that the jury could not find
one guilty of burglary and the other of
larceny only; but there the very nature
of the case precluded such a finding, for
the evidence was the same astoall. But,
Homicide. — Upon a joint indictment for

“petit treason, if it turned out that one

defendant was servant to the deceased,
and the other a stranger; or if, upon a
joint indictment for murder, it appeared
that he who abetted, acted of malice
prepense, but that he who struck did
not maliciously strike, the finding the
parties guilty of offences differing in
degree would not be inconsistent. And,
Burglary and Larceny. — In the case of
burglary, if it appeared in evidence that
one of the prisoners who had assisted in
the removal of the goods had been a
stranger to the breaking in, and had
taken no part in the transaction until
after the breaking had been accom-
plished, there seems to be no satisfactory
reason why the jury should not find
according to the fact, and why separate
judgment should not be pronounced just
as if the prisoners had been separately
tried and convicted.”

1 Rex v. Mawbey, 6 T. R. 619, 638;
Reg. v. Gompertz, 9 Q. B. 824; Kemp »v.
Commonwealth, 18 Grat. 969; Seborn
v. The State, 51 Ga. 164; Wall v. The
State, 51 Missis. 316.

2 The State v. Covington, 4 Ala. 608,
605.

-
CHAP. LXX.] MORE DEFENDANTS THAN ONE. § 1040

the way, and putting forward the least guilty,” on the idea that
a new trial as to one would be a release of the others from the
verdict.!_ But, in reason, there is no need that the vacating of
the verdict as to one should be such as to the others in conspiracy
more than in other offences, unless the court chooses to make
it so. And the rule which puts it in the power of one man
to drag another wrongfully and against law to prison “is,”
in the language of Lord Campbell, “ palpably contrary to the
first principles of justice, and it ought immediately to have been
reversed.”? It is believed not now to prevail in England ;%
while yet, in England, a new trial appears to be granted as to all
who are convicted, when given as to one, but not forced on those
who are acquitted. The former rule could never have been in
force in misdemeanors punishable by fine only ; because, in them,
not even the presence of the one defendant is necessary. So,—

Arrest of Judgment. — Even in conspiracy, a motion in arrest of
judgment may be made by one, convicted jointly with others
who do not join in it, and are not present.®

§ 1039. Writ of Error. — Two, jointly convicted, may join in a
writ of error to reverse the judgment; and it makes no difference
that the sentences are several, to different punishments.’ Doubt-
less one may proceed in this way alone, for the reversal of his
own sentence.

§ 1040. Counsel and the Order at the Trial : —

In General.— We have seen the order of the proceedings, as-
suming that there is only one defendant.’ As to counsel and
the like, the effect, on this order, of there being two or more
defendants, is, in England, explained in various cases.? The

1 Rex v. Askew, 3M. &S.9; Rex »v.
Cochrane, 3 M. & S. 10, note, 2 Towns.
St. Tr. 1, 94; Rex ov. Teal, 11 East, 307;
Reg. v. Hollingberry, 4 B. & C. 329.

24 Camp. Lives Ch. Just. Am. ed.
228.

8 Tb.; Reg. v. De Berenger, 3 M. & S.
67, 2 Towns. St. Tr. 1, 95; Reg. v. Caud-
well, 17 Q, B. 503, 2 Den. C. C. 872,
note; Reg. v. Gompertz, 9 Q. B. 824.

4 Reg. v. Gompertz, supra; Rex v.
Mawbey, 6 T. R. 619.

5 Reg. v. Parkinson, 2 Den. C. C. 459,
6 Eng. L. & Eq. 352.

6 Reg. v. Berenger, supra. And see
Reg. v. Caudwell, supra.

7 Sumner v. Commonwealth, 3 Cush.
521. See Wall v. The State, 51 Missis.
896.

8 Ante, § 960-966 d.

9 Reg. v. Barber, 1 Car. & K. 484;
Reporter’s note to Rex v. Cooke, 1 Car. &
P. 821; Reg. v. Hayes, 2 Moody & R.
155; Rex v. Despard, 2 Man. & R. 406;
Reg. v. Burton, 2 Fost. & F, 788; Reg. v.
Richards, 1 Cox C. C. 62; Reg. v. Hazell,
2 Cox C. C. 220; Reg. v. Woods, 6 Cox
C. C. 224; Reg. v. Bird, 2 Den. C. C. 94,
6 Cox C. C. 20, 2 Eng. L. & Eq. 448;
Attorney-General v. Stevens, 8 Price, 72.

648
§ 1041 TRIAL BY PETIT JURY. [BooK VII.

course in our States is so different, and even in England it has
so far changed of late, that any further expositions of the English
practice seem not desirable in this place. There appear to be
almost no American decisions applicable under the present head.
In Missouri, a rule of court forbidding more than one counsel on
a side to examine witnesses, is held not to forbid cross-examina-
tions by the separate counsel of each defendant, where the
defences are different. Nor would it be competent for a court,
by rule or otherwise, to deprive a party of such right of defence.1

III. The Trial where the Charge is Several.

§ 1041. In General. — The course where the defendants are
charged severally, as explained in a previous chapter,” appears
not to be distinctly laid down. Probably, if the indictment is
not quashed, there will ordinarily be separate trials.

1 The State v. Bryant, 55 Misso. 75. 2 Ante, § 473-476.
644

on
CHAP. LXXI.] | MORE INDICTMENTS THAN ONE. § 1045

CHAPTER LXXI.
WHERE THERE ARE MORE INDICTMENTS THAN ONE.

§ 1042. tried together. — Separate indictments against the same
defendant, for like offences, may, in the discretion of the court,
be tried together. The jury should be sworn separately in each
case,” and perhaps he should be allowed his separate challenges in
each.2 But, —

§ 10483. Defendants and Indictments separate. — Where the
defendants and indictments are both separate, it is going far to
submit the two cases together to one jury. And, when this was
done in Missouri, it was deemed so burdensome to the parties,
and distracting to the jury, as, though distinct verdicts were
found, to render the proceeding erroneous.*

§ 1044. Cross-Indictments. — Where, in England, there were
cross-indictments for assault, founded on one transaction, they
were directed to be submitted to one jury together ; the counsel
for the prosecution, in the case first entered, to open it and call
his witnesses, next the counsel for the prosecution in the second
case to proceed in like manner with it, and no reply to be made
on either side.6 But the course in any trial is not always the
same in England and our States.®

§ 1045. Order of Trials when separate. — According to an old
English case, if there are two indictments for perjury against a
defendant, who takes the records down for trial, he may choose
which to bring on first, though the attorney-general may by a
nolle prosequi as to the one compel him to the other. “It is
true,” said Holt, C. J., “the queen has that election where she
brings on her causes herself; but here the defendant brings it on,
and he is to do the first act, and therefore has his election.” 7

1 The State v. Johnson, 5 Jones, N.C. 176. See Reg. v. Lovett, 9 Car. & P. 462;
221; Withers v. Commonwealth, 5 S. & The State v. Green, 20 Iowa, 424.

R. 59. 5 Reg. v. Wanklyn, 8 Car. & P. 290.
2 Kitter v. People, 25 Ill. 42. 6 See Galloway v. The State, 25 Ga.
3 Withers v. Commonwealth, supra. 596.

4 The State v. Devlin, 25 Misso. 174, 7 Reg. v. Carter, 6 Mod. 168. See
ante, § 950 d.
645
§ 1046 THE EVIDENCE. _ [Book ©.

BOOK Ix.

THE EVIDENCE.

°

CHAPTER LXXII.

GENERAL RULES.

§ 1046, 1047. Introduction.
1048-1051. Burden of Proof.
1052-1055. Covering Whole Issue.
1056-1060. Corpus Delicti.
1061-1068. Alibi.
1069-1072. Other Evidence in Rebuttal.
1078-1079. Circumstantial Evidence.
1080-1087. Best Evidence and Res Geste.
1088-1090. Statutory Changes.

§ 1046. Same as in Civil Causes. — The object of all evidence
being the establishment of truth, the rules for its admission and
effect must be, and are, the same in criminal causes as in civil.
But this abstract doctrine, sometimes thus broadly laid down
by the courts,! is practically, in a degree, modified by the fact,
that, —

Except. — In criminal causes, the end whereof is disgrace and
punishment, the law has its presumption of innocence, differing
from any known in civil jurisprudence ; its consequent special
rules for overcoming this presumption ;? and some others which
seem peculiar, because applicable only in issues which never
arise in the other department. Not attempting, therefore, to
draw at every point the parallel with civil evidence, or absolutely
to exclude every rule employed equally in it and in criminal, —

1 Rex v. Burdett, 4 B. & Ald. 95,122; § 441. And see Lewis v. Lewis, 9 Ind.
Reg. v. Murphy, 8 Car. & P. 297; The 105.
State v. Dart, 29 Conn. 153; West v. The 2 Ogletree v. The State, 28 Ala. 698,
State, 2 Zab, 212, 242; Brown v. Schock, 702; Conner v. The State, 84 Texas, 659;
27 Smith, Pa. 471; 1 Bishop Mar. & Div. Stewart v. The State, 44 Ind. 237.

646

“

>
CHAP. LXXII.]

GENERAL RULES.

§ 1050

.§ 1047. What for this Chapter and how dividea. — Let us, in this
chapter, call to mind the leading doctrines of criminal evidence,
whether pertaining also to civil or not, as to, I. The Burden of
Proof; II. The Covering of the Whole Issue; III. The Corpus
Delictt; IV. Alibi; V. Other Evidence in Rebuttal; VI. Cir-
cumstantial Evidence; VII. The Best Evidence, with the Doc-
trine of es Geste; VIII. Statutory Changes in the Rules of

Evidence.

I. The Burden of Proof.

§ 1048. On Special Plea in Defence.— No one doubts, that, if
the defendant admits his guilt, either absolutely or for the pur-
pose of the trial, and sets up by plea such matter of defence as
a former conviction! or a pardon,? or if an issue to the jury is
tried on his plea in abatement,’ the burden of proof is with him.

On the other hand, —

§ 1049. On Not Guilty. — Where the issue is, whether or not
the defendant committed an offence, the government by ‘its in-
dictment or information averring that he did, and he by his
plea of not guilty denying it, every principle of reason and jus-
tice requires that the proof of guilt, including every element in

it, shall come from the party making the: charge.

And, in a sort

of general way, this proposition is sustained by the authorities
even as superficially viewed. But, —

-§ 1050. Effect of Prima-facie Case — (Rebuttal). — The govern-
ment, taking thus the burden of proof, is required in the first
instance to make out only a prima-facie case against the de-

fendant.5

1 Ante, § 816.

2 Ante, § 847.

8 Ante, § 793.

4 Ante, § 127-129; Fuller v. The State,
12 Ohio State, 433; Commonwealth v.
McKie, 1 Gray, 61; People v. West, 49
Cal. 610; Tweedy v. The State, 5 Iowa,
433 ; Commonwealth v. Kimball, 24 Pick.
866; Commonwealth v. Dana, 2 Met. 329;
Moorer v. The State, 44 Ala. 15; Con-
yers v. The State, 50 Ga. 103; United
States v. Galacar, 1 Sprague, 545; The
State v. Hirsch, 45 Misso. 429; Bradley
v. The State, 31 Ind. 492; United States
v. Gooding, 12 Wheat. 460, 471; The
State v. Flye, 26 Maine, 812; Common-

And the evidence, as we shall see in chapters further

wealth v. Kimball, 24 Pick. 866; Hopper
v. The State, 19 Ark. 148; People v.
Marks, 4 Parker C. C. 153; Fuller v. The
State, 12 Ohio State, 488; Thomas »v.
Dunaway, 30 Ill. 878; The State ».
Dineen, 10 Minn. 407; Doss v. Common-
wealth, 1 Grat. 557. And see The State
v. Woodly, 2 Jones, N, C. 276; Farrall o.
The State, 32 Ala. 557; The State w.,;
Evans, 5 Jones, N. C. 250; Mehan v. The
State, 7 Wis. 670; Haskill v. Common-
wealth, 3 B. Monr. 342; The State v.
Morrison, 8 Dev. 299; Wheat v. The State,
6*Misso. 455; Rex v. Rogers, 2 Camp. 654;
Black v. The State, 1 Texas Ap. 368.

5 Ante, § 613, 519, 523; Ivey v. The

647
§ 1051 THE EVIDENCE. [Book Ix.

on, may consist, not only in written and oral testimony, but in
presumptions.!. When the prima-facie case is established, the
defendant is liable to be convicted, unless he meets it by some-
thing in rebuttal.2 And many judges, in language not nicely
accurate, speak of this necessity of rebuttal by the defendant as
his having the burden of proof cast upon him.? It is more exact,
and it expresses the better doctrine, to say, that the prima, facie
showing does not change the burden of proof, which remains
with the prosecuting power to the end; the jury, to be author-
ized to convict, being required to take into the account all the
evidence on both sides, including the presumptions, and to be
affirmatively satisfied from it, with the certainty demanded by
law, of the defendant’s guilt.‘

§ 1051. In Reason.— Whatever be the doctrine in civil causes,
it would be a wide departure from the humanity of the criminal
law to compel a jury, by a technical rule, to convict one of whose
guilt, upon the whole evidence, they had reasonable doubt.
And it would reverse the presumption of innocence, as well in
one set of circumstances as another, to hold a defendant guilty,
unless, taking the burden on himself, he could affirmatively
establish his innocence. Evidence is not properly to be consid-
ered in detached parts, but as a whole. One, to be guilty of a
crime, must have committed the whole of it. The government,
to be justified in punishing him, must prove the whole. In
reason, therefore, this whole and indivisible thing, the burden of
proof, must be borne by the government throughout the entire
trial.

State, 48 Texas, 425; Commonwealth v.
Kimball, 24 Pick. 366; Hines v. The
State, 26 Ga. 614; Belverman v. The
State, 16 Texas, 130.

1 Seibright v. The State, 2 W. Va.
591.

2 Haynie v. The State, 32 Missis. 400;
Sennett v. The State, 17 Texas, 308;
Commonwealth v. Cornell, 2 Dana, 136.

3 The State v. Haywood, Phillips, 376;
Humphreys v. The State, 45 Ga. 190,
192; The State v. Lawrence, 57 Maine,
574; Bond v. The State, 28 Ohio State,
849; Reg. v. Layton, 4 Cox C.C. 149;
McKenzie v. The State, 26 Ark. 834;
Commonwealth v. Connor, 6 Leigh, 718;
Goetz v. The State, 41 Ind. 162; Miles
v. The State, 5 W. Va. 624; The State v,

648

Hundley, 46 Misso. 414, 417; Common-
wealth v. Knapp,10 Pick. 477, 484; People
v. Stonecifer, 6 Cal. 405; Silvus v. The
State, 22 Ohio State, 90; Weaver v. The
State, 24 Ohio State, 584; The State v.
Vincent, 24 Iowa, 570.

4 Ogletree v. The State, 28 Ala. 693;
Wright v. People, 4 Neb. 407; Common-
wealth v. Kimball, 24 Pick. 866, 373, 374;
Commonwealth v. Dana, 2 Met. 329, 340;
The State v. Mosier, 26 Conn. 40, 44;
The State v. McCluer, 6 Nev. 182. See
The State v. Smith, 53 Misso. 267; West-
moreland v. The State, 45 Ga. 225, 280;
The State v. Felter, 832 Iowa, 49; Powers
v. Russell, 13 Pick. 69, 76; People v. Ar-
nold, 15 Cal. 476; The State v. Porter,
384 Iowa, 181.
CHAP. LXXII.] GENERAL RULES.

§ 1054

II. The Covering of the Whole Issue.

§ 1052. In General. — As already seen, the proof for the prose-
cution should cover every particular, whether of act! or intent,?
or of the place * or time‘ of the act, essential in a prima-facte
case. But it need not extend to surplusage,® unless rendered
material by the form of the allegation.’ And we have seen in
what circumstances the substance only of the issue will suffice in
proof,’ and in what the conformity must be formal.® A mere
superfluity of proof, covering more of wickedness than is alleged,
or than constitutes the crime, does ordinarily no harm.” It is
often so connected with what is essential that its introduction
cannot be avoided. But, where not so connected, —

§ 1058. irrelevant. — Evidence which tends to establish no
element of the crime as charged should always be excluded;
and, when also it tends to prejudice the cause of the party with
the jury, its admission will be error." In illustration of the gen-
eral doctrine, —

§ 1054. Identity. —If the crime is proved against one of two
or more persons, and it is uncertain which,” or against one by
witnesses sufficiently contradicted or otherwise shown to be mis-

1 The State v. Smith, 75 N.C. 141;
Henderson v. The State, 14 Texas, 503 ;
Reg. v. George, 6 Mod. 57; Davis v. The
State, 43 Texas, 189.

2 Anderson v. The State, 1 Texas Ap.
730; Commonwealth v. Arnold, 3 Litt.
809; Reg. v. Cohen, 8 Cox C. C. 41;
The State v. Pitts, 13 Rich. 27.

3 Ante, § 360, 372, 384; Hill v. The
State, 34 Texas, 623.

4 Ante, § 386, 400, 401, 402.

5 Ante, § 127-129, 1050; Erskine v.
The State, 1 Texas Ap. 405; McMahon
v. The State, 1 Texas Ap. 102; Higgins
v. People, 7 Lans. 110; Leetch v. The
State, 2 Head, 140; Moore v. The State,
40 Ala. 49; The State v. Ingram, 16 Kan.
14; Stuart v. People, 73 Ill. 20.

6 Swinney v. The State, 8 Sm. & M.
576; Frisbie v. The State, 1 Oregon, 248;
Mobley v. The State, 46 Missis. 501; Rex
v. Holt, 2 Leach, 4th ed. 598; Rex v.
Hunt, 2 Camp. 588.

7 Ante, § 477-484; The State v. Lang-
ley, 34 N. H. 529; United States v. Por-
ter, 8 Day, 2838.

8 Ante, § 488 5, 488. |

® Ante, § 484 a—-488 e; McLaughlin v.
The State, 52 Ind. 279; Arnold v. The
State, 58 Ga. 574.

) Ante, § 127.

11 People v. Brandreth, 36 N. Y. 191;
Hudson v. The State, 3 Coldw. 355;
People v. Gates, 13 Wend. 311; Long v.
The State, 22 Ga. 40; The State v. Car-
ter, 72 N. C. 99; Rex v. Pitcher, 1 Car.
& P. 85; Smith v. The State, 10 Ind.
106; Smitherman v. The State, 40 Ala.
355; Johnson v. Commonwealth, 9 Bush,
224; The State v. Morea, 2 Ala. 275, 278;
Brown v. The State, 28 Ga. 199.

12 Campbell v. People, 16 Ill. 17; Rex
v. Richardson, 1 Leach, 4th ed. 387; Har-
ris v. The State, 53 Ga. 640; post, § 1106.

649
THE EVIDENCE.

§ 1056 ' [BOOK Ix.

taken or not worthy of belief,! the prosecution will fail? And
a like observation applies to the identity of a person or thing the
subject of the crime.®

§ 1055. Other Questions.— There are multitudes of other ques-
tions, properly enough belonging under this: sub-title ; hut they
are equally appropriate also in other connections, where.they are
explained.

Til. The Corpus Delicti.

§ 1056. In General.— If, after a man is hung for an alleged
murder, and the excited multitudes who clamored for his blood
have settled down into a chronic happiness in contemplating the
justice of the law, the infallibility of courts and juries, and the
unswerving precision of judicial evidence, the supposed mur-
dered person appears, the situation is not- pleasant. To guard
against it, the judges long ago invented the doctrine of the cor-
pus delicti, by which, says Starkie, “the accused shall. not be
convicted unless the death be first distinctly proved, either by
direct evidence of the fact, or by inspection of the body; a rule
warranted by melancholy experience of the conviction and execu-
tion of supposed offenders, charged with the murder of persons
who survived their alleged: murderers.” And, “even when the
body has been found, and although indications of a violent death
be manifest, it shall still be fully and satisfactorily proved that
the death was neither occasioned by natural causes, by accident,
nor by the act of the deceased himself.” This doctrine, requir-
ing a special directness and clearness of the evidence to the fact
of there having been a crime, was extended to larcenies from
unknown persons, and to some and possibly all other indictable
delinquencies.* But the doctrine, at least in later times, has

1 The State v. Wood, 1 Mill, 29; Com-
monwealth v. Webster, 5 Cush. 295.

2 As to methods of proving the iden-
tity of the person, see Rowland v. The
State, 14 Ind. 575; The State co. Mur-

phy, 5 Eng. 74; Commonwealth v. Rear- -

don, 4 Gray, 420; Shepherd v. People,
72 il. 480; Reg. v. Jenkins, 1 Car. &
K. 586; Reg. v. Overton, Dears. 308, 6
Cox C.C. 277; The State v. Arthur, 2
Dev. 217 ; Udderzook v. Commonwealth,

650

26 Smith, Pa. 340; The State v. Houser,
28 Misso. 233.

3 Ib.; Jupitz v. People, 34 Ill. 516;
Rex v. Rosenstein, 2 Car. & P.414; Hill».
The State, 17 Wis. 675; Johnson v. The
State, 1 Texas Ap. 333; Kelly v. The
State, 1 Texas Ap. 628; Rex v. Tuffs,
5 Car & P. 167; Poage v. The State, 43
Texas, 454.

4 Stark. Ev. 4th Lond. ed. 862, 863.

PF
CHAP. LXXII.] GENERAL RULES.

§ 1058

been regarded rather of caution than of absolute law.! “If,” said
Maule, J. “a man go into the London Docks sober, without
means of getting drunk, and comes out of one of the cellars very
drunk, wherein are a million gallons of wine, I think that would
be reasonable evidence that he had stolen some of the wine in
the cellar, though you could not prove that any wine was stolen
or any wine was missed.”2 Hence, —

§ 1057. Circumstantial. — Whatever cautions the judge may
give the jury, circumstantial evidence is legally admissible, and
they may find a verdict of guilty upon it, the same to the
corpus delicti as to any other part of the case, and equally in
murder and in all other crimes.2 But —

§ 1058. Confessions. — There is abundant authority and
little dissent to the proposition, that extra-judicial confessions
alone, uncorroborated by: other evidence, are inadequate to
establish the corpus delicti.4 Yet slight corroboration may suf-

1 Taylor Ev. 8d ed. § 122; 8 Greenl.
Ev. § 80.

2 Reg. v. Burton, Dears. 282, 284.
In the course of this case, the following
dialogue occurs : —

“ Ribton (the prisoner’s counsel). The
corpus delicti must be proved.

“ Maule, J. Where is the rule that the
corpus delicti must be expressly proved ?

“ Ribton. In Lord Hale it is so laid
down.

“ Maule, J. Only as a caution in cases
of murder. He does not say it is to be
observed in every case.

“ Ribton. But the principle would be
the same in every case, and was adopted
by Lord Stowell in Evans v. Evans, 1
Hag. Con. 35, 79. There is also the case
of Dickson v. Evans, 6 T. R. 57, 58. He
would also refer to Starkie on Evidence,
862.

“Jervis, C. J. We are all of opinion
that there is nothing in the objection.”

3 Ib.; Brown v. The State, 1 Texas
Ap. 154; Rex v. Hindmarsh, 2 Leach, 4th
ed. 569; Reg. v. Mockford, 17 L. T. Nn. 8.
582, 11 Cox C.C. 16; Reg. v. Cheverton,
2 Fost. & F. 833; The State v. Williams,
7 Jones, N.C. 446; The State v. Winner,
17 Kan. 298; The State v. Davidson, 30
Vt. 877, 385; Reg. v. Hooper, 1 Fost. &
F. 85; The State v. Kent, 65 N. C. 311;

Stocking v. The State, 7 Ind. 826; Mc-
Culloch v. The State, 48 Ind. 109; Tay-
lor v. The State, 35 Texas, 97; The State
v. Keeler, 28 Iowa, 551; United States
wv. Williams, 1 Clif. 5. A few courts, by
refined distinctions, qualify a little the
doctrine of the text. Thus in New York
it was laid down, in the first instance by a
divided bench, that, in murder, either the
death or the criminal agency producing it
must be proved by direct evidence, then
the other may be by circumstantial. Ru-
loff v. People, 18 N. Y.179, 189; People v.
Bennett, 49 N. Y. 137. And see People
v. Rulloff, 3 Parker C. C. 401; People v.
Schryver, 42 N. Y. 1. Johnson, C. J.,
in delivering the majority opinion in the
first of these cases, cited 2 Hale P. C. 290;
3 Inst. 282; Rex v. Hindmarsh, supra ;
4 Bl. Com. 358; Reg. v. Hopkins, 8 Car.
& P. 591; People v. Videto, 1 Parker C.
C. 6038, 609; People v. Wilson, 3 Parker
C. C. 199, 207; Tawell’s Case, Wills Cir.
Evy. 3d ed. 181.

4 Brown v. The State, 32 Missis. 433 ;
People v. Badgley, 16 Wend. 53, 59; The
State v. Scott, 39 Misso. 424; Jenkins v.
The State, 41 Missis. 582; People v.
Jones, 31 Cal. 565; Stringfellow v. The
State, 26 Missis. 157, 163; Smith v. Com-
monwealth, 21 Grat. 809; People v. Rul-
loff, 8 Parker C. C. 401; Territory v.

651
§ 1060 THE EVIDENCE. [BooK Ix.

fice.1 And perhaps the confessions alone will be sufficient if
made before a magistrate.2 On the whole, the doctrine may be
said to be, that —

§ 1059. Special Care — should be exercised as to the corpus
delicti, and there should be no conviction except where this part
of the case is proved with particular clearness and certainty.
Hence the rule as to purely uncorroborated confessions out of
court. Alone, they are never quite satisfactory proof; which the
evidence, whether circumstantial or direct, must be, to establish
the corpus delicti. This is the substance of the doctrine, but
some judges spin it a little more finely.®

§ 1060. Identity and Corpus Delicti compared — (In Reason).—
In reason, the identity of the person charged with the offence
requires fully as much care as the corpus delicti. The cases are
numerous wherein witnesses have been mistaken on this point,
or if there is to be perjury it is upon this that it is more likely to
appear. And there is no more excuse for punishing a defendant
when another has committed a crime than when no one has.
The rule, therefore, should be, that, the special facts and circum-
stances being brought into view, the judge should caution the
jury as to any part of the case at which they are liable to be mis-
led, whether the corpus delicti, the identity, or any other; and
they should convict when, and only when, taking all into con-

McClin, 1 Mon. Ter. 394; The State v.
German, 54 Misso. 526; Blackburn v.
The State, 23 Ohio State, 146; People
v. Thrall, 50 Cal. 415; United States v.
Mulvaney, 4 Parker C. C. 164.

1 People v. Badgley, supra; Rex v.
Falkner, Russ. & Ry. 481; The State v.
Guild, 5 Halst. 168; Holsenbake v. The
State, 45 Ga. 48. And see The State v.
Lamb, 28 Misso: 218, 231, 282; Sam v.
The State, 83 Missis. 847, 352. See also
People v. Hennessey, 15 Wend. 147, 152;
The State v. Slack, 1 Bailey, 330; Carey
v. Phe State, 7 Humph. 499; Mose v. The
State, 36 Ala. 211; The State v. Brown,
1 Misso. Ap. 86; Commonwealth v. Ken-
ney, 12 Met. 285. See post, § 1244.

2 Rex v. White, Russ. & Ry. 608; Rob-
inson v. The State, 12 Misso. 692; Rex v.
Tippet, Russ. & Ry. 509. And there is
authority, contrary to the text, that any
voluntary confession may prove the cor-

652

pus delicti. Stephen v. The State, 11 Ga.
225. So especially it is in misdemeanors
of the lower grade, such as the unlicensed
selling of intoxicating liquor. The State
v. Gilbert, 86 Vt. 145.

3 Smith v. Commonwealth, 21 Grat.
809; The State v. Keeler, 28 Iowa, 551;
Fuller v. The State, 48 Ala. 273; Pitts v.
The State, 48 Missis. 472; The State v.
Hogard, 12 Minn. 293; The State v. Mc-
Gowan, 18. C. 14; Taylor v. The State,
35 Texas, 97; People v. Wilson, 8 Parker
C.C. 199; Sam v. The State, 33 Missis.
847, 352; The State v. Williams, 7 Jones,
N.C. 446; Tyner v. The State, 5 Humph.
383, 884; Burton v. March, 6 Jones, N.C.
409; Phillips v. The State, 29 Ga. 105;
The State v. Davidson, 30 Vt. 377, 385,
886. And see the preceding cases cited
under this sub-title.

4 Ante, § 1054.
CHAP. LXXI.] GENERAL RULES. § 1064

sideration, they affirmatively believe, from the evidence, beyond
a reasonable doubt, that the defendant is guilty as charged.

IV. Alibi.

§ 1061. Presence of Defendant — Alibi defined. — The commis-
sion of an offence implies the presence of the defendant at the
necessary time and place. Sometimes such presence is directly
shown, as a link in the prosecutor’s proofs;! when it is not, it
is equally a fact in the case, presumable from the other evidence.
Therefore evidence in negation of such presence is always com-
petent.? Adducing it is termed setting up an alibi. And —

§ 1062. Ordinary Evidence.— It is mere ordinary evidence in
rebuttal. Any charge to the jury that it is not — as, that the
law looks with disfavor upon it,’ or that it should be tested dif-
ferently from other evidence *—is erroneous.’ Hence, —

§ 1063. Failure of Alibii— While the failure of an alibi is a cir-
cumstance unfavorable to the defendant, it is no more so than
an attempt to clear himself by any other false testimony. And
an omission to set up this defence is not otherwise significant
than a like omission as to any other part of the case.6 Nor does
the failure to prove it, when attempted, render unnecessary full
proof of the crime on the other side.’ Still, —

§ 1064. Subject to Special Observations. — Consistently with
what is thus said, this evidence, like any other, may be open to
special observations.® Persons void of truth may fabricate it
with greater hope of success, and less fear of punishment, than
most other kinds of evidence; and honest witnesses oftener mis-
take dates, the times of day, and the identity of people seen, than
the average of other things to which they testify. On the other
hand, if this defence is really established, it is of a sort the most
conclusive.? Hence, for illustration, —

1 Rex v. Hilditch, 5 Car. & P. 299; 6 White v. The State, 31 Ind. 262;

The State v. Houser, 28 Misso. 283; Com- The State v. Collins, 20 Iowa, 85; Sulli-
monwealth v. Williams, 105 Mass. 62; van v. People, 31 Mich. 1; Toler v. The

Stout v. People, 4 Parker C. C. 71. State, 16 Ohio State, 583; Fife v. Com-
2 Armstrong v. People, 70 N. Y. 88,49; monwealth, 5 Casey, Pa. 429.
Commonwealth v. Choate, 105 Mass. 451. 7 Briceland v. Commonwealth, 24
8 Spencer v. The State, 50 Ala. 124; Smith, Pa. 463.
Williams v. The State, 47 Ala. 659. 8 Ante, § 982.
4 Sater v. The State, 56 Ind. 378. ® Thompson v. The State, 5 Humph.
5 Walker v. The State, 87 Texas, 366; 188; Colbert v. The State, 1 Texas Ap.
Crisson v. The State, 51 Ga. 597. 814.

653
§ 1069 THE EVIDENCE. ’ [Book Ix.

§ 1065. New Trial. — A new trial, to let in this defence, will
be granted,! or refused,? according to the. circumstances.?

§ 1066. Presumptions and Burden of Proof. — The setting up of
an alibi does not change the presumptions and burden of proof.#
In a certain sense, he who relies on this defence must prove it,
for so he must any other assumed fact; but if, because of the
altbi, as of any thing else, the jury are not satisfied beyond a
reasonable doubt of the defendant’s guilt, they must acquit him.6

§ 1067. Covering Whole Time. — A perfect alibi must cover the
whole time when the presence of the prisoner was required.”
Yet the court will not, as of course, reject one which does not;
but the jury may consider it for what it is worth.’

§ 1068. Counter Evidence. — Any proper evidence to disprove
the alibi is admissible.® But testimony reinforcing the original
case — as, said Taunton, J., “that the parties were near the place
at which the offence was committed —is evidence in chief, and
not evidence in reply.” Admissions of the prisoner, contrary
to his alibi, may be shown against him ;" and so may the circum-
stances in which he was seen at the place, though tending to
prove upon him a crime other than the one charged.”

V. Other Evidence in Rebuttal.

§ 1069. In General. — The rules regulating rebutting testimony
are substantially the same in criminal causes as in civil, and little
explanation of them is here required. The party rebutting is
not to reinforce his former testimony, but answer what is new

1 Lincoln v. People, 20 Ill. 8364; The 7 West v. The State, 48 Ind. 483;

State v. Woolsey, 30 Iowa, 251; Otmer
v. People, 76 Ill. 149.

2 Thompson v. The State, supra.

8 Thompson v. The State, 54 Ga. 577.

4 Toler v. The State, 16 Ohio State,
583; Fife «. Commonwealth, 5 Casey, Pa.
429; The State v. Josey, 64 N. C. 56.

5 Fife v. Commonwealth, supra; The
State v. Cameron, 40 Vt. 555.

6 French v. The State, 12 Ind. 670;
Pollard v. The State, 58 Missis. 410;
Chappel v. The State, 7 Coldw. 92; Gibbs
v. The State, 1 Texas Ap. 12; Otmer v.
People, 76 Ill. 149; Howard v. The State,
60 Ind. 190, 193; Commonwealth v.
Choate, 105 Mass. 451.

694

Briceland v. Commonwealth, 24 Smith,
Pa. 463. See Reg. v. Gardiner, 8 Car. &
P. 737.

8 Kaufman v. The State, 49 Ind. 248;
White v. The State, 81 Ind. 262; Gal-
loway v. The State, 29 Ind. 442; Adams
v. The State, 42 Ind. 378.

§ Brown v. People, 17 Mich. 429; Com-
monwealth v. Williams, 105 Mass. 62;
Commonwealth v. Moulton, 4 Gray, 89;
The State v. Phair, 48 Vt. 866.

W Rex v. Hilditch, 6 Car. & P. 299.

Mt Rex v. Findon, 5 Car. & P. 132,

12 Reg. v. Briggs, 2 Moody & R. 199;
post, § 1125.
CHAP. LXXII.] GENERAL RULES. § 1073

with something new.! Any admissible impeaching of the wit-
nesses of the other party,? or contradicting such of their testi-
mony as is material to the issue, or other answering of his case,
is competent in rebuttal. But—

§ 1070. Relevant. — Rebutting testimony, like any other, must
be relevant, either to the main issue,’ or to the minor inquiry.
Therefore the prisoner cannot produce in rebuttal the conviction
of another person for the offence,® or another’s confession that he
did it; but he may show that another is in fact guilty, where
such guilt exculpates him.’ Nor can he prove, that, on another
occasion, he declined to commit the like crime when tempted.®
Nor yet is it-:competent to produce evidence contradicting a part
of the indictment which the prosecution treated as surplusage,
offering to it no testimony.? Of course, —

§ 1071. Contradicting Witness. — What one witness has testi-
fied to may be contradicted by another. If the witnesses on
the one side declare that they saw a thing, and on the other that
they were in a position to see and looked and did not see it, this
is a contradiction, and the jury is to decide what is the truth.”
But, in general, the testimony of witnesses to knowing or having
seen a thing is not impaired by others testifying to not knowing
or not having seen the same.”

§ 1072. The other Side. — Evidence in rebuttal may in cross-
examination be drawn from the witnesses on the other side, or oth-
erwise appear in their testimony. It then becomes available to
the party.¥

VI. Circumstantial Evidence.

§ 1073. Nature of this Evidence — (Presumptions).— All evi-
dence and all belief rest on presumption. We know that there

1 Ante, § 1068.

2 Stephens v. People, 19 N. Y. 549,
570; Lightfoot v. People, 16 Mich. 507.

3 People v. Austin, 1 Parker C. C.
154.

4 Atkins v. The State, 16 Ark. 568;
Spivey v. The State, 26 Ala. 90; The
State v. Shermer, 55 Misso. 83.

5 Coleman v. People, 55 N. Y. 81;
Commonwealth v. Tinkham, 14 Gray, 12.

6 People v. Johnson, 47 Cal. 122.

7 Commonwealth v. Chabbuck, 1 Mass.
144.

8 Commonwealth v. Barlow, 97 Mass.
599.

9 Rex v. Hemp, 5 Car. & P. 468.

10 The State v. Marler, 2 Ala. 43; Com-
monwealth v. Webster, 5 Cush. 295, 308.

ll The State v. Gates, 20 Misso. 400;
Coughlin v. People, 18 Ill. 266. And see
Reg. v. Gardiner, 8 Car. & P. 787.

12 Johnson v. The State, 14 Ga. 55.
And see Janeway v. The State, 1 Head,
180.

13 Crawford v. The State, 12 Ga. 142;
Reid v. The State, 50 Ga. 556.

655
§ 1074 THE EVIDENCE. [Book rx.

are external objects around us only as we infer their existence
from impressions presumed to be from them, felt in our organs
of sense. A witness, detailing what occurred in his presence,
speaks, in reality, of his inferences alone; for nothing more can
he know. Yet if he is truthful and is suffering under no men-
tal or physical disease, and if at the time of the occurrence he
was in a situation to draw correct conclusions from his sensa-
tions, we accept his inferences as verity. Next, in the same way
as he draws inferences from what he feels in his senses, the jury
draw presumptions from his inferences; as, if he says that the
defendant, under the cover of night, carefully looking around,
took and concealed about his person and so carried away an
article which he is charged with stealing, the jury will presume
he meant to and did steal it. Their verdict of guilty comes from
their presuming one thing from another, which other thing was
but the witness’s inference from a third. Yet this presumptive
evidence, consisting simply of inferences drawn from inferences
to degrade and imprison a man deemed otherwise without fault,
is satisfactory to mankind; all act upon this sort of evidence in
every affair of life. Lastly, the witnesses detail a variety of facts,
from no one of which alone is guilt inferable, but it is from all
combined. ‘This is circumstantial evidence. It is of a nature
equally satisfactory with the other, and it has been justly said to
be less liable to proceed from perjury.!

How defined. — It is the evidence of more facts than one,
which, in combination, create the presumption that still another
fact exists.

§ 1074. Admissible in all Issues. — Resting, therefore, on the

1 Walworth, J. in People v. Videto, 1
Parker C. C. 603. He adds, p. 605, 606:
“Although from the imperfection and
uncertainty which must ever exist in all
human tribunals, I have no doubt that
there have been cases in which innocent
persons have been convicted on presump-
tive proofs, yet from my knowledge of
criminal jurisprudence, both from reading
and from observation, I have no hesita-
tion in expressing the opinion that where
there has been one unjust conviction upon
circumstantial evidence alone, there have
been three innocent persons condemned

656

upon the positive testimony of porjured
witnesses. I speak more particularly in
reference to that country from which our
laws have mostly been derived.” And
see United States v. Cole, 5 McLean, 513,
601; Annesley v. Anglesea, 17 Howell
St. Tr. 1139, 1430; Commonwealth w
Harman, 4 Barr, 269; People v. Cronin,
84 Cal. 191; Booth v. Commonwealth, 4
Grat. 525; Brauer v, The State, 25 Wis.
413. In Mr. Moak’s argument in People
v. Lowenstein, Lowenstein’s Trial, 196-
249, and some other places, multitudes of
sayings on this subject are collected.

7
CHAP. LXXII.]

GENERAL RULES. § 1078

same reasons as other evidence, it is admissible alike in civil and
criminal causes, and in all issues.

§ 1075. In Civil and Criminal compared. — It differs in criminal
eauses from civil only in requiring the higher degree of presump-
tion which excludes reasonable doubt.?

' §.1076. Caution required. — By reason of the complicated
nature of this evidence, special caution is required in passing
upon it. Thus, —

Every Fact. — If the evidence in a case is purely circumstantial,
and the conclusion of guilt depends on a given number of attend-
ant facts, each of these, still assuming it to be one without which
such conclusion does not arise, must be fully proved.4 Should
the jury reasonably doubt the existence of an assumed fact they
must exclude it from their consideration.© Where direct evi-
dence mingles with the circumstantial, the considerations for the
jury are proportionably modified.®

§ 1077. Not otherwise Reconcilable.— It matters not how
clearly the circumstances point to guilt, still, if they are reason-
ably explainable on a theory which excludes guilt, they cannot
satisfy the jury beyond a reasonable doubt that the defendant
is guilty, hence they will'be insufficient.‘ It would be too strong
to say that they must exclude every possible hypothesis but
guilt ;8 “reasonable” is the word.®

§ 1078. What Circumstances. — No rule can be given as to
what circumstances are admissible, except that they must tend
to prove the offence and to connect the defendant with it; they

11 Bishop Mar. & Div. § 487, 493; 1
Greenl. Ev. § 18, 18a; McCann v. The
State, 138 Sm. & M. 471, 489; People v.
Videto, 1 Parker C. C. 608.

23 Russ. Crimes, 5th Eng. ed. 821;

The State v. Matthews, 66 N. C. 106;
People v. Thayer, 1 Parker C. C. 596,
598.

3 United States v. Martin, 2 McLean,
256.

4 United States v. Douglass, 2 Blatch.
207; Black v. The State, 1 Texas Ap.
868; Hampton »v. The State, 1 Texas Ap.
652. See Tompkins v. The State, 82 Ala.
56Y.

5 Sumner v. The State, 5 Blackf. 579.

6 People v. Kaatz, 8 Parker C. C. 129.
And see People v. Kennedy, 82 N. Y. 141;

VOL. I. 42

The State v. Frank, 5 Jones, N. C. 384;
The State v. Maxwell, 42 Iowa, 208.

7 Schusler v. The State, 29 Ind. 894;
James v. The State, 45 Missis. 572; Com-
monwealth v. Dana, 2 Met. 329, 340;
People v. Dick, 82 Cal. 218; Hodge’s
Case, 2 Lewin, 227; The State v. Orr, 64
Misso. 889; The State v. Maxwell, 42
Jowa, 208; Black v. The State, 1 Texas
Ap. 868; The State v. Johnson, 19 Iowa,
230; The State v. Collins, 20 Iowa, 85;
Orr v. The State, 84 Ga. 842; United
States v. Douglass, 2 Blatch. 207; Sum-
ner v. The State, 5 Blackf. 579.

8 The State v. Schoenwald, 31 Misso.
147; People v. Murray, 41 Cal. 66; Sum-
ner v. The State, supra.

® The State v. Matthews, 66 N.C. 106

657
§ 1081 THE EVIDENCE. [Book Ix.

may be remote, or they may be near; minute, or of larger dimen-
sions. All will depend upon the particular case.1

§ 1079. Test of Sufficiency. — The test of the sufficiency of this
evidence is, therefore, that the facts which the jury accept as
proved can be reasonably accounted for on nd hypothesis which
excludes the defendant’s guilt, that with the theory of his guilt
they are harmonious and consistent, and that they point to it
so clearly and distinctly as to satisfy the jury of it beyond a
reasonable doubt.?

VII. The Best Evidence and the Doctrine of the Res Ceste.

§ 1080. As in Civil Causes. — The rules on this subject are the
same in criminal causes as in civil.2 Therefore no detailed state-
ment of them will be here necessary. So, assuming that they
are in a general way familiar to the reader, we shall simply look
at a few particulars, concerning which special caution is in the
criminal law required.

§ 1081. Hearsay Evidence : —

In General.— With the like exceptions as in civil causes,* hear-

1 Cooper v. The State, 19 Texas, 449;
Hall v. The State, 40 Ala. 698 ; Campbell
v. The State, 23 Ala. 44; The State v.
Phillips, 24 Misso. 475; Johnson v. The
State, 47 Ala. 62; Powers v. The State,
16 Texas, 546; Mendum v. Common-
wealth, 6 Rand. 704; Browning v. The
State, 38 Missis. 47; The State v. Posey,
4 Strob. 142; Rex v. Worker, 1 Moody,
165; Jim v. The State, 6 Humph. 146;
Gordon ». People, 88 N. Y. 501; Price v.
The State, 86 Missis. 631; Murphy v.
People, 63 N. Y. 690; Commonwealth v.
James, 1 Pick. 875; Commonwealth v.
Robbins, 3 Pick. 63; Johnson v. The
State, 14 Ga. 65; Moore v. The State, 2
Ohio State, 500; The State v. Bill, 6
Jones, N. C. 84; Bill v. The State, 5
Humph. 155; The State v. Otey, 7 Kan.
69; Kirby v. The State, 8 Humph. 289;
Commonwealth v. Griffin, 4 Allen, 310;
The State v. Dart, 29 Conn. 158.

2 T have not seen in the books exactly
this formula, yet I believe it to be cor-
rect both on principle and authority, and
the true guide for the jury. See the
cases cited to the preceding sections; also
2 Bishop Mar. & Div. § 620; Hall v. The

658

State, 40 Ala. 698; People v. Padillia,
42 Cal. 535; People v. Phipps, 39 Cal.
826; Pitts v. The State, 43 Missis. 472;
The State v. Van Winkle, 6 Nev. 340;
Faulk v. The State, 52 Ala. 415; Me-
Pherson v. The State, 22 Ga. 478; The
State v. Coleman, 22 La, An. 455; Brown-
ing v. The State, 83 Missis. 47; People v.
Hartung, 4 Parker C. C. 256; Stephens
v. People, 4 Parker C. C. 896; Mickle «
The State, 27 Ala. 20; The State v.
Pratt, 20 Iowa, 267; The State v. Collins,
20 Iowa, 85; Moughon v. The State, 57
Ga. 102, 106; The State v. Norwood, 74
N. C. 247; Otmer v. People, 76 Ill. 149;
Faulk v. The State, 51 Ala. 15; The State
v. Carnahan, 17 Iowa, 256; McGregor v.
The State, 16 Ind. 9; The State v.
Munco, 12 La. An. 625; Hampton v. The
State, 1 Texas Ap. 652; The State v.
Banks, 48 Iowa, 595; Innis v. The State,
42 Ga. 478; Commonwealth v. Webster,
5 Cush. 295.

8 Ante, § 1046; The State v. Dart, 29
Conn. 163.

‘ Tucker v. The State, 24 Ala. 77;
United States v. Dodge, Deady, 186;
Stallings v. The State, 83 Ala. 426,
CHAP. LXXII.] GENERAL RULES. § 1084

say evidence is not admissible,! but confessions and declarations
of the parties are. In civil causes, there is a plaintiff as well as
defendant to confess and declare; yet, —

§ 1082. The Parties — (State — Prosecutor). — In criminal
causes, the State, that can make no confessions or admissions, is
the plaintiff ;? and what of this sort comes from any one but the
defendant, or some person authorized to speak for him, is mere
hearsay. The prosecutor or the person injured is not a party,
and evidence of his utterances is hearsay only, precisely as of any
other third person. If what he has said becomes important, he
must be called as a witness; and, if his testimony differs from
his declarations in pais, they may be shown merely to discredit
him. If he is dead, the evidence is lost, the same as when any
other witness dies.®

§ 1088. The Res Geste : —

On what Principle. —It is manifestly just that the whole of a
transaction, by reason of any part of which one is called in ques-
tion, should be given.’ When, therefore, the prosecuting officer
has shown against a defendant what of it he deems material,® the
latter may bring forward in his own favor so much of the rest as

he desires.®

But such evidence, unless admissible on some other

reason, must be confined to the res geste. Hence, —
§ 1084. How defined. — The doctrine of the res gest is, that,
when a part of a transaction has been given in evidence by one

1 Corley v. The State, 28 Ala. 22;
Warner v. Brooks, 14 Gray, 107; Buttram
v. The State, 4 Coldw. 171; Hopper v.
Commonwealth, 6 Grat. 684; The State
v. Duncan, 6 Ire. 286; Attaway v. The
State, 56 Ga. 363.

2 6 Cent. L. J. 165.

% Britton v. The State, 4 Coldw. 173;
Commonwealth v. Eberle, 38 S. & R. 9;
The State v. Benner, 64 Maine, 267.

4 Rex v. Stoddart, 11 Cox C. C. 422,
note.

5 The State v. Maitremme, 14 La. An.
880; Davis v. The State, 37 Texas, 227;
Wills v. People, 8 Parker C. C. 473;
Williams v. The State, 62 Ala. 411; The
State v. Davidson, 30 Vt. 877; The State
v. Neville, 6 Jones, N. C. 423; Rex v
‘Wink, 6 Car. & P. 397; People v. Mc-
Crea, 82 Cal. 98; The State v. Blake, 25

Maine, 350; 3 Russ. Crimes, 5th Eng. ed.
358.

6 The State v. Dart, 29 Conn. 153, 156;
Commonwealth v. Densmore, 12 Allen,
535; People v. McLaughlin, 44 Cal. 435;
Williams v. East India Co., 8 East, 192,
201; The State v. Vincent, 24 Iowa, 570;
Crump »v. Starke, 23 Ark. 131; The State
v. Dominique, 30 Misso. 585.

7 People v. Potter, 5 Mich. 1; Reese ».
The State, 7 Ga. 878; Stiles v. The State,
67 Ga. 183; Drumright v. The State, 29
Ga. 430; The State v. Wisdom, 8 Port.
611.

8 McKee v. People, 36 N. Y. 113, 116;
The State v. Wagner, 61 Maine, 178.

9 Patten v. People, 18 Mich. 314; The
State v. Huntly, 3 Ire. 418; Robinson v,
The State, 8 Texas Ap. 266; The State
v. Abbott, 8 W. Va. 741.

659
§ 1086 THE EVIDENCE. [Book rx.
party, the other may call out in cross-examination, or show by
witnesses of his own, the whole or any part of the rest.!

§ 1085. Two Parts. —The res geste consists of two parts, —
the accompanying acts, and the declarations attending them.

The Acts.— The rule is, as we have seen, that the whole trans.
action may be given in evidence. But it is impossible to deduce,
from the authorities, an available rule as to what shall be deemed
of the transaction, and what shall not.2. The subsidiary act. need
not transpire at the same instant with the main one, or always
even on the same day; and, in reason, as well as in accordance
with the current of the authorities, the time which divides the
two is not the controlling corisideration, though it may be taken
into the account. Is it presumable that, distinctly and palpably,
it influenced or was influenced by the main act, or proceeded
from the same motive? If so, it is admissible, otherwise not.
Such is the doctrine in reason ; and, it is submitted, the current
of authority is, at least, not adverse.?

§ 1086. The Declarations. — In general, subject to some apparent
or real qualifications, what one said, in its nature explanatory,
while performing an admissible act, whether he is a party or a third
person, may be shown in evidence whenever the act is shown.!
In this way, a defendant may even be entitled to introduce
in his own behalf his accompanying declarations,’ not other-

wise admissible.®

1 And see Haynes v. Commonwealth,
28 Grat. 942, 946.

2 1 Greenl. Ev. § 108.

3 See, and compare, Maher v. People,
10 Mich. 212; Haynes v. Commonwealth,
28 Grat. 942; Stiles v. The State, 57 Ga.
183; The State v. Pike, 65 Maine, 111;
Pound v. The State, 43 Ga. 88; Wise v.
The State, 2 Kan. 419; McGinnis v. The
State, 31 Ga. 286; People v. Henderson, 28
Cal. 465; Hall v. The State, 40 Ala. 698;
Crawford v. The State, 12 Ga. 142; Reg.
v. Menage, 3 Fost. & F. 310; Keener v.
The State, 18 Ga. 194; Mitchum v. The
State, 11 Ga. 615; Blount v. The State,
49 Ala. 881; McCartney v. The State, 8
Ind. 853; Manaway v. The State, 44 Ala.
875; The State v. Wagner, 61 Maine, 178;
Pennsylvania, &c. Steam Nav. Co. v. Dan-
dridge, 8 Gill. & J. 248; Rosenbaum v. The

660

Statements, from whatever source, to be thus

State, 388 Ala. 354; Howser v. Common-
wealth, 1 Smith, Pa. 332; 4 Cent. L.J. 436.

# The State v. Evans, 65 Misso. 574;
Strange v. Donohue, 4 Ind. 327 ; Croff v.
Ballinger, 18 Ill. 200; The State v. Win-
ner, 17 Kan. 298.

5 The State v. Abbott, 8 W. Va. 741;
Robinson v. The State, 3 Texas Ap. 256;
Dukes v. The State, 11 Ind. 557; United
States v. Penn, 13 Bankr. Reg. 464; The
State v. Huntly, 3 Ire. 418; Reg. v. Abra-
ham, 2 Car. & K. 550, 8 Cox C. C. 480;
Pike v. The State, 35 Ala. 419.

®§ United States v. Imsand, 1 Woods,
681; Golden v. The State, 19 Ark. 590;
The State v. Ware, 62 Misso. 597; Oliver
», The State, 17 Ala. 587; The State v.
Hildreth, 9 Ire. 440; Chaney v. The
State, 81 Ala. 842; Tipper v. Common-
wealth, 1 Met. Ky. 6.

eh
CHAP. LXXIL]

GENERAL RULES. § 1087

competent, must, to repeat, be contemporaneous with the act
they would illustrate.! Perhaps a few of the cases require them
to be so in the strict sense. But it is, at least, the better doc-
trine, that they are competent whenever near enough the act,
either before or after, to be probably prompted by the same
motive, and apparently to constitute of it a part.2 Thus, —

Homicide. — If, after an encounter which will end in death,
the defendant or the wounded man makes a statement while the
heat of it is on, and before there has probably been time to
reflect and plan, though some minutes have passed, it is ad-
missihle ;* but not, if made at a later period And—

Robbery. — The like rule will apply in robbery.§

§ 1087. Qualifications of Doctrine. — The qualifications of this
doctrine are not numerous or important. But, while the decla-
rations and outcries of persons neither on trial nor injured by the
defendant’s acts may be admissible,’ to be so such persons must
be otherwise connected with the transaction than as mere lookers-
on,® or the defendant must have been listening and perhaps
under circumstances requiring from him some response. And
there are circumstances, not quite definable, wherein the state-
ments of the defendant, though in some sense of the res geste,
are so far short of elucidating the act, or so much in the nature

1 Hall v. The State, 48 Ga. 607; Nel-
son v. The State, 2 Swan, Tenn. 237;
Young v. Commonwealth, 4 Casey, Pa.
501; United States v. Gooding, 12 Wheat.
460.

2 Cheek v. The State, 35 Ind. 492;
Bland v. The State, 2 Ind. 608.

8 Thomas v. The State, 27 Ga. 287;
Pound v. The State, 48 Ga. 88 ; Monroe v.
The State, 5 Ga. 85; Garber v. The
State, 4 Coldw. 161; Mitchum v. The
State, 11 Ga. 615; The State v. Garrand,
6 Oregon, 216; Rex v. Gordon, 21 Howell
St. Tr. 485, 542; People v. Vernon, 35
Cal. 49. See The State vo. Evans, 65
Misso. 574.

4 O’Shields v. The State, 55 Ga. 696 ;
Rex v. Foster, 6 Car. & P. 825; Insurance
Co. v. Mosley, 8 Wal. 397; Little v. Com-
monwealth, 25 Grat. 921; Dillin v. People,
8 Mich. 357; Mitchum v. The State, 11
Ga. 615. And see The State v. Garrand,
5 Oregon, 216. Contra, The State v.
Carlton, 48 Vt. 636, 642, 648. And see
The State v. Tilly, 3 Ire. 424.

5 Jackson v. The State, 52 Ala. 305;
Hall v. The State, 40 Ala. 698; Common-
wealth v. Densmore, 12: Allen, 535;
Crookham v. The State, 5 W. Va. 510;
The State v. Dominique, 30 Misso. 585;
Starr v. The State, 25 Ala. 49; Smith v.
The State, 58 Ala. 486; Hall v. The
State, 48 Ga. 607. See People v. Robin-
son, 2 Parker C. C. 235.

6 The State v. Ah Loi, 5 Nev. 99; Rex
v. Wink, 6 Car. & P. 397.

7 The State v. Wagner, 61 Maine, 178;
Blount v. The State, 49 Ala. 881; Patten
v. People, 18 Mich. 314; Stovall v.
Farmers and Merchants’ Bank, 8 Sm. &
M. 205; Bennett v. Smith, 21 Barb. 439 ;
Leggett v. The State, 15 Ohio, 283; Liles
v. The State, 30 Ala. 24.

8 Bradshaw v. Commonwealth, 10
Bush, 576.

9 McKee v. People, 86 N. Y. 118, 116;
The State v. Gillick, 7 Iowa, 287; The
State v. Nash, 7 Iowa, 847. And see
Commonwealth v. Harwood, 4 Gray, 41.

10 People v. Wyman, 15 Cal. 70; The

661
[Book Ix.

§ 1090 THE EVIDENCE.

of mere excuse or apology,! or perhaps so discredited by their
attendant facts,? as to induce the court to reject them. Nor is
the jury required to believe exculpating declarations though
admitted.?

VIII. Statutory Changes in the Rules of Evidence.

§ 1088. Congress as to States. —It is not competent for Con-
gress to change the rules of evidence in the State courts.‘
But, —

§ 1089. State Legislation — United States. —In a sort of general
way, the rules of evidence are deemed to appertain to the rem-
edy ;® therefore to be within the power of the proper legislature,
operating even upon past transactions.6 There is a limit to this
power, but adjudication has not hitherto taught us cistinenly
what it is.’

§ 1090. Witnesses, &c. — Burden of Proof. — The principal legis-
lation hitherto has related to the competency of witnesses § and
of documentary evidence,? to the burden of proof,” to the effect in
evidence of the implements of crime," and the like. This, prop-

erly limited, is clearly within the legislative power.

State v. Evans, 65 Misso. 574; Bassham
v. The State, 88 Texas, 622; People v.
Williams, 8 Abb. Ap. 596.

1 Spivey v. The State, 26 Ala. 90;
Lander v. The State, 12 Texas, 462;
Monroe v. The State, 5 Ga. 85; Stone v.
Segur, 11 Allen, 568, 571; The State v.
Slack, 1 Bailey, 880; Scaggs v. The
State, 8 Sm. & M. 722.

2 The State v. Atkinson, 6 Jones, N. C.
65. .

3 Reg. v. Menage, 3 Fost. & F. 310;
‘Wise v. The State, 24 Ga. 31; People v.
Woody, 48 Cal. 80.

4 Bowlin v. Commonwealth, 2 Bush, 5.

5 Stat. Crimes, § 175, 176, 178.

© Rich v. Flanders, 89 N. H. 804;

662

Herbert v. Easton, 48 Ala. 547; Howard
v. Moot, 64 N. Y. 262; Hand v. Ballou, 2
Kernan, 541.

7 Stat. Crimes, § 178; Rich v. Flan-
ders, supra; Howard v. Moot, supra.

8 Wilkins v. Malone, 14 Ind. 158;
Thigpen v. Mississippi Central Railroad,
82 Missis. 8347; United States v. Cigars,
1 Woolw. 1238.

9 United States v. Harrill, 1 McAl.
248.

10 Delaplaine v. Cook, 7 Wis. 44; Com-
monwealth v. Curran, 119 Mass. 206.

i The State v. Cunningham, 25 Conn.
195.

12 Nims v. Palmer, 6 Cal. 8; Nims v.
Johnson, 7 Cal. 110.
OHAP. LXXUI.] WEIGHT AND REASONABLE DOUBT. § 1093

CHAPTER LXXIII.

THE WEIGHT OF EVIDENCE AND THE DOCTRINE OF REASONABLE
DOUBT.

§ 1091. Weight. — Evidence is admitted by the judge to the
jury, not by reason of its weight or conclusiveness, but of its
‘tendency to establish the issue.1 Its effect —its weight — is for
them.? Therefore the degree of belief in the defendant’s guilt,
necessary to be produced in their minds to justify a conviction,
is the question for this chapter.

§ 1092. Distinguished from Civil Causes. — On this question,
the analogies of criminal evidence to civil disappear. To say
nothing of the graver consequences to the defendant of a verdict
against him, the interests of the plaintiff State are likewise differ-
ent. In a civil cause, the private plaintiff is benefited by a judg-
ment in his favor, whether right or wrong; yet, in a criminal, a
wrongful conviction, not only is of no benefit to the victorious
State, but in the unmerited suffering and disgrace which it brings
on its subject, it suffers and is disgraced also. In a case of rea-
sonable doubt, therefore, even the interests which prompted the
prosecution require an acquittal. Blackstone deems it “better
that ten guilty persons escape than that one innocent suffer ;”
and he says, that thus ‘‘the law holds.” * Such numerical com-
parison, however, is obviously impossible ; but the general doc-
trine indicated thereby is beyond dispute. Hence, —

§ 1093. “Reasonable Doubt.” —In a criminal cause, the jury
should find the defendant guilty when, and only when, convinced
by the evidence of his guilt “ beyond,” as the established phrase

1 Ante, § 978, 989; Andrews v. Peo- 3 Ante, § 40, 298, 294.
ple, 60 Ill. 354. 44 Bl. Com. 368.
2 Ante, § 979, 989 a; Burrell v. The
State, 18 Texas, 713.
663
§ 1094 THE EVIDENCE. [BOOK Ix.

is, “a reasonable doubt.”! This doctrine extends to the lesser
offences as well as the heavier, — to all criminal causes alike.?

§ 1094. Interpreting “Reasonable Doubt.” — There are no words
plainer than “reasonable doubt,” and none so exact to the idea
meant. Hence some judges, it would seem wisely, decline at-
tempting to interpret them to the jury. Others deem that some
explanation should be given, especially if requested.* Negative
descriptions may be safe, and perhaps helpful; as, that it is not
a whimsical or vague doubt® or conjecture,® not an impossibility,”
not an exclusion of every hypothesis but guilt,’ but it is a rea-
sonable doubt. The books do not contain one affirmative defi-
nition which can safely be pronounced both helpful and accurate.
Thus, —

' Moral Certainty. —Most judges deem the expression “to a
moral certainty” to be equivalent to ‘*beyond a reasonable
doubt,” therefore properly used in explanation. of the latter.”

1 Ante, § 1060, 1079; The State v. New-
man, 7 Ala. 69; Shultz v. The State, 13
Texas, 401; People v. Thayer, 1 Parker
C. C. 595; Brown v. The State, 23 Texas,
195 ; Commonwealth v. Tuttle, 12 Cush.
502; Tweedy v. The State, 5 Iowa, 483;
People v. Milgate, 5 Cal. 127; Pate v. Peo-
ple, 3 Gilman, 644, 661; Hiler v. The State,
4 Blackf. 552; Wise v. The State, 2 Kan.
419; Gardiner v. The State, 14 Misso. 97;
The State v. Fugate, 27 Misso. 585; Sul-
livan v. The State, 52 Ind. 809; Peri v.
People, 65 Ill.17; The State v. Dunn, 18
Misso. 419; Conner v. The State, 34
Texas, 659; Clark v. The State, 37 Ga.
191; White v. The State, 36 Texas, 347;
Camplin v. The State, 1 Texas Ap. 108;
People v. Woody, 45 Cal. 289.

2 Wasden v. The State, 18 Ga. 264;
The State v. King, 20 Ark. 166; Ful-
ler v. The State, 12 Ohio State, 433;
Satterwhite v. The State, 28 Ala. 65, 71;
Commonwealth v. Intoxicating Liquors,
115 Mass. 142; Stewart v. The State, 44
Ind. 237.

3 The State v. Reed, 62 Maine, 129,
142; Mickey v. Commonwealth, 9 Bush,
693.

4 The State v. Heed, 57 Misso. 252,
254; Williams v. The State, 52 Ala. 411.

5 McGuire v. The State, 43 Texas,
210; Commonwealth v. Drum, 8 Smith,

664

Pa.9; The State v. Bodekee, 34 Iowa,
620.

6 Giles v. The State, 6 Ga. 276.

7 The State v. Nueslein, 25 Misso. 111;
Commonwealth v. Harman, 4 Barr, 269;
Pate v. People, 3 Gilman, 644; Mose v.
The State, 86 Ala. 211; Owens v. The
State, 62 Ala. 400; The State v. Van
Winkle, 6 Nev. 340; Earll v.' People, 73
Ill. 829; The State v. Evans, 55 Misso. 460.

8 The State v. Ford, 21 Wis. 610; Ray
v. The State, 50 Ala. 104; Cohen v. The
State, 50 Ala. 108. But see Common-
wealth v. Annis, 15 Gray, 197. It should
be “reasonable” hypothesis. Martin v.
The State, 38 Ga. 293.

9 Ante, § 1093; Pollard v. The State,
53 Missis. 410, 424. Doubts “from any
cause” has been deemed too strong an
expression. Long v. The State, 38 Ga.
491. The source of the conviction must
be the proofs. LEarll v. People, 78 Ill.
829; People v. Brannon, 47 Cal. 96; The
State v. Ostrander, 18 Iowa, 435; Pollard
v. The State, supra; The State v. Craw-
ford, 84 Misso. 200; Bray v. The State,
41 Texas, 560.

10 Commonwealth v. Costley, 118 Mass.
1, 24; People v. Brannon, 47 Cal..96;
People v. Ashe, 44 Cal. 288; The State
v. Ostrander, 18 Iowa, 435; Williams »v.
The State, 52 Ala. 411; Turbeville v.
CHAP. LXXIII.] WEIGHT AND REASONABLE DOUBT. § 1095

But some deny this! Assuming it to be synonymous, practically
it will darken more minds, of the classes from whom our jurors
are mainly drawn, than it will enlighten. Again, —

Own Affairs. — A definition sometimes approved is, in the words
of Frazer, J.: “ A reasonable doubt exists, when the evidence is
not sufficient to satisfy the judgment of the truth of a proposi-
tion, with such certainty that a prudent man would feel safe in
acting upon it in his own important affairs.” But, on the other
hand, the correctness of this is denied.2 If there were no doubt
of its accuracy, it might in some circumstances, to some minds,
be helpful; yet, on the whole, it is less clear than the phrase it
would explain.

Other Definitions. — Some other attempted definitions are pal-
pably incorrect, or still less to the purpose.*

§ 1095. In what Issues — (Preponderance). — In civil causes, not
involving crime, only a preponderance of evidence is required
of the party who has the burden of proof.5 And the reason of
the different rule in criminal causes ® limits it to the main issue of
guilty or not guilty, wherein the State has the burden of proof.
To the whole of this issue it extends ;‘ as, if the question is
whether the higher degree of the offence was committed, or only
the lower, the jury, to convict of the higher, must be satisfied of

The State, 40 Ala. 715; The State v. Van
Winkle, 6 Nev. 840; Giles v. The State,
6 Ga. 276; Donnelly v. The State, 2
Dutcher, 601. See also Winter v. The
State, 20 Ala. 89; Ray v. The State, 50
Ala. 104; Cohen v. The State, 50 Ala. 108.

1 McAlpine v. The State, 47 Ala. 78.

2 Arnold v. The State, 23 Ind. 170;
The State v. Nash, 7 Iowa, 347; The
State v. Ostrander, 18 Iowa, 435, 458;
May v. People, 60 Ill. 119. And see The
State v. Crawford, 84 Misso. 200.

3 Jane v. Commonwealth, 2 Met. Ky.
80, 83; The State v. Oscar, 7 Jones, N.C.
805; The State v. Shettleworth, 18 Minn.
209; The State v. Rover, 11 Nev. 348;
People v. Ah Sing, 51 Cal. 872. And see
The State v. Dineen, 10 Minn. 407, 416.

4 Equivalent. — That the evidence
must be equal in weight to the direct tes-
timony of one witness is incorrect or mis-
leading. Cicely v. The State, 15 Sm. &

M. 202; Commonwealth v. Tuttle, 12
Cush. 502. See The State v. Nelson, 11
Nev. 834; Blackman v. The State, 36
Ala. 295. In General.— On the general
question, see, further, Browning v. The
State, 30 Missis. 656; Purkey v. The
State, 8 Heisk. 26; Sowder v. Common-
wealth, 8 Bush, 432; Holloway v. Com-
monwealth, 11 Bush, 344; Mackey »v.
People, 2 Col. Ter. 18; Bowler v. The
State, 41 Missis. 570; Fields v. The State,
47 Ala. 603; Peterson v. The State, 47 Ga.
524; The State v. Pierce, 8 Nev. 291;
White v. The State, 11 Texas, 769; Mc-
Elven v. The State, 30 Ga. 869.

5 Miller v. Balthasser, 78 Ill. 302;
Strader v. Mullane, 17 Ohio State, 624;
Crabtree v. Reed, 50 Ill. 206; People v. ,
Christman, 66 Ill. 162; Peak v. People,
76 Ill. 289.

6 Ante, § 1092.

7 People v. Eckert, 19 Cal. 603.

665
§ 1095 THE EVIDENCE. [BooK Ix.

this degree beyond a reasonable doubt.!_ But where, in a crimi-
nal case, the proof of any matter devolves on the defendant, he
need show it only by a preponderance of evidence, as in civil
causes.?

1 The State v. Laliyer, 4 Minn. 868; Commonwealth, 2 Norris, Pa. 181; Dove
Payne v. Commonwealth, 1 Met. Ky.370; v. The State, 8 Heisk. 348; People v,
Davis v. The State, 10 Ga. 101. Schryver, 42 N. Y.1. And see Common-

2 People v. Milgate, 5 Cal. 127; Peo- wealth v. Ford, 111 Mass. 394; Common-
ple v. Arnold, 15 Cal. 476; Murphy v. wealth v. Glover, 111 Mass. 395.

The State, 28 Missis. 637; Meyers v.

666
CHAP. LXXIV.] PRESUMPTIONS AS EVIDENCE. § 1098

CHAPTER LXXIV.
PRESUMPTIONS AS EVIDENCE.

§ 1096. In General. — We have seen,! that all our knowledge
of external things comes from presumptions, and upon them rests
the whole law of evidence. Even what is called direct testi-
mony is but a presumption of the witness, or perhaps a presump-
tion derived from a presumption, and it a presumption from
another one. And we accept his testimony because we presume
still other things which we do not know; such as, that he is in
adequate mental and bodily health, of sufficient capacity, and
honest. Yet on this subject the language of our law books con-
forms, not to what is thus philosophically true, but to the meth-
ods of expression in common life. If a witness, detailing his
presumptions from impressions which had been made on his
organs of sight, tells the jury that the defendant did so and so in
his presence, we call this direct evidence. If he relates some-
thing from which the jury are to derive the inference, we term
the evidence presumptive. But —

§ 1097. varying Effects of Presumptions. — The effects of pre-
sumptions vary indefinitely.2 Some are slight; as, —

Foot-prints. — On a question of identity, a correspondence
between discovered foot-prints and those which would be made
by the boots probably worn,’ or the horse probably ridden,‘ is
admissible, yet alone is inadequate to justify a conviction.®

Photographs —are more satisfactory, but are not conclusive.
Their effect is for the jury.6 On the other hand, —

§ 1098. Conclusive — (Presumptions of Law).— There are pre-
sumptions which the party is estopped to deny,— termed con-

1 Ante, § 1073. 5 Reg. v. Britton, 1 Fost. & F. 354.

2 Decker v. Somerset Mutual Fire Ins. 6 Udderzook v. Commonwealth, 26
Co., 66 Maine, 406. Smith, Pa. 340; Reg. v. Tolson, 4 Fost.

3 Murphy v. People, 63 N. Y. 590. & F. 103.

$ Campbell v. The State, 23 Ala. 44.
667
§ 1099

THE EVIDENCE.

[Book Ix.

clusive, or presumptions of law,—against which no evidence

will be admitted.! Thus, —

Forgery. — One who forges an instrument with the evil mind
required in this offence, is conclusively presumed to intend a

fraud on the person whose name is forged.”

So—

Homicide. — An unlawful act, producing death, is, if wilfully
done, conclusively presumed to proceed from “malice afore-

thought.” 8

§ 1099. Adequate but not Conclusive.— There are classes of
presumptions which fully justify a verdict of guilty, while yet
the defendant may show in rebuttal, if he can, that this natural

1] put this as it seems to me best;
but the whole doctrine of presumptions
is in such confusion in our law books
that, upon it, nothing can be said which
will not be contrary to utterances by
some competent writer. Greenleaf tells
us that presumptions of law are such as
“cither forbid or dispense with any ulte-
rior inquiry.” Consequently he divides
them into those which are, and those
which are not, “conclusive.” 1 Greenl.
Ev. § 14,15. In Russell on Crimes, the
phrase “ presumptions of law” appears
to be employed also in this larger signifi-
cation. 3 Russ. Crimes, 5th Eng. ed. 325.
Stephen defines: ‘‘‘A presumption’ means
a rule of law that courts and judges shall
draw a particular inference from a par-
ticular fact, or from particular evidence,
unless and until the truth of such infer-
ence is disproved.” What I have termed
a presumption of law, or a conclusive
presumption, he designates by the words ,
“conclusive proof.” Steph. Ev. Bost.
ed. 86. I cannot discover that this writer
would permit any of the inferences which
the jury draw to be designated by the
term presumption. Herein he differs
from Greenleaf, from Russell, and prob-
ably from every other author, English or
American. In the opinions of the courts,
the terms are used in almost every im-
aginable variety of meaning. An author,
therefore, is permitted to employ them
in the way which seems to him most
harmonious with general usage and his
own views of the true interpretations of
the law. It seems to me, that those in-
ferences which the jury draw, though

668

acting, as jurors always should and do,
under proper advice and control from
the court, and which they will draw or
not according to the promptings of their
own judgments, — which, therefore, may
be rebutted, — are properly to be termed
presumptions of fact. On the other hand,
where the law draws the conclusion of a
fact from another fact which the jury
hold to be proved, forbidding any evi-
dence or inference to the contrary, I see
no objection to calling this 4 presump-
tion ; for suchis common usage. Itis not
a presumption of fact, but a presumption
of law. I employ this sort of language in
the meanings given it in the text, because
I believe that thus it accords with usage,
though the usage is not universal, and
because it thus conveys accurately the
idea meant.

2 Reg. v. Marcus, 2 Car. & K. 356;
Rex v. Mazagora, Russ. & Ry. 291;
Reg. v. Cooke, 8 Car. & P. 582; Reg. wv.
Hill, 8 Car. & P. 274; Reg. v. Hanson,
Car. & M. 334; Rex v. Philp, 1 Moody,
263; Reg. v. Beard, 8 Car. & P. 143, 148;
Reg. v. Hoatson, 2 Car. & K.777; United
States v. Shellmire, Bald. 870. But see
Grafton Bank v. Flanders, 4 N. H. 239,
242. And see Rex vo. Crowther, 5 Car.
& P. 316.

3 Reg. v. Renshaw, 11 Jur. 615, 616;
Chichester’s Case, Aleyn, 12; Rex v.
Shaw, 6 Car. & P. 872; Rex v. Cheese-
man, 7 Car. & P. 455; The State v.
Smith, 2 Strob. 77; Reg. v. Pitts, Car. &
M. 284; Rex v. Martin, 8 Car. & P. 211;
People v. Kirby, 2 Parker C. C. 28; The
State v. Newton, 4 Nev. 410. ‘
CHAP. LXXIV.]

PRESUMPTIONS AS EVIDENCE.

§ 1100

and ordinary conclusion from the facts does not arise in the par-

ticular instance.! Thus, —

Do what he does. — A man is presumed to intend to do what

he does.?

But obviously this presumption is not conclusive ; for

be may show that he was overcome by ‘superior force,’ or was

insane.
rebuttal.5

Indeed, the intent to do a thing is always open to

§ 1100. Natural and Probable Consequences. — One of the most
common and best-established presumptions is, that, assuming an
act to be intended, the doer is presumed to intend its natural,

necessary, and even probable consequences.®

But —

Whether Conclusive. — This presumption is not always conclu-

sive.’

1 Allison v. The State, 42 Ind. 354.

2 Hill v. Commonwealth, 2 Grat. 594;
Taylor v. The State, 4 Ga. 14.

3 Crim. Law, I. § 346 et seq.

4 Crim. Law, I. § 874 et seq.; post,
Vol. II. § 664 et seq.

5 United States v. Pearce, 2 McLean,
14,19; Taylor v. The State, 4 Ga. 14.

6 1 Greenl. Ev. § 18; 3 Greenl. Ev.
§13; Rex v. Harvey, 3 D.& R. 464, 2 B.
& C. 257; Reg. v. Gathercole, 2 Lewin,
237; People v. Herrick, 18 Wend. 87;
United States v. Wiltberger, 3 Wash. C.C.
515; The State v. Fuller, 1 Bay, 245;
Commonwealth v. Snelling, 15 Pick. 337;
Commonwealth v. Bonner, 9 Met. 410;
Commonwealth v. Blanding, 8 Pick.
804; Commonwealth v. Drew, 4 Mass.
891; Hill v. Commonwealth, 2 Grat. 594;
The State v. Turner, Wright, 20; Reg.
v. Beard, 8 Car. & P. 143, 148; Reg. v.
Renshaw, 11 Jur. 615, 616; Rex v. Far-
rington, Russ. & Ry. 207; Rex v. Philp,
1 Moody, 263; Rex v. Cooper, 5 Car. &
P. 585; Reg. v. Holroyd, 2 Moody & R.
839; 1 East P. C. 871; Rex v. Dixon, 3
M. &S. 11, 15; Reg. v. Geach, 9 Car. &
P. 499; Rex v. Carter, 7 Car. & P. 134;
West v. The State, 9 Humph. 66; Reg.
v. Jones, 9 Car. & P. 258; The State v.
Council, 1 Tenn. 805; Reg. v. Lovett, 9
Car. & P. 462; Cumming’s Case, Shaw
Crim. Cas. 17, 70, 102; Hoskins v. The
State, 11 Ga. 92; Wallace v. The State,
80 Texas, 758; People v. Page, 1 Idaho
Ter. 114.

7 Filkins v. People, 69 N. Y. 101;

Doubtless it sometimes is.®

The question whether in a

People v. Orcutt, 1 Parker C. C. 252;
Barcus v. The State, 49 Missis. 17; Peo-
ple v. Herrick, 18 Wend. 87; Chesley v.
Brown, 2 Fairf. 143; Rex v. Reeves,
Peake Ad. Cas. 84; Rex v. Harvey, 3 D.
& R. 464, 2B. & C. 257; Rex v. Burdett,
4B. & Ald. 95, 3 B. & Ald. 717; Miller v.
People, 5 Barb. 203; People v. Cotterall,
18 Johns. 115; The State v. Hildreth, 9
Tre. 429; Wright v. The State, 9 Yerg.
342; Beauchamp »v. The State, 6 Blackf.
299; Worley v. The State, 11 Humph.
172; Commonwealth v. Clap, 1 Mass.
168; The State v. Jefferson, 3 Harring.
Del. 571. And see The State v. Bullock,
18 Ala. 418; Gibson’s Case, 2 Broun,
866; Reg. v. Jones, 9 Car. & P. 258;
Southworth v. The State, 5 Conn. 325;
Reg. v. Cruse, 8 Car. & P. 541; Rex v.
Mogg, 4 Car. & P. 364.

8 Chichester’s Case, Aleyn,12; Rex v.
Pedley, Cald. 218, 227; Commonwealth
v. Snelling, 15 Pick. 837; The State v.
Davis, 2 Ire. 153; 1 East P. C. 59; 1
Greenl. Ev. § 18; The State v. Council,
1 Tenn. 805; The State v. Jarrott, 1 Ire.
76; Rex v. Howlett, 7 Car. & P. 274;
Dexter v. Spear, 4 Mason, 115. But see
People v. Cotteral, 18 Johns. 115; The
State v. Mitchell, 6 Ire. 850. “It may
appear on proof,” it was remarked in a
Scotch case, “that the panel had no
actual intention of injuring the boy; but
there may be a constructive intention.”
Keay’s Case, 1 Swinton, 648, 646. And
see The State v. Cooper, 1 Green, N. J.
861, 871.

669
§ 1101

THE EVIDENCE.

[Book Ix.

given instance it is conclusive or not depends on the particular
issue and facts; involving a minute inquiry into varying circum-
stances and offences, not, therefore, for this place.

§ 1101. Intent.— We thus see one of the presumptions in-

voked in proof of the intent.

Being a thing not palpable to the

senses, dwelling in the invisible mind, the evidence’ of it is
always presumptive, from facts without limit, varying with the

cases and their circumstances.2

1 Mullins v. The State, 87 Texas, 337;
Austin v. The State, 14 Ark. 555; The
State v. McGinnis, 6 Nev. 109; The State
v. Scott, 48 Misso. 422; Shattuck v. The
State, 51 Missis. 575; Olive v. Common-
wealth, 5 Bush, 376; People v. Marion,
29 Mich. 81; Fletcher v. The State, 49
Ind. 124; Rasco v. Willis, 6 Ala. 88;

670

Bloomer v. People, 1 Abb. Ap. 146; Cur-
ry v. The State, 4 Neb. 545; Van Pelt
v. McGraw, 4 Comst. 110; Jeff v. The
State, 39 Missis. 593 ; Wenz v. The State,
1 Texas Ap. 86; Pierce v. The State, 68
Ga. 865; The State v. Fee, 19 Wis. 562;
Frazier v. Brown, 12 Ohio State, 294.
CHAP. LXXV.] SOME SPECIAL PRESUMPTIONS. § 1105

CHAPTER LXXV.

SOME SPECIAL PRESUMPTIONS.

§ 1102. Introduction.
1103-1106. Of Innocence.
1107. From Motive.
1108-1111. Expressed Feelings and Purposes.
1112-1119. Character of Defendant.
1120-1129. His Commission of another Crime.
1180, 1181. Official Conduct and Duty.

§ 1102. How the Chapter dividea.— We shall consider the pre-
sumptions, I. Of Innocence; II. From Motive ; III. From Ex-
pressed Feelings and Purposes; IV. From the Character of the
Defendant; V. From his Commission of another Crime; VI.
From Official Conduct and Duty.

I. The Presumption of Innocence.

§ 1103. In General.— In all causes, civil and criminal, inno-
cence is the presumed condition alike of parties and third per-
sons. Nor do indicting one and putting him on trial change this
presumption, which continues down to the finding of the verdict
of guilty,? and for most purposes to the judgment thereon.?
Hence, —

§ 1104. Burden of Proof.— As we have already seen,‘ the bur-
den of proof is with the prosecuting power, not only when the
trial begins, but throughout; for the presumption of innocence,
which makes it so at first, keeps it so to the end. And,—

§ 1105. One of Two. — If one of two or more persons is shown
to be guilty, but it cannot be distinctly ascertained which one, _

1 1 Bishop Mar. & Div. § 2538-265, 484- People v. Dixon, 4 Parker C. C. 651;
449, 452 et seq.; ante, § 1046. Murray v. The State, 26 Ind. 141.
2 Pilkinton v. The State, 19 Texas, 3 Crim. Law, I. § 967, 972, 975; ante,
214; Horne v. The State, 1 Kan. 42. See § 252-264; post, § 1166.
: 4 Ante, § 1049-1051.

671
THE EVIDENCE.

§ 1107 [BooK Ix.

none can be convicted ; because each is presumed innocent.! For
the like reason, —

§ 1106. Defendant and Third Person. — The presumption of the
innocence of a third person is not alone sufficient to convict a
defendant; for presumption balances presumption, and nothing
is thus affirmatively proved.? To illustrate, —

Seduction. — Under a statute making punishable the seduction
of a female of previous chaste character, the presumption of her
chastity will not sustain the averment of it as against a man in-
dicted for seducing her; because the presumption that she is
innocent is overcome by the like presumption as to him. The
averment must be proved.?

,

Il. The Presumption from Motive.

§ 1107. In General. — Crime is a response of the evil mind to
some temptation. Without the temptation — that is, an im-
pelling motive —it is never committed. With the temptation,
or motive, it may not be; or, if it is, the particular motive may.
be beyond the reach of conjecture, and especially of evidence.
Hence proof of motive is never indispensable to a conviction.‘
But it is always competent against the defendant ;® and the

absence of it,® or the existence of a justifying one,’ in his favor.

1 Ante, § 1054; Rex v. Richardson, 1
Leach, 4th ed. 887.

21 Bishop Mar. & Div. § 440, 441,
444-446.

3 West v. The State, 1 Wis. 209.

4 People v. Robinson, 1 Parker C. C.
649; Sumner v. The State, 5 Blackf. 579;
Crawford v. The State, 12 Ga. 142;
Schaller v. The State, 14 Misso. 602.

5 Noles v. The State, 26 Ala. 31; Fra-
ser v. The State, 55 Ga. 825; People v.
Robinson, supra; Murphy v. People, 63
N. Y. 590; Rufer v. The State, 25 Ohio
State, 464; Atkins v. The State, 16 Ark.
668; The State v. Hinkle, 6 Iowa, 380;
Hendrickson v. People, 6 Seld. 18; Mc-
Cue v. Commonwealth, 28 Smith, Pa.
185; The State v. Larkin, 11 Nev. 814;

672

Stout v. People, 4 Parker C. C. 71; Rex
v. Clewes, 4 Car. & P. 221; Overstreet
v. The State, 46 Ala. 80; The State v.
Ford, 3 Strob. 517, note; Hendrickson v.
People, 1 Parker C. C. 406; Common-
wealth v. Jeffries, 7 Allen, 548; The
State v. Green, 35 Conn. 208; Hunter v.
The State, 43 Ga. 483; Kelsoe v. The
State, 47 Ala. 573; Kennedy v. People,
389 N. Y. 245; Baalam v. The State, 17
Ala. 451; Commonwealth v. Hudson, 97
Mass. 565; People v. Bennett, 49 N. Y.
137; Thompson v. The State, 55 Ga. 47;
United States v. Babcock, 8 Dillon, 581.

6 People v. Ah Fung, 17 Cal. 877;
Howser v. Commonwealth, 1 Smith, Pa.
882.

7 Monroe v. The State, 5 Ga. 85.
CHAP. LXXY.] SOME SPECIAL PRESUMPTIONS.

§ 1111

III. The Presumptions from Expressed Feelings and Purposes.

§ 1108. Compared with Motive. — As the existence of a motive
to commit the alleged crime renders its commission less improb-
able, so likewise does that of any other mental condition from
which the wrongful act was liable to proceed.1 And if such
mental condition is a step toward the crime, and especially if it
constitutes the criminal intent which is a part of it, the case is
still stronger.2. Therefore, —

§ 1109. Enmity. — It is competent to show aati a defendant.
that he bore toward the party injured enmity of a sort tending
to the criminal result.2 Also, —

§ 1110. Threats.— For the same and even for a stronger rea-
son, threats made by the accused, prior to the commission of the
alleged offence, may be shown against him. Nearness or remote-
ness of time, intervening conduct, and the like, will considerably
affect their weight.5

§ 1111. Complaint of Sufferings. — Where the nature and extent
of the injury inflicted by the act of the accused are a subject of
inquiry, the injured person’s complaints of suffering are, there-
fore, of the res geste, and admissible.6 But his statements of the
cause of the injury, and by whom inflicted, are not thus admis-
sible ;7 for they are not of the res geste of the suffering, but of

wealth v. Madan, 102 Mass. 1; Common-

1 Hopkins v. Commonwealth, 14
Wright, Pa. 9; Weed v. People, 8
Thomp. & C. 50; Young v. Slaughter-
ford, 11 Mod. 228, 229. ‘

2 Mimms v. The State, 16 Ohio State,
221; Hopkins v. Commonwealth, supra ;
Commonwealth v. Edgerly, 10 Allen, 184;
Commonwealth v. Jenkins, 10 Gray, 485;
The State v. Graham, 46 Misso. 490.

3 Thompson v. The State, 55 Ga. 47 ;
Mask v. The State, 82 Missis. 405; Reg.
v. Hagan, 12 Cox C. C. 357, 4 Eng. Rep.
606; Dillin v. People, 8 Mich. 857; Peo-
ple v. Dennis, 89 Cal. 625; Washburn v.
People, 10 Mich. 872.

4 Sharp v. People, 29 Ill. 464; Gard-
ner v. People, 3 Scam. 83; The State v.
Brown, 63 Misso. 489; Aycock v. The
State, 2 Texas Ap. 881; Stewart v. The
State, 1 Ohio State, 66,70; Thrasher v.
The State, 8 Texas Ap. 281; Common-

VOL. I. 43

wealth v. Crowninshield, 10 Pick. 497;
Cluck v. The State, 40 Ind. 263 ; Nichols
v. Commonwealth, 11 Bush, 575; McLean
v. The State, 16 Ala. 672.

5 Stiles v. The State, 57 Ga. 183;
Keener v. The State, 18 Ga. 194; The
State v. Ford, 3 Strob. 517, note; March
v. The State, 8 Texas Ap. 107; Vincent
v. The State, 3 Texas Ap. 678.

6 Livingston v. Commonwealth, 14
Grat. 592; Reg. v. Johnson, 2 Car. & K.
854; Stein v. The State, -87 Ala. 128;
Kearney v. Farrell, 28 Conn. 3817; Illi-
nois, &c. Railroad v. Sutton, 42 Ill. 438;
Reg. v. Conde, 10 Cox C. C. 547; Howe
v. Plainfield, 41 N. H. 135.

7 Chapin v. Marlborough, 9 Gray, 244;
People v. Graham, 21 Cal. 261; The State
v. Dominique, 80 Misso. 585; Denton v.
The State, 1 Swan, Tenn. 279.

673
[BooK Ix.

§ 1113 THE EVIDENCE.

the transaction, which is past. When so recent as to be of the
res geste of the transaction, they are competent. 1

IV. The Presumption from the Character of the Defendant.

§ 1112. Proving Character bad — Good — (Larceny — Presumed
to be good).— Bad character is never admissible in evidence
against a defendant as foundation for presuming guilt.2 Not
even, on a charge of stealing a horse, can it be shown that he is
an associate of horse thieves.? On the other hand, as a branch
of the general presumption of innocence,‘ his character is pre-
sumed to be, at least, of ordinary goodness.6 But when this
presumption has been met by prima facie evidence of guilt, he
may bring forward in defence his good character ;® in rebuttal
whereof, the prosecuting State may show that his character is
bad.’ So far the authorities are distinct and uniform, but on
minor questions there are differences of opinion and practice.
Thus, —

§ 1118. Particular Traits. — Probably, by all opinions, it is
competent to give evidence as to the particular trait of character
which the indictment impugns.6 And some deem that the in-
quiry should be limited to such trait; “it being obviously irrele-
vant and absurd, on a charge of stealing, to inquire into the
prisoner’s loyalty; or, on a trial for treason, to inquire into his
character for honesty in his private dealings.”® But, by the

1 Rex v. Foster, 6 Car. & P. 825;
Commonwealth v. McPike, 3 Cush. 181;
Monday v. The State, 32 Ga. 672. But
see The State v. Davidson, 80 Vt. 877.
And see Rex v. Wink, 6 Car. & P. 897;
The State v. Gruso, 28 La. An. 952; Stiles
v. Danville, 42 Vt. 282.

2 People v. White, 14 Wend. 111; The
State v. Jackeon, 17 Misso. 544; Thomp-
sonv. Church, 1 Root, 312; The State
v. Merrill, 2 Dev. 269; Dowling v. The
State, 5 Sm. & M. 664; The State ». La-
page, 57 N. H. 245; The State v. Hare,
74 N.C. 691; Harrison ». The State, 37
Ala. 154; People v. Fair, 48 Cal. 137.

8 Cheny v. The State, 7 Ohio, 222.

4 Ante, § 1103-1106.

5 People v. Fair, 43 Cal. 187; Ackley
v. People, 9 Barb. 609. See The State
v. Ford, 8 Strob. 517, note.

674

8 8 Greenl. Ev. § 25; Schaller v. The
State, 14 Misso. 602; Dupree v. The
State, 83 Ala. 380; The State v. Wells,
Coxe, 424.

7 McDaniel v. The State, 8 Sm. & M.
401; Carter v. Commonwealth, 2 Va. Cas.
169; Reg. v. Rowton, Leigh & C. 520, 10
Cox C. C. 25; Young v. Commonwealth,
6 Bush, 812.

8 People v. Stewart, 28 Cal. 395; Cof-
fee v. The State, 1 Texas Ap. 548.

9 8 Greenl. Ev. § 25; referring to 1
Greenl. Ev. § 65; 1 Phil. Ev. 9th ed. 469;
2 Russ. Crimes, 8d Eng. ed. 784; Best Pre-
sump. § 158, p.213. ‘To the like effect, see
The State v. Dalton, 27 Misso. 18; Peo-
ple v. Josephs, 7 Cal. 129; Dupree v. The
State, 88 Ala. 880; Davis v. The State,
10 Ga. 101; Carroll v. The State, 3
Humph. 815; Gandolfo v. The State, 11
CHAP. LXXV.] SOME SPECIAL PRESUMPTIONS. § 1116

better reasoning, and according to what is common in practice
in, at least, a part of the States, while this consideration should
not be wholly disregarded,! the evidence as to character is per-
mitted a wider range. Goodness and wickedness do not flow
altogether in channels, and one of good character in general is
less likely to commit a particular wrong than one of bad charac-
ter in general.

§ 1114. What Offences. — This evidence is admissible in all
offences, the high and the low alike ;? though by some judges it
is said to be of less weight in the higher than in the lower,! a
proposition denied by others.6> But it was deemed irrelevant on
the trial of a complaint before a magistrate for the violation of a
city by-law against fast driving ; because, observed the learned
judge, “it was not a case involving the defendant’s character.” ®

§ 1115. Case plain or doubtful. — Some courts receive this evi-
dence only in cases left doubtful by the other proofs.’ But the
doctrine of reason, best sustained also by the authorities, espe-
cially the modern ones, is, that it may create a doubt as well as
remove one, and that it is admissible alike in all conditions of the
other evidence.®

§ 1116. Weight of this Evidence. — This evidence should be
considered by the jury in connection with the rest, as a part of
the whole from which they are to determine their verdict,? and
should have such weight and effect as their judgments dictate.’

. 7 The State v. Beebe, 17 Minn. 241;
Matthews v. The State, 32 Texas, 117.

Ohio State, 114; People v. Fair, 43 Cal.
187; Kee v. The State, 28 Ark. 155.

1 And see Cathcart v. Commonwealth,
1 Wright, Pa. 108.

2 Carter v. Commonwealth, 2 Va. Cas.
169; People v. Bodine, 1 Denio, 281.

3 The State v. Henry, 5 Jones, N. C.
65, 67; Rex v. Harris, 7 Howell St. Tr.
925, 929; Reg. v. Dammaree, 15 Howell
St. Tr. 521, 604; Commonwealth v. Web-
ster, 5 Cush. 295; Walsh v. People, 66 IIl.
58; People v. Shepardson, 49 Cal. 629.

4 Commonwealth v. Webster, supra ;
Hogan v. The State, 36 Wis. 226.

5 Cancemi v. People, 16 N. Y. 501;
Harrington v. The State, 19 Ohio State,
264.

6 Commonwealth v. Worcester, 3 Pick.
462, 473. And see Drake v. Common-
wealth, 10 B. Monr. 225; Hance v. The
State, 8 Fla. 56

And see Drake v. Commonwealth, 10
B. Monr. 225; Bennett v. The State, 8
Humph. 118.

8 Stover v. People, 56'N. Y. 315;
Kistler v. The State, 54 Ind. 400; Rem-
sen v. People, 48 N. Y. 6, reversing s. c.
57 Barb. 824; Hamilton v. People, 29
Mich. 195 ; Commonwealth v. Carey, 2
Brews. 404; People v. Fenwick, 45 Cal.
287; Carson v. The State, 50 Ala. 134;
Kilpatrick v. Commonwealth, 7 Casey,
Pa. 198; Felix v. The State, 18 Ala. 720;
Williams v. The State, 52 Ala. 411; The
State v. Henry, 5 Jones, N. C. 65; Davis
v. The State, 10 Ga. 101.

9 Ante, § 978, 1050, 1051, 1060.

10 People v. Garbutt, 17 Mich. 9; Ack-
ley v. People, 9 Barb. 609; Lee v. The
State, 2 Texas Ap. 3388; People v. Bell,

675
§ 1117 THE EVIDENCE. [Book Ix.

Still it is not objectionable and is customary for the court to
make to them such observations,! when pertinent, as that a good
character can have little practical effect against direct and other-
wise satisfactory proofs,? cannot turn the scale against conclusive
evidence of guilt,? but may in a case more evenly balanced.+

§ 1117. What is Character and how proved — (Reputation —
Acts). — Character is the personal quality which manifests itself
in habitual good or ill doing. It differs, therefore, from reputa-
tion.® Being in the nature of a custom,’ what is commonly said
of it —in other words, the reputation — in the community where
the individual is known, may be given in evidence’ by a witness
in a situation to have learned;® and, if he has heard nothing
said, the proper inference is that the character is good.?. Also,
by the better opinion, on a question not quite concluded by
authority, a witness may state what, in fact, the character is, as

he has seen it manifested in habitual conduct, not derived:from

expressions of others.”

49 Cal. 485; Williams v. The State, 52
Ala. 411; People v. Shepardson, 49 Cal.
629; People v. Ashe, 44 Cal. 288; People
v. Milgate, 5 Cal. 127; People v. Olmstead,
30 Mich. 431; Coats v. People, 4 Parker
C. C. 662.

1 Ante, § 982.

2 The State v. Wells, Coxe, 424 ; ae
ple v. Josephs, 7 Cal. 129; McDaniel v
The State, 8 Sm. & M. 401; People v.
Hammill, 2 Parker C. C. 223; Wesley
v. The State, 87 Missis. 827; United
States v. Roudenbush, Bald. 514; People
v. Cole, 4 Parker C. C. 85; Reg. v.
Swendsen, 14 Howell St. Tr. 559, 596.

3 The State v. McMurphy, 52 Misso.
251; The State v. Ware, 62 Misso. 597;
People v. Gleason, 1 Nev. 173; The State
v. Hogard, 12 Minn. 298. And see Hogan
ce. The State, 86 Wis. 226.

4 Stephens v. People, 4 Parker C. C.
896; United States v. Whitaker, 6 Mc-
Lean, 342; Epps v. The State, 19 Ga.
102; Kilpatrick v. Commonwealth, 7
Casey, Pa. 198; Reg. v. Dammaree, 15
Howell St. Tr. 621, 604.

5 Marts v. The State, 26 Ohio State,
162, 168.

8 1 Greenl. Ev. § 128.

7 McCarty v. People, 51 Ill. 281; Peter-

676

But particular good or bad acts, or the

son v. Morgan, 116 Mass. 350,352; People
v. Fair, 43 Cal. 187; Reg. v. Rowton,
Leigh & C. 520; Commonwealth v:
O’Brien, 119 Mass. 342; Reg. v. Swend-
sen, 14 Howell St. Tr. 559, 596.

8 Dupree v. The State, 83 Ala. 380;
The State v. Jerome, 38 Conn. 265,

9 The State v. Lee, 22 Minn. 407; Reg.
v. Rowton, supra.

10 Rex v. Davison, 81 Howell St. Tr.
99, 187; The State v. Lee, supra; Gan-
dolfo v. The State, 11 Ohio State, 114;
Elam v. The State, 25 Ala. 58; Rex uv.
Hemp, 5 Car. & P. 468. And see Hogan
v. The State, 86 Wis. 226; Thomas v.
People, 67 N. Y. 218, 228. In Rex »v.
Davison, supra, the witness stated the
defendant’s character entirely from his
personal observation, with no allusion to
reputation, and this was not objected to.
“The correct inquiry,” observed Lord
Ellenborough, “is, as to the general char-
acter of the accused, and whether the
witness thinks him likely to be guilty ot
the offence charged.” But in Reg. v.
Rowton, supra, the majority of the Eng-
lish judges deemed that the witness’s
individual opinion of the character is in-
admissible.
CHAP. LXXV. ] SOME SPECIAL PRESUMPTIONS.

§ 1120
reputation of having done them, cannot be shown in proof or
' rebuttal of good character.
§ 1118. What Period of Time.— Since the proof of character
’ proceeds largely from reputation, which would probably be influ-
enced by the accusation on which the prisoner is being tried, —
and, on the other hand, since he might manufacture a good char-
acter for the occasion, —the evidence, on the one side and on
the other, is limited to the time prior to the finding of the indict-
ment,? or to the commission of the offence.®

§ 1119. Not putting Character in Issue. — It is the privilege, but
in no sense the duty, of the defendant to open, by evidence, the
question of his character. Under many circumstances, consid-
erations of expense, the remoteness of witnesses, confidence in
his case, and others, would induce him to decline this, though
conscious that his character was good. Hence, and because the
State may not show a character bad which the defendant has
not put in issue,‘ the omission. of this evidence does not jus-
tify the presumption that it is not good; and neither counsel nor
the judge has the right to argue to the jury that it does, nor
should they assume any thing against it while deliberating on
their verdict.6 Yet a violation of this rule will not require a
new trial in a ease where the party did not object, or it has done
him no harm.®

V. The Presumption from the Commission of Another Crime.

§ 1120. Not in General —It is but repeating the doctrine of
the last sub-title to say, that, on a trial for a particular crime,

1 Engleman v. The State, 2 Ind. 91;
The State v. Lapage, 57 N. H. 245; The

4 Ante, § 1112.
5 The State v. O’Neal, 7 Ire. 261;

State v. Hare, 74 N. C. 591; The State
v. O’Brien, 119 Mass. 842; The State v.
Laxton, 76 N.C. 216; McCarty v. People,
supra; The State v. Garrand, 5 Oregon,
156. See Reg. v. Shrimpton, 2 Den.
C. C. 819, 8 Eng. L. & Eq. 587; Reg. v.
Gadbury, 8 Car. & P. 676; McLarin v.
The State, 4 Humph. 381.

2 The State v. Kinley, 48 Iowa, 294.

8 Wroe v. The State, 20 Ohio State,
460; Brown v. The State, 46 Ala. 175.
Contra, Commonwealth v. Sacket, 22
Pick. 394.

Ackley v. People, 9 Barb. 609; The State
v. Upham, 88 Maine, 261 (overruling, it
seems, The State v. McAllister, 24 Maine,
189); Fletcher v. The State, 49 Ind. 124;
The State v. Dockstader, 42 Iowa, 486;
The State v. Kabrich, 89 Iowa, 277; Peo-
ple v. Bodine, 1 Denio, 281.

8 The State v. O’Neal, supra; People
v. Fenwick, 45 Cal. 287; The State v.
Tozier, 49 Maine, 404. See People v.
White, 22 Wend. 167.

677
§ 1124 [Book Ix.

THE EVIDENCE.
the State cannot aid the proofs against the defendant by showing
him to have committed another crime. Even after he has put
his character in issue this cannot be done.! On the other
hand, — ,

§ 1121. Same Evidence to Different Crimes.— Crimes and the
proof of them are distinguishable. And it often happens that
testimony to one offence tends also to prove another. When it
does, it may be used on the separate trials for both. It is, there-
fore, no objection to evidence of the offence alleged, that it is
evidence also of one not alleged.2. Again, —

§ 1122. Incidental Showing. — Cross-examinations of witnesses,
and evidence to discredit them, by which may sometimes be
brought out indifferent matter not relevant to the issue, will not
be permitted a scope disclosing what tends to prove an irrelevant
other crime; for this, under the pretence of justice, would be a
wanton prejudice to the defendant’s cause.®

§ 1123. Doctrine epitomizea.— The doctrine, therefore, of this
sub-title is, that whatever tends directly to prove the crime for
which one is on trial may be produced in evidence, though it
tends also to prove him guilty of some other crime; yet, not
even on cross-examination, can his cause be prejudiced with the
jury by testimony to any irrelevant guilt. Thus, —

§ 1124. Like Offences — Unlike — (Larceny — Riot — Homi-
cide). — Even where the offences are of a like sort, evidence of

1 Ante, § 1112; United States v. State, 29 Texas, 369; The State v. Shu-

Mitchell, 2 Dall. 848; Coble v. The State,
81 Ohio State, 100; Lightfoot v. People,
16 Mich. 507; Kribs v. People, 82 Ill.
425; Ingram v. The State, 89 Ala. 247;
Mason v. The State, 42 Ala. 548; True
v. Sanborn, 7 Fost. N. H. 888; Rex v.
Westwood, 4 Car. & P. 547; People v.
Schweitzer, 23 Mich. 301; Brown v. The
State, 46 Ala. 175; Kinchelow v. The
State, 5 Humph. 9; Cesure v. The State,
1 Texas Ap. 19; Loza v. The State, 1
Texas Ap. 488; The State v. Hoyt, 13
Minn. 1382; Fanning v. The State, 14
Misso. 386; Pratt v. The State, 56 Ind.
179; People v. Jones, 32 Cal. 80; The
State v. Church, 48 Conn. 471; Todd »v.
The State, 31 Ind. 614; Commonwealth
v. McDonald, 110 Mass. 405; McIntire v,
. The State, 10 Ind. 26; Warren v. The

678

ford, 69 N. C. 486.

2 Reg. v. May, 1 Cox C. C. 286; The
State v. Folwell, 14 Kan. 105; People ».
Robles, 84 Cal. 591; Jordan v. The State,
22 Ga. 545; Commonwealth v. Harrison,
11 Gray, 308; The State v. Davis, 19
Ala. 13; Jacques v. People, 66 Ill. 84;
Rex v. Moore, 2 Car. & P. 235; Rex v.
Salisbury, 5 Car. & P. 155; Reg. v.
Briggs, 2 Moody & R. 199; Stout v. Peo-
ple, 4 Parker C. C. 71, 182; The State v.
Petty, Harper, 59; The State v. Braun-
schweig, 388 Misso. 587; Mason v. The
State, 42 Ala. 582, 587; People v. Doyle,
21 Mich. 221; Copperman v. People, 56
N. Y.691; Commonwealth v. Kimball, 24
Pick. 866. :

3 Hoberg v. The State, 8 Minn. 262,
CHAP. LXXV.] SOME SPECIAL PRESUMPTIONS. § 1126

one is not ordinarily admissible in proof of another :1 as, on a
trial for larceny, to show that the defendant has committed other
and disconnected larcenies;? or, for riot, that he has been
engaged in other riots ; or, for the murder of a particular per-
son, that at another time and place he murdered or threatened to
murder another person. <A fortiori, this is so where the crimes
are of different sorts as well as distinct.5 To permit such evi-
dence would be to put a man’s whole life in issue on the charge
of a single wrongful act, and crush him by irrelevant matter
which he could not be prepared to meet. On the other
hand, —

§ 1125. Instances where admissible. — The aligning are in-
stances of the admissibility of this evidence, —

Res Gestee — (Whole Transaction). — We have seen,® that,
whenever any part of a transaction is admissible in evidence, the
whole of it is; because one part may be explained or qualified
by another. Therefore, if two or more offences are committed in
one transaction, all the transaction — that is, all the offences —
may be given in evidence on the trial for one.’ And all the res
geste may be shown, though the transaction is a continuing one,
or done in parts on different days. Again, —

§ 1126. Intent and Knowledge. — The proof of criminal intent
and of guilty knowledge, not generally admitting of other than
circumstantial evidence, may often be aided by showing another

1 Redman v. The State, 1 Blackf. 96;

The State v. Fierline, 19 Misso. 380.
. 2 Barton v. The State, 18 Ohio, 221;
Cole v. Commonwealth, 5 Grat. 696;
Reg. v. Butler, 2 Car. & K. 221, 2 Cox
C. C.182; The State v. Martin, 34 Misso.
85; Gilbraith v. The State, 41 Texas, 567;
People v. Special Sessions, 10 Hun, 158.

3 The State v. Renton, 15 N. H. 169;
Commonwealth v. Campbell, 7 Allen, 541.

4 Farrer v. The State, 2 Ohio State,
54; Ogletree v. The State, 28 Ala. 693.

5 Gordon v. The State, 3 Iowa, 410;
Stone v. The State, 4 Humph. 27; People
v. Thurston, 2 Parker C. C. 49; The
State v. Symonds, 67 Maine, 148.

6 Ante, § 1083; People v. Saunders,
25 Mich. 119.

7 Ante, § 1068; Cross v. People, 47
Ill. 152; Reg. v. Nicholls, 1 Fost. & F.

51; Brown v. Commonwealth, 26 Smith,
Pa. 319; Foster v. People, 49 How.
Pr. 69; People v. Williams, 17 Cal. 142;
The State v. Lull, 37 Maine, 246; Yar-
borough v. The State, 41 Ala. 405; Hig-
gins v. The State, 7 Ind. 549; Haskins v.
People, 16 N. Y. 844; Burr «. Common-
wealth, 4 Grat. 584; Rex v. Rooney, 7
Car. & P. 617; Rex v. Fursey, 6 Car. &
P. 81; Foster v. People, 63 N. Y. 619;
Commonwealth v. Call, 21 Pick. 515;
The State v. Wentworth, 87 N. H. 196.

8 Ante, § 1085; Commonwealth ». Kel-
ley, 116 Mass. 141; Mason v. The State, 42
Ala. 582; Hensly v. The State, 52 Ala.
10; Heath v. Commonwealth, 1 Rob. Va.
736 ; Rex v. Long, 6 Car- &'P. 179; Reg.
v. Cobden, 8 Fost. & F. 833; Rex v. Ellis,
6B.&C. 145,9D.&R. 174.

9 Ante, § 1101.

: 679
§ 1128 THE EVIDENCE. [BooK Ix.

crime, attempted or perpetrated; and, when it can be, it is per-
missible.! Thus, —

Having or passing Forgeries and Counterfeits. — To have or pass
counterfeit coin or forged paper is no offence except when accom-
panied by the intent implied from a knowledge that it is coun-
terfeit or forged. And this knowledge is presumable from a
multiplicity of instances, not from the one. Hence, on an in-
dictment for one transaction of this sort, other like transactions,
or the possession of other like counterfeits or forgeries, may be
shown against the defendant.? -

§ 1127. Manifesting Intent combined with Res Geste. — The
foregoing two reasons for admitting this evidence, while appar-
ently different, are really in substance almost identical, and they
often combine. Thus, —

Counterfeits, continued. — Proof that one passing counterfeit
money had other like counterfeits in his possession is, as just
seen, evidence of guilty knowledge. But such possession is like-
wise of the res geste. Now, —

§ 1128. Distinctions and Uncertainties. — There are many dis-
tinctions which have been proposed or taken between showing,
in explanation of acts in controversy, an offence prior or subse-
quent, remote or near, more or less similar or wholly unlike, and
others, best considered in connection with the several crimes, in
the second volume. And, relating to some of these distinctions,
the cases are impossible to be harmonized.!

1 Wiley v. The State, 3 Coldw. 362;
Gilbraith v. The State, 41 Texas, 567;
Commonwealth v. Ferrigan, 8 Wright,
Pa. 386.

2 The State v. Petty, Harper, 59;
Martin v. Commonwealth, 2 Leigh, 745;
The State v. McAllister, 24 Maine, 139;
The State v. Van Houten, 2 Penning.
672; Reg. vu. Forster, Dears. 456, 6 Cox
C. C. 521; 8. c. nom. Reg. v. Foster, 29
Eng. L. & Eq. 548, 1 Jur. x. 8. 407; Com-
monwealth v. Miller, 3 Cush. 248; Reed
v. The State, 15 Ohio, 217; The State v.
Williams, 2 Rich. 418; Rex v. Ball, Russ.
& Ry. 132, 1 Camp. 324; Reg. v. Jarvis,
Dears. 552, 7 Cox C..C. 53, 33 Eng. L. &
Eq. 567; Commonwealth v. Stearns, 10
Met. 256; Johnson v. The State, 85 Ala.
870; The State v. Tindal, 5 Harring.

680

Del. 488; Hess v. The State, 5 Ohio, 5;
Powers v. The State, 4 Humph. 274;
The State v. Robinson, 1 Harrison, 507 ;
The State v. Mix, 15 Misso. 153; Com-
monwealth v. Bigelow, 8 Met. 235; Rexv.
Wylie, 1 New Rep. 92; s. c. nom. Rex v.
Whiley, 2 Leach, 4th ed. 983; Rex v. Tat-
tersall, cited 1 New Rep. 93. So, also,
evidence that the prisoner endeavored to
procure counterfeits from another person
is admissible. Finn v. Commonwealth, 5
Rand. 701. It makes no difference that
he has been tried and acquitted as to the
instance offered in evidence. The State
v. Houston, 1 Bailey, 300, 808.

8 Cases cited ante, § 1126; Rex v.
Hough, Russ. & Ry. 120.

4 Consult and compare, among other
cases cited at different places in the sec-
CHAP. LXXV.] SOME SPECIAL PRESUMPTIONS. § 1130

§ 1129. other Grounds. — The foregoing are the ordinary
grounds for admitting evidence of a crime other than the one on
trial. But there may be still others; as, in proof of identity, of
motive, and the like.!

VI. The Presumptions from Official Conduct and Duty.

§ 1180. Acting as Officer.— A private citizen who pretends to
be a public officer and acts as such is indictable therefor.2 Hence
the doctrine of presumed innocence, already considered,? leads to
the further presumption that one who publicly performs official
functions holds the office in fact; and no record or other like
proof of his appointment is in the first instance required.* This
does not take away the right of proof by record or commission,
and there may be circumstances wherein it will be necessary.

ond volume, Stalker v. The State, 9
Conn. 341; Reg. v. Oddy, 2 Den. C.C.
264; Rex v. Dunn, 1 Moody, 146; Reg.
v. Forster, Dears. 456; Bluff v. The State,
10 Ohio State, 547; Bersch v. The State,
18 Ind. 484; Martin v. The State, 28 Ala.
71; Reg. v. Roebuck, Dears. & B. 24;
White v. The State, 11 Texas, 769; Dunn
v. The State, 2 Pike, 229; Britt v. The
State, 9 Humph. 31; Hendrick v. Com-
monwealth, 5 Leigh, 707; The State v.
Cole, 19 Wis. 129; Reg. v. Holt, Bell
C. C. 280, 8 Cox C. C. 411; Reg. uv.
Hamilton, 1 Cox C. C. 244; Stockwell v.
Silloway, 113 Mass. 884; Reg. v. Cotton,
12 Cox C. C. 400, 5 Eng. Rep. 479; Reg.
v. Roden, 12 Cox C. C. 630, 10 Eng. Rep.
611; The State v. Riggs, 39 Conn. 498 ;
Reg. v. Rearden, 4 Fost. & F. 76; The
State v. Raymond, 20 Iowa, 582; Com-
monwealth v. Nichols, 114 Mass. 285;
Alsabrooks v. The State, 52 Ala. 24;
The State v. Bridgman, 49 Vt. 202; Par-
ker v. Green, 2 B. & S. 299; Lynde ».
McGregar, 18 Allen, 172; Reg. v. Wins-
low, 8 Cox C. C. 897; Reg. v. McDonnell,
5 Cox C. C. 158; Shaffner v. Common-
wealth, 22 Smith, Pa. 60; Rex v. Hunt,
3 B. & Ald. 566; The State v. Anderson,
4 Nev. 265; Commonwealth v. Stone, 4
Met. 43; Lane v. The State, 16 Ind. 14;
Rex v. Balls, 1 Moody, 470; Morris v.
The State, 8 Sm. & M. 762; Reg. v. Salt,
8 Fost. & F. 884; Reg. v. Moore, 1 Fost.

>

& F. 73; The State v. Brown, 4 R. I.
528; People v. Dibble, 3 Abb. Ap. 518;
People v. Farrell, 80 Cal. 316; Sutton v.
Johnson, 62 Ill. 209; People v. Corbin,
56 N. Y. 363; Luby v. Commonwealth,
12 Bush, 1; Steele v. The State, 45 Il.
152;.McCartney v. The State, 3 Ind. 353;
The State v. Neagle, 65 Maine, 468; Cole-
man v. People, 65 N. Y. 82; Bottomley v.
United States, 1 Story, 135.

1 Gassenheimer v. The State, 52 Ala.
818; Coleman v. People, 58 N. Y. 555.

2 Crim. Law, I. § 468, 587.

3 Ante, § 1103-1106.

4 Vol. II. § 824; 1 Greenl. Ev. § 83,
92; McCoy »v. Curtice, 9 Wend. 17; Reg.
v. Newton, 1 Car. & K. 469; Allen v. The
State, 21 Ga. 217; Rex v. Borrett, 6 Car.
& P. 124; McInstry v. Tanner, 9 Johns.
185; United States v. Amedy, 11 Wheat.
392; Dean v. Gridley, 10 Wend. 254;
Jacob v. United States, 1 Brock. 520;
Rex v. Ellins, Russ. & Ry. 188; United
States v. Sears, 1 Gallis. 215; The State
v. Zeibart, 40 Iowa, 169; The State v.
Manley, 1 Tenn. 428; The State v. But-
man, 42 N. H. 490. Officer Witness. —
The officer himself, when not a party,
may be a witness to prove his own official
character and acts. The State v. Mc-
Nally, 84 Maine, 210.

5 United States v. Phelps, 4 Day, 469;
Reg. v. Carter, 1 Den. C. C. 65, 1 Cox
C. C. 170, 1 Car. & K. 741; The State v

681
§ 1131 THE EVIDENCE. _ [Book Ix.

If the exercise of an office can be attributed equally to a good
and a bad title, it will be presumed to proceed from the former,
unless the officer has disclaimed such title.1 Moreover, —

§ 1181. Rightly performed. — Official persons are presumed to
have done their duty ;? and, within their jurisdiction, to have
performed their official acts rightly.® .

Alling, 12 Ohio, 16; Chambers v. People, 1 Reg. v. Thomas, 3 Nev. & P. 288.
4 Scam. 351; Allen v. McNeel, 1 Mill, 2 1 Bishop Mar. & Div. § 450, 451.
459. 3 Dyson v. The State, 26 Missis, 362.

682
CHAP, LXXVI.] DOCUMENTARY EVIDENCE. § 1184

CHAPTER LXXVI.
DOCUMENTARY EVIDENCE.

§ 1132. In General. — Documentary evidence is receivable, and
in proper cases is required, the same in criminal causes as in
civil! It is governed by the same rules. For example, —

§ 1133. Proof of Record. — A record may be proved, among
other methods, by a certified copy.2. And—

§ 1134. “Confronted with Witnesses.” — The constitutional pro-
vision, securing to indicted persons the right to be “confronted
with the witnesses” against them, does not abrogate this method
of proving facts in their nature documentary. ~

1 The State v. Shepherd, 8 Ire. 195. 8 People v. Jones, 24 Mich. 215. See
2 The State v. Smithers, 14 Kan. 629; The State v. Thomas, 64 N. C. 74; The
Shivers v. The State, 53 Ga. 149; Sand- State v. Weeks, 1 Dev. 185; McGuire v.
ford v. The State, 6 Eng. 328. And see ‘The State, 8 Heisk. 104.
Reg. v. Scott, 2 Q. B. D. 416.
683
§ 1187 THE EVIDENCE. [BooK Ix.

CHAPTER LXXVII.

THE COMPETENCY OF DIFFERENT CLASSES OF WITNESSES AND
HOW THEIR TESTIMONY IS TO BE REGARDED.

~§ 1185. Introduction.
1186-1150. In General and Disqualifications.
1151-1155. Husband and Wife.
1156-1172. Accomplices and Approvers.
1178-1176. Informers and the like.
1177-1180. Experts and others as to Opinions.
1181-1187. Defendants testifying for themselves.

§ 1135. How the Chapter divided. — We shall consider this
subject as to I. How, in General, and some Disqualifications ;
II. Husband and Wife; III. Accomplices and Approvers ;
IV. Informers and the like ; V. Experts and others as to Opin-
ions; VI. Defendants testifying for themselves.

I. How, in General, and some Disqualifications.

§ 1136. All Persons. — All persons against whom no disqualifi-
cation can be shown are competent witnesses alike in civil and
criminal causes.1_ The disqualifications are substantially the
same in both; so we shall here simply consider a few of them,
not minutely, but in a general way. They are —

§ 1187. Conviction for Crime, — but this was discussed in
“ Criminal Law.’ ?

Not objecting to Witness. —If the witness is not objected to on
this ground,’ or on any other which renders him incompetent,t
advantage of the incompetency cannot in general be taken after
verdict.

1 The State v. Levy, 56 La. An. 64; The State v. Scott, 1 Bailey, 270; The

United States v. Freeman, 4 Mason, 505. State v. McLaughlin, 44 Iowa, 82. See
2 Crim. Law, I. § 972-976. See Peo- Commonwealth v. Kimball, 24 Pick. 866;

ple v. Amanacus, 50 Cal. 238. Harris v. Barnett, 4 Blackf. 369; Donelson
® Commonwealth v. Green, 17 Mass. v. Taylor, 8 Pick. 390; Howser v. Com-
515. monwealth, 1 Smith, Pa. 332.

4 Cole v. The State, 40 Texas, 147;
684
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY.  § 1188

§ 1138. Interest in Event.— A mere interest in the subject to
which an indictment relates does not disqualify a witness ; as,
for example, that he is the person injured by the crime.? Nor
does an indirect interest in the result.;? as, that, on conviction,
a penalty will go to the town of which he is an inhabitant.4
But, by the general rule, if the verdict sought or the judgment
to follow it will be evidence for the witness in a civil suit, or
if otherwise it will inure directly to his benefit, he is incompe-
tent on the side of such verdict; ® as, if it will entitle him to
a penalty, — for example, three times the value of property
stolen,® — though otherwise on an indictment for larceny wherein
the court will simply order the restitution of the stolen goods.’
Yet even to the disability from direct interest there are some real
or apparent exceptions: as, if to exclude the witness would ordi-
narily amount to practical impunity to offenders, contrary to the
spirit of the law; or, if a statute, even by indirection, makes him
competent; or, if any distinct public policy requires his. testi-
mony, not in the individual instance merely, but in ordinary
cases of the like sort; he will be deemed competent notwith-
standing his direct interest.6 Hence, for illustration, one who
is entitled to a reward for procuring the apprehension and con-

viction of an offender may be a witness against him.°

1 Commonwealth v. Peck, 1 Met. 428,
429.

2 The State v. Nettleton, 1 Root, 308;
Kersh v. The State, 24 Ga. 191; Reg. v.
Sewel, 7 Mod. 118; Anonymous, 12 Mod.
512; Gassenheimer v. The State, 52 Ala.
8138; The State v. Bateman, 8 Ire. 474;
Rex v. Treble, 2 Taunt. 828; The State
v. Casados, 1 Nott & McC. 91; Salisbury
v. The State, 6 Conn. 101.

3 Thus, under the former slave laws,
the owner of a slave was a competent
witness for or against him, though the
result might be the loss of the slave’s
time by imprisonment or his entire value
by hanging. Elijah v. The State, 1
Humph. 102; The State v. Jim, 8 Jones,
N. C. 848; Austin ». The State, 14 Ark.
555; Spence v. The State, 17 Ala. 192.
See The State v. Charity, 2 Dev. 543.

4 The State v. Stuart, 23 Maine, 111;
The State v. Woodward, 34 Maine, 293.

5 Commonwealth v. Peck, supra (com-

pared with The State v. Stanton, 1 Ire.
424); The State v. Hasset, Taylor, 55;
Rex v. Hulme, 7 Car. & P. 8; Rex v.
Eden, 1 Esp. 97; The State v. Bishop, 1
D. Chip. 120; Commonwealth v. Hart, 2
Rob. Va. 819; People v. Howell, 4 Johns.
296; The State v. Foster, 8 McCord, 442;
The State v. McGrew, 18 Rich. 816; Rex
v. Williams, 9 B. & C. 549.

6 The State v. Pray, 14 N. H. 464;
Commonwealth v. Hargesheimer, 1 Ashm.
413; The State v. Vaughan, 1 Bay, 262.
See The State v. Hope, 2 Brev. 463,

7 Commonwealth v. Moulton, 9 Mass.
30.
8 Murphy v. The State, 28 Missis. 687 ;
Reg. v. Sewel, 7 Mod. 118; Respublica v.
Ray, 3 Yeates, 65; Gilbert v. Steadman,
1 Root, 403; Rex v. Johnson, Willes, 425,
note; Rex v. Teasdale, 3 Esp. 68; The
State v. McGlynn, 84 N. H. 422.

9 United States v. Patterson, 3 Mc-
Lean, 58, 299; Baxter v. People, 8 Gil-

685
THE EVIDENCE.

§ 1142 [Book Ix.

§ 1139. Parties. — The general rule that parties to the record
cannot be witnesses,! modified of late in most of our States by
statutes, excludes, under the common law, defendants in crimi-
nal causes.2- Whether and how far this rule operates as to their
testifying for one another, upon joint and upon separate trials,
we have already seen. And in another sub-title we are to con-
sider some recent statutes permitting indicted persons to become
witnesses for themselves.

§ 1140. Relations.— Near relations —as, for example, parent
and child — may be witnesses for and against each other; subject
to observations upon the effect of the relationship on the value
of the evidence.

§ 1141. Insane. — A person insane when offered as a witness
is, in general terms, said to be incompetent.’ Proof of his insan-
ity is given to the judge, whose decision as to his competency is
conclusive ;* but the effect of the evidence is, of course, for the
jury, and if he was insane when the act transpired this goes to his
credibility.” In reason, not every degree of insanity, not even
all that would excuse an act otherwise criminal, should exclude
the witness. If he has the moral sense to be in some degree
restrained by an oath, and fair powers of observation and narra-
tion, his evidence should be admitted for what the jury deem it
worth.

§ 1142. Drunken. — One too drunk to comprehend the oath or
deliver his testimony should not be admitted ; but, in proper cir-
cumstances, the court will postpone the trial for him to become
sober. A drunkard is not necessarily incompetent.? Yet the

man, 868; The State v. Bennet, 1 Root, see Ward v. Valentine, 7 La. An. 183;

. 249; United States v. Wilson, Bald. 78. See
Commonwealth v. Sacket, 22 Pick. 394.

1 1 Greenl. Ev. § 327, 330; Page v.
Page, 15 Pick. 368; Kennedy v. Niles, 14
Maine, 54.

2 Batre v. The State, 18 Ala. 119;
The State v. Connell, 88 N. H. 81; The
State v. Flanders, 38 N. H. 824; Whelc-
hell v. The State, 23 Ind. 89; Common-
wealth v. Marsh, 10 Pick. 57.

8 Ante, § 1019-1023, 1033; Lemasters
v. The State, 10 Ind. 391; Anonymous,
12 Mod. 40. °

4 Cass v. The State, 2 Greene, Iowa,
858; The State v. Thompson, 10 La. An.
122; The State v. Nash, 8 Ire. 85. And

686 :

Tardif v. Baudoin, 9 La. An. 127; In
re Gangwere’s Estate, 2 Harris, Pa. 417;
The State v. Rankin, 8 Iowa, 855; The
State v. Guyer, 6 Iowa, 263; 2 Bishop
Mar. & Div. § 280.

5 1 Greenl. Ev. § 865; Evans »v.
Hettich, 7 Wheat. 458; Livingston v.
Kiersted, 10 Johns. 862; Armstrong v.
Timmons, 8 Harring. Del. 842.

® Holcomb v. Holcomb, 28 Conn. 177;
Robinson v. Dana, 16 Vt. 474; Livingston
v. Kiersted, 10 Johns. 362.

7 Holcomb v. Holcomb, supra.

8 The State v. Underwood, 6 Ire. 96;
Hartford v. Palmer, 16 Jolins. 148.

§ Gebhart v. Shindle, 15 S. & R. 285,
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY. § 1146

value of any witness’s testimony may be impaired by showing,
that, when the facts transpired, he was intoxicated.!

§ 1148. Deaf and Dumb. — A mute, with whom communication
can be had by signs or by writing, may be a witness ; and his
testimony should be delivered in the form which will practically
be the more accurate.?

§ 1144. Immature Age. — Mere immature years, even less than
seven, when the capacity for crime begins, do not ‘render the
infant incompetent.2 The question depends on his intelligence,
and his understanding of the nature of an oath, to be decided by
the judge on examination in open court. And on seasonable
application the court may, in its discretion, continue the cause
for the witness to be instructed.®

§ 1145. Judge. — A judge, who is a mere supernumerary to the
bench, may leave it and testify as a witness in a cause on trial,
not returning. But one whose presence is essential to the con-
stitution of the tribunal cannot at the same time serve as a wit-
ness.6 When it becomes important to show what was done at a
former trial, in a court presided over by a different judge, the
judge at the former trial is not incompetent; nor, if his court is
an inferior one not of record, is it generally deemed improper to
call him. But none of the superior judges should be asked ; for
there are always other witnesses, and public policy forbids.
Probably, if such a judge were served with a subpcena, he should
decline obedience.’

§ 1146. suror.— If one who is to be a witness is summoned as
a juror grand or petit, he ought properly not to sit in the case.
But, if he does, his testimony is not lost; he may give it before

1 Mercer v. The State, 17 Ga. 146.
And see The State v. Buckley, 72 N. C.
358.

2 The State v. De Wolf, 8 Conn. 93.

8 The State v. Morea, 2 Ala. 275;
Young v. Slaughterford, 11 Mod. 228;
The State v. Whittier, 21 Maine, 341;
Blackwell v. The State, 11 Ind. 196; The
State v. Denis, 19 La. An. 119; People
v. Bernal, 10 Cal. 66; The State v. Le
Blane, 8 Brev. 339, 1 Tread. 354; Com-
monwealth v. Hutchinson, 10 Mass. 225;
Wade v. The State, 50 Ala. 164; Wash-
burn v. People, 10 Mich. 872.

4 Ib.; Commonwealth v. Mullins, 2

164; Peterson v. The State, 47 Ga. 524;
Simpson v. The State, 31 Ind. 90; Jones
v. People, 6 Parker C. C. 126. And see
The State v. Stewart, 9 Ire. 342; Rex wv.
Pike, 8 Car. & P. 598.

5 Ante, § 951-c.

6 People v. Dohring, 59 N. Y. 874;
Ross v. Buhler, 2 Mart. n. 8. 312; People
v. Miller, 2 Parker C. C. 197; McMillen v.
Andrews, 10 Ohio State, 112.

7 Welcome v. Batchelder, 28 Maine,
85; Reg. v. Gazard, 8 Car. & P. 695;
Reg. v. Harvey, 8 Cox C. C. 99, 103;
Reg. v. Browning, 8 Cox C. C. 487.

3 Ante, § 902. See The State v. Mar-

Allen, 296; Wade v. The State, 50 Ala. .tin, 28 Misso. 580.

687
§ 1149 [Book Ix.

THE EVIDENCE.

his fellows, in open court, like any other witness, not privately
in the jury room.!. A member of the grand jury that found the
indictment may be a witness before the petit jury.?

§ 1147. Believing Witness. — As already seen, the effect of the
testimony is for the jury.’ It is, therefore, for them to believe a
witness or not, as their judgments dictate,* even though he is
of competent age and unimpeached.® They should not be told,
that it is impossible for him to be innocently in error,® or that
they must believe him unless they deem him wilfully false,’ or
unless he is impeached,® or unless they think the contradicting
witness entitled to more credit.2 The truth or falsity or honest
mistake of the witness, the question as to what is the real fact,
is entirely for them ;?° and —

§ 1148. How Many.— They may convict, or not, on the testi-
mony of one witness or of many, impeached or unimpeached, as
their own consciences and honest judgments dictate. We shall
see, in the second volume, that treason and perjury furnish par-
tial exceptions to this rule as respects the number of witnesses.
And there are cautions which, in proper circumstances, the
judge may or should give the jury concerning the credit due
them. Thus, —

§ 1149. False in One. — The familiar maxim falsus in uno
falsus in omnibus may, when applicable, properly be mentioned to
the jury. If, corruptly and wilfully, not of mere mistake, the
witness has sworn falsely to one material thing, it is not safe to

believe him on any other.!8

1 Ante, § 863, 998 a; Howser v. Com-
monwealth, 1 Smith, Pa. 882; The State
v. Powell, 2 Halst. 244; Booby v. The
State, 4 Yerg. 111; McKain v. Love, 2
Hill, 8. C. 506 ; Dunbar v. Parks, 2 Tyler,
217; Wharton v. The State, 45 Texas, 2;
Anonymous, 1 Salk. 405; Rex v. Rosser,
7 Car. & P. 648; Manley v. Shaw, Car. &
M. 861.

2 Ante, § 857, 874; The State v. Mc-
Donald, 78 N. C. 846; The State v. Ben-
ner, 64 Maine, 267.

3 Ante, § 977, 979, 989 a.

4 Whitten v. The State, 47 Ga. 297;
Kinchelow v. The State, 6 Humph. 9;
The State v. Gunter, 1 MeMul., 468.

5 The State v. Smallwood, 75 N, C.

104.
688

And his credit will not be restored

8 The State v. Presley, 18 Ire. 494,
495.

7 Gamble v. Johnson, 9 Misso. 605;
The State v. Thomas, 7 Ire. 881.

8 The State v. Smallwood, supra.

§ Corley v. The State, 28 Ala, 22.

10 And see The State v. Potts, 4 Halst.
26.

11 Huffman v. The State, 29 Ala. 40;
Commonwealth v. Bosworth, 6 Gray, 479,
481; Kinchelow v. The State, 5 Humph.
9; Commonwealth v. Cregor, 7 Grat. 591;
Bishop v. The State, 48 Texas, 390.

12 Ante, § 982.

18 The State v. Mix, 16 Misso. 158;
The State v. Jim, 1 Dev. 508; The State
v. Peace, 1 Jones, N. C. 251; The State v.
Dwire, 25 Misso. 558.
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY. § 1152

by corroborating evidence to some particular point,! yet a fuller
corroboration will be more effectual.2 Still this is a maxim, not
of law, but of sound sense; and it is to be applied, or not, by
the jury according to their own understanding of the truth of
the individual case. Again, —

§ 1150. Corroborating.— There are various circumstances in
which practically, under cautions from the court, there will be
no conviction on the testimony of a witness unless his evidence
is corroborated by other witnesses or by circumstances.+4

II. Husband and Wife.

$1151. Not for or against Each Other. — Except as about to be
stated, a husband or wife is not permitted to be a witness on the
trial of the other for crime, or on any other trial to testify to a
crime committed by the other ;5 or, as we have seen, even to
give evidence in behalf of or against a third person jointly tried
with the other.®

§ 1152. Under Statutes. — In some of our States, there are
statutes by which, contrary to the common-law rule, husband
and wife may testify for and against each other on a part or all
of their trials for crime, the terms and interpretations whereof

are not quite uniform.’

Nor do all the recent enactments, en-

larging the rights and powers of married women, carry with them

this consequence in any degree.®

! Smith v. The State, 23 Ga. 297.

2 Day v. Crawford, 13 Ga. 508; Meix-
sell v. Williamson, 35 IIL. 529; Brett v.
Catlin, 47 Barb. 404.

3 The State v. Williams, 2 Jones, N.C.
257; Parsons v. Huff, 41 Maine, 410;
Merrill v. Whitefield, 41 Maine, 414;
Davidson v. Davidson, Deane & S. 182,
141.

4 Smith v. The State, 23 Ga. 297;
The State v. Le Bianc, 3 Brey. 389;
Mercer v. The State, 17 Ga. 146; The
State v. Ben, 1 Hawks, 434; Day v.
Crawford, 13 Ga. 508; Martin v. The
State, 28 Ala. 71; The State v. Brown,
76 N.C. 222.

& Wilke v. People, 63 N. Y. 525; Stew-
art v. Johnson, 3 Harrison, 87; The State
v. Wilson, 2 Vroom, 77; Commonwealth
v. Sparks, 7 Allen, 684; Overton v. The

VOL. I. . 42

Again, —

State, 43 Texas, 616; Rex v. Ast, Car.
Crim. Law, 8d ed. 66; Griggs’s Case, 1
T. Raym. 1; The State v. Bradley, 9
Rich. 168. See Redman v. The State, 1
Blackf. 429; Rex v. Grattan, Car. Crim.
Law, 8d ed. 66.

8 Ante, § 1019; The State v. McGrew,
13 Rich. 816. See Reg. v. Sills, 1 Car. &
K. 494. /

7 The State v. Brown, 67 N. C. 470;
The State v. Straw, 50 N. H. 460; The
State v. Black, 63 Maine, 210; The State
v. Bennett, 81 Iowa, 24; The State v.
Hazen, 39 Iowa, 648; The State v. Ran-
kin, 8 Iowa, 855; The State v. Guyer, 6
Jowa, 263; The State v. Collins, 20 Iowa,
85; The State v. Bernard, 45 Iowa, 234;
Hampton v. The State, 45 Texas, 154;
The State v. Newberry, 43 Misso. 429.

8 Lucas v. The State, 28 Conn. 18

689
THE EVIDENCE. [Book Ix.

§ 1156

§ 1153. Personal Violence. — At common law, the wife may,
from necessity, be a witness in a criminal proceeding against her
husband to prove a battery or other violence to her person.!
And so may be the husband against the wife for violence by her.?
Moreover, they being competent against each other are in like
circumstances competent in each other’s favor. The right is
apparently limited in North Carolina to lasting injuries ;* but it
is believed not to be commonly so in our States. It nowhere
extends to such a wrong as committing polygamy.’

§ 1154. Not married. — This restriction on the right to testify
extends only to actual, lawful marriage. Persons merely cohab-
iting together, whether calling themselves husband and wife or
not, are not therefore incompetent witnesses in each other’s
causes.®

§ 1155. Conversations overheard — Declarations in Presence,
&c. — Conversations between husband and wife overheard,’ and
declarations in each other’s presence,’ are, when testified to by
third persons, admissible ; but not declarations in absence, except
when connected with the party against whom they are offered in
a way to make them evidence were there no marriage.®

III. Accomplices and Approvers.

§ 1156. Approvers, anciently.— When, in ancient times, one
was indicted for a capital offence, the court might permit him,
instead of pleading in the ordinary way, to “ confess the fact,”
and “ accuse others his accomplices in the same crime, in order

(compare with Merriam ». Hartford, &c.
Railroad, 20 Conn. 854); The State v.
Donovan, 41 Iowa, 587; Wilke v. People,
53 N. Y. 525, 526.

1 Vol. IL § 69, 649; Vane’s Case, 18
East, 172, note; The State v. Boyd, 2
Hill, S. C. 288.

2 The State v. Davidson, 77 N. C. 522;
People v. Green, 1 Denio, 614; Moore v.
The State, 12 Ala. 764.

8 Vol. II. § 69; Moore v. The State,
supra; Commonwealth v. Murphy, 4 Al-
len, 491; The State v. Neill, 6 Ala. 685.

4 The State v. Hussey, Busbee, 123;
The State v. Davidson, 77 N. C. 522.

5 The State v. McDavid, 15 La. An.

408.
690

6 Stat. Crimes, § 613; Coleman v. The
State, 14 Misso. 157; Reg. v. Young, 2
Cox C. C. 291; The State v. Patterson, 2
Ire. 846; Peat’s Case, 2 Lewin, 111, 288;
Flanagin v. The State, 25 Ark. 92.

T Commonwealth v. Griffin, 110 Mass.
181; Rex v. Simons, 6 Car. & P. 540;
Hendrickson v. People, 1 Parker C. C.
406.

8 Rex v. Bartlett, 7 Car. & P. 832;
Rex v. Smithies, 5 Car. & P. 832; People
v. Murphy, 45 Cal. 137.

® Warren v. Commonwealth, 1 Wright,
Pa. 45; Kingen v. The State, 50 Ind.
667.
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY.  § 1159

to obtain his pardon.” Thereupon those accused were tried in
the same cause without a fresh indictment. If they were con-
vieted by a jury, or vanquished in a trial by battle, the approver,
as he was called, was pardoned, and they were hanged ; other-
wise he was hanged on his confession.!

§ 1157. afterward. — This practice, without being formally
abrogated, fell gradually into disuse. And statutes, now re-
pealed in’ England, and probably never adopted in this country,
—namely, 4&5 Will. & M.c. 8; 6&7 Will. 8,¢.17; 10 &11
Will. 8, c. 28; 5 Anne, c. 31; and 29 Geo. 2, c. 80, — provided
for certain cases a different course to the same end, and in a
measure supplied its place. But the best of all methods was
readily deducible from the principles of the common law ;%
thus, — ;

§ 1158. “King’s Evidence.” — “It hath also been usual,” con-
tinues Blackstone, “ for the justices of the peace, by whom any
persons charged with felony are committed to jail, to admit some
one of their accomplices to become a witness (or, as is generally
termed, king’s evidence) against his fellows; upon an implied
confidence, which the judges of jail delivery have usually coun-
tenanced and adopted, that, if such accomplice makes a full and
complete discovery of that and of all other felonies to which he
is examined by the magistrate, and afterwards gives his evidence
without prevarication or fraud, he shall not himself be prosecuted
for that or any other previous offence of the same degree.” 4
This is in substance the modern practice, now to be stated more
in detail.

§ 1159. Accomplice defined. — An accomplice is one who has
become a partaker with others in a crime, whether his guilt is in
the same degree with theirs or not.6 It must be legal guilt; a

1 4 BI. Com. 880, 331.

2 Bl. Com. ut sup.; Rex v. Rudd,
Cowp. 331, 1 Leach, 4th ed. 115.

3 That the competency of an accom-
plice does not depend on the doctrine
of approvement, see Byrd v. Common-
wealth, 2 Va. Cas. 490, 493.

* And see Rex v. Rudd, supra.

5 Foster, 341; 1 Russ. Crimes, 5th Eng.
ed. 156; Linsday v. People, 63 N. Y. 143,
163; Commonwealth v. Elliot, 110 Mass.

104; The State v. Coppenburg, 2 Strob.
278; Keech v. The State, 15 Fla. 691.
Partly contrary to this view, a principal
in a felony seems not to be deemed in
Illinois an accomplice. Cross v. People,
47 Ill. 152, Butsee post, § 1160. See also
Irvin v. The State, 1 Texas Ap. 301;
Nourse v. The State, 2 Texas Ap. 304,
317; Miller v. The State, 4 Texas Ap.
261.

691
[Book Ix.

§ 1161 THE EVIDENCE.

participation reprehensible only in morals,’ or only colorable,? is
not sufficient.

§ 1160. Competent Witness. — Such a person is a competent
witness,? whether the crime is infamous in its nature or not;
unless, it being infamous, he has been convicted and judgment
hhas been rendered on the conviction. This is so even though
the guilt of the witness is of a higher grade than that of the
participant on trial; as, though the witness is principal, and he
an accessory.®

$1161. How admitted to testify. — The methods of admitting
a witness to testify under the, privileges of an accomplice are
various ; as, —

By Examining Magistrate. — One method in England is, on the
preliminary examination, by the examining magistrate, as stated
by Blackstone.? But it is said that an accomplice thus admitted
will not be received as of course in the higher court.’ In our
own country, this method is not unknown,® but it would at least
be prudent that the approbation of the State’s attorney should be
first obtained.

By the Court.— Where, in England, there is a private prose-
cutor, and the attorney-general does not appear, the court, on
application of the prosecutor’s counsel, determines the question ;
relying mainly, but not implicitly, on the discretion of such coun-
sel.2 As we have a prosecuting officer, corresponding to the

1 Commonwealth v. Boynton, 116
Mass. 348; Commonwealth v. Wood, 11
Gray, 85, 98; Dunn v. People, 29 N. Y.
528, 527. And see People v. Josslyn, 39
Cal. 8393; Davidson v. The State, 33 Ala.
850; English v. The State, 35 Ala. 428;
Strawhern v. The State, 37 Missis. 422.

2 The State v. McKean, 36 Iowa, 348;
Harrington v. The State, 86 Ala. 236;
Williams v. The State, 55 Ga. 891; Peo-
ple v. Farrell, 80 Cal. 316.

8 Rex v. Dodd, 1 Leach, 4th ed. 155;
United States v. Lancaster, 2 McLean,
431; Joknson v. The State, 2 Ind. 652;
Nick v. The State, 80 Missis. 593;
Solander v. People, 2 Col. Ter. 48; Rex
v. Tinckler, 1 East P. C. 854; Rex »v.
Darrel, 10 Mod. 321.

4 Crim. Law, I. § 972-975. In some
States, even the final judgment does not

692

render the witness incompetent. The
State z. Adair, 68 N. C. 68; Ex parte
Harris, 73 N. C. 65.

5 Keech v. The State, 15 Fla, 591; The
State v. Coppenburg, 2 Strob. 273; Lins-
day v. People, 63 N. Y. 148; People v.
Evans, 40 N. ¥. 1. And see Rex v. Has-
lam, 1 Leach, 4th ed. 418; Patram’s
Case, 1 Leach, 4th ed. 419, note; Wild’s
Case, 2 East P. C. 783; Reg. v. Lyons, 6
Car. & P. 555; Roberts v. The State, 55
Ga. 220; Reg. v. Pratt, 4 Fost. & F. 315.

6 Ante, § 1158; Roscoe Crim. Ey. 8d
Eng. ed. 159, 160; Garside’s Case, 2
Lewin, 38.

7 3 Russ. Crimes, 5th Eng. ed. 601,
602; Roscoe ut sup. 153.

8 People v. Peter, 48 Cal. 250; Com-
monwealth v. Bosworth, 22 Pick. 397.

® 8 Russ. Crimes, 6th Eng. ed. 602;
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY.  § 1162

attorney-general in England, present at our trials,! this method
would appear not to furnish any precedent for us.

State’s Attorney. — In England, it is competent for the attorney-
general, doubtless in all cases, and certainly where he prosecutes
in person, to discharge a defendant by his nolle prosequi and use
him as a witness against the others.2, This method is not often
resorted to there, but it is appropriate and common with us3_ If
the defendant thus discharged and called is in fact an accomplice,
he thereby becomes State’s evidence by agreement with an officer
who, more distinctly than the judge, represents the pardoning
power. And whether this method is to be pursued, or any other
to the same end, it is believed that the more common, certainly
the better, American practice commits the question of receiving
or rejecting an accomplice, and the further question of immunity
from punishment, solely to the discretion of the prosecuting offi-
cer.t In the few States wherein the nolle prosequi is entered only
with the consent of the court, doubtless, by analogy, it retains
more or less supervision over the whole question.» In some
States this question is regulated by statute.®
. § 1162. Reasons for Admitting. — Obviously, in general, the
least guilty morally, and least hardened, of several. participants
should be selected as State’s evidence.’ And it should appear
probable that his testimony will secure a conviction, which, with-
out it, cannot presumably be had. And some other considera-

Roseve ut sup. 154; Rex v. Barnard, 1
Car. & P. 87, and the reporter’s note.

' Ante, § 962, 964.

2 Man v. Ward, 2 Atk. 228; Rex v.
Ellis, 1 MacN. Ev. 55; Anonymous, 1
MacN. Ev. 55.

3 Ante, § 1020.

* Commonwealth v. Knapp, 10 Pick.
477, 484, 491, 493; Runnels v. The State,
28 Ark. 121; Kinchelow v. The State, 5
Humph. 9; United States v. Blaisdell, 3
Ben. 182; United States v. Lee, 4 Mc-
Lean, 108; Commonwealth v. Brown, 103
Mass. 422; Commonwealth v. Denehy,
103 Mass. 424, note; Commonwealth v.
Woodside, 105 Mass. 594; Holsenbake
v. The State, 45 Ga. 43; The State v.
Moody, 69 N. C. 629; Craft v. The State,
8 Kan. 450.

5 Nickelson v. Wilson, 60 N. Y. 362;

Linsday v. People, 63 N. Y. 148; Bowden
v. The State, 1 Texas Ap. 187; People v.
Whipple, 9 Cow. 707, 711, 712.

6 People v. Peter, 48 Cal. 250; People
v. Bruzzo, 24 Cal. 41. And see Ray v.
The State, 1 Greene, Iowa, 316.

1 People v. Whipple, 9 Cow. 707.

8 Roscoe Crim. Ev. 3d Eng. ed. 153,
154; 8 Russ. Crimes, 5th Eng. ed. 602
and notes. “It is not usual,” we read in
this place, “to admit more than one ac-
complice. Barnsley Rioters’ Case, 1
Lewin, 5, Parke, J. But under peculiar
circumstances three have been admitted.
Scott’s Case, 2 Lewin, 36, Lord Denman,
C.J. In this case the accomplices spoke
to different facts, and no one could prove
the whole. See Rex v. Noakes, 5 Car. &
P. 826.”

698
[Book Ix.

§ 1164 THE EVIDENCE.

tions of good sense will influence more or less the discretion.
And —

§ 1163. Not admissible by Statute. —It may be that there are
States in which this protection to the accomplice is taken away
by statute. So it was formerly, and perhaps still is, in Virginia ;
the provision being, that “approvers shall never be admitted in
any case whatever.” This was by the majority of the court held
to abrogate the common-law practice ; so that, when an indicted
person.had testified, he was refused a continuance of his case to
apply for a pardon.

§ 1164. Exemption after Testifying. — Doubtless, in most cases,
the mere fact that an accomplice testifies as a witness for the gov-
ernment, freely and fully acknowledging his own participation in
the offence, will constitute an implied agreement, in the absence
of an express one, for his exemption from further prosecution.
But where the testifying was not with the concurrence of the
State’s attorney, and there was no such understanding with any
authorized person, or evidence even of expectation, it was held
not to be adequate.? The agreement is, that the accomplice shall
disclose all he knows, honestly and. fairly,? and, if his testimony
is corrupt, or if otherwise his disclosures are only partial, he
gains nothing, and his confessions may be used against him.*
But when he has fulfilled the agreement on his part, he is equi-
tably entitled to be no further pursued for his own crime, and
equally whether the party testified against is convicted or ac-
quitted.6 He cannot plead this acquired right in bar; and, if
the attorney for the State refuses to recognize it, the court will
simply continue the cause to permit him to apply to the executive
for pardon.§

1 Commonwealth v. Dabney, 1 Rob.
Va. 696.

4 Hamilton v. People, 29 Mich. 173;
Rex v. Rudd, Cowp. 331, 1 Leach, 4th ed.

2 Commonwealth v. Woodside, 105
Mass. 594; Commonwealth v. Brown, 103
Mass. 422; Commonwealth v. Denehy,
103 Mass. 424, note.

? Communications with Counsel. —
Including even confidential communica-
tions to attorneys. Hamilton v. People,
29 Mich. 178, 184; Alderman v. People,
4 Mich. 414; Foster v. People, 18 Mich.
266; The State v. Condry, 5 Jones, N. C.

418,
694

115; Moore’s Case, 2 Lewin, 87; Com-
monwealth v. Knapp, 10 Pick. 477, 480;
Rex v. Burley, 3 Russ. Crimes, 5th Eng.
ed. 601, note; Rex v. Smith, 3 Russ.
Crimes, 5th Eng. ed. 601, note; Rex v.
Stokes, 8 Russ. Crimes, 5th Eng. ed. 601,
note; Reg. v. Holtham, 8 Russ. Crimes,
5th Eng. ed. 601, note.

5 United States v. Lee, 4 McLean, 103;
People v. Whipple, 9 Cow. 707.

® United States v. Blaisdell, 3 Ben.
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY. § 1167

§ 1165. Other Offences. — His protection extends to any con-
nected offence which in good faith he disclosed as a part of the
one to which he was admitted, though in truth the transaction
constituted a separate crime ;! but not to distinct offences.”

§ 1166. Methods — (Indict Accomplice or not). — According to
Lord Hale, it was the usage in his time not to indict one who
was to be a witness, because this would disparage his testimony.?
But, in our day, no good reason appears for attempting to veil
from a jury the real facts, with a gauze so transparent. Hence,
with us, one of the methods is for the prosecuting officer to
require the accomplice to submit to be indicted with the rest.
Whereupon the law is, that a joint defendant cannot be a wit-
ness for or against the others, even on a separate trial, till the case
is disposed of as to him by a conviction or acquittal,‘ or by a nolle
prosequi.© But judgment on the conviction need not be ren-
dered ; therefore the defendant who is to testify pleads guilty,
and then testifies.® If his testimony entitles him to be dis-
charged, there is a nolle prosequi or other appropriate proceeding ;
or, if not, the court has only to render sentence on the plea of

guilty.

§ 1167. Not indicted — Indicted separately. — If the accomplice

132; United States v. Lee, supra; Rex
v. Rudd, supra; Rex v. Garside, 2 A. &
E. 266; Newton v. The State, 15 Fla. 610.
And see People v. King, 28 Cal. 265; Rex
v. Lee, Russ. & Ry. 861; Rex v. Brunton,
Russ. & Ry. 454. Contra, Bowden v.
The State, 1 Texas Ap. 187.

1 Garside’s Case, 2 Lewin, 38.

2 Rex v. Lee, Russ. & Ry. 861; Rex v.
Brunton, Russ. & Ry. 454; People v.
Whipple, 9 Cow. 707.

8 1 Hale P. C. 305.

4 Ante, § 1020; People v. Donnelly, 2
Parker C. C. 182; The State v. Edwards,
19 Misso. 674; Shay v. Commonwealth,
12 Casey, Pa.805; Baker v United States,
Minn. 207; The State v. Nash, 7 Iowa,
847; The State ». Blennerhassett, Walk.
Missis. 7; People v. Bill, 10 Johns. 95;
The State v. Wier, 1 Dev. 863; The State
v. Carr, Coxe, 1; The State v. Mooney, 1
Yerg. 481. See Rex v. Lafone, 5 Esp.
154. The case of The State v. Nash,
above, was afterward overruled on the
ground that the Constitution and statutes

of Iowa have changed the law on this
point there. The State v. Nash, 10 Iowa,
81, 85, 86. Butsee The State v. Spencer,
15 Ind. 249; Rex v. Ryan, Jebb, 5;
Armistead v. The State, 18 Ga. 704; Gar-
ret v. The State, 6 Misso. 1. See, how-
ever, The State v. Stotts, 26 Misso. 307.
That in some of the States joint defend-
ants are made witnesses before the case
as to them is disposed of, and when, see
ante, § 1020; Jones v. The State, 1 Kel-
ly, 610; Lazier v. Commonwealth, 10
Grat. 708; Ellege v. The State, 24 Texas,
78; Tilley v. The State, 21 Texas, 200.

5 Ante, § 1020; Anonymous, 12 Mod.
40; The State v. Clump, 16 Misso. 385;
Linsday v. People, 63 N. Y. 148.

6 Reg. v. Gallagher, 18 Cox C. C. 61,
13 Eng. Rep. 416; Reg. v. King, 1 Cox
Cc. C. 282; Morgan v. The State, 44
Texas, 511; Commonwealth v. Smith, 12
Met. 288; Thornton v. The State, 25 Ga.
301. And see Allen v. The State, 10 Ohio
State, 287.

695
§ 1169 THE EVIDENCE. [Book Ix.

is not indicted, he is, of course, competent ;! so he is if indicted
separately from the rest, though no disposition of his case has
been made.2 And it is not otherwise though on a former occa-
sion he has denied his guilt.®

§ 1168. Before Testifying. — The admission of the accomplice
to be a witness confers on him no privilege till his testimony has
been delivered. Thus, —

Bail — Recognizance. — He is not, therefore, to be admitted to
bail;4 nor is a forfeited recognizance thereby discharged.°

§ 1169. Weight of the Evidence — (Confirming). — Under the
common-law practice, the testimony of an accomplice is, alone
and unconfirmed, legally adequate to sustain a verdict of guilty,
should the jury, believing him, see fit to render it thereon.6 But
so manifest is the danger of convicting men on evidence from
a source confessedly corrupt, and given by the witness for the
express purpose of shielding himself from merited punishment,
that the judges deem it their duty, while explaining to the jury
their right to convict on it alone, to caution them concerning it; ‘
advising them in prudence not to return a verdict of guilty unless
in their opinion it is confirmed ® by evidence from a purer source.®

1 Phillips v. The State, 34 Ga. 502;
Sumpter v. The State, 11 Fla. 247; Mc-
Kenzie v. The State, 24 Ark. 686; People
ov. Lohman, 2 Barb. 216.

2 United States v. Henry, 4 Wash.
C. C. 428; People v. Whipple, 9 Cow.
707; Byrd v. Commonwealth, 2 Va. Cas.
490.

8 Brown v. Commonwealth, 2 Leigh,
769. And see Barrara v. The State, 42
Texas, 260; Ex parte Birch, 3 Gilman,
134.

* Rex v. Beardmore, 7 Car. & P. 497.

5 The State v. Moody, 69 N. C. 529.

6 Reg. v. Stubbs, Dears. 555, 7 Cox
C. C. 48, 88 Eng. L. & Eq. 551; Reg. v.
Boyes, 1 B.& 8.311; Steinham wv. United
States, 2 Paine, 168; The State v. Brown,
8 Strob. 508; People v. Costello, 1 Denio,
83; Commonwealth v. Price, 10 Gray,
472; Brown v. Commonwealth, 2 Leigh,
769; Rex v. Jones, 2 Camp. 181; Coats
v. People, 4 Parker C. C. 662; Allen v,
The State, 10 Ohio State, 287; Ulmer v.
The State, 14 Ind. 62; Rex v. Hastings,
7 Car. & P. 152; Rex v. Atwood, 1
Leach, 4th ed. 464; Rex v. Durham,

696

1 Leach, 4th ed. 478; Rex v. Sheehan,
Jebb, 54; People v. Dyle, 21 N. Y. 578;
The State v. Stebbins, 29 Conn. 463;
Dunn v. People, 29 N. Y. 528; Common-
wealth v. Brooks, 9 Gray, 299; Hamilton
v. People, 29 Mich. 178; Earll v. People,
73 Ill. 829; White v. The State, 52 Missis.
216; Fitzcox v. The State, 52 Missis. 923;
The State v. Jones, 64 Misso. 891; Peo-
ple v. Jenness, 5 Mich. 305, 330; The
State v. Cunningham, 31 Maine, 855; The
State v. Litchfield, 58 Maine, 267; Com-
monwealth v. Grant, Thacher Crim. Cas.
438; Commonwealth v. Bosworth, 22
Pick. 897; Reg. v. Avery, 1 Cox U. C.
206; Stocking v. The State, 7 Ind. 826;
The State v. Wolcott, 21 Conn. 272; The
State ». Williamson, 42 Conn. 261.

7 Ante, § 982.

8 Ante, § 962, 1076, 1148-1150.

® Allen v. The State, supra; Reg. v.
Stubbs, supra, p. 557, 658, of the report in
Dears. And see Rex v. Birkett, Russ. &
Ry. 251; Rex v. Wells, Moody & M. 326;
Rex v. Moores, 7 Car. & P. 270; Rex v.
Dawber, 3 Stark. 84; United States v.
Troax, 8 McLean, 224; Flanagin v. The
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY.  § 1170

And in some of our States, there are statutes forbidding a con-
viction on the testimony of an accomplice uncorroborated.) A
feigned accomplice is not within these statutes.?

§ 1170. What the Corroboration.— The cases are not quite har-
monious ag to what is corroboration ; but, under the common-law
rules, it is required to consist of evidence tending to prove the
defendant's guilt, not merely to sustain the credibility of the
accomplice. And the generally accepted doctrine seems to be,
that it must extend beyond the corpus delicti, which almost of
course the accomplice would relate correctly, to facts connecting
the defendant with the offence, yet not necessarily covering it
in every minute particular. Confirmation as to one of several
defendants is not such as to the others. Nor does the testimony
of one accomplice confirm that of another.6 But the testimony
of the accomplice’s wife is by most judges deemed to operate in

corroboration of his.’

State, 25 Ark. 92; United States v. Kess-
ler, Bald. 15, 22; Commonwealth v. Bos-
worth, 22 Pick. 397; Reg. v. Robinson,
4 Fost. & F. 43; The State v. Kellerman,
14 Kan. 185; People v. Haynes, 55 Barb.
450, 88 How. Pr. 369. It has been
deemed not error to refuse this charge.
Josselyn v. McAllister, 23 Mich. 300; The
State v. Potter, 42 Vt. 495. See Craggs’s
Case, 2 Lewin, 35; Reg. v. Sparks, 1 Fost.
& F. 388; People v. Dyle, 21 N. Y. 578;
Rex v. Durham, 1 Leach, 4th ed. 478.

1 Coleman v. The State, 44 Texas, 109;
Thomas v. The State, 43 Texas, 658; Bar-
rara v. The State, 42 Texas, 260; Lopez
v. The State, 34 Texas, 133; The State v.
Thornton, 26 Iowa, 79; People v. Ames,
39 Cal. 403; Childers v. The State, 52 Ga.
106; Hammack v. The State, 52 Ga. 897 ;
Middleton v. The State, 52 Ga. 627; The
State v. Clemens, 88 Iowa, 257; People v.
Cloonan, 50 Cal. 449; Hart v. The State,
40 Ala 82; Roberts v. The State, 55 Ga.
220; The State v. Pepper, 11 lowa, 347;
Irvin v. The State, 1 Texas Ap. 301, 302;
Johnson v. The State, 4 Greene, Iowa,
65; Wright v. The State, 43 Texas, 170;
Gillian v. The State, 3 Texas Ap. 132,

187; Roach v. The State, 4 Texas Ap. 46;

Hoyle v. The State, 4 Texas Ap. 239.

2 People v. Farrell, 30 Cal. 316.

8 The State v. Howard, 82 Vt. 380;
Commonwealth v. Bosworth, 22 Pick.

Not inconsistently with these views, it is

897; Ray v. The State, 1 Greene, Iowa,
816; Martin v. The State, 28 Ala. 71;
The State v. Moran, 84 Iowa, 453.

4 Reg. ». Stubbs, Dears. 555, 7 Cox
C. C. 48; Rex v. Barnard, 1 Car. & P. 87;
Upton v. The State, 5 Iowa, 465 ; Rex »v.
Addis, 6 Car. & P. 388; Kelsey’s Case, 2
Lewin, 45; Rex v. Webb, 6 Car. & P. 595;
Rex v. Wilkes, 7 Car. & P. 272; Reg. v.
Dyke, 8 Car. & P. 261; Reg. v. Farler, 8
Car. & P. 106; Reg. v. Birkett, 8 Car. &
P. 782; The State v. Kellerman, 14 Kan.
185; Commonwealth v. Bosworth, supra;
United States v. Babcock, 3 Dillon, 581;

«Commonwealth v. Savory, 10 Cush. 535;
Reg. v. Pratt, 4 Fost. & F. 315; People v.
Cleveland, 49 Cal. 577; People v. Davis,
21 Wend. 309; People v. Eckert, 16 Cal.
110; Commonwealth v. O’Brien, 12 Al-
len, 183; The State v. Thornton, 26 Iowa,
79; Powers v. The State, 44 Ga. 209;
Commonwealth v. Snow, 111 Mass. 411;
United States v. Troax, 8 McLean, 224;
Craft v. The State, 8 Kan. 450; Reg. v.
Boyes, 1 B. & S. 811; Reg. v. Mullins, 3
Cox C. C. 526; People v. Garnett, 29
Cal. 622; People v. Josselyn, 39 Cal. 898 ;
Linsday v. People, 63 N. Y. 143.

5 Reg. v. Jenkins, 1 Cox C. C. 177;
Rex v. Moores, 7 Car. & P. 270.

8 8 Russ. Crimes, 5th Eng. ed. 609;
Rex v. Noakes, 5 Car. & P. 326.

7 Dill v. The State, 1 Texas Ap. 278;

697
§ 1178 THE EVIDENCE. [Book Ix.

permissible also to submit, to the consideration of the jury, evi-
dence tending to show the accomplice’s probable credibility in
his narration, though coming short of the required confirmation.!
And in harmony with the foregoing doctrines is the California
and Iowa statute, similar to which is the statutory law of some
of the other States, providing that the corroboratory evidence
“shall tend to connect the defendant with the commission of
the offence; and the corroboration shall not be sufficient if it
merely show the commission of the offence or the circumstances
thereof.” 2

§ 1171. Evidence for Prisoner. — Wherever the circumstances
render an accomplice competent against a prisoner, he is equally
a good witness in his favor.’

§ 1172. Criminate Self.— One who is testifying as State’s evi-
dence cannot refuse to answer a relevant question on the ground
that thereby he will criminate himself.4 But he can decline dis-
closing an independent offence.®

IV. Informers and the Like.

§ 1173. Corrupt but not indictable. — One who was connected
with the offence in a way morally corrupt, while yet he is not
indictable, is, as a witness, subject in part to the same observa-
tions as an accomplice, but not fully. His testimony is not from
a perfectly pure source, but it is not given to screen himself from
punishment. Thus, —

The State v. Moore, 25 Towa, 128; Has-« ert, 16 Cal. 110; People v. Cleveland, 49

kins v. People, 16 N. Y. 344. Contra,
Rex v. Neal, 7 Car. & P.168. See United
States ». Horn, 5 Blatch. 102,

! The State v. Twitty, 2 Hawks, 449,
452 (compare with Kinchelow v. The
State, 6 Humph. 9); Bersch v. The
State, 13 Ind. 434; The State v. Ford,
8 Strob. 517, note; The State v. Pulley,
63 N. C. 8; Commonwealth v. Bosworth,
22 Pick. 397. And see Lee v. The State,
21 Ohio State, 151; Patten v. People,
18 Mich. 814; People v. Williams, 18
Cal, 187; Allen v. The State, 10 Ohio
State, 287; United States v. Wilson, Bald.
78.

2 People v. Ames, 89 Cal. 403; The
State v. Thornton, 26 Iowa, 79; Barker v.
The State, 36 Texas, 201; People v. Eck-

698

Cal. 577; Childers v. The State, 52 Ga.
106; Hammack v. The State, 52 Ga. 397;
Middleton ». The State, 52 Ga. 527; The
State v. Clemens, 38 Iowa, 257; People v.
Cloonan, 50 Cal. 449; People ». Thomp-
son, 50 Cal. 480; People v. Josselyn, 39
Cal. 893; Nourse vu. The State, 2 Texas
Ap. 304, 817; Davis v. The State, 2 Texas
Ap. 588; Jones v. The State, 3 Texas Ap.
576. i

5 The State v. Spencer, 15 Ind. 249;
Strawhern v. The State, 87 Missis. 422.
See, under the Texas statute, Myers v.
The State, 8 Texas Ap. 8.

4 Commonwealth v. Price, 10 Gray,
472; Foster v. People, 18 Mich. 266.

5 Ante, § 1165.
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY. § 1174

Abortion. — Of this class is a woman on whom an abortion was
performed at her own request. Assuming her not to be indict-
able, still, on an indictment against the guilty party, her testi-
mony is open to special observation, and perhaps it ought to be
confirmed.!. Again, —

Liquor Selling. — One who has tempted another to sell intoxi-
cating liquor without license by buying it, stands nominally in
this position as a witness against the seller.2 Yet a jury, of men
of sound sense, could hardly be persuaded that, therefore, they
should not give full credit to his testimony to the fact of having
made the purchase. Still, —

§ 1174. Spies and Informers — (Liquor Selling).— One who is
sometimes derisively termed a spy and informer— that is, in
liquor selling, who buys for the purpose of prosecuting the seller
— stands possibly in a more questionable position. In one case,
the learned judge observed, that his testimony should be “re-
ceived with the greatest caution and distrust.” But surely a
man who, without the hope of personal benefit, incurs obloquy,
under the promptings of conscience, by taking lawful steps which
he deems proper to enforce a public law for the public good, is
not to be regarded as untruthful because another man’s opinion
differs from his on the question of duty. It is too late in the
world’s progress to question men’s veracity, on the ground, that
their judgments prompt them to do what ours would set down
as injudicious. And such, in substance, was the view of this
question taken in another case. Yet—

1 Stat. Crimes, § 760; Commonwealth thus the hatred and persecution of the

v. Wood, 11 Grav. 85; People v. Josselyn,
39 Cal. 893; Frazer v. People, 54 Barb.
806.

2 Crim. Law, I. § 658, 761; Common-
wealth v. Downing, 4 Gray, 29. So,
Prize Fight. — Persons present sanc-
tioning a prize fight, though even accom-
plices technically, were deemed not of
the class of witnesses whose testimony
needs confirmation. Rex v. Hargrave, 5
Car. & P. 170.

3 Commonwealth v. Downing, 4 Gray,
29, 21.

4 Said Scates, C. J.: “ However indis-
creet it~may have been to volunteer to
witness the commission, and become evi-
dence to violations of the laws, incurring

'

party and his supporters, yet surely no
one can justly denominate such an one

. either an informer or a spy. A particeps

criminis may inform, a spy may secretly
intrude upon and betray the confidence
of one who trusts to a falsely assumed
character. We do not perceive the first
trait of resemblance between the two
characters and the conduct of these wit-
nesses. They may have acted with more
zeal than knowledge, but we should
regret to learn that men are to be de-
nounced as informers and spies who may
voluntarily or involuntarily denounce and
prosecute offenders against the law, or-
der, and morality of society.” And he
added: “Spies and informers may be

699
§ 1178 THE EVIDENCE. [BOOK Ix.

§ 1175. Informers for Gain. — One who is to be benefited by a
conviction, whether informer or not, is, as a witness, — assuming
that his interest does not exclude him,! — liable more or less to
observation, according to the circumstances? And —

Benefit to Another. — The hope of a witness that the conviction
of the party testified against will benefit a friend — as, that it
will procure the pardon of her husband — may be taken into the
account on the question of credibility.’

§ 1176. In Conclusion. — The result is, that questions of this
class depend more on the good sense of judge and jury exercised
with reference to the varying facts and circumstances distinguish-
ing different cases, than upon absolute rules of law.*

V. Experts and Others as to Opinions.

§ 1177. Opinion of Witness. — We have seen that what a wit-
ness describes as personally observed is, in philosophical truth,
merely his inference from sensations felt, and that there is no evi-
dence which is not to this extent presumptive.® In other words,
all testimony is to opinions. But the witness alone is competent
to form an opinion as to the causes of his sensations of this class.
As to them, he is an expert, and the only expert in existence.
So, when he speaks to his opinions on this class of facts, he and
his hearers alike term his opinions facts. But an opinion which
the jurors are in a situation to draw as well as he, will be drawn
by them ; and, though he should also have formed his opinion,
he will not be permitted to state what it is.6 Again, —

§ 1178. Opinions on imperfectly explainable Facts. — There are

more or less odious, as matter of fact, as
the motive by which they are prompted
is patriotic or corrupt.” St. Charles wv.
O’Mailey, 18 Ill. 407, 412.

1 Ante, § 1138; United States v. Pat-
terson, 8 McLean, 58, 299; Gilliam uv.
Commonwealth, 4 Leigh, 688; Bradley
v. United States, 12 Ct. Cl. 578; William-
son v. The State, 16 Ala, 481.

2 The State v. Kane, 1 McCord, 482.

8 Rex v. Rudd, 1 Leach, 4th ed. 115,
127.

4 And see, on this subject, Roscoe
Crim. Ev. 153 et seq.; 1 Greenl. Ev.
§ 879 et seq.; 1 Chit. Crim. Law, 603;
2 Hawk. P. C. c. 46, § 89 et seq.

700

5 Ante, § 1078, 1096.

6 Garret v. The State, 6 Misso. 1;
Klare v. The State, 43 Ind. 488; Luning
v. The State, 1 Chand. 178; Crews v.
Threadgill, 85 Ala. 334; Haywood »v.
Foster, 16 Ohio, 88; Cameron v. The
State, 14 Ala. 546; Berry v. The State,
10 Ga. 511; Hawkins v. The State, 25
Ga. 207; Smith v. Commonwealth, 6 B.
Monr. 21; Cooper v. The State, 23 Texas,
831; Johnson v. The State, 35 Ala. 370;
Evans v. People, 12 Mich. 27; Gibson v.
Hatchett, 24 Ala. 201; Otis v. Thom, 23
Ala. 469; Rider v. Ocean Ins. Co. 20 Pick.
259; Commonwealth v. Cooley, 6 Gray,
350.
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY. § 1179

classes of facts which, while they may be observed with suf-
ficient accuracy and fulness to constitute a just foundation for
an opinion, can be only imperfectly narrated. In reason, the
inference which a witness draws from a series of observed facts
of this, sort must be helpful to a jury required to embody in a
verdict their opinion upon them. The adjudications on ques-
tions of this class are to a considerable extent conflicting, many
of them are obscure, and various points are unsettled; but, on
the whole, the doctrine of reason is that also of the books, the
result being, that, in these cases, the witness is to relate the facts
as fully and exactly as he can, and add his conclusion from all
he saw and heard, as the only practicable method of supplying
the necessary imperfections of the narration.!

§ 1179. Experts. — The doctrine of experts is only a particu-
lar application of that of the last two sections. Jurors are sup-
posed to possess the knowledge common to men of ordinary
intelligence. They are not presumed capable of forming, with-
out aid, opinions on those questions which depend for their solu-
tion upon what is known only to classes of persons devoted to
special arts, sciences, or other like pursuits. In a case requiring
such knowledge, experts — that is, persons specially versed in
the particular matter — are, consequently, permitted to explain
to the jury so much of the science, art, or the like, as concerns
the question being investigated, and to add their opinion. And,
upon the part of the case within their sphere, they can state their
opinions upon assumed facts, and facts testified to by others.”

1 Sydleman v. Beckwith, 48 Conn. 9;
Taylor v. Monroe, 43 Conn. 36; Hall v.
Goodson, 82 Ala. 277; People v. Bell, 49
Cal. 485; Barkerv. Coleman, 35 Ala. 221;
Blackman v. Johnson, 85 Ala. 252; Wil-
son v. McClean, 1 Cranch C. C. 465;
Campbell v. The State, 23 Ala. 44; Stan-
ley v. The State, 26 Ala. 26; Bennett v.
Fail, 26 Ala. 605; Stone v. Watson, 37
Ala. 279; Raisler v. Springer, 88 Ala.
703; Detroit, &c. Railroad v. Van Stein-
burg, 17 Mich. 99; Kent v. Tyson, 20
N. H. 121; Willis v. Quimby, 11 Fost.
N. H. 485; The State v. Avery, 44 N. H.
392; McKee v, Nelson, 4 Cow. 855; Mer-
rill v. Grinnell, 80 N. Y. 694; Harris v.
Panama Railroad, 3 Bosw, 7.

2 United States v. McGlue, 1 Curt.

C. C. 1; Commonwealth v. Livingston,
14 Grat. 592; The State v. Candler, 3
Hawks, 893; The State v. Wilson, 65
Maine, 74; Pate v. People, 3 Gilman, 644;
Hammond’s Case, 2 Greenl. 83; Gold-
stein v. Black, 50 Cal. 462; Clay v. Rob-
inson, 7 W. Va. 848; Commonwealth v.
Webster, 5 Cush. 295; People v. Mor-
rigan, 29 Mich. 4; Rumsey v. People, 19
N. Y. 41; Perkins v. Concord Railroad,
44 N. H. 228; The State v. Powell, 2
Halst. 244; Cook v. The State, 4 Zab.
843; Kennedy v. People, 89 N. Y. 246;
Choice v. The State, 31 Ga. 424; Wilson
v. The State, 41 Texas, 320; The State
v. Porter, 84 Iowa, 181; Commonwealth
v. Piper, 120 Mass. 185; The State v.
Smith, 82 Maine, 869; The State v. Pow-

701
§ 1181 THE EVIDENCE. [BOOK Ix.

§ 1180. Books — (Reading to Jury — Judge’s Charge). — An
expert may testify to what he has learned, not merely from per-
sonal experience and observation, but also from books;! and
may give an opinion derived from reading and study alone?
But it does not follow that the books themselves are evidence.
We have seen,® that the law of a case should be given to the
jury by the judge, and not through law books ; because the books
state the law abstractly, while the jury are to be instructed upon
the rules governing the particular facts. For the like reason, it
is the better doctrine that no book of science, or other book of
the sort, however high and well attested its authority, should be
submitted to the jury. Yet, equally in the judge’s charge to
the jury® and in the testimony of experts,® and even to some
extent in the arguments of counsel,’ passages from standard
books, explained and applied to the case in controversy, are,
under limitations varying in some degree in our different courts,
permitted to be read.

VI. Defendants testifying for themselves.

§ 1181. Recent Legislation.— The modern legislation whereby
parties are made witnesses does not, in general, by its terms or
interpretation, extend to criminal causes. But in a few of the

ell, 2 Halst. 244; The State v. Knights,
43 Maine, 11; Mendum v. Commonwealth,
6 Rand. 704; Luning v. The State, 1
Chand. 178; Bell v. Morrisett, 6 Jones,
N. C. 178; People v. Clark, 33 Mich. 112;
People v. Bodine, 1 Denio, 281; McLean
v. The State, 16 Ala. 672; Cook v. Par-
ham, 24 Ala. 21.

! Vol. IL. § 686; Taylor v. Grand Trunk
Railway, 48 N. H. 304.

2 The State v. Wood, 58 N. EH. 484.

3 Ante, § 982a. And see § 978, 980;
Vol. II. § 686; Reg. v. Parish, 8 Car. &
P. 94; Barker v. Pool, 6 Misso. 260.

4 Vol. IL § 686; Davis v. The State,
38 Md. 15; Commonwealth v. Sturtivant,
117 Mass. 122; Commonwealth v. Brown,
121 Mass. 69; Melvin v. Easley, 1 Jones,
N. C. 886; Reg. v. Crouch, 1 Cox C. C.
94,

5 The State v. Dearing, 65 Misso. 530;
Wright v. The State, 18 Ga. 383; The
State v. Sartor, 2 Strob. 60; The Statev.

702

McDonnell, 32 Vt. 491, 535, 536; Stephens
v. People, 4 Parker C. C. 396.

6 Merkle v. The State, 87 Ala. 139;
The State ». Sartor, supra.

7 Vol. II. § 686; The State v. Whit, 5
Jones, N. C. 224; McMath v. The State,
55 Ga. 803; Reg. v. Taylor, 18 Cox C. C.
77, 18 Eng. Rep. 427 and Moak’s note;
Harvey v. The State, 40 Ind. 516; Yoev.
People, 49 Ill. 410; Commonwealth v.
Austin, 7 Gray, 51; The State v. Klinger,
46 Misso. 224; People v. Anderson, 44
Cal. 65; Lett v. Horner, 6 Blackf. 296;
Melvin v. Easley, 1 Jones, N. C. 886;
Dempsey v. The State, 3 Texas Ap. 429;
Hines v. The State, 8 Texas Ap. 483.

8 Hoagland v. The State, 17 Ind. 488;
Deloohery v. The State, 27 Ind. 521;
People v. Thomas, 9 Mich. 314; Segee v.
Thomas, 8 Blatch. 11; United States v.
Black, 12 Bankr. Reg. 840; United States
v. Hawthorne, 1 Dillon, 422,
CHAP. LXXVII.] WITNESSES AND THEIR TESTIMONY. § 1185

States, by express provision, one on trial for crime is permitted
to testify should he request, yet is not compelled.}

§ 1182. Method of testifying. — In practice, he takes the stand
like any other witness, and is examined and cross-examined by
counsel under the same rules and to the same extent as any
other.”

§ 1188. Criminate Self. — By volunteering to become a wit-
ness, he waives his privilege not ‘to criminate himself ;* so that
he may be fully questioned concerning his alleged crime ; nor is
the statute permitting it therefore unconstitutional. But he
cannot be required to disclose other and independent offences,®
though to avoid this on cross-examination he must claim his
privilege like any other witness. Therefore —

§ 1184. Full Testimony —Intent.— The testimony of the de-
fendant may be full, as to the entire crime. He may even speak
to the intent with which he did the alleged criminal act.7

§ 1185. Discrediting as Witness —— (Character — Prior Convic-
tion). — The State may discredit the defendant as a witness
by showing his reputation for truth to be bad, precisely the
same as any other witness.8 And he may produce, in reply,
evidence of good character. If he has not put his character
otherwise in issue, the evidence of bad character goes only to
his veracity as a witness, not to his guilt or innocence as defend-
ant.2 In like manner, a prior crime may be shown against him
when the effect is simply to discredit his testimony ;° but, where
the statute making defendants witnesses is without exception,
neither a conviction rendering him infamous nor any other dis-

1 The State v. Lessing, 16 Minn. 75;
Donohue v. People, 56 N. Y. 208.

2 The State v. Huff, 11 Nev. 17; Bran-
don v. People, 42 N. Y. 265; The State v.
Horne, 9 Kan. 119; Clark v. The State, 50
Ind. 614; Ruloff v. People, 45 N. Y. 213,
221. See The State v. Cohn, 9 Nev. 179.

8 Ante, § 1172.

4 The State v. Ober, 52 N. H. 459;
Commonwealth v. Lannan, 13 Allen, 563 ;
Connors rv. People, 50 N. Y. 240; Com-
monwealth v. Nichols, 114 Mass. 285;
Commonwealth v. Tolliver, 119 Mass.
812; The State v. Wentworth, 65 Maine,
234; Roddy v. Finnegan, 438 Md. 490;

The State v. Bartlett, 55 Maine, 200;
Commonwealth v. Mullen, 97 Mass. 546.
See People v. McGungill, 41 Cal. 429.

5 The State v. Carson, 66 Maine, 116.
And see Gale v. People, 26 Mich. 157.

6 Brandon v. People, 42 N. Y. 265;
Connors v. People, supra. As to which
see Brown v. People, 8 Hun, 562.

7 Kerrains v. People, 60 N. Y. 221, 228
And see Bolen v. The State, 26 Ohio
State, 371.

8 Adams v. People, 9 Hun, 89;
Mershon v. The State, 61 Ind. 14, 21.

9 Adams «. People, supra.

10 The State v. Watson, 65 Maine, 74.

708
§ 1186 THE EVIDENCE. [Book Ix.

qualification can be brought forward to exclude him from testi-
fying. And,— 4

‘Weight. — In all cases, the weight to be given the evidence o
this witness, the same as of any other, is a question solely for
the jury.?

§ 1186. Compelling Accused Person to. elect — (Effect of declining
to testify).— Before these statutes were passed, it was a cher-
ished principle of the common law,? adopted generally in our con-
stitutions where it still remains, that no man shall be compelled
to furnish evidence criminating himself. But these late statutes
have violated that principle in spirit, perhaps in letter. Under
them, a defendant cannot avoid electing to testify or not to tes-
tify. If the former, and he is guilty, he must declare his guilt
or commit perjury. If the latter, he cannot escape from the in-
ference of the jury, that, therefore, he is guilty. He may choose
in which of two forms the evidence against himself shall be
delivered, but to furnish it or commit perjury he is compelled.
In other words, a guilty defendant can prevent the public break-
ing faith with him by adding perjury to his other guilt, not oth-
erwise. What shall a court, sustaining the statute, do? By
some, it is deemed allowable for the prosecuting attorney and
the judge to tell the jury, that, in weighing the evidence against
the prisoner, they are to put into the scale his declining to tes-
tify Courts, taking this view, say it is evidence; and, the
reader perceives, the defendant furnished it under compulsion,
accepting this form only because less direct and conclusive than
the other. Other courts, it would seem more justly, deem that
this omission by the defendant should not be urged against him
by counsel to the jury, and that the judge should either be silent
upon it or tell them not to take it into the account against him.

And, in some of the States, the statutes so provide.’ Almost as

1 Delamater v. People, 5 Lans. 882; obvious fact. It is a fact patent in the

Newman v. People, 63 Barb. 630, 6 Lans.
460.

2 Commonwealth v. Wright, 107 Mass.
403; Miller v. The State, 15 Fla. 677;
People v. Rodundo, 44 Cal. 538.

8 1 Greenl. Ev. § 451.

4 The State v. Cameron, 40 Vt. 555.
“His declining to avail himself of the
privilege of testifying is an existent and

704

case. The jury cannot avoid perceiving
it.” Appleton, C. J. in The State v.
Cleaves, 69 Maine, 298, 300.

5 The State v. Cleaves, supra; The
State v. Bartlett, 55 Maine, 200.

8 People v. Tyler, 86 Cal. 522. See
ante, § 1119.

7 Commonwealth, v. Harlow, 110 Mass.
411; Ruloff v, People, 45 N, Y. 213, 222;
CHAP..LXXVII.] WITNESSES AND THEIR TESTIMONY.  § 1187

well might the legislature command, in words, that indicted per-
sons shall be compelled to disclose all they know of the offences;
adding, as for their protection, in mockery, that the jury, after
solemnly listening to the disclosures, shall not take them into the
account in their verdict !

§ 1187. Practical Effects. — This legislation is exactly adapted
to the wants of old and practised dissemblers, to whose faces the
thought of their crimes brings no blushes,-and the capacity of
whose stomachs for perjury has no bounds. Such a man, when
tried for crime, sits in court and watches the testimony on both
sides to the end. Then he takes the stand, and, with an invented
story which will harmonize all with some theory of innocence, he
beguiles a credulous jury and outside public with what is perhaps
in its nature impossible to be true, till he secures, at least, a dis-
agreement. And if, to his other qualities, nature has added the born
gift of an actor, and practice has made him master of the art of ad-
dressing public assemblies, it matters not how strong the evidence
against him, his'triumph over his “ enemies” and the “ conspira-
tors” is assured. Aninnocent man, untaughtin any craft, of sim-
ple and honest nature, used to expressing himself only in private,
presents, when entangled by circumstances leading to suspicion,
and placed for trial before a court and jury, with listening crowds
around, a very different spectacle. When put upon the witness
stand, his mind is overwhelmed. He says what he would not,
and what he would say he omits. ff a witness has made an
honest mistake, and he utters the exact truth, he is condemned.
If one, however unworthy of belief, has sworn falsely against
him, he is condemned. If he stumbles in his evidence, as pretty
surely he will somewhere, he is condemned. Had he, knowing
the perils, declined to testify, he would be equally condemned as
a penalty for refusing to condemn himself. If unfortunately he
is guilty, yet not an old and practised dissembler, he is con-
demned, while his more guilty brother goes free. Between the
Scylla and Charybdis which the law presents to all except the
most hardened, for whose escape through perjury it specially
provides, how shall the practitioner choose? That must depend

Ormsby v. People, 63 N. Y. 472; Bran- Long v. The State, 56 Ind. 182; Calkins
don v. People, 42 N. Y. 265, 268, 269; wv. The State, 18 Ohio State, 366, 372.
The State v. Cameron, 40 Vt. 555; Com- And see Stover v. People, 56 N. Y. 8165.
monwealth v. Scott, 123 Mass. 239, 241;

VOL. I. 45 705
-§ 1187 -THE EVIDENCE. [Book Ix.

on the facts of the particular case, the qualities of the prisoner, the
temper of the judge, and the bias of the jurors, not upon general
rule! The fate of this sort of legislation remains to be seen. It
cannot vie with the rack as a barbarous means of extorting self-
condemnation, nor can its invitations and temptations to perjury
produce the convictions of so many innocent men as might an
organization of drilled perjurors to wait as witnesses upon grand
and petit juries. But as a means to the acquittal through per-
jury of those guilty persons who, for the public good, most need

punishment, it has no rival.

1 In The State v. Cameron, 40 Vt. 555,
565, 566, Steele, J., said: “In the great
body of cases, no wise practitioner would
permit his client, whether he believed
him guilty or innocent, to testify when
upon trial on a criminal charge. The
very fact that he testifies as if with a
halter about his neck, that he is under
such inducement to make a fair story for
himself, his character and his liberty if
not his fortune and his life being at stake,
is enough to usually deprive his testi-
mony of all weight in his favor, whether
it be true or false. This is the case even
when his manner upon the stand is unex-
ceptionable ; while his critical condition
often creates such apprehension and ex-
citement that his manner is open to great
criticism, and if he does make a pis-step
after voluntarily assuming the responsi-
bility of testifying, it will naturally be
construed strongly against him. In short,
hig testimony is far more likely to injure
him seriously than to help him a little.
It is true that a clear intellect and perfect
self-possession may enable an unscrupu-
lous rogue to run the gauntlet of a cross-
examination and make something out of
this privilege, and the same qualities will
be still more likely to help an innocent
man to some advantage from it, but the
true application of the statute is only to
those rare cases, when a word from the
prisoner, and him only, will manifestly
dispose of what otherwise seems conclu-
sive against him.” The reader will ob-
serve, that even this “word from the

706

prisoner” can always be given through
counsel, if important. ‘ This act,” said
Church, C. J.,in the New York court, “is
not regarded with much favor by the
bench, bar, or the people.” Connors v.
People, 50 N. Y. 240, 243. “He,” the
prisoner, said Allen, J., in another case,
“will be examined under the embarrass-
ments incident to his position, depriving
him of his self:possession, and necessarily
greatly interfering with his capacity to
do himself and the truth justice, if he is
really desirous to speak the truth. These
embarrassments will more seriously affect
the innocent than the guilty and har-
dened in crime. Discreet counsel will
hesitate before advising a client charged
with high crime to be a witness for him-
self, under all the disadvantages sur-
rounding him. If, with this statute in
force, the fact that he is not sworn can
be used against him [it is not in the
power of judges and counsel to prevent
its being weighed against the prisoner
by the jury], and suspicion be made to
assume the form and have the force of
evidence, and circumstances, however
slightly tending to prove guilt, be made
conclusive evidence of that fact, then the
individual is morally coerced, although
not actually compelled to be a witness
against himself. The constitution, which
protects a party accused of crime from
being a witness against himself, will be
practically abrogated.” Ruloff v. People,
45 N. Y. 218, 221, 222.
CHAP. LKXVIII.] EXCLUDING WITNESSES FROM CouRT. § 1191

CHAPTER LXXVIII.

THE EXCLUDING OF WITNESSES FROM COURT DURING THE
DELIVERY OF EVIDENCE.

§ 1188. In General. — Justice will sometimes be promoted, and
seldom hindered, by causing witnesses to be examined apart from
one another. Therefore almost as of course,! yet not as of strict
right or necessarily,? the court, on motion of either party, will
direct the retirement of the witnesses to a separate room, to
return and testify one by one as called.?

§ 1189. Discretionary. — The making or refusing of the order,
and the form .of it when made, are alike within the discretion of
the presiding judge, not generally subject to revision by a higher
tribunal.*

§ 1190. Form of Order. — Experts,® and witnesses whose assist-
ance is required in conducting the prosecution or defence,® are
generally permitted to remain. ‘Those examined may well be
prohibited conversation with those not examined.’ In one case,
‘the prisoner moved that the officer having charge of the wit-
nesses so excluded should be directed to prohibit them from
reading the newspaper accounts of the evidence in the case ; but
this the court declined to do.”® Practically the order will vary
with the circumstances.

§ 1191. Disoveying. — Disobedience to the order by a witness
is a contempt of court for which he is punishable.® If the party

1 Reg. v. Murphy, 8 Car. & P. 297; King v. The State, 1 Misso. 717; McLean

Johnson v. The State, 14 Ga. 55; The
State v. Zellers, 2 Halst. 220.

2 Vaughan’s Case, Holt, 689; The
State v. Fitzsimmons, 30 Misso. 236 ;
Thomas v. The State, 27 Ga. 287 ; People
v. Garnett, 29 Cal. 622; Porter v. The
State, 2 Ind. 435.

3 Johnson’s Case, Foster, 46, 47; 1
Chit. Crim. Law, 618.

4 People v. Green, 1 Parker C. C. 11;
The State v. Giroux, 26 La. An. 682;

v. The State, 16 Ala. 672; Johnson v.
The State, 2 Ind. 652; Goins v. The State,
41 Texas, 334, 386; Brown v. The State,
3 Texas Ap. 294.

5 Commonwealth v. Hersey, 2 Allen,
178, 176.

6 Thomas v. The State, 27 Ga. 287.

7 Pleasant v. The State, 15 Ark. 624,

8 Commonwealth v. Hersey, supra,
p. 176.

9 People v. Boscovitch, 20 Cal. 436.

107
§ 1193 THE EVIDENCE. [BooK Ix.

calling him participated in such disobedience, the court has a
discretion also to reject his testimony ; though, even then, it will
sometimes receive it on special cause shown.1 On the other
hand, if the party was without fault, the judge has no right to
punish his innocence by depriving him of his evidence, and ruin

him at the will of a witness.

subject to observation to the jury.”
and on a part of the authorities ;

The testimony should be admitted,

Such is the law in principle
but —

§ 1192. Discretion to reject Witness. — Other judges, less mind-
ful of these reasons, appear to deem it within their discretion in
all cases of disobedience to the order to reject the witness.?

§ 1193. Inadvertent Disobedience. —If the disobedience of the
witness was inadvertent, or he did not know of the order, by all

opinions he should be received.!

1 Bird v. The State, 50 Ga. 585; Jack-
son v. The State, 14 Ind. 827.

2 People v. Boscovitch, supra; Gregg
v. The State, 3 W. Va. 705; The State wv.
Salge, 2 Nev. 321.

3 Sartorious v. The State, 24 Missis.
602; Porter v. The State, 2 Ind. 435;
Goins v. The State, 41 Texas, 834, 836;
The State v. Brookshire, 2 Ala. 308; The
State v. Silver, 3 Dev. 832; Freleigh v.
The State, 8 Misso. 606; Rex v. Wylde,

708

6 Car & P. 880; Rex v. Colley, Moody
& M. 829; Rex v. Brown, 4 Car. & P.
588, note; Laughlin v. The State, 18
Ohio, 99; The State v. Fitzsimmons, 30
Misso. 236; Pleasant v. The State, 15
Ark. 624; Montgomery v. The State, 40
Ala. 684,

* The State v. Hare, 74 N. C. 591.
And see The State v. Sparrow, 3 Murph.
487.
CHAP. LKXIX.] WITNESS DECEASED OR ABSENT. § 1195

CHAPTER LXXIX.

THE TESTIMONY OF WITNESSES DECEASED OR OTHERWISE
ABSENT.

§ 1194. Presence at Common Law. — By a rule of the com-
mon law, ancient and modern, no testimony of a witness whom
the party has not had the opportunity to cross-examine ! can be
introduced against him on a trial for crime; and, except as about
to be stated, the evidence must be delivered personally and
orally before the same triers who are to pronounce him guilty or
not guilty.2. But—

§ 1195. Testimony on Prior Proceeding. — To the latter branch
of this rule there is an exception growing out of necessity ;°
namely, if there has been a prior proceeding involving the same
issue between the same parties,* conducted regularly in pursu-
ance of law,® and therein the defendant had the opportunity to
cross-examine the witnesses against him,® not otherwise,’ —

1 Post, § 1195.

2 2Inst.49; 2Hawk. P. C. c. 46, § 23;
1 Chit. Crim. Law, 585; Rex v. Paine, 1
Salk. 281, 5 Mod. 163; 8. c. nom. Rex v.
Payne, 1 Ld. Raym. 729; 8. co. nom. Rex
v. Pain, Comb. 858, Holt, 294; People v.
Restell, 8 Hill, N. Y. 289; Common-
wealth v. Ricketson, 5 Met. 412, 427;
Reg. v. Upton St. Leonard’s, 10 Q. B. 827;
Reg. v. Chapman, 8 Car. & P. 558; People
v. Restell, 8 Hill, N. Y. 289; Dominges
v, The State, 7 Sm. & M. 475; Johnson v.
The State, 27 Texas, 758.

3 Ante, § 493 et seq. .

4 Davis v. The State, 17 Ala. 854;
Reg. v. Langbridge, 1 Den. C. C. 448, 2
Car. & K. 975, 8 Cox C. C. 465; Reg. v.
Ledbetter, 8 Car. & K. 108. Testimony
before the examining magistrate on a
charge of felonious wounding was deemed
admissible on the trial for murder, where
the injured person had died of the wound.

Reg. v. Beeston, Dears. 405. See Rex v.
Radbourne, 1 Leach, 4th ed. 457.

5 Note to Rex v. Smith, 2 Stark. 208,
211, referring to observations of Grose, J.
in Rex v. Lambe, 2 Leach, 4th ed. 552;
and to Rex v. Paine, 1 Salk. 281, 5 Mod.
168. See also The State v. Johnson, 12
Nev. 121; People v. Garrett, 6 Cal. 203.

6 The State v. Harman, 27 Misso. 120;
Barron v. People, 1 Comst. 386; Bebee
v. People, 5 Hill, N. Y. 82; Rex v. Paine,
1 Salk. 281; Rex v. Woodcock, 1 Leach,
4th ed. 600; Pyke v. Crouch, 1 Ld. Raym.
730; Rex v. Dingler, 2 Leach, 4th ed.
661; 1 Stra. 162; Bull. N. P. 243; Rex v.
Forbes, Holt N. P. 599. And see Rex
v. Smith, Russ. & Ry. 839, 2 Stark. 208,
Holt N. P. 614.

7 The State v. Hill, 2 Hill, 8. C. 607;
The State v. Campbell, 1 Rich. 124; Peo-
ple v. Cole, 43 N. Y. 608; Rex v. Dingler,
2 Leach, 4th ed. 661.

709
§ 1196 THE EVIDENCE. [Book Ix.
then, if a witness has died,! or, says Archbold,” if he is “insane
(though the insanity were of a temporary nature),? or if it ap-
peared satisfactorily to the court that he was kept out of the way
by means of the procurement of the defendant,‘ or if he were
bedridden or so ill as to be unable to travel” ® (but not if simply
he cannot be found,® or by most opinions if only he is absent from
the State or otherwise beyond the reach of process’), what he tes-
tified to at the former hearing may be shown in evidence against
the defendant in the present one. The instances of this are
two ; namely, —

§ 1196. On Former Trial.— In the circumstances thus explained,
the testimony of the witness at a former trial of the same cause,
or another cause presenting the same issue between the same
parties, may be shown in evidence.? Any one who heard it, and,

1 O’Brian v. Commonwealth, 6 Bush,
568; Davis v. The State, 17 Ala. 354;
The State v. Taylor, Phillips, 508 ; United
States v. Penn, 13 Bankr. Reg. 464.

2 Archb. Crim. Pl. & Ev. 18th Lond.
ed. 218, 214.

3 Reg. v. Marshall, Car. & M. 147;
Rex v. Eriswell, 3 T. R. 707, 720.

4 Rex v. Harrison, 4 Harg. St. Tr. 487,
492, 12 Howell St. Tr. 833; Rex v. Mor-
ley, J. Kel. 55; The State v. Houser, 26
Misso. 43; United States v. Reynolds, 1
Utah Ter. 319; Williams v. The State, 19
Ga. 402. But see Bergen v. People, 17
Ill. 426.

5 2 Phil. Ev. 97; 1 Hale P. C. 805; 2
Hale P. C. 62; Reg. v. Wilshaw, Car. &
M. 145. See post, § 1201, note.

6 Rex v. Smith, 2 Stark. 208, 211,
note.

7 Dupree v. The State, 33 Ala. 380;
People v. Newman, 6 Hill, N. Y. 295;
Brogy v. Commonwealth, 10 Grat. 722;
Bergen v. People, 17 Ill. 426; Collins v.
Commonwealth, 12 Bush, 271. See Bar-
ron v. People, 1 Comst. 886; People v.
Devine, 46 Cal. 45; People v. Ward, 4
Parker C. C. 516.

8 Rex v. Buckworth, 2 Keb. 403, T.
Raym. 170; United States v. Wood, 8
Wash. C. C. 440; Commonwealth v.
Richards, 18 Pick. 484; United States
v. Macomb, 56 McLean, 286; Summons v.
The State, 5 Ohio State, 325; Kendrick
v. The State, 10 Humph. 479 (see The
State v. Atkins, 1 Tenn. 229); The State

710

v. McO’Blenis, 24 Misso. 402; The State
v. Baker, 24 Misso. 487; The State v.
Houser, 26 Misso. 481. The authorities.
abundantly show that this doctrine, of
familiar application in civil causes, pre-
vails equally in criminal. But there may
be a State or two in which it is not ad-
mitted in the latter; as, perhaps, Vir-
ginia. Finn v. Commonwealth, 5 Rand.
701; Mendum v. Commonwealth, 6 Rand.
704 ; Brogy v. Commonwealth, 10 Grat.
722. In the first cited of these three
cases, Brockenbrough, J., said: “In a
civil action, if a witness who has been
examined in a former trial between the
same parties, and on the same issue, is
since dead, what he swore to on the for-
mer trial may be given in evidence; for
the evidence was given on oath, and the
party had an opportunity of cross-exam-
ining him. Peake, 60; Phillips, 199. But
we cannot find that the rule has ever been
allowed in « criminal case; indeed, it is
said to be expressly otherwise. Peake,
60, quoting Fenwicke’s Case, 4 St. Tr.
265. Nor can we find that the rule in
civil cases extends to the admission of
the evidence formerly given by a witness
who has removed beyond the jurisdiction
of the country ; much less can it be ad-
mitted in a criminal case.” p. 708. And
see People v. Diaz, 6 Cal. 248,

9 O’Brian v. Commonwealth, 6 Bush,
563; The State v. Johnson, 12 Nev. 121;
Kean vo. Commonwealth, 10 Bush, 190;
Johnson v. The State, 1 Texas Ap. 833;
CHAP. LXXIX.] WITNESS DECEASED OR ABSENT. § 1198

with or without the aid of memoranda, can state the entire
substance of it, though not the exact words, may be a witness
to it;? but there is authority for requiring even the precise
words.?

§ 1197. On Examination before Magistrate. — Within this rule,
where the law provides for a preliminary examination before a
magistrate, what the witnesses testified to therein may, in the
circumstances already detailed, be shown. The manner of the
showing will depend on the form of the provision. Thus, —

§ 1198. ola Statutes as to Examinations — Our Common Law. —
When this country was settled, preliminary examinations before
magistrates and coroners were, in England, regulated by two
statutes which were received as common law in Pennsylvania,4
in Maryland,° and probably in the other States generally. They
are 1 & 2 Phil. & M. c. 13, § 4,5; and 2 & 8 Phil. & M.c. 10.
Justices of the peace, committing or bailing one on a charge of
felony, were to “take the examination of the said prisoner, and
information of them that bring him, of the fact and circum-
stances thereof,” and reduce to writing “the same or as much
thereof as shall be material thereof to prove the felony,” and
certify it to the court before which the further proceedings were
to take place. And “every coroner, upon any inquisition
before him found, whereby any person or persons shall be in-
dicted for murder or manslaughter, or as accessory or accessories
to the same before the murder or manslaughter committed, shall
put in writing the effect of the evidence given to the jury before
him, being material; and, &c., shall certify” it in like manner.

Black v. The State, 1 Texas Ap. 368; 2 Commonwealth v. Richards, 18 Pick.

Pope v. The State, 22 Ark. 372; Sum-
mons v. The State, 5 Ohio State, 325;
Kendrick v. The State, 10 Humph. 479;
cases cited ante, § 1195; People v. Devine,
46 Cal. 45.

1 Kendrick v. The State, 10 Humph.
479; Summons v. The State, 5 Ohio
State, 8325; Young v. Dearborn, 2 Fost.
N. H. 372; The State v. Able, 65 Misso.
857; People v. Murphy, 45 Cal. 187;
Barnett v. People, 64 Ill. 325; The State
v. Cook, 23 La. An. 847; Kean v. Com-
monwealth, 10 Bush, 190; Davis v. The
State, 17 Ala. 354. ©

434; Smith v. Smith, Wright, Ohio, 648;
Warren v. Nichols, 6 Met. 261; United
States v. Wood, 3 Wash. C. C. 440.

3 United States v. Penn, 13 Bankr.
Reg. 464; Davis v. The State, 17 Ala.
854; The State v. Hooker, 17 Vt. 658;
Rex v. Barber, 1 Root, 76; cases cited
ante, § 1195. But see Nelson v. The
State, 2 Swan, Tenn. 237; The State
v. McLeod, 1 Hawks, 344; The State v.
Collins, 82 Iowa, 36.

4 Report of the Judges, 3 Binn. 5965,
620.

5 Kilty Rep. Stats. 234.

711
§ 1200 THE EVIDENCE. [BOOK Ix.

Now, these statutes being silent as to what should be done with
the certified examinations, it results from the foregoing and other
principles, that, —

§ 1199. Evidence within these and similar Statutes.— As these
statutes require the evidence before the magistrate or coroner to
be reduced to writing, a familiar rule of evidence would exclude
oral testimony to it, but the written depositions must be pro-
duced.1 And the depositions, which would not be evidence but for
the statutes, are, by construction of the common law upon them,
competent; 2 whereas, were there no provision for putting the
evidence in writing, oral testimony to it would be competent and
proper.2 And as these statutes relate only to felony, a certified
examination in a case of misdemeanor,' or, it seems, of treason,®
was not admissible. And, in other respects, to render the evi-
dence competent, the statutory directions as to taking it must
have been complied with.®

§ 1200. Depositions before Coroner. — A deposition taken be-
fore a coroner pursuant to law would, if the defendant were
present, charged with the offence, and privileged to cross-
examine the deponent, be admissible under like circumstances
with an examination before a committing magistrate. But these
several conditions do not often, if ever with us, concur.. Such
depositions, under statutes like the old English ones,’ taken in
the absence of the accused party, and signed by the coroner as

1 Reg. v. Taylor, 8 Car. & P. 726; Rex

now governing there is 11 & 12 Vict.
v. Fearshire, 1 Leach, 4th ed. 202. And

c. 42, § 17, 18.

see Orrok v. Commonwealth Ins. Co. 21
Pick. 456, 465; post, § 1218.

2 Reg.v. Langbridge, 1 Den. C. C. 448,
2 Car. & K. 975, 8 Cox C. C. 465; Hurley
v. The State, 29 Ark. 17; The State v.
Valentine, 7 Ire. 225; People v. Restell,
8 Hill, N. Y. 289; Tharp v. The State, 15
Ala. 749.

3 Ante, § 1196, 1197.

4 Rex v. Pain, Comb. 358, 359; 3s. 0.
nom. Rex v. Payne, 1 Ld. Raym. 729.
See Rex v. Fearshire, 1 Leach, 4th ed.
202. In 1826, in England, those old stat-
utes were, by 7 Geo. 4, c. 64, § 2-5,
slightly modified, and extended to in-
clude “ misdemeanor, or suspicion there-
of,” in addition to felony. The statute

712

5 1 Hale P. C. 805; Foster, 337.

8 Rex v. Dingler, 2 Leach, 4th ed. 561;
Reg. v. Johnson, 2 Car. & K. 855; Reg. v.
Arnold, 8 Car. & P.621; Reg. v. Johnson,
2 Car. & K. 394. Form.— As to the
form, see Rex v. Flemming, 2 Leach, 4th
ed. 854; Reg. v. Osborne, 8 Car. & P.
113; Reg. c. France, 2 Moody & R. 207.
Magistrate as Witness.— Though the
testimony of the magistrate to the cor-
rectness and regularity of the depositions
is not legally essential, it is sometimes
deemed practically desirable. Reg. v.
Pikesley, 9 Car. & P. 124; Reg. v. Wil
shaw, Car. & M. 145. See Tharp v. The
State, 15 Ala. 749.

T Ante, § 1198,
CHAP. LXXIX.] WITNESS DECEASED OR ABSENT. § 12038

such,’ are by some English opinions receivable ;? but certainly
they would not be competent with us.?

§ 1201. Doctrine epitomized — Present English Statute. — The
entire doctrine of the common law as to depositions before com-
mitting magistrates, when taken pursuant to statutes like the
former English ones, is epitomized in 11 & 12 Vict. c. 42, § 17,
now in force. “If, upon the trial, &c., it shall be proved by the
oath or affirmation of any credible witness, that any person whose
deposition shall have been taken as aforesaid is dead, or is so ill
as not to be able to travel, and if also it be proved that such
deposition was taken in the presence of the person so accused,
and that he or his counsel or attorney had a full opportunity of
cross-examining the witness, then, if such deposition purport
to be signed by the justice by or before whom the same pur-
ports to have been taken, it shall be lawful.to read such depo-
sition as evidence in such prosecution, without further proof:
thereof, unless it shall be proved that such deposition was not in
fact signed by the justice purporting to sign the same.”

§ 1202. Contradict Witness, &e.— These depositions and exam-
inations before magistrates and coroners are sometimes used on
the trial to contradict the witness.65 When for such a purpose,
the opportunity of cross-examination and other like formalities
are immaterial.6 The evidence at the trial is not restricted to
that before the magistrate, or to what the witness testified to
there.’

§ 1203. Before Grand Jury. — Doubtless all evidence of former

1 Rex v. England, 2 Leach, 4th ed. 767,
770.

2 Archb. Crim. Pl..& Ev. 13th Lond.
ed. 218, 214, referring to Bull. N. P. 242;
2 Phil. Ev. 91; per Buller, J., in Rex v.
Eriswell, 8 T. R. 707, 718; 2 Stark. Ev.
884; Rex v. Purefoy, Peake Ev. 64; Jer-
vis Cor. 217, 218.

3 The State v. McElmurray, 3 Strob.
83; The State v. Campbell, 1 Rich. 124,

4 Ill. —See Reg. v. Riley, 3 Car. & K.
116; Reg. v. Farrell, Law Rep. 2 C. C.
116, 12 Cox C. C. 505, 9 Eng. Rep. 499.
Pregnancy, with daily and hourly ex-
pectation of being confined, is illness
within this statute. Reg. v. Wellings, 8
Q. B. D. 426; Reg. v. Heesom, 14 Cox
C. C. 40, 20 Eng. Rep. 884. In Reg. v.
Scaife, 2 Den. C. C, 281, 286, 17 Q. B. 288,

it was intimated that this provision as to
a sick witness was new; but see ante,
§ 1195.

5 Reg. v. Taylor, 8 Car. & P. 726;
Reg. v. Hallett, 9 Car. & P. 748; Reg. v.
Griffiths, 9 Car. & P. 746; People v. Rec-
tor, 19 Wend. 669; Sanchez v. People,
4 Parker C. C. 635; Wormeley v. Com-
mionwealth, 10 Grat. 658; Nelson v. The
State, 1 Swan, Tenn. 237; The State v.
McLeod, 1 Hawks, 344; The State »v.
Lazarus, 1 Mill, 34, 85; Coppage v. Com-
monwealth, 8 Bush, 582; The State v.
Phillips, 24 Misso. 475; The State v. Hull,
26 Iowa, 292.

6 Ib.; People v. Devine, 44 Oal. 452;
Stephens v. People, 19 N. Y. 549.

1 Reg. v. Ward, 2 Car. & K. 759; The
State v. Bowers, 17 Iowa, 46.

713
§ 1206 THE EVIDENCE. on [BooK Ix.

testimony, admissible at the trial, is competent also before the
grand jury.' It has been held so of depositions under statutes
like 11 & 12 Vict. c. 42, § 17.2

§ 1204. Constitutional — “Face to Face.” — The law, as ex-
pounded in the foregoing sections, is not in conflict with the
constitutional provision securing to an indicted person the right
“to meet the witnesses against him face to face.” At the time
when this doctrine gives opportunity for cross-examination,? he
does or may thus meet them. Again, —

§ 1205. Waiver — Consent. — A party, who can waive most
rights,° may under various circumstances waive this one, and by
consent submit to evidence by depositions, and to other testi-
mony not delivered orally at the trial.6 And, —

§ 1206. Depositions for Defendant. — Under statutes or by con-
sent of the prosecuting officer, evidence may be taken for the
defendant by ordinary deposition.’ The court will sometimes
compel the former’s consent, by refusing to try the case unless
he will give it.

1 Ante, § 865. ley v. The State, 29 Ark. 17; The State

2 Reg. v. Clements, 2 Den. C. C. 251; v. Bowen, 4 McCord, 254. See Johnson
People v. Stuart, 4 Cal. 218, 225. v. The State, 27 Texas, 758; People v,

3 Ante, § 1194, 1195. Lee, 49 Cal. 37.

4 Commonwealth v. Richards, 18 Pick. 7 See the statutes of various States.
434; Summons v. The State, 5 Ohio State, And see McLane v. The State, 4 Ga. 335.
825. Compare with ante, § 1184. 8 Anonymous, stated Cowp. 174;

5 Ante, § 117 et seq. Anonymous, stated 8 Rich. 461; The

® Rex v. Morphew, 2 M. & S. 602; State v. Bowen, 4 McCord, 254, 256.
The State v. Polson, 29 Iowa, 183; Hur-

714
CHAP. LXXx.]

DYING DECLARATIONS.

§ 1207

* CHAPTER LXXX.

DYING DECLARATIONS.

§ 1207. Doctrine definea.— Dying declarations are affirmations
deriving their sanction, not from an oath,! but from the solemn
sense of impending death ;? and they do not admit of the oppor-
tunity for cross-examination. Yet, for the protection of human
life, they are accepted as anomalous evidence ‘ in criminal prose-
cutions for homicide,® when they proceeded from the very person
alleged to have been unlawfully killed,® to the single question
of the circumstances of the killing and by whom;/ yet to no
greater extent, and in no other causes, civil or criminal, what-

ever.

1 Gray v. Goodrich,:7 Johns. 95; Ash-
ton’s Case, 2,Lewin, 147; Rex v. Wood-
cock, 1 Leach, 4th ed. 500, 501; The
State v. Oliver, 2 Houston, 585.

2 Rex v. Woodcock, supra; Reg. v.
Forester, 10 Cox C. C. 368, 4 Fost. & F.
857; Donnelly v. The State, 2 Dutcher,
463, 601; McHugh »v. The State, 31 Ala.
317; Scott v. People, 63 Ill. 608; Reg. v.
Reaney, Dears. & B. 151,7 Cox C. C. 209,
40 Eng. L. & Eq. 552.

3 The State v. Brunetto, 18 La. An.
45; Collier v. The State, 18 Ark. 676.

4 The State v. Bohan, 15 Kan. 407;
Walker v. The State, 37 Texas, 366.

5 Thompson v. The State, 24 Ga. 297;
Gibson v. Commonwealth, 2 Va. Cas.
111; King v. Commonwealth, 2 Va. Cas.
78; Hill v. Commonwealth, 2 Grat. 594 ;
Wright v. The State, 41 Texas, 246;
Reg. v. Whitworth, 1 Fost. & F. 382;
Hill v. The State, 41 Ga. 484; Rex v.
Hutchinson, 2 B. & C. 608, note.

6 Brown v. Commonwealth, 23 Smith,
Pa. 821; The State v. Bohan, supra;
Benavides v. The State, 31 Texas, 579;
Hudson v. The State, 8 Coldw. 355.

7 The State v. Draper, 65 Misso. 835;

Being admissible against defendants, they are conse-

People v. Knapp, 26 Mich. 112; Leiber
v. Commonwealth, 9 Bush, 11; Rex v.
Mead, 2 B. & C. 605, 608; Nelson v. The
State, 7 Humph. 542; The State v. Shel-
ton, 2. Jones, N. C. 360; Moore v. The
State, 12 Ala. 764; Hackett v. People,
54 Barb. 870; People v. Davis, 56 N. Y.
95, 103; Lister v. The State, 1 Texas Ap.

‘789; Reg. v. Hind, Bell C. C. 258, 8 Cox

C. C. 800; McLean v. The State, 16 Ala.
672; Walker v. The State, 52 Ala. 192;
Johnson v. The State, 17 Ala. 618; Crook-
ham v. The State, 5 W. Va. 510; Collins
v. Commonwealth, 12 Bush, 271.

§ Wooten v. Wilkins, 89 Ga. 223;
Johnson v. The State, 50 Ala. 456; Peo-
ple v. Davis, 56 N. Y. 95, 100; Rex v.
Lloyd, 4 Car. & P. 283; Friedman v.
Railroad, 7 Philad. 203; Duling vu. John-
son, 32 Ind. 155; Wilson v. Boerem, 15
Johns. 286; Rex v. Hutchinson, 2 B. &
C. 608, note; Rex v. Mead, 2 B. & C. 605;
Marshall v. Chicago, &c. Railroad, 48 Ill.
475. They were once supposed to be
admissible in some civil causes; as see
Aveson v. Kinnaird, 6 East, 188; McFar-
land v. Shaw, 2 Car. Law Repos. 102;
Youngs v. Vredenbergh, 1 Johns. 159.

T15
§ 1211 THE EVIDENCE. [BooK Ix.

quently so also in their favor.1 Though they are evidence, the
declarant is not deemed properly a witness; for, —

§ 1208. Constitutional — (“Witnesses Face to Face”). — While
under our constitutions a defendant is entitled to be “ confronted
with the witnesses” against him, or meet them “face to face,” ?
the reception of dying declarations is not unconstitutional ; the
witnesses being those who testify to them, not the declarant.’
Still —

§ 1209. Competency of Declarant — (Child — Oath —Infamy). —
The rules which determine the competency of a witness prevail
also as to the declarant ;‘ as, if he is too young to understand the
nature and obligations of an oath,5 or is infamous, where infamy
disqualifies a witness,® his dying declarations will be inadmis-
sible ; but not those of a child of adequate years, instructed as
to the oath.’ And — :

Character.— The bad character of the declarant for veracity
may be shown to impeach his dying declarations, the same as of
a witness.2 So —

Contradict.— Statements by the declarant, contradictory of his
dying declarations, and, contradictions in the a may be
shown to detract from their weight with the jury.2 Again, —

§ 1210. Husband and Wife.— As a husband or wife may tes-
tify to personal violence which the other has inflicted, so the
dying declarations of one of them are admissible on a trial for
the homicide of this one by the other.

§ 1211. Irrelevant or Incompetent. — What would be irrelevant
or otherwise incompetent in the testimony of a witness is so

1 Rex v, Scaife, 2 Lewin, 150, 1 Moody
& R. 551; People v. Knapp, 26 Mich. 112;
Moore v. The State, 12 Ala. 764.

2 Ante, § 1134, 1204.

3 Brown v. Commonwealth, 238 Smith,
Pa. 821; Commonwealth v. Carey, 12
Cush. 246; Burrell v. The State, 18
Texas, 713; People v. Glenn, 10 Cal. 82;
The State v. Nash, 7 Iowa, 347; Camp-
bell v. The State, 11 Ga. 8353; Woodsides
rv. The State, 2 How. Missis. 655; Wal-
ston v. Commonwealth, 16 B. Monr. 15;
Anthony v. The State, Meigs, 265; The
State v. Tilghman, 11 Ire. 518; Robbins

v. The State, 8 Ohio State, 181; The
State v. Dickinson, 41 Wis. 299.
41 Greenl. Ev. § 157; Wilson v,

716

Boerem, 15 Johns. 286; People v. Chin
Mook Sow, 61 Cal. 597; The State v.
Elliott, 45 Iowa, 486; Barnett v. People,
64 Ill. 825.

5 Rex v. Pike, 3 Car. & P. 598.

& Rex v. Drummond, 1 Leach, 4th ed.
837, 1 East P. C. 358, note.

7 Reg. v. Perkins, 9 Car. & P. 395, 2
Moody, 185.

8 The State v. Thomason, 1 Jones,
N.C. 274.

® People v. Lawrence, 21 Cal. 368;
Wroe v. The State, 20 Ohio State, 460,
472; McPherson v. The State, 9 Yerg.
279; Moore v. The State, 12 Ala. 764.

10 Ante, § 1158.

i Moore v. The State, 12 Ala. 764;
CHAP. LXxx.] DYING DECLARATIONS. § 1212

equally in a dying declaration, and consequently to be excluded.
So, likewise, what would be relevant and competent from a wit-
ness is, if pertaining to the mere circumstances of the killing and
by whom,! admissible in a dying declaration.?

§ 1212. Expectation of Death. — The declarations are not ad-
missible if made while any hope of recovery remains.? Nor will
the mere opinion that ultimate death will result from the injury
render them so. Nor yet need the declarant believe himself to
be actually dying. Their admissibility depends on the fact, to
be ascertained by the judge from evidence produced before him,®
that they were uttered in the solemnity of mind which proceeds
from the expectation of almost immediate —or impending —
death.’ In passing on this question of fact, the judge will take

People v. Green, 1 Denio, 614; Common-
wealth v. Stoops, Addison, 381.

1 Ante, § 1207.

2 Rex v. Sellers, Car. Crim. Law, 8d
ed. 233; Mose v. The State, 85 Ala.
421; McPherson v. The State, 22 Ga.
478; Shaw v. People, 5 Thomp. & C. 439,
8 Hun, 272; The State v. Arnold, 18 Ire.
184; Maine v. People, 9 Hun, 118; Wroe
v. The State, 20 Ohio State, 460; Scott v.
People, 63 Ill. 508; Leiber v. Common-
wealth, 9 Bush, 11; Oliver v. The State,
17 Ala. 587; People v. Shaw, 68 N. Y.
86; People v. Olmstead, 30 Mich. 481;
Whitley v. The State, 38 Ga. 50; Luby
v. Commonwealth, 12 Bush, 1.

3 Jackson v. Commonwealth, 19 Grat.
656; Starkey v. People, 17 Ill. 17; Com-
monwealth v. Roberts, 108 Mass. 296;
The State v. Simon, 50 Misso. 870; Rex
v. Fagent, 7 Car. & P. 238; Rex v. Bon-
ner, 6 Car. & P. 886; Rex v. Crockett, 4
Car. & P. 544; Rex v. Welbourn, 1
Leach, 4th ed. 503, note, 1 East P. C.
858; Dunn v. The State, 2 Pike, 229; Reg.
v. Megson, 9 Car. & P. 418; Errington’s
Case, 2 Lewin, 142; Rex v. Hayward, 6
Car. & P. 157; Rex v. Christie, Car. Crim.
Law, 3d ed. 282; Robbins v. The State,
8 Ohio State, 181; Dixon v. The State,
18 Fla. 636.

4 Rex v. Van Butchell, 8 Car. & P.
629; Smith v. The State, 9 Humph. 9,
20; Reg. v. Forester, 10 Cox C. C. 368,
4 Fost. & F. 857.

5 The State v. Tilghman, 11 Ire. 513;
The State v. Nash, 7 Iowa, 347.

§ Ante, § 989, 9894; McDaniel v. The
State, 8 Sm. & M. 401; The State v. El-
liott, 45 Iowa, 486; The State v. Bennett,
14 La. An. 651; The State v. Ross, 18
La. An. 340; The State v. Williams, 67
N. C. 12; Rex ¢. John, 1 East P. C. 3857;
Rex v. Welbourn, 1 East P. C. 858; Rex
v. Hucks, 1 Stark. 521; People v. Glenn,
10 Cal. 82; Collier v. The State, 20 Ark.
86; Swisher v. Commonwealth, 26 Grat.
963, 965; Smith v. The State, 9 Humph.
9; Donnelly v. The State, 2 Dutcher, 463,
601; Rex v. Van Butchell, 8 Car. & P.
629; The State v. Howard, 32 Vt. 380;
Hill v. Commonwealth, 2 Grat. 694; Rex
v. Johns, 1 Leach, 4th ed. 604, note;
Johnson v. The State, 47 Ala. 9; Reg. v.
Hunt, 2 Cox C. C. 239; Lambeth v. The
State, 23 Missis. 322, But see Jackson
v. The State, 56 Ga. 285; Campbell v.
The State, 11 Ga. 353; Starkey v. People,
17 I. 17.

7 Reg. v. Reaney, Dears. & B. 151, 7
Cox C. C. 209; Edmondson v. The State,
41 Texas, 496; People v. Ah Dat, 49 Cal.
652; Reg. v. Forester, 10 Cox C. C. 368,
4 Fost. & F. 857; People v. Knapp, 26
Mich. 112; Kilpatrick v. Commonwealth,
7 Casey, Pa. 198, 215; People v. Knicker-
bocker, 1 Parker C. C. 302; The State v.
Garrand, 5 Oregon, 216; People v. Mc-
Laughlin, 44 Cal. 485; Morgan v. The
State, 81 Ind. 198; People v. Perry, 8
Abb. Pr. n. 8. 27; The State v. Medlicott,
9 Kan. 257; The State v. McCanon, 51
Misso. 160; Brown wv. The State, 32
Missis. 483; Walker v. The State, 62

T17
§ 1218 THE EVIDENCE. [BOOK Ix.

into view the sayings and doings of the declarant and of third
persons in his presence, and the various other enlightening cir-
cumstances ; the conclusion being drawn, not alone from what
was said or forborne to be said, or alone from the actual or ap-
parent danger, or alone from any other one thing, but from all
in combination.! It is immaterial, on the one hand, that, in fact,
the declarant does not die so soon as he expects;? or, on the
other hand, that he is in fact dying, if he is not conscious of his
condition.3

§ 1213. Form, and how delivered. — As dying declarations are
‘not the subject of cross-examination,* so also they need not be
drawn out under the same formalities as testimony at a trial.
They may consist of answers as well to leading questions® as
to those not leading ;° be written’ or oral, be sworn to® or not,

Ala. 192; Starkey v. People, 17 Ill. 17;
The State v. Poll, 1 Hawks, 442; People
v. Green, 1 Parker C. C.. 11; People v.
Vernon, 35 Cal. 49; Reg. v. Whitworth,
1 Fost. & F. 382; Walston v. Common-
wealth, 16 B. Monr. 15; Smith v. The
State, 9 Humph. 9; Logan v. The State,
9 Humph. 24; Scott v. People, 63 Ill. 508 ;
Benavides v. The State, 81: Texas, 579;
Commonwealth v. Cooper, 5 Allen, 495;
Commonwealth v. Densmore, 12 Allen,
535; Barnett v. People, 54 Ill. 325.

1 Reg. v. Reaney, supra, Hill v. Com-
monwealth, 2 Grat. 594; Campbell v.
The State, 11 Ga. 853; The State v.
Peace, 1 Jones, N. C. 261; Kilpatrick v.
Commonwealth, supra; Commonwealth
v. Murray, 2 Ashm. 41; Commonwealth
v. Williams, 2 Ashm. 69 ; People v. Robin-
son, 2 Parker C. C. 235; Rex v. Tinckler,
1 East P. C. 354; Rex v. Woodcock, 1
Leach, 4th ed. 500, 503, 1 East P. C. 354;
Rex v. Dingler, 1 Leach, 4th ed. 504,
note, 1 East P. C. 356; Rex v. Johns, 1
Leach, 4th ed. 504, note, 1 East P. C. 357;
Anthony v. The State, Meigs, 265; The
State v. Tilghman, 11 Ire. 518; Starkey
v. People, 17 Ill. 17; The State v. Gillick,
7 Iowa, 287; The State v. Nash, 7 Iowa,
347; McLean v. The State, 16 Ala. 672;
Walker v. The State, 52 Ala. 192; Lewis
v. The State, 9 Sm. & M. 116; Nelson
v. The State, 7 Humph. 642; People v.
Grunzig, 1 Parker C. C. 299; Reg. v.

718

Peel, 2 Fost. & F. 21; Rex v. Spilsbury,
7 Car. & P. 187; Dunn v. The State, 2
Pike, 220; The State v. Scott, 12 La. An.
274; The State v. Cornish, 5 Harring.
Del. 502; McLean v. The State, 16 Ala.
672; Reg. v. Howell, 1 Car. & K. 689, 1
Den. C. C. 1, 1 Cox C. C. 151; Ashton’s
Case, 2 Lewin, 147; Bull v. Common-
wealth, 14 Grat. 618; Rex v. Mosley, 1
Moody, 98; Johnson v. The State, 17
Ala. 618; Oliver v..The State, 17 Ala.
687; The State v. Freeman, 1 Speers,
57; McDaniel v. The State, 8 Sm. & M.
401; Dixon v. The State, 13 Fla. 636;
Brakefield v. The State, 1 Sneed, 215;
Reg. v. Cleary, 2 Fost. & F. 850; Rex v.
Minton, 1 MacN. Ev. 386.

2 Reg. uv. Bernadotti, 11 Cox C. C. 316;
Rex v. Mosley, 1 Moody, 98; Swisher v.
Commonwealth, 26 Grat. 963 ; The State
v. Oliver, 2 Houston, 585.

3 Reg. v. Mooney, 5 Cox C. C. 818;
Montgomery v. The State, 11 Ohio, 424.

4 Ante, § 1207.

5 Reg. v. Smith, Leigh & C. 607; Vass
v, Commonwealth, 8 Leigh, 786; Com-
monwealth v. Casey, 11 Cush. 417.

6 Reg. v. Fagent, 7 Car. & P. 238.

7 McDaniel v. The State, 8 Sm. & M.
401; The State v. Martin, 30 Wis. 216.

8 The State v. Arnold, 13 Ire. 184;
Reg. v. Hunt, 2 Cox C. C. 289; People v.
Knapp, Edm. Sel. Cas. 177; Reg. v.
Clarke, 2 Fost. & F. 2.
CHAP. LXxx. ] DYING. DECLARATIONS.

§ 1216
come through an interpreter,! be by a mere pressure of the hand,?
or otherwise. If made before death seemed impending, they will
be rendered good by repetition or assent afterward.? If in writ-
ing, the writing must be produced in evidence of them.‘ If oral,
they. may: be orally proved, and the substance will suffice.
When the declarant leaves a statement so far unfinished that it
appears probable he meant to qualify it by something further, it
is not admissible ; but his inability or mere omission to go over
the whole transaction,® or to speak to another part of it,’ will not
exclude from the jury what he has said.

§ 1214. Other Evidence.— That there is other evidence to the
same matter does not render them inadmissible.’ So, also, —

. Repetitions — of a dying declaration may be proved.?

§ 1215. Several Homicides by One Act. — If, by a single unlaw-
ful act or series of acts, more persons than one are killed, are the
dying declarations of one of the deceased admissible on the trial
for the homicide of another? On this question, the authorities
are in conflict.° The doctrine of dying declarations being both
technical and anomalous, it is difficult to decide a question like
this on principle; but, if principle has any thing to do with it,
the conclusion must be, that, since a common guilt attaches to
the defendant in respect of each person killed, and the one crimi-
nal transaction has an equal relation to all the slain, whatever
declarations are admissible on his trial for one are equally so on
his trial for another.

§ 1216. Weight of the Declarations in Evidence. — J udges have

1 Starkey v. People, 17 Ill. 17. 5 Ward v. The State, 8 Blackf. 101.

2 Commonwealth v. Casey,supra. See
McHugh ». The State, 31 Ala. 317, 322.

3 The State v. Ferguson, 2 Hill, S. C.
619; Young v. Commonwealth, 6 Bush,
812; Brown v. The State, 32 Missis. 433 ;
Reg. v. Steele, 12 Cox C. C. 168, 2 Eng.
Rep. 221.

4 Rex v. Trowter, 1 East P. C. 356;
People v. Glenn, 10 Cal. 82; Collier v.
The State, 20 Ark. 36; The State v.
Cameron, 2 Chand. 172; Beets v. The
State, Meigs, 106; McHugh v. The State,
81 Ala. 817; Rex v. Gay, 7 Car. & P. 230.
And see Kelly v. The State, 52 Ala. 361;
Rex v. Reason, 1 Stra. 499, 500; The
State v. Fraunburg, 40 Iowa, 555; The
State v. Patterson, 45 Vt. 808; Rex v.
Callaghan, 1 MacN. Ev. 385.

See ante, § 1196, 1199.

6 The State v. Patterson, 45 Vt. 308.
See post, § 1241.

7 Vass v. Commonwealth, 3 Leigh,
786; McLean v. The State, 16 Ala. 672;
Brown v. The State, 32 Missis. 433.

3 People v. Knickerbocker, 1 Parker
C. C. 302.

® People v. Vernon, 35 Cal. 49.

10 Ante, § 1207; The State v. Fitzhugh,
2 Oregon, 227; Respublica v. Langcake,
1 Yeates, 415; Brown v. Commonwealth,
23 Smith, Pa. 821; The State v. Wilson,
23 La. An. 558; Rex v. Baker, 2 Moody
& R. 68; The State v. Terrell, 12 Rich.
821; The State v. Bohan, 15 Kan. 407.

719
§ 1216 THE EVIDENCE. [Book Ix.

sometimes attempted a comparison between these declarations
and the testimony of living witnesses as to the weight which the
jury should accord them.! But evidently such comparisons are
impossible ; or, at least, they pertain to the facts of a case, not,
to the law.? Like other evidence, they are open to observation ;?
but the jury alone are to decide on, their effect, giving them such
weight as may seem to them, under all the circumstances, to be

just.4

1 Ashton’s Case, 2 Lewin, 147; Green
v. The State, 138 Misso. 882; People »v.
Knapp, Edm. Sel. Cas. 177.

2 The State v. McCanon, 51 Misso.
160; Walker v. The State, 42 Texas, 360.

8 The State v. Thawley, 4 Harring.
Del. 562; McPherson v. The State, 9
Yerg. 279; The State v. Johnson, 8 Iowa,

720

525; People v. Lawrence, 21 Cal. 368,
872.

4 Moore v. The State, 12 Ala. 764;
The State v. McCanon, supra; Walker v.
The State, supra; Walker v. The State,
87 Texas, 366; The State v. Quick, 15
Rich. 842; Donnelly v. The State, 2
Dutcher, 463, 601; Rex v. Trant, 1
MacN. Eve 385.
CHAP. LXXXI.] EXTRAJUDICIAL CONFESSIONS. § 1218

CHAPTER LXXXI.
EXTRAJUDICIAL CONFESSIONS.

§ 1217. Meaning of Terms — (Confessions — Admissions). —
Confessions and admissions are similar in their natures, and the
two terms are sometimes in our books confounded. As employed
in these volumes, the distinction is, that a confession is an ad-
mission of guilt meant to be inculpatory,' while the single word
admission denotes the acknowledgment of any fact not so meant.

Judicial — Extrajudicial. — A confession made in court or before
an examining magistrate is called judicial; made out of court,
whether to an official or non-official person, extrajudicial.?

§ 1218. The Principle. — No one so well knows whether or not
an accused person is guilty as himself. And, assuming him to
be of sound mind, we should accept as true his statement on
this question, could we be assured that he meant to speak the
exact truth. But if he says he is innocent, his utterance may
be prompted, not by a truthful spirit, but by the instinct of self-
protection ; and, in the absence of any means of determining
how it is, the courts will not permit this declaration to be laid
before the jury.2 If he says he is guilty, we are more ready to
believe him, ‘“ because,” as sometimes observed, “it is fairly pre-
sumed that no man would make such a confession against him-
self if the facts confessed were not true.”* In some cases, and
us to some defendants, this observation is just; and it might be

1 “ A confession is a person’s declara-
tion of his agency or participation in a
crime.” McKinstry, J., in People v. Par-
ton, 49 Cal. 632, 637, 638. See Bennac
v. People, 4 Barb. 164; Rex v. Crossfield,
26 Howell St. Tr. 1, 215.

2 Speer v. The State, 4 Texas Ap. 474,
479.

3 Harmon v. The State, 8 Texas Ap.

VOL. I. 46

51; Campbell v. The State, 23 Ala. 44;
Commonwealth v. Williams, 105 Mass.
62, 68; Wills v. Conley, 3 Parker C. C.
478, 499; Cook v. The State, 4 Zab. 8438;
The State v. Hildreth, 9 Ire. 440; Bird-
song v. The State, 47 Ala. 68; Addison
v. The State, 48 Ala. 478.
4 3 Russ. Crimes, 5th Eng. ed. 440.

721
§ 1219 THE EVIDENCE. [Book rx.

safely applied in any case wherein we could know that the con-
fession proceeded from genuine repentance. But where it did
proceed from repentance, the question would not often, if ever,
arise at the trial; for the defendant would plead guilty at his
arraignment. Confessions, therefore, when brought forward at
a trial, are pretty generally, not the utterances of a repentant
spirit, but devices which had been employed in the anguish of a
conscious extremity. From infancy, in the discipline of the
family, in that of the school, and in the teachings of religion, the
minds of all are impressed with the idea that repentance is the
leading virtue, pleasing alike to-God and man, that it brings
clemency, and that confession is the outward manifestation of
this virtue. Such is not exactly the doctrine of our law; but it
is the doctrine almost everywhere taught, except in the halls of
legal learning. If, therefore, an ordinary person is charged with
crime, whether justly or falsely, and, in his fright, or after a
calm contemplation. of the evidence reported to him, or in reli-
ance on what others say, he expects to be convicted, the resource
most obvious to him is to mitigate his calamity by the clemency
which apparent repentance, with confession, is supposed to pur-
chase. The cases are numerous in which this is known to be so
with innocent persons,! and how many there are in which the
real fact is never known it is impossible to state. Therefore, in
reason, confessions should either be rejected altogether, or sub-
mitted to the jury under special cautions from the court, and be
carefully weighed by them.

§ 1219. The Adjudgea Law.— In the majority of the cases, the
courts appear to have looked merely upon the surface of things,
not at all descending to the foundation reasons of the law. The
decisions, therefore, are in some degree conflicting, many are in-
distinct, and numbers of the earlier are understood to be over-
ruled by the later.2 We shall not travel through all the varying
facts on which they have proceeded,’ but inquire mainly after
the governing doctrines. In general accord with the foregoing

1 See, for example, Boorns’s Case, 1 & R. 614; Reg. v. Furley, 1 Cox C. C.76;
Greenl. Ev. § 214, note; Anonymous, 1 and Reg. v. Harris, 1 Cox C. C. 106.
Leach, 4th ed. 264, note. 8 For a discussion embracing the facts

2 For example, Reg. v. Baldry,2 Den. of many cases, see Mr. Heard’s note in
C. C. 480, followed in all the later cases, 2 Ben. & H. Lead. Cas. 2d ed. 670-630.
was understood to overrule Reg. v. Drew, And see 3 Russ. Crimes, 5th Eng. ed. 440
8 Car.& P. 140; Reg. v. Morton, 2Moody et seq.

122
CHAP. LXXXI.] EXTRAJUDICIAL CONFESSIONS. § 1223

views, confessions are admitted in evidence to be weighed by the
jury in some circumstances,! and rejected in others.2,- And, —

§ 1220. Judge to decide. — Within a doctrine already con-
sidered,® it is for the judge to determine, on testimony laid
before him, whether or not a particular confession shall be
admitted.t

§ 1221. Grounds for rejecting. —If the judge could look into
the mind of the prisoner, or from witnesses ascertain its condi-
tion, the rule would necessarily be to reject the confession in all
cases wherein the party making it believed it would bring him
good or avert evil; because, in such a case, the probabilities
would be nearly as strong that it was a falsehood prompted by
self-interest as the utterance of truth. But since the fact as to
this cannot ordinarily be ascertained, and to exclude the confes-
sion when it cannot be would practically put an end to this
species of evidence, —

§ 1222. Motive not disclosed. — Where nothing can be shown
as to the motive prompting a confession, it will be received.*

§ 1223. Voluntary or not — Expecting Benefit or not.— Such a
confession is termed voluntary. So likewise is one affirmatively
appearing to have been made with no expectation of its bringing
good or averting evil. And the rule is, that a voluntary confes-
sion is admissible ;* but an involuntary one — that is, made in

1 Rex v. Dore, Andr. 301; Reg. v.
Owen, 9 Car. & P. 83; Holsenbake v.
The State, 45 Ga. 43; The State v.
Squires, 48 N. H. 364.

2 People v. Ah How, 34 Cal. 218;
post, § 1228. But see The State v. Jen-
kins, 2 Tyler, 377.

3 Ante, § 989, 989 a, 1212.

* Washington v. The State, 53 Ala.
29; Boyd v. The State, 2 Humph. 39;
The State v. Davis, 63 N. C. 578; Car-
ter v. The State, 87 Texas, 362; Holsen-
bake v. The State, 45 Ga. 43; Nicholson
v. The State, 88 Md. 140; Commonwealth
v. Morrell, 99 Mass. 542; People v. Jim
Ti, 32 Cal.60; People v. Ah How, 34 Cal.
218; Simon v. The*State, 5 Fla. 285 ;
Whaley v. The State, 11 Ga. 123; Wal-
lace v. The State, 28 Ark. 681; Runnels
v. The State, 28 Ark. 121; The State v.
Fidment, 35 Iowa, 641; Spears v. The
State, 2 Ohio State, 588; Woodford v.
People, 62 N. Y. 117; Jim wv. Territory,

1 Wash. Ter. 76; Sullins v. The State,
58 Ala. 474; Brister v. The State, 26 Ala.
107; Bob v. The State, 82 Ala. 560; Cou-
ley v. The State, 12 Misso. 462; The
State v. Garvey, 28 La. An. 925; Com-
monwealth v. Taylor, 5 Cush. 605; Fife
v. Commonwealth, 5 Casey, Pa. 429;
Reg. v. Garner, 1 Den. C. C. 829, 2 Car.
& K. 920, 3 Cox C. C. 175.

5 Rufer v. The State, 25 Ohio State,
464, 470; Stallings v. The State, 47 Ga.
572; The State v. Patterson, 68 N. C.
292; Rex v. Clewes, 4 Car. & P. 221;
Commonwealth v. McCann, 97 Mass.
580.

6 The State v. Potter, 18 Conn. 166;
The State v. Ingram, 16 Kan. 14; Peo-
ple v. Thoms, 3 Parker C. C. 256; Com-
monwealth v. Drake, 15 Mass. 161; ‘The
State v. Cook, 15 Rich. 29; O’Brien v,
People, 48 Barb. 274; Price v. The State,
18 Ohio State, 418; The State v. White,
17 Kan. 487; The State v. Fortner, 43

723
§ 1224 THE EVIDENCE. [BOOK Ix..

the belief that it will bring temporal good or avert temporal evil
— will, even where the anticipated benefit is small, be rejected.
Nor does it matter whether the expected benefit is some specific
thing promised, or an undefined clemency pictured to the hope.
without form and without promise, or any other appreciable
advantage of a temporal nature.!

§ 1224. Object of Exclusion. — To repeat, therefore, the reason
why the courts exclude the confession in some circumstances is,
not that the law affirmatively presumes it to be untrue, but that
its truthfulness is so uncertain as to render it unsafe evidence for

Iowa, 494; The State v. Crank, 2 Bailey,
66; The State v. Freeman, 1 Speers, 57;
The State v. Littlefield, 3 R. I. 124; Sea-
born v. The State, 20 Ala. 15; Rafe vw.
The State, 20 Ga.60; The State v. Kitty,
12 La. An. 805; Franklin v. The State,
28 Ala. 9; Hamilton v. The State, 3 Ind.
552; Aikin v. The State, 85 Ala. 399;
Jim v. The State, 15 Ga. 585; People v.
Barric, 49 Cal. 342, 345; Sam v. The
State, 83 Missis. 347; Ward v. People,
8 Hill, N. Y. 895; Commonwealth v.
Crocker, 108 Mass. 464; The State v.
Jones, 33 Iowa, 9; Shifflet v. Common-
wealth, 14 Grat. 652. ;

1 Reg. v. Baldry, 2 Den. C. C. 480, 5
Cox C. C. 528; Thompson v. Common-
wealth, 20 Grat. 724; Beery v. United
States, 2 Col. Ter. 186; Runnels v. The
State, 28 Ark. 121; Earp v. The State,
65 Ga. 186; Garrard v. The State, 50
Missis. 147; Ward v. The State, 50 Ala.
120; Van Buren v. The State, 24 Missis.
612; Petér v. The State, 4 Sm. & M. 31;
The State v. Grant, 22 Maine, 171;
Wyatt v. The State, 25 Ala. 9; Common-
wealth v. Chabbock, 1 Mass. 144; Rex v.
Parratt, 4 Car. & P. 570; The State ».
Hagan, 54 Misso. 192; The State v. Whit-
field, 70 N. C. 856; Frain v. The State,
40 Ga. 529; The State v. Brockman, 46
Misso. 566 ; People v. McMahon, 15 N.Y.
884, 386; People v. Phillips, 42 N. Y. 200;
Reg. v. Luckhurst, Dears. 245, 6 Cox C. C.
248, 22 Eng. L. & Eq. 604; Rex v. Thomp-
son, 1 Leach, 4th ed. 291; Rex v. Cass, 1
Leach, 4th ed. 293, note; Dinah v. The
State, 89 Ala. 859; Sullins v. The State,
63 Ala. 474; Commonwealth v. Curtis,
97 Mass. 574; The State v, Doherty, 2

724

Tenn. 80, 87; Berry v. The State, 10 Ga.
511; Stephen v. The State, 11 Ga. 225;
Newman v. The State, 49 Ala. 9; Rex v.
Miles, Car. Crim. Law, 3d ed. 61; Rex v.
Jones, Russ. & Ry. 152; Rex v. Simpson,
1 Moody, 410; The State v. Bostick, 4
Harring. Del. 563; Commonwealth »v.
Taylor, 5 Cush. 605, 610; Smith v. Com-
monwealth, 10 Grat. 784; The State v.
Staley, 14 Minn. 105; Wiley v. The State;
8 Coldw. 862; Rex v. Thomas, 6 Car. &
P. 353; People v. Barric, 49 Cal. 842;
People v. Wentz, 387 N. Y. 803; Austine
v. People, 51 Ill. 236 (compare with Com-
monwealth v. Callahan, 108 Mass. 421);
Barnes v. The State, 36 Texas, 356; Reg.
v. Hearn, Car. & M. 109; Rex v. Sexton;
3 Russ. Crimes, 5th Eng. ed. 445; The
State v. Phelps, 11 Vt. 116, 121; Reg. v.
Coley, 10 Cox C. C. 586; Rutherford v.
Commonwealth, 2 Met. Ky. 887. See
Reg. v. Zeigert, 10 Cox C. C. 555; Crop-
per v. United States, Morris, 259. Trivial
Benefit. — The reader will see, from the
foregoing cases, that the confession will
be excluded though the benefit expected
therefrom is very small. Still, if absolute-
ly trivial and without real value, or some
mere collateral boon, it will not have this
effect. No exact line, as to this distinc-
tion, can be drawn from the adjudica-
tions. See, besides some of the foregoing
cases, Price v. The State, 18 Ohio State,
418; The State v. Wentworth, 37 N. H.
196, 218; The State v. Cruse, 74 N. C.
491; Rex v. Lloyd, 6 Car. & P. 393;
Commonwealth v. Morey, 1 Gray, 461;
Earp v. The State, 55 Ga. 186; Rex v.
Green, 6 Car. & P. 655; The State v.
Tatro, 50 Vt. 483,
CHAP. LKXXI.] EXTRAJUDICIAL CONFESSIONS. § 1227

the jury. So that, as often remarked by learned judges, the real
question in every case is, whether or not the mind of the person
.confessing was influenced in a way to create doubt of the truth
of what he said. If it was, the confession will be rejected ;1
otherwise, not. Thus, —

§ 1225. Spiritual Hope or Fear.— As no one would expect to
deceive the Omniscient, the hopes and fears produced by religious
teachings and appeals, such as the rewards and retributions of
a future state, are not ground for excluding the confession.?
Again, —

§ 1226. Obtained by Artifice — Overheard — Confidential.— That
a confession is confidential,? or obtained by stratagem,‘ or over-
heard when meant to be private,® or contained in a letter opened
unauthorized,® or made in the belief that the person listening
will be incompetent as a witness to it,’ does not render it inad-
missible ; for no suspicion against its truth arises from these cir-
cumstances. Moreover, —

§ 1227. Tell the Truth.— An exhortation to one to tell the
truth concerning a criminal charge will not render a confession
which may follow inadmissible ;* unless he understands that con-

1 People v. McMahon, 15 N. Y. 384,
891; People v. Wentz, 37 N. Y. 303, 305,
809; Reg. v. Reason, 12 Cox C. C, 228,
4 Eng. Rep. 517; Rex v. Thomas, 7 Car.
& P. 345; Reg. v. Morton, 2 Moody & R.
514; Fife v. Commonwealth, 5 Casey,
Pa. 429; Commonwealth v. Cuffee, 108
Mass. 285, 288 ; Commonwealth v. Morey,
1 Gray, 461, 463; Reg. v. Baldry, 2 Den.
C. C. 480, 482, 441, 442, 446, 5 Cox C. C.
623; Rutherford v. Commonwealth, 2
Met. Ky. 387; The State v. George, 5
Jones, N. C. 2838, 236.

2 Rex v. Gibney, Jebb, 15, 19; Rex v.
Gilham, Car. Crim. Law, 3d ed. 51, 1
Moody, 186. See Commonwealth v.
Drake, 15 Mass. 161.

8 Rex v. Thomas, 7 Car. & P. 345;
Rex v. Shaw, 6 Car. & P. 372; The
State v. Shannon, 83 Misso. 596.

4 People v. Wentz, 87 N. Y. 803, 805;
Rutherford v. Commonwealth, 2 Met.
Ky. 387; Commonwealth v. Hanlon, 3
Brews. 461.

5 Ante, § 1155; Rex v. Simons, 6 Car.

& P.540. See Reg. v. Welsh, 3 Fost. & F.
275; Dick v. The State, 30 Missis. 631 ;
Hawkins v. The State, 7 Misso. 190.

§ Rex v. Pamenter, 12 Cox C. C. 177,
2 Eng. Rep. 231, and Mr. Moak’s note on
p. 288; Rex v. Derrington, 2 Car. & P.
418; Donohue v. People, 56 N. Y. 208.

7 The State v. Mitchell, Phillips, 447.

8 Reg. v. Jarvis, Law Rep. 1 C. C. 96,
98, 99, 10 Cox C. C. 574; Reg. v. Reeve,
Law Rep. 1C. C. 862, 12 Cox C. C. 179;
Reg. v. Parker, Leigh & C. 42, 8 Cox
C. C. 465; Reg. v. Reason, 12 Cox C. C.
228, 4 Eng. Rep. 517; The State v. Har-
man, 8 Harring. Del. 567; Hawkins »v.
The State, 7 Misso. 190; Aaron v. The
State, 39 Ala. 75; King v. The State, 40
Ala. 814; Rex v. Court, 7 Car. & P. 486;
Reg. v. Holmes, 1 Car. & K. 248. The
reader will learn from these cases that
perhaps there are earlier decisions the
other way. And see Rex v. Mills, 6 Car.
& P. 146; Reg. v. Morton, 2 Moody & R.
514; Reg. v. Drew, 8 Car. & P. 140;
Meinaka v. The State, 55 Ala. 47,

725
§ 1232 THE EVIDENCE. [BOOK Ix..

fession is the real thing requested, the speaker assuming the truth
to be guilt.

§ 1228. Leading Questions — Assuming Guilt. — That the con-
fession is made in answer to a question — even a leading one or
one assuming guilt — does not render it inadmissible.?

§ 1229. Drunk.— In vino est veritas. So that a confession
made by one while drunk is not, therefore, inadmissible ; but the
jury may give it such weight as they deem just.2 But—

§ 1230. Asleep.— Words uttered by one asleep are not evi-
dence against him, for he is then presumed to be unconscious.‘

§ 1231. youth,.— A young person, even below fourteen, if
capable of committing crime, may make an admissible con-
fession thereof.’

§ 1232. Proof as to Voluntary or not. — When a confession is
tendered in evidence, the witness should be first required to state
the circumstances under which it was made, to enable the judge
to decide whether to admit or reject it, as being voluntary or
not.6 And some — perhaps most —of the cases maintain, that
the burden of proof is with the party offering it, to show it to
have been voluntary.? If we accept this doctrine, it cannot be
carried further than to require the immediate facts to be dis-

1 Rex v. Shepherd, 7 Car. & P. 579;
Rex v. Partridge, 7 Car. & P. 551; Reg.
v. Hewett, Car. & M. 534; Vaughan v.
Commonwealth, 17 Grat. 576; Rex v.
Hearn, Car. & M. 109; Simon ce. The
State, 37 Missis. 288; Commonwealth v.
Harman, 4 Barr, 269; Deathridge v. The
State, 1 Sneed, 75.

2 Reg. v. Vernon, 12 Cox C. C. 1538, 2
Eng. Rep. 206; People v. Wentz, 37 N. Y.
303; Speights v. The State, 1 Texas Ap.
551; Sam v. The State, 83 Missis. 347;
Carroll v. The State, 23 Ala. 28; Reg. v.
Regan, 17 Law T. n. s. 825; Grant v. The
State, 55 Ala. 201. But see Reg. v. Bod-
kin, 9 Cox C. C. 408. And see Reg. vu.
Mick, 3 Fost. & F. 822; Reg. v. Stokes,
17 Jur. 192.

3 Commonwealth v. Howe, 9 Gray,
110; Eskridge v. The State, 25 Ala. 30;
Rex v. Spilsbury, 7 Car. & P. 187; Whit-
ney v. The State, 8 Misso. 165; Lester v.
The State, 82 Ark. 727.

726

4 People v. Robinson, 19 Cal. 40.

5 The State v. Guild, 5 Halst. 168;
The State v. Aaron, 1 South. 231; Com-
monwealth v. Smith, 119 Mass. 805; Rex
v. Thornton, 1 Moody, 27; Rex v. Wild,
1 Moody, 452; Earp v. The State, 55 Ga.
186.

6 Ante, § 1220, 1223; Thompson ve.
Commonwealth, 20 Grat. 724; Stallings
v. The State, 47 Ga. 572; The State v.
Patterson, 68 N. C. 292; People v. Par-
ton, 49 Cal. 632; Commonwealth v. Har-
man, 4 Barr, 269; People v. Soto, 49 Cal.
67; The State v. Peter, 14 La. An. 521;
People v. Rodriguez, 10 Cal. 50; Rufer
v. The State, 24 Ohio State, 464; The
State v. Garvey, 28 La. An. 925.

7 Ib.; Barnes v. The State, 36 Texas,
356 ; Nicholson v. The State, 38 Md. 140.
See Commonwealth v. Curtis, 97 Mass.
574, 578. Contra, Rufer v. The State,
supra.
CHAP. LXXXI.] EXTRAJUDICIAL CONFESSIONS. § 1233

closed ;1 for, we have seen,? where the actual condition of the
mind confessing cannot be known, the confession is admissible.

§ 1283. Persuasions from “One in Authority.” —If the accused
person is told by “one in authority,” as the books express it,
that it would be better for him to confess, or if by such one any
other of the inducements already explained ? are held out to him,
a confession made thereupon should, by all opinions, be rejected
as not voluntary ;* though, if it is shown in reply to this that the
representations did not take effect, or were not operating at the
time, the contrary will be the result.6 Such one is the officer
who has the person confessing in custody,® the person injured,’
or, in the language of the English books,’ “ the prosecutor,’ the
prosecutor’s wife,” or his attorney," .. . or some person assist-
ing a constable ™ or the prosecutor ® in the apprehension or deten-
tion of the prisoner, or a magistrate acting in the business,’ or
other magistrate [acting in his office *], or magistrate’s clerk,”
or a jailer,’’ or chaplain of a jail? [but not a mere inmate of the
jailer’s family, who occasionally acts unsworn as turnkey *°], or
a person having authority over the prisoner, —as the captain

1 Rex v. Swatkins, 4 Car. & P. 548;
Rex v. Clewes, 4 Car. & P. 221.

2 Ante, § 1222.

3 Ante, § 1223.

4 Cases cited ante, § 1223, the greater
part of which are of this sort; The State
v. York, 87 N. H. 175; Rex v. Kingston,
4 Car. & P. 887; People v. Barric, 49 Cal.
342.

5 Commonwealth v. Crocker, 108 Mass.
464; Commonwealth v. Knapp, 9 Pick.
496; Ward v. People, 3 Hill, N. Y. 395;
Simon v. The State, 86 Missis, 636; Rex
v. Clewes, 4 Car. & P. 221; Rex v. Rich-
ards, 56 Car. & P. 818; Maples v. The
State, 8 Heisk. 408; The State v. Fisher,
6 Jones, N. C. 478; Peter v. The State,
4 Sm. & M. 81; Thompson v. Common-
wealth, 20 Grat. 724; Van Buren v. The
State, 24 Missis. 512.

® The State v. York, supra; The State
v. Staley, 14 Minn. 105; The State v.
Bostick, 4 Harring. Del. 563.

7 Reg. v. Luckhurst, Dears. 245, 6 Cox
C. C. 248, 22 Eng. L. & Eq. 604; Young
v. Commonwealth, 8 Bush, 366.

8 8 Russ. Crimes, 5th Eng. ed. 464.

9 Rex v. Thompson, 1 Leach, 4th ed.

291; Rex v. Cass, 1 Leach, 4th ed. 293,
note.

10 Rex v. Upchurch, 1 Moody, 465.

Hl 1 Phil. Ev. 407; Reg. v. Croydon, 2
Cox C. C. 67.

121 Phil. Ev. 407; Rex v. Enoch, 6
Car. & P. 589. But see Reg. v. Sleeman,
Dears. 249, 6 Cox C, C. 245, 22 Eng. L.
& Eq. 606.

13 Rex v. Stacey, 3 Russ. Crimes, 5th
Eng. ed. 464.

1441 Phil. Ev. 407; Rex v. Pressly, 6
Car. & P. 188; Commonwealth v. King,
8 Gray, 501.

15 Rex v. Clewes, 4 Car. & P. 221.

16 Simply holding the office of a magis
trate does not render the incumbent a
person in authority. Smith v. Common-
wealth, 10 Grat. 734. And see The State
v. Gossett, 9 Rich. 428.

M7 Reg. v. Drew, 8 Car. & P. 140.

18 Rex v. Gilham, 1 Moody, 186.

19 Rex v. Gilham, supra; Reg. v. Griffin,
6 Cox C. C. 219.

20 Shifflet v. Commonwealth, 14 Grat.
652. Yet see Reg. v. Windsor, 4 Fost. &
F. 360.

727 \
§ 1284 THE EVIDENCE. [Book Ix,

of a vessel to one of his crew,! or a master or mistress to a ser-
vant,? — or a person having authority in the matter,’ or a person
in the presence of one in authority, with his assent, whether
direct or implied.” 4

§ 1234. Persuasions from “One not in Authority.”— If the doc-
trine were, that a promise of clemency, but no other hope
excited, would render the confession following it inadmissible,
the consequence would be, that the promise to be adequate must
come from one having the power to fulfil, or from a person author-
ized by such one. But, by all opinions, there need be no prom-
ise; the mere arousing of an expectation, however slight, will
exclude the confession.6 In reason, therefore, it is not strictly
material whether the person holding out hope of favor has the
power to grant it or not; the question being simply, what is the
effect of the representation on the mind addressed. And to this
result, ag just seen, all the opinions conduct us; for, by all, a
representation that confession would be best will exclude it,
though made by the arresting officer, the jailer, or the person
injured by a felony, while no one of these has any more control
over the prosecution, the verdict, the sentence, the executive
clemency, or any thing else capable of bringing favor, than any
indifferent person.6 That such an one is sometimes judicially
spoken of as “in authority” does not alter the fact, acknowl-
edged by every court, that, whatever be his authority, if any, he
has none of the sort now contemplated. A jailer, for example,

1 Rex v. Parratt, 4 Car. & P. 570. 6 If it should be said that the prisoner,

2 Rex v. Upchurch, supra; Reg. v.
, Taylor, 8 Car. & P. 788; Anonymous,
stated 2 Den. C. C. 522. See Reg. v.
Moore, 2 Den. C. C. 522, 8 Car. & K. 158,
5 Cox C. C. 655, 12 Eng. L. & Eq. 583.

31 Phil. Ev. 407; Rex v. Stacey, 8
Russ. Crimes, 5th Eng. ed. 464.

4 Reg. v. Taylor, supra; Rex v. Pount-
ney, 7 Car. & P. 802; Reg. v. Garner, 1
Den. C. C. 829; Reg. v. Langher, 2 Car.
& K. 225; 8. c. nom. Reg. v. Laugher, 2
Cox C. C.184; Reg. v. Luckhurst, supra;
Morehead v. The State, 9 Humph. 536.
And see Rex v. Simpson, 1 Moody, 410.

5 Ante, § 1223, and the cases there
cited; Simon v. The State, 5 Fla. 285;
Rex v. Walkley, 6 Car. & P. 175; Dinah
v. The State, 89 Ala. 359.

728

being ignorant, may suppose this sort of
person has power while another has not,
the answer is, in the words of Sir Robert
Collier, in the Privy Council, “that to
institute an inquiry in each case as to the
extent of the prisoner’s knowledge of
law, and to speculate whether, if he had
known more, he would or would not
have refused to answer certain questions,
would be to involve a plain rule in end-
less confusion. Their lordships see no
reason to introduce, with reference to this
subject, an exception to the rule, recog-
nized as essential to the administration
of the criminal law, Ignorantia juris non
excusat.” Reg. v. Coote, Law Rep. 4 P.C.
599, 607, 608. And see Alston v. The
State, 41 Texas, 39.
CHAP. LXXXI.] EXTRAJUDICIAL CONFESSIONS. § 1236

is required to receive and discharge prisoners under certain
defined circumstances, but he has no discretion. And it is the
same with a constable. Nor is either the agent of the pardoning
power. Nor could the court, if it desired, authorize either to
make promises concerning the trial or the sentence. Nor can
either bind the prosecuting officer, or order a nolle prosequi. Yet,
conclusive as the argument thus appears, some and probably
the greater number of courts hold, that, while a hope excited by
a jailer or constable will exclude the confession, the same from
one having no connection with the cause — designated as “one
not in authority’? —will not have this effect. Other courts
discard a doctrine so obviously without foundation in reason or
good sense, and reject the confession whenever shown. to have
been made under the expectation of its bringing favor, by whom-
soever induced.2 Even, —

§ 1235. Self-prompted Hope of Benefit. By the better opinion,
at least in reason, though no inducement is held out by any one,
yet the accused person makes a confession under the self-
prompted belief that it will bring him favor, this, if shown
clearly to the judge, will exclude it. Yet not all courts appear
to so hold. And—

§ 1236. In Brief.— The doctrine sustained by many of the
authorities, and most conformable to the reasons of the law, is, in
brief, that the judge should look at the age, surroundings, and
the like, of the prisoner, and the more direct proofs ; and, if he is:
satisfied the confession was made while expectation or fear of
the required sort prevailed over the mind, reject it; otherwise,
accept it.6

1 Rex v. Row, Russ. & Ry. 153; The
State v. Kirby, 1 Strob. 878; The State
v. Kirby, 1 Strob. 155; The State v. Gos-
sett, 9 Rich. 428; Young v. Common-
wealth, 8 Bush, 366; Rex v. Gibbons, 1
Car. & P. 97; Rex v. Tyler, 1 Car. & P.
129; Reg. v. Moore, 2 Den. C. C. 522, 8
Car. & K. 158, 5 Cox C. C. 555, 12 Eng.
L. & Eq. 583; Reg. v. Taylor, 8 Car. & P.
783.

2 Rex v. Spencer, 7 Car. & P. 776;
Rex v. Thomas, 6 Car. & P. 358; Rex v.
Dunn, 4 Car. & P. 548; Rex v. Slaughter,
4 Car. & P. 544, note; Spears v. The State,
2 Ohio State, 583; The State v. Potter, 18
Conn. 166; Simon v. The. State, 5 Fla.

285; Commonwealth v. Knapp, 9 Pick.
496. And see Rex v. Simpson, 1 Moody,
410; The State v. Patrick, 3 Jones, N. C.
443,

3 Rex v. Hall, 2 Leach, 4th ed. 559,
note.

4 The State v. Patrick, 3 Jones, N. C.
448, 449.. See Reg. v. Boswell, Car. & M.
684; Commonwealth v. Knapp, 9 Pick.
496, 503.

5 1 Greenl. Ev. § 219; Spears v. The
State, 2 Ohio State, 583, 585, 586: The
State v. Guild, 5 Halst. 168; Miller v.
The State, 40 Ala. 54; People v. Jim Ti,
82 Cal. 60; Runnels v. The State, 28 Ark.
121; Reg. v. Rue, 18 Cox C. C. 209, 14

729
§ 1239 THE EVIDENCE. [BooK Ix.

§ 1237. Under Duress — Fear.— A confession extorted by
duress, or by violence, or threats, is not admissible! Neither is
it if made under the influence of any temporal fear.? And, by
all opinions, it is believed, the fact that the person operating
upon the mind in this way is “not in authority,” within the
foregoing distinctions, will not render admissible the confession
obtained?

§ 1238. To whom — The Surroundings. — Where there is no
unlawful duress, and no improper representation has been ad-
dressed to the hope or fear, a confession to the officer who has
the party under arrest, and does not warn him,’ or to an arrest-
ing private person,® or to a person acting as guard over him,® or
to the jailer,’ or to any one under other circumstances of a like
nature,® is admissible. But the surroundings and the acts of third
persons may amount to a threat excluding the confession, though
no objectionable words are spoken.?

§ 1239. Continuing Motive. —A representation moving to con-
fession is supposed to hold its influence upon the mind during
an indefinite period;” so that, if during such time a confes-

Eng. Rep. 646; Reg. v. Jones, 12 Cox
C. C. 241, 4 Eng. Rep. 530; United States
v. Nott, 1 McLean, 499; Commonwealth
v. Knapp, 9 Pick. 496, 504; Fouts v. The
State, 8 Ohio State, 98, 108; The State
v. Vaigneur, 5 Rich. 391; Spence v. The
State, 17 Ala. 192; The State v. Grant,
22 Maine, 171, 174; Cain v. The State,
18 Texas, 387; Commonwealth v. Mitch-
ell, 117 Mass. 481; Speer v. The State, 4
Texas Ap. 474.

1 The State v. George, 5 Jones, N. C.
233; Miller v. People, 39 Ill. 457; Simon
v. The State, 37 Missis. 288; The State
v. Freeman, 12 Ind. 100; Smith v. The
State, 10 Ind. 106; Hector v. The State,
2 Misso. 166; Cain ev. The State, 18
Texas, 387; The State v. Lawson, Phil-
lips, 47, 49; Greer v. The State, 31
Texas, 129; The State v. Dildy, 72 N.C.
825.

2 Ante, § 1223, 1225; Hector v. The
State, supra ; Commonwealth v. Mitchell,
117 Maas. 431.

8 Jordan v. The State, 32 Missis. 382,
885, 386.

4 Commonwealth v. Cuffee, 108 Mass.
285; Reg. v. Priest, 2 Cox C. C. 378;

730

Rex v. Long, 6 Car. & P. 179; Common-
wealth v. Mosler, 4 Barr, 264; Hartung
v. People, 4 Parker C. C. 319; Keenan >».
The State, 8 Wis. 182; Reg. vu. Kerr, 8
Car. & P. 176; People v. Rogers, 18 N. Y.
9,13; Murphy v. People, 63 N. Y. 590;
The State v. McLaughlin, 44 Iowa, 82;
Meyer v. The State, 19 Ark. 156; Wiley
v. The State, 3 Coldw. 362. See Reg. v.
Toole, 7 Cox C. C. 244.

5 Wilson v. The State, 3 Heisk. 232.
But see The State v. Dildy, 72 N.C. 825;
Dinah v. The State, 89 Ala. 359.

® Austin v. The State, 14 Ark, 655.

7 The Stéte v. Cook, 15 Rich. 29;
Cobb v. The State, 27 Ga. 648.

8 Cady v. The State, 44 Missis. 332;
Rice v. The State, 47 Ala 88; Stephen
v. The State, 11 Ga. 225; The State v.
Carlisle, 57 Misso. 102; Reg. v. Baldry,
2 Den. C. C. 430, 5 Cox C. C. 523, 12
Eng. L. & Eq. 590; Dick v. The State, 30
Missis. 598.

9 Irwin v. The State, 54 Ga. 39. See
The State v. Ingram, 16 Kan. 14.

10 The State v. Guild, 5 Halst. 163;
The State v. Roberts, 1 Dev. 259; Bob
v. The State, 82 Ala. 560; Barnes v. The
CHAP. LXXXI.] EXTRAJUDICIAL CONFESSIONS. § 1241

sion is made, or repeated to the same or another person, it
will be excluded.!’ But by direct evidence or by circumstances
the influence may be shown to have been removed, and a con-
fession then uttered will be admissible.?

§ 1240. Declarations differing at Different Times. — One who has
denied his guilt, even on oath, may afterward make an admissible
confession.2 If, after confessing, he asserts on a separate occa-
sion his innocence, he cannot introduce evidence of the latter in
rebuttal of his confession.4- But —

§ 1241. au.— The defendant is entitled to have all he said
on the one occasion, the exculpatory with the inculpatory state-
ments, produced before the jury ;5 yet they may believe and act
upon such part as to them seems true, and reject the rest.6 And
the witness, to be admissible, must be able to state the substance

State, 836 Texas, 856; Deathridge v. The
State, 1 Sneed, 75; Porter v. The State,
55 Ala. 95.

1 Meynell’s Case, 2 Lewin, 122 ; Sher-
rington’s Case, 2 Lewin, 123; The State
v. Guild, supra; Beery v. United States,
2 Col. Ter. 186; The State v. Roberts,
supra; The State v. Jones, 54 Misso. 478 ;
Dinah v. The State, 39 Ala. 859; The
State v. Lowhorne, 66 N. C. 688; The
State v. Clarissa, 11 Ala. 57; Bob v. The
State, supra; The State v. Chambers, 30
Iowa, 179; Commonwealth v. Harman,
4 Barr, 269; Rex v. Cooper, 5 Car. & P.
585.

2 Thompson v. Commonwealth, 20
Grat. 724; Peter v. The State, 4 Sm. &
M. 81; The State v. Hash, 12 La. An.
895; The State v. Fisher, 6 Jones, N. C.
478; Strady v. The State, 5 Coldw. 800;
Fife v. Commonwealth, 5 Casey, Pa. 429;
Maples v. The State, 3 Heisk. 408; Rex
v. Richards, 6 Car. & P. 318; Rex v.
Clewes, 4 Car. & P. 221; People v. Jim
Ti, 832 Cal. 60; Moore v. Commonwealth,
2 Leigh, 701; The State v. Gregory, 5
Jones, N.C. 815; The State v. Scates,
5 Jones, N. C. 420; Lynes v. The State,
86 Missis. 617; Ward v. People, 3 Hill,
N. Y. 395; Simon v. The State, 36 Missis.
636; Commonwealth v. Cullen, 111 Mass.
485; Rex v. Smith, 3 Russ. Crimes, 5th
Eng. ed. 461.

3 The State v, Wright, Phillips, 486.

4 Ante, § 1218; post, § 1247; Ray v.

The State, 50 Ala. 104. And see Alfred
v. The State, 87 Missis. 296.

5 Post, § 1247; Coon v. The State, 13
Sm. & M. 246; McCann »v. The State, 13
Sm. & M. 471; The State v. McDonnell,
32 Vt. 491; Long v. The State, 22 Ga.
40; People v. Navis, 38 Cal. 106; Corbett
v. The State, 31 Ala. 829; Conner v. The
State, 84 Texas, 659; Chambers v. The
State, 26 Ala. 59; The State v. Mahon,
82 Vt. 241; Tipton v. The State, Peck,
808; United States v. Wilson, Bald. 78;
The State v. Covington, 2 Bailey, 569;
Credit v. Brown, 10 Johns. 365; The
State v. Martin, 28 Misso. 580, 538; Craw-
ford v. The State, 4 Coldw. 190. See
Reg. v. Mansfield, Car. & M. 140.

6 Coon v. The State and McCann »v.
The State, supra; Barnes v. Allen, 30
Barb. 663; Green v. The State, 13 Misso.
882; Bower v. The State, 5 Misso. 364;
Rex v. Jones, 2 Car. & P. 629; Licett v.
The State, 23 Ga. 57, 62; Rex v. Clewes,
4 Car. & P. 221; Eiland v. The State, 52

“Ala. 322; The State v. Hollenscheit, 61

Misso. 802; Brown v. Commonwealth,
9 Leigh, 633; The State v. Mahon, supra;
The State v. Martin, supra; Rex v. Hig-
gins, 8 Car. & P. 603; Brown v. The
State, 2 Texas Ap. 139; Riley v. The
State, 4 Texas Ap. 538, 544; McHenry
v. The State, 40 Texas, 46; Banks v. The
State, 42 Ga. 544; Rex v. Steptoe, 4 Car.
& P. 397.

731 .
§ 1242 THE EVIDENCE. [Book Ix.

of all;1 though, if one witness heard a part and another the resi-:
due, the whole may be proved by the two.? If the prisoner was
not permitted to say all he desired, nothing is admissible. But
where a part only of a conversation can be shown, and it is com-
plete in itself, and there is no ground of suspicion that some-
thing qualifying it is omitted, the courts will generally, it appears,
receive the part.4 In reply to this, the prisoner may give evi-
dence of the rest, or explain or qualify any part or all.

§ 1242. Evidence discovered through Inadmissible Confessions. —
Though a confession impelled by hope or fear is rejected because
its truthfulness is uncertain, not so are independent facts and
evidence to the discovery of which it has led.® If, for example,
one after confessing under excluding influences to a larceny con-
ducts a search for the stolen goods, his participation therein,
should it be unsuccessful, will be inadmissible equally with the
confession ;7 but, should the goods be found, they may be
exhibited to the jury and identified as those stolen. And it is
the same with the implements and other like things connected
with any other crime. There is some authority for saying that
no part of the confession, or even the fact of its having been
made, can be given in evidence to connect the defendant with
the thing discovered ;® while, on the other hand, there are statu-
tory provisions and perhaps common-law adjudications ‘in some
of the States permitting the entire confession to be laid before
the jury when thus confirmed.2 But the better common-law

1 Berry v. Commonwealth, 10 Bush,
15; The State v. Hughes, 29 La. An. 614.
See Brown v. Commonwealth, 26 Smith,
Pa. 319; Martin v. The State, 89 Ala.
523; Finn v. Commonwealth, 5 Rand.
701.

2 Frank v. The State, 27 Ala. 37.

8 William v. The State, 89 Ala. 6382.
See Levison v. The State, 54 Ala. 620.

4 The State v. Covington, 2 Bailey,
569; Brister v. The State, 26 Ala. 107;
People v. Thoms, 3 Parker C. C. 256;
Commonwealth v. Pitsinger, 110 Mass.

101; The State. v. Gossett, 9 Rich. 428; |

Levison v. The State, supra; Bob v. The
State, 82 Ala. 560. But see People v.
Gelabert, 89 Cal. 663. See ante, § 1213.

5 The State v. Brown, 1 Misso. Ap.
86.
8 Rex v. Lockhart, 1 Leach, 4th ed.

. 132

886 ; Gates v. People, 14 Ill. 438; Rex v.
Warickshall, 1 Leach, 4th ed. 263, 2 East
P. C. 658; Rex v. Mosey, 1 Leach, 4th
ed. 265, note; Jane v. Commonwealth, 2
Met. Ky. 30; Elizabeth v. The State, 27
Texas, 829.

7 Rex v. Jenkins, Russ. & Ry. 492.
As a branch of this rule, if a thing found
is produced, it must be shown by inde-
pendent evidence to be the thing stolen.
The State v. Due, 7 Fost. N. H. 256,
260; Belote v. The State, 86 Missis. 96.
And see The State v. Mortimer, 20 Kan.
93.

8 Rex v. Harvey, 2 East P. C. 658;
Rex v. Mosey, 1 Leach, 4th ed. 265, note;
Sayres v. The State, 80 Ala. 15; Reg. v.
Berriman, 6 Cox C. C. 888. And see
Rex v. Griffin, Russ. & Ry. 151.

® Speights v. The State, 1 Texas Ap.
CHAP. LXXXI.] EXTRAJUDICIAL CONFESSIONS. § 1244

doctrine in authority and probably in reason is, that, when the
confession is thus confirmed, simply so much of it as led to the
finding, and, should the prisoner have been present at the search
and finding, his declarations and conduct during this period,
or his declarations when he surrenders back an article stolen,
may be shown to the jury in connection with the thing itself.
The finding makes the truth of so much of the confession suffi-
ciently plain.

§ 1243. Statutory Modifications. — Not only, in a few of the
States, does the statutory modification of common-law doctrine
just stated prevail; but, in some, the change is still more
extensive.”

§ 1244. Weight in Evidence. — When a confession has been
admitted by the court, and it is not by a subsequent ruling
excluded, this decision from the bench is not reversible by the
jury, who, therefore, must necessarily accept the evidence as com-
petent.2 But its effect if believed, and how far it shall be cred-
ited, are for them.4 We have seen, that, by the better opinion
in this country, confessions with no corroborating evidence of

551, 553; Strait v. The State, 43 Texas,
486; Selvidge v. The State, 80 Texas, 60;
Burfey v. The State, 8 Texas Ap. 519;
Walker v. The State, 2 Texas Ap. 326;
Campbell v. The State, 23 Ala. 44; Fred-
rick v. The State, 3 W. Va. 695; Sarah
v. The State, 28 Ga. 576; Laros v. Com-
monwealth, 3 Norris, Pa. 200; Sampson
v. The State, 54 Ala. 241. And see The
State v. Moore, 1 Hayw. 482; Warren
v. The State, 29 Texas, 369.

1 Garrard v. The State, 50 Missis. 147;
Reg. v. Gould, 9 Car. & P. 864; White v.
The State, 3 Heisk. 838; The State v.
Motley, 7 Rich. 827; Belote v. The State,
86 Missis. 96; Commonwealth v. Moul-
ton, 4 Gray, 89; Deathridge v. The State,
1 Sneed, 75; People v. Hoy Yen, 34 Cal.
176; The State v. Vaigneur, 5 Rich. 891;
Kex v. Griffin, Russ. & Ry. 151; Jane v.
Commonwealth, 2 Met. Ky. 80; Murphy
v. People, 63 N. Y. 590; Mountain v. The
State, 40 Ala. 344; Rex v. Butcher, 1
Leach, 4th ed. 265, note; Rex v. Grant,
2 Hast P. C. 658. See Reg. v. Hobson,
Dears. 400, 6 Cox C. C. 410, 83 Eng. L.
& Eq. 525; Grady v. The State, 11 Ga.
258; Rex v. Jones, Russ. & Ry. 152.

2 The State v. Freeman, 12 Ind. 100;

Smith v. The State, 10 Ind. 106; Taylor
v. The State, 3 Texas Ap. 387, 397;
Haynie v. The State, 2 Texas Ap. 168;
Walker v. The State, 2 Texas Ap. 326;
Cunningham c. Commonwealth, 9 Bush,
149.

3 Ante, § 978, 981, 989; Boyd v. The
State, 2 Humph. 39; United States v.
Gibert, 2 Sumner, 19; Brister v. The
State, 26 Ala. 107. But see Earp v. The
State, 55 Ga. 136; Garrard v. The State,
50 Missis. 147; Holsenbake v. The State,
45 Ga. 48; Pines v. The Statey.21 Ga,
227. See also Reg. v. Garner, 1 Den.
C. C. 829, 2 Car. & K. 920, 3 Cox C. C.
176.

4 Ante, § 989 a; Stallings v. The
State, 47 Ga. 572; The State o. Patter-
son, 68 N. C. 292; Harris v. The State, 1
Texas Ap. 74; Morrison v. The State,
41 Texas, 516; Blackburn v. Common-
wealth, 12 Bush, 181; Corbett v. The
State, 31 Ala. 829; Levy v. The State,
49 Ala. 890; Keithler v. The State, 10
Sm. & M. 192, 229; The State v. Welch,
7 Port. 463; Commonwealth v. Dillon, 4
Dall. 116; Smith v. Hunt, 1 McCord, 449;
Banks v. The State, 42 Ga. 644; Seaborn
v. The State, 20 Ala. 15.

733
§ 1245 THE EVIDENCE. [Book Ix.

the corpus delicti are not alone adequate in proof, and something
like this is provided by statute in some of our States,!—a rule
which appears to prevail less strictly or not at all in England.
And it may be doubtful how far, with us, in the absence of a
statutory direction, this rule should be regarded as of law, and
how far of mere sound discretion. Evidence in corroboration of
confessions is, therefore, always admissible.*

§ 1245. Cautions for Jury.— As cautions for the jury,® not as
rules of law,® it may be suggested to them that evidence of this
species is to be regarded with great distrust,’ but still in a par-
ticular instance it may be most satisfactory. One ground for
doubt, where the confession is oral, is whether or not it is cor-
rectly reported ;® and this should be more or less prevailing
according to the circumstances. Again, did the prisoner, over-
whelmed by his misfortunes, really mean exactly what he said ?
And in most cases there is an uncertainty, which no evidence can
remove, whether the confession, assuming it to be correctly
reported, was uttered by the prisoner as his understanding of the
fact, or as a device for the mitigation of contemplated punish-
ment.!! An uncertainty on this point cannot fail to have great
weight with a right-minded and intelligent jury. Moreover, —

1 Ante, § 1058; Matthews v. The State,
65 Ala. 187; Nesbit v. The State, 43 Ga.
238; Murray v. The State, 43 Ga. 256;
Crowder v. The State, 56 Ga. 44; Cun-
ningham v. Commonwealth, 9 Bush, 149;
Bergen v. People, 17 Ill. 426. But see
The State v. Cowan, 7 Ire. 289.

23 Russ. Crimes, 5th Eng. ed. 440,
441; Rex v. Eldridge, Russ. & Ry. 440.
See Rex v. Howe, 7 Car. & P. 268; Rex
v. Edgar, 8 Russ. Crimes, 5th Eng. ed.
441, note; Rex v. Morrison, 8 Car. & P.
22.

3 Compare with ante, § 1169-1171.

4 People v. Jones, 32 Cal. 80; Respub-
lica v. Roberts, 1 Dall. 89; Respublica v.
McCarty, 2 Dall. 86. And see Eberhart
v. The State, 47 Ga. 598.

5 Ante, § 982, 1169.

§ Commonwealth v. Galligan, 113
Mass. 202; Morrison v. The State, 41
Texas, 616; Harris v. The State, 1 Texas
Ap. 74; Blackburn v. Commonwealth, 12
Bush, 181; The State v. Clump, 16
Misso. 385.

734

7 Keithler v. The State, 10 Sm. & M.
192, 229; Becker v. Crow, 7 Bush, 198;
The State v. Fields, Peck, 140; Common-
wealth v. Sanborn, 116 Mass. 61; Gay v.
The State, 2 Texas Ap. 127, 131.

8 Becker v. Crow, supra; Mercer »v.
The State, 17 Ga. 146.

9 1 Greenl. Ev. § 214; 4 Bl. Com. 357;
Foster, 243; Rex v. Crossfield, 26 Howell
St. Tr. 1, 111-116, 182; Anonymous, 5
Car. & P. 542, note; Rex v. Simons, 6
Car. & P. 540.

10 Greenl. ut sup. And see McCraw
v. Old North State Ins. Co., 78 N. C. 149.
Untrue, — It is always competent for
the prisoner to prove, if he can, that his
confession was untrue. Commonwealth
v. Howe, 9 Gray, 110, 112. And Names
of Witnesses. — One testifying to a con-
fession may be compelled to disclose the
names of persons in whose presence he
says it was made. The State v. Fay, 48
Iowa, 651.

N Ante, § 1218.
CHAP. LXXXI.] EXTRAJUDICIAL CONFESSIONS. § 1246

§ 1246. Involving Legal Questions.— A confession to a fact
which depends on a question of law is specially unreliable; for
the confessing party may have mistaken the law.!

11 Bishop Mar. & Div. § 601, 5682; 3 nis, 8 Dana, 382; Vincent v. Duncan, 2
Russ. Crimes, 5th Eng. ed. 441; Rex v. Misso.214. See Niles v. Rhodes, 7 Mich.
Philp, 1 Moody, 268; Gentry v. McMin- 3874; Bergen v. People, 17 Ill. 426.

735
§ 1248 THE EVIDENCE. [Book Ix.

CHAPTER LXXXIJ.
CONDUCT AND EXTRAJUDICIAL ADMISSIONS.

§ 1247. Admissions in General. — Admissions which do not
amount to confessions — that is, acknowledgments of facts not
meant to be inculpatory 1— are receivable in evidence as links in
a chain of proofs, without any preliminary inquiry as to whether
they were prompted by hope or fear. And this rule applies to
declarations in great varieties of form.? If any part of such dec-
laration or admission is shown against the defendant, he is enti-
tled to have the whole produced, but not what he said on a
separate occasion. In some circumstances, the defendant’s dec-
laration is admissible even for himself ;® in others, and generally,
it is not.”

§ 1248. By Third Persons — (Co-conspirator — Agent — Husband
or Wife).— In general, what one says —as, for example, that he
committed the crime in question ®— will not be admitted for or
against another.2 And the rule is the same though the person

1 Ante, § 1217.

2 The State v. Hinkle, 6 Iowa, 380;
The State v. Hogard, 12 Minn. 293; The
State v. Bullard, 16 N. H. 189; People v.
Gates, 18 Wend. 811; Luby v. Common-
wealth, 12 Bush, 1; The State v. Barton,
19 Misso. 227.

3 Donohue v. People, 56 N. Y. 208;
Commonwealth v. Dearborn, 109 Mass.
868; Commonwealth v. Stoehr, 109 Mass.
865; McIntosh v. The State, 52 Ala. 355;
Fraser v. The State, 55 Ga. 325; Huggins
v. The State, 41 Ala. 398; Liles v. The
State, 30 Ala. 24; The State v. Smith, 37
Misso. 58; Berry v. The State, 10 Ga.
611; Murphy v. People, 68 N. Y. 640;
McCue v. Commonwealth, 28 Smith, Pa.
185; Commonwealth v. Edgerly, 10 Allen,
184; The State v. Williams, 80 Maine,
484; Rex v. Tuffs, 6 Car. & P. 167.

4 Ante, § 1241; Beauchamp v. Ten-
nel, 1 Bibb, 441; Cornelius v. Common-
wealth, 15 B. Monr. 639.

736

5 Ante, § 1240; Earhart v. Common-
wealth, 9 Leigh, 671; People v. Green, 1
Parker C.C.11; McCulloch v. The State,
48 Ind. 109.

6 Reg. v. Abraham, 2 Car. & K. 550;
Pinkard v. The State, 830 Ga. 757; The
State v. Worthington, 64 N. C. 594.

7 Ante, § 1218; Rutherford v. Com-
monwealth, 13 Bush, 608; Davis v. The
State, 3 Texas Ap. 91; The State v.
Tatro, 50 Vt. 488; Baird v. Fletcher, 50
Vt. 608; Powell v. The State, 44 Texas,
63.

® The State v. White, 68 N.C. 158;
The State v. Duncan, 6 Ire. 236; 'The
State v. Haynes, 71 N.C. 79; Smith v.
The State, 9 Ala. 990; The State v. Ter-
rell, 12 Rich. 821.

9 Britton v. The State, 4 Coldw. 178;
Commonwealth v. Eberle, 3 S. & R.9;
Williamson v. Commonwealth, 4 Grat.
647.
CHAP. LXXXII.] CONDUCT AND ADMISSIONS.

§ 1249

speaking is the husband or wife of the other,! or thongh for civil
purposes he is the other’s agent.2 But when it is first shown?
that one or more persons were acting in concert with the defend-
ant about the particular thing in question, all with a common
object, the declarations of any one of the others during the time
of the transaction, whether present or absent, may be given in
evidence against the defendant ;* yet not declarations after the
transaction is ended.

§ 1249. Acts—are a species of language; and, where the
declarations of one may be given in evidence against another, so
also may be the former’s acts. Likewise one’s own acts — such,
for example, as evince conscious guilt— may be shown against

himself.’ For example, —

1 Kingen v. The State, 50 Ind. 557;
Commonwealth v. Briggs, 5 Pick. 429.
See People v. Thoms, 3 Parker C. C.
256; The State v. Jaeger, 66 Misso.
173.

2 Nall v. The State, 34 Ala. 262;
Nels v. The State, 2 Texas, 280.

3 United States v. Wilson, Bald. 78;
The State v. Borgman, 2 Nott & Mc. 34,
note; Commonwealth v. Crowninshield,
10 Pick. 497; Wright v. The State, 43

Texas, 170; Carskadon v. Williams, 7:

W. Va. 1; Garrard v. The State, 50
Missis. 147; Hamilton v. People, 29 Mich.
195; Reg. v. Brittain, 3 Cox C. C. 76;
Davis v. The State, 19 Ohio State, 217;
Williamson v. Commonwealth, 4 Grat.
547; The State v. Larkin, 49 N. H. 39;
Commonwealth v. Eberle, 3 8. & R.9;
People v. Stonecifer, 6 Cal. 405; Stewart
v. The State, 26 Ala. 44.

4 Vol. IL. § 228; Malone v. The State,
8 Ga. 408; Cornelius v. Commonwealth,
15 B. Monr. 589; United States v. Hin-
man, Bald. 292; Reg. v. Petcherini, 7
Cox C. C. 79; Commonwealth v. Tivnon,
8 Gray, 375; Claytor v. Anthony, 6 Rand.
285; Reg. v Desmond, 11 Cox C. C. 146;
Martin v. Commonwealth, 2 Leigh, 745;
Reid v. The State, 20 Ga. 681; Sands v.
Commonwealth, 21 Grat. 871; Rex »v.
Salter, 5 Esp. 125; Solander v. People, 2
Col. Ter. 48; Stewart v. The State, 26
Ala 44; People v. Estrado, 49 Cal. 171;
People v. Geiger, 49 Cal. 648; Glory v.
The State, 13 Ark. 286; Williams ». The
State, 47 Ind 568; People v. Cotta, 49

VOL. I. 47

Cal. 166; Gardner v. People, 3 Scam. 83;
United States v. Flowery, 1 Sprague,
109; The State ov. Fitzhugh, 2 Oregon,
227; United States v. McKee, 3 Dillon,
646; Smith v. The State, 52 Ala. 407.
See The State v. Poll, 1 Hawks, 442;
United States v. McKee, 3 Dillon, 551;
Lohman v. People, 1 Comst. 379.

5 Vol. IL. § 280; The State v. Duncan,
64 Misso. 262; The State v. Butler, 29
La. An. 354; O’Neil ». The State, 42 Ind.
846; The State vo. Larkin, 49 N. H. 39;
Riggs v. The State, 6 Coldw. 517; United
States v. Hartwell, 8 Clif. 221; Reid v.
Louisiana State Lottery Co., 29 La. An.
388. See Reid v. The State, supra; Peo-
ple v. Stanley, 47 Cal. 118.

8 People v. Knapp, 26 Mich. 112;
People v. Stonecifer, 6 Cal. 405; Smith
v. The State, 52 Ala. 407; The State »v.
Poll, 1 Hawks, 442; The State v. Larkin,
49 N. H. 389; People v. Stanley, 47 Cal.
113; O’Neil v. The State, 42 Ind. 346;
Sands v. Commonwealth, 21 Grat. 871;
Reid v. The State, 20 Ga. 681; Martin
v. Commonwealth, 2 Leigh, 745; Reg. v.
Desmond, 11 Cox C. C. 146; United
States v. Hinman, Bald. 292; Taylor v.
The State, 8 Texas Ap. 169; The State
v. Spalding, 19 Conn. 233.

7 Campbell v. The State, 23 Ala. 44;
Moore v. The State, 2 Ohio State, 500;
Reg. v. Barber, 1 Car. & K. 442; Hug-
gins v. The State, 41 Ala. 393; The
State v. Nash, 7 Iowa, 347; The State v.
Grebe, 17 Kan. 458; Conkey v. People, 1
Abb. Ap. 418; The State v. Vinson, 68

78T
§ 1253 THE EVIDENCE. [Book Ix.

§ 1250. Flight, &e. — That, subsequently to the time when the
alleged crime is supposed to have been committed, the defendant
fled or concealed himself, as though to elude justice ;.! or, after
his arrest, attempted or effected an escape,” or gave straw bail
and forfeited his recognizance,’ — is, though not conclusive, ad-
missible as ground from which to infer a consciousness of guilt.
The weight of this evidence is sometimes greatly modified by
considerations arising out of the special circumstances.* So —

§ 1251. Bribe Witness — Intimidate. — The defendant’s at-
tempted or actual keeping away or influencing the testimony of a
witness by bribery or the like,® or by threats,® is evidence of the
same nature, and perhaps more significant. Again, —

§ 1252. Falsehoods and Contradictions, — by the defendant, as
to the alleged offence and its circumstances, are evidence against
him of the like character.’

§ 1258. Conduct and Language under Accusation. — If a person
accused of crime denies it, this is evidence neither for nor against
him. But what he assents to may be shown against him ;° and
if, not confessing guilt, still his conduct or appearance is such as
more or less distinctly to imply a tacit acknowledgment, the facts
may be laid before the jury to be weighed with the other evi-

dence.!2 Thus, —

N. C. 385; Adams v. The State, 52 Ala.
879,

1 The State v. Nat, 6 Jones, N. C.
114; The State v. Phillips, 24 Misso. 475;
Sheffield v. The State, 48 Texas, 378;
People v. Pitcher, 15 Mich. 397.

2 People v. Strong, 46 Cal. 302; The
State v. Arthur, 23 Iowa, 480; Fanning
v. The State, 14 Misso. 886; The State
v. Williams, 54 Misso. 170; Dean ».
Commonwealth, 4 Grat. 541; Hittner v.
The State, 19 Ind. 48; Murrell v. The
State, 46 Ala. 89; People v. Collins, 48
Cal. 277; Whaley v. The State, 11 Ga.
123.

8 Barron v. People, 73 Ill. 256; Porter
v. The State, 2 Ind. 485. See The State
v. Williams, 43 Texas, 182.

4 The State v. Phillips, supra ; Plum-
mer v. Commonwealth, 1 Bush, 76; The
State v. Williams, 43 Texas, 182; People
v. Stanley, 47 Cal. 1138; Revel v. The
State, 26.Ga. 275.

5 The State v. Staples, 47 N. H. 118;

738

The State v. Rohfrischt, 12 La. An. 382;
Dillin v. People, 8 Mich. 357.

6 Adams v. People, 9 Hun, 89.

7 Adams v. The State, 52 Ala. 379;
The State v. Wentworth, 37 N. H. 196;
Walker v. The State, 49 Ala. 398; Cath-
cart v. Commonwealth, 1 Wright, Pa.
108; The State v. Clark, 4 Strob. 311;
Commonwealth v. Grose, 99 Mass. 423;
Tompkins v. The State, 17 Ga. 356;
The State v. Benner, 64 Maine, 267; The
State v. Gillis, 4 Dev. 606; Sheffield v.
The State, 43 Texas, 378. See Wiggins
v. People, 4 Hun, 540.

8 Ante, § 1247; Deathridge v. The
State, 1 Sneed, 75; The State v. Wisdom,
8 Port. 511.

9 Ante, § 1228; Commonwealth v
Call, 21 Pick. 515; Drumright v. The
State, 29 Ga. 430.

10 Commonwealth v. Call, supra; The
State v. Nash, 7 Iowa, 347; Scaggs v.
The State, 8 Sm. & M. 722; People v.
McCrea, 82 Cal. 98; Drumright v. The
State, supra.
CHAP. LXXXII. |

CONDUCT AND ADMISSIONS.

§ 1254

§ 1254. Silence.— Where one, in the presence of the accused,
makes a declaration involving or implying his guilt, and there is
opportunity for a reply, and the surroundings and persons are
such as render it ordinarily expedient and proper, yet he remains
silent, the entire fact may be shown with the other evidence to
the jury. The weight of such fact will vary with the circum-

stances.!

1 People v. Estrado, 49 Cal. 171; The
State v. Perkins, 3 Hawks, 377; Berry v.
The State, 10 Ga. 511; Spencer v. The
State, 20 Ala. 24; Donnelly v. The State,
2 Dutcher, 463, 601; People v. McCrea,
82 Cal. 98; Flanagin v. The State, 25
Ark. 92; The State v. Gillick, 7 Iowa,
287; The State v. Nash, 7 Iowa, 347;
The State v. Grebe, 17 Kan. 458; Kelley
v. People, 55 N. Y. 565; The State v.
Overton, 75 N. C.200; Cobb v. The State,
27 Ga. 648; The State v. Reed, 62 Maine,
129; The State v. Swink, 2 Dev. & Bat.
9. See People ». Green, 1 Parker C. C. 11.
It is sometimes difficult to say whether

or not a case comes within this rule;
and, as to this, the decisions appear not
to be quite harmonious. In the follow-
ing, the declarations in the presence of
the defendant who remained silent were
deemed not admissible against him.
Commonwealth v. Kenney, 12 Met. 235;
Commonwealth v. Walker, 13 Allen, 570;
Commonwealth v. McDermott, 123 Mass.
440; Phillips v. Towler, 23 Misso. 401;
Jelks v. McRae, 25 Ala. 440; Bob ».
The State, 32 Ala. 560. And see Camp-
bell v. The State, 55 Ala. 80; Rex v. Ap-
pleby, 3 Stark. 33.

739
§ 1256

THE EVIDENCE.

[BOoK Ix.

CHAPTER LXXXIII.

JUDICIAL CONFESSIONS AND ADMISSIONS.

§ 1255. Sworn Testimony — (Voluntary).— The answers and
other testimony which one voluntarily gives as a witness in any
cause or proceeding, civil or criminal,1—as, before a commis-
sioner in bankruptcy,? a committee of the legislature? a com-
mitting magistrate,* a grand jury,® a coroner,® a fire inquest,’ or
any court in an ordinary lawsuit,’ — are, as admissions or con-
fessions, competent against him on any issue in a criminal cause

to which they are pertinent.

untary affidavit made on a motion for a continuance.?

So likewise is the party’s own vol-

But —

§ 1256. Involuntary. — Testimony involuntarily given  — as,
for example, answers compelled from a witness who objects
because they may criminate himself," or made under the pressure
of an oath which the tribunal had no legal authority to adminis-
ter,” or uttered when by reason of the circumstances he probably

1 Reg. v. Coote, Law Rep. 4 P. C. 599,
12 Cox C. C. 557; Rex v. Tubby, 5 Car.
& P. 530; Hendrickson v. People, 1 Parker
C. C. 406.

2 Reg. v. Wheater, 2 Moody, 45, 2
Lewin, 157.

8 Rex v. Merceron, 2 Stark. 366; Reg.
v. Sloggett, Dears. 656, 7 Cox C. C, 189,
86 Eng. L. & Eq. 620; Reg. v. Wheater,
2 Moody, 46. ;

4 People v. Burns, 2 Parker C. C. 34;
Reg. v. Chidley, 8 Cox C. C. 865; Rex
v. Haworth, 4 Car. & P. 254; Reg. v.
Braynell, 4 Cox C. C. 402. But see Rex
v. Davis, 6 Car. & P. 177.

5 The State v. Broughton, 7 Ire. 96;
United States v. Charles, 2 Cranch C. C.
76.

§ Teachout v. People, 41 N. Y. 7;
Hendrickson v. People, 6-Seld. 13 (with
which compare People v. McMahon, 15
N. Y. 384, reversing People v. McMahon,
2 Parker C. C. 663) ; People v. Montgom-
ery, 13 Abb. Pr. n. 8. 207, 251; People v.
Thayer, 1 Parker C. C. 695; Williams

, 740

v. Commonwealth, 5 Casey, Pa. 102;
Reg. v. Owen, 9 Car. & P. 88; The State
v. Gilman, 51 Maine, 206; Reg. v. Ches-
ham, 3 Russ. Crimes, 5th Eng. ed. 482.
But see Reg. v. Owen, 9 Car. & P. 238.

7 Commonwealth v. King, 8 Gray, 501.

8 The State v. Vaigneur, 5 Rich. 891;
Reg. v. Goldshede, 1 Car. & K. 687;
Alston v. The State, 41 Texas, 39.

9 Coker v. The State, 20 Ark. 53.

10 Rex v. Lewis, 6 Car. & P. 161; Reg.
v. Sloggett, Dears. 656, 7 Cox C. C. 139,
386 Eng. L. & Eq. 620.

M Ante, § 1172, 1188, 1186; Reg. v.
Coote, Law Rep. 4 P. C. 599, 607; Reg.
v, Garbett, 1 Den. C. C. 286, 2 Car. & K.
474, 2 Cox C. C. 448.

2 Ante, § 1287; The State v. Brough-
ton, 7 Ire. 96, 101; Rex v. Smith, 1 Stark.
242; Rex v. Lewis, 6 Car. & P. 161; Reg.
v. Wheeley, 8 Car. & P. 250; Common-
wealth v. Harman, 4 Barr, 269; Rex v.
Shellswell, 3 Russ. Crimes, 5th Eng. ed.
474. See Rex v. Webb, 4 Car. & P. 564;
Reg. v. Wheater, 2 Moody, 46.
CHAP. LXXXIII.] JUDICIAL CONFESSIONS, ETC. § 1259
feels under a constraint to testify in a cause which in effect
appears as his own,’ or otherwise under fear?—is not thus
admissible.

§ 1257. Under Oath or not — After or before Accusation. — It is
believed that the foregoing sections are correct in principle,
and in accord with all but a few of the authorities. There are
cases which seem to regard the oath as a disqualifying circum-
stance, without distinguishing whether it was lawfully required
or not; and cases wherein the testimony is deemed inadmissible
if given after the witness is himself accused, when it would not
be had it been uttered before. But while the latter distinction
may sometimes be of secondary consequence, it is believed that
what is said above covers, in reason and on the better authorities,
the whole ground? _

§ 1258. Examinations before Magistrates : —

Statutory Provisions. We have seen, that, by early English
statutes, which became common law in at least a part of our
States, committing magistrates were to take in writing the exam-
inations of the prisoners as well as the witnesses. It is so still
in England, under 11 & 12 Vict. c. 42, § 18, which did not much
change the earlier law.6 There are like statutes in some of our
States, but the proceeding is not universal with us.

§ 1259. Directory — (Not following Statute). — These statutes
are construed merely as directory to the magistrate; so that, if
not complied with, or imperfectly followed, or not invoked in
aid of a confession, what is voluntarily said or written before him
is admissible on the principles laid down in the chapter before
the last. And it is the same in a locality where there is no
statute on the subject.6 If the prisoner’s statement is written

1 Ante, §1186; Reg. v. McHugh, 7 Cox
C. C. 483; People v. McMahon, 15 N. Y.
384; Rex v. Lewis, 6 Car. & P. 161; Rexv.
Davis, 6 Car. & P.177; The State v. Gar-
vey, 25 La. An. 191; Rex v. Appleby,
8 Stark. 83, See Reg. v. Gillis, 11 Cox
C. C. 69; and compare with ante, § 1164.

2 United States v. Maunier, 1 Hughes,
412.

8 See 3 Russ. Crimes, 5th Eng. ed.
473-482 ; United States v. Williams, 1
Clif. 6; Schefler v. The State, 3 Wis.
823; People v. Kelley, 47 Cal. 125; and
the cases cited to the foregoing sections.

* Ante, § 1198.

5 3 Russ. Crimes, 5th Eng. ed. 500 et
seq.

6 Rex v. Pressly, 6 Car. & P. 183;
Rex v. Lambe, 2 Leach, 4th ed. 552 ; Reg.
v. Sansome, 1 Den. C. C. 545, 4 Cox C.C.
208, 8 Car. & K. 332, 1 Eng. L. & Eq. 540;
Rex v. Tarrant, 6 Car. & P. 182; Rex v.
Jones, Car. Crim. Law, 3d ed. 18; Lamb’s
Case, 8 Mod. 87, note; Reg. v. Dingley;
1 Car. & K. 687; Reg. v. Stripp, Dears.
648, 7 Cox C.C.. 97, 86 Eng. L. & Eq.
687; Rex v. Thomas, 2 Leach, 4th ed.
687; Rex v. Bradbury, 2 Leach, 4th ed.

T41 :
§ 1262 THE EVIDENCE. [Book Ix.

and subscribed as the statute commands, still it may in some
circumstances be supplemented by utterances not within the
writing! But—

§ 1260. Confession in Writing. — Where, whether pursuant to
a statute or not, the prisoner’s statement has been reduced to
writing (which will be presumed, prima facie, if the statute
requires this of the magistrate”), the writing must be produced,
or a valid reason for its absence shown, else parol evidence of
the written confession will not be received.2 And, —

§ 1261. Statement under Statute. — Where the statement is
strictly under the statute, the magistrate’s return will be conclu-
sive as to it, for it cannot be contradicted. To be admissible in
proof, according to the statutory methods, as distinguishable from
those of the common law, it must be taken in a manner and on a

proceeding fully complying with the statutory direction.5

The

methods of proof require no special explanation here.§
§ 1262. voluntary.— Of course, a confession before a magis-

trate must, like any other, to be

639, note; Rex v. Reed, Moody & M. 408;
Reg. v. Bond, 1 Den. C. C. 517, 3 Car. &
K. 337, 4 Cox C. C. 281; The State »v.
Cowan, 7 Ire. 289; The State v. Irwin,
1 Hayw. 112; The State v. Eaton, 3 Har-
ring. Del. 554; The State v. Parish,
Busbee, 289; Reg. v. Dingley, 1 Car. &
K. 637.

' Rex v. Harris, 1 Moody, 338; Rex v.
Spilsbury, 7 Car. & P. 187. But see Reg.
v. Weller, 2 Car. & K. 223. See Rex v.
Walter, 7 Car. & P. 267; Reg. v. Morse, 8
Car. & P. 605; Reg. v. Wilkinson, 8 Car.
& P. 662; Scott ». The State, 80 Ala. 503.

2 Rex v. Jacobs, 1 Leach, 4th ed. 809;
Rex v. Hinxman, 1 Leach, 4th ed. 310,
note. Otherwise it is for the party object-
ing to prove there was writing. The State
v. Johnson, 5 Harring. Del. 507. And see
Metzer v. The State, 39 Ind. 596.

3 Peter v. The State, 4 Sm. & M. 31;
The State v. Johnson, 5 Harring. Del.
507; Rex v. Telicote, 2 Stark. 483; Rex
v. Rivers, 7 Car. & P. 177; Lightfoot v.
People, 16 Mich. 607, 612.

4 Rex v. Bentley, 6 Car. & P. 148;
Rex v. Rivers, 7 Car. & P.177; Rex v.
Walter, 7 Car. & P. 267; Reg. v. Morse,
8 Car. & P. 605; Reg. v. Pikesley, 9 Car.
& P.124; Rex v. Clewes, 4 Car. & P. 221.

742

admissible, be voluntary.’

5 Rex v. Bentley, supra; Reg. v. San-
some, 1 Den. C. C. 545, 3 Car. & K. 382,
4 Cox C. C. 203, 1 Eng. L. & Eq. 540;
Reg. v. Higson, 2 Car. & K. 769; The
State v. Lamb, 28 Misso. 218.

6 Ante, § 1199; Rex v. Foster, 7 Car.
& P. 148; Rex v. Hopes, 7 Car. & P. 186;
Rex v. Reading, 7 Car. & P. 649; Rex v.
Rees, 7 Car. & P. 568; Rex vu. Bell, 5
Car. & P. 162; Reg. v. Higson, supra;
Reg. v. Hearn, Car. & M. 109; Rex »v.
Chappel, 1 Moody & R. 395; Alfred v.
The State, 2 Swan, Tenn. 581; Loyd v.
The State, 45 Ga. 57; People v. Banker,
2 Parker C. C. 26; The State v. Lamb,
supra; Brez v. The State, 39 Texas, 95.
Duty of Magistrate. — For some further
authorities as to the duty of the examin-
ing magistrate, see Rex v. Ellis, Ryan &
Moody, N. P. 482; Rex .v. Green, 5 Car.
& P. 312; Reg. v. Roche, Car. & M. 341;
Rex v. Howes, 6 Car. & P. 404; Reg. v.
Arnold, 8 Car. & P. 621; Rex v. Bart-
lett, 7 Car. & P. 882; The ‘State v. Rorie,
74.N. C. 148.

* People v. Wimcan 41 Cal. 452; Al-
fred v. The State, 2 Swan, Tenn. 581;
Wyatt v. The State, 25 Ala. 9; The State
v. Rorie, 74 N. C. 148.
CHAP. LXXXIV.] METHODS TO REHEARING. § 1264

BOOK X.

THE ORDINARY PROCEEDINGS AFTER VERDICT.

CHAPTER LXXXIV.

THROUGH WHAT METHODS ARE APPLICATIONS FOR A
REHEARING.

§ 1263. Preliminary Explanation. — To some extent in criminal
causes, but not so generally as in civil, the right to a rehearing
has from early times been conceded to defendants wrongly con-
victed. By statutes and by judicial constructions, this right is
much enlarged in this country. Yet the methods so vary in
our different States that a minute examination of them here will
not be expedient. The principal ones are —

§ 1264. Appeal. — An appeal is the removal of a cause, after
steps in it have been taken, from the inferior: judge or court to a
superior, for a partial or full rehearing. It is a process familiar
in the civil-law tribunals, but is known in those of the common
law only as given by statutes.!_ Some of the decisions in criminal
causes, under our differing enactments, including a few cases
only partly criminal, are referred to in a note.2_ They show,

1 Rex v. Hanson, 4 B. & Ald. 519, 521;
United States v. Goodwin, 7 Cranch,
108; Wiscart v. Dauchy, 3 Dall. 821;
Rex v. Surry, 2 T. R. 504, 509, 510;
Rex rv. Skone, 6 East, 514, 518; The Con-
stitution v. Woodworth, 1 Scam. 611;
Edwards v. Vandemack, 13 IIl. 683;
Street v. Francis, 3 Ohio, 277. See
Reg. v. Eduljee Byramjee, 5 Moore P. C.
276.

2 Alabama. — Phleming v. The State,
Minor, 42; Humphrey v. The State,
Minor, 64; Tomlin v. The State, 19 Ala.
9; Floyd v. The State, 80 Ala. 511;
Stallings v. The State, 83 Ala. 425;

Nonemaker v. The State, 34 Ala. 211;
Young v. The State, 39 Ala. 357; Aaron
v. The State, 39 Ala. 684; Bryan v. The.
State, 43 Ala. 321; Robertson v. The
State, 48 Ala. 825; Mobile v. Barton, 47
Ala. 84; Goldthwaite v. Montgomery, 50
Ala. 486; Mobley v. The State, 53 Ala.
646.

Arkansas. — Dunn v. The State, 2 Pike,
229; The State v. Hicklin, 5 Pike, 190;
Pendleton v. The State, 1 Eng. 509; Cha-
ney v. The State, 4 Eng. 129; Bivens v.
The State, 6 Eng. 455; Ex parte Bix-
ley, 13 Ark. 286; Sweeden v. The State,
19 Ark. 205; Horner v. The State, 27

743
§ 1264

PROCEEDINGS AFTER VERDICT.

[Book x.

that, in most but not all of the States, an appeal lies only from a
final judgment, that the appellate court rehears more or less or

Ark. 118; The State v. Cox, 29 Ark. 115;
Siverburg v. The State, 30 Ark. 39.

California. — People v. McCauley, 1
Cal. 379; People v. Baker, 1 Cal. 403;
People v. San Martin, 2 Cal. 484; People
v. Martin, 6 Cal. 477; People v. Stillman,
7 Cal. 117; People v. Shear, 7 Cal. 139;
People v. Freelon, 8 Cal. 517; People v.
Fowler, 9 Cal. 85; People v. Harris, 9
Cal. 571; People v. Ah Fong, 12 Cal. 424;
People v. Cornell, 16 Cal. 187; People v.
War, 20 Cal. 117; People v. Wallace, 23
Cal. 93; People vu. Frisbie, 26 Cal. 135;
People v. Maguire, 26 Cal. 685; People v.
Hodges, 27 Cal. 340; People v. Hender-
son, 28 Cal. 465; People v. Burney, 29
Cal. 459; People v. Johnson, 30 Cal. 98;
People v. Young, 31 Cal. 563; People v.
Stacey, 34 Cal. 307; People v. Clarke, 42
Cal. 622; People v. Ah Kim, 44 Cal. 884;
People v. Phillips, 45 Cal. 44; People v.
Donahue, 45 Cal. 321; People v. Strong,
46 Cal. 302; People v. Martin, 47 Cal.
112; People v. Riley, 48 Cal. 549; People.
v. Perdue, 49 Cal. 425.

Connecticut. — Wickwire v. The State,
19 Conn. 477; Calef v. Phelps, 25 Conn.
114; The State v. Harding, 89 Conn.
561.

Florida. — Joe v. The State, 6 Fla.
691; Cherry v. The State, 6 Fla. 679.

Illinois. — Swafford v. People, 1 Scam.
289; Holliday v. People, 4 Gilman, 111;
Walsh v. People, 12 Ill. 77; Stephens v.
People, 13 Ill. 181; Ward v. People, 13
Ill. 6385; Mohler v. People, 24 Ill. 26;
Alton v. Kirsch, 68 Ill. 261; Hennies v,
People, 70 Ill. 100; Byars v. Mt. Vernon,
77 Ill. 467; French v. People, 77 Ill. 531;
Lewis v. People, 82 Ill. 104; Hauskins v.
People, 82 Ill. 193.

Indiana. — The State v. Daily, 6 Ind.
9; Pigg v. The State, 9 Ind. 868;
Shroyer v. Lawrence, 9 Ind. 822; The
State v. Bartlett, 9 Ind. 569; The State
v. Ely, 11 Ind. 813; Collier v. The State,
13 Ind. 660; The State v. Kunbert, 14
Ind. 3874; Jackson v. The State, 21 Ind.
171; Hall v. The State, 21 Ind. 268;
Hlitchcock v. The State, 21 Ind. 279;
Luther v. The. State, 27 Ind. 47; Wach-
stetter v. The State, 42 Ind. 166; O’Con-

744

nor v. The State, 45 Ind. 347; Eisenman
v. The State, 49 Ind. 520; Winsett v. The
State, 54 Ind. 487.

Iowa. — Rutter v. The State, 1 Iowa,
99; Bryan v. The State, 4 Iowa, 349;
Miller v. The State, 4 Iowa, 505; The
State v. Nichols, 5 Iowa, 413; The State
v. Rollet, 6 Iowa, 585; The State v.
Cure, 7 Iowa, 479; The State v. Moran,
8 Iowa, 399; The State v. Beneke, 9
Towa, 2083; The State z. Glass, 9 Iowa,
825; The State v. Shilling, 10 Iowa, 106;
The State v. Fleming, 18 Iowa, 443;
The State v. Schlagel, 19 Iowa, 169; The
State v. Mercer, 19 Iowa, 570; The State
v. Tait, 22 Iowa, 140; The State v. Shaw,
23 Iowa, 316; The State v. Westfall, 37
Iowa, 575; The State v. Cuddy, 40 Iowa,
419; The State v. Swearengen, 43 Iowa,
336 (overruling The State v. Brandt, 41
Iowa, 508); The State v. Kinney, 44
Iowa, 444; The State v. Hoag, 46 Iowa,
837.

Kansas. — Carr v. The State, 1 Kan.
331; The State v. King, 1 Kan. 466; The
State v. Carmichael, 8 Kan. 102; Cum-
mings v. The State, 4 Kan. 225; The
State v. Young, 6 Kan. 37; The State v.
Baird, 9 Kan. 60; The State v. Boyle, 10
Kan. 118; The State v. McEwen, 12 Kan.
87; The State v. Harpster, 15 Kan. 822;
The State v. Freeland, 16 Kan.9; The
State v. Horneman, 16 Kan. 452; The
State v. Anderson, 17 Kan. 89; Burling-
ton v. James, 17 Kan. 221.

Kentucky. — Commonwealth v. San-
ford, 5 Litt. 289; Ford v. Commonwealth,
3 Dana, 46; Commonwealth v. Hopkins-
ville, 7 B. Monr. 88; Hayden v. Common-
wealth, 10 B. Monr. 125; Commonwealth
v. Craig, 15 B. Monr. 584; Cornelius v.
Commonwealth, 15 B. Monr. 589; Com-
monwealth v. Adams, 16 B.- Monr. 888;
Commonwealth v. Crump, 18 B. Monr.
469; Commonwealth v. Van Tuyl, 1 Met.
Ky. 1; Tipper v, Commonwealth, 1 Met.
Ky. 6; Commonwealth v. McCready, 2
Met. Ky. 876; Clem v. Commonwealth,
83 Met. Ky. 10; Margoley v. Common-
wealth, 3 Met. Ky. 405; Terrell v. Com-
monwealth, 18 Bush, 246.

Louisiana, — The State v. Featherston,
CHAP, LXXXIV.]

METHODS TO REHEARING.

§ 1264

all of the case according to considerably diverse provisions, and
that various other differences prevail in different States and as
to different classes of criminal causes.

7 La. An. 109; The State v. Ellis, 12 La.
An. 390; The State v. McKeown, 12 La.
An. 596; The State v. Peter, 13 La. An.
232; The State v. Fabre, 18 La. An. 279;
The State v. Rolland, 14 La. An. 40; The
State v. Lindsey, 14 La. An. 42; The
State v. Rentiford, 14 La. An. 214;
The State v. Ross, 14 La. An. 864; The
State v. Charles, 14 La. An. 649; The
State ». Ward, 14 La. An.673; The State
v. Joshua, 15 La. An. 118; The State ec.
Recorder, 15 La. An. 406; The State v.
Judge, &c., 16 La. An. 159; Police Jury
v. Manning, 16 La. An. 182; The State
v. Cason, 20 La. An. 48; The State x.
Krepple, 20 La. An. 402; The State ».
Watkins, 21 La. An. 290; The State
v. Evans, 23 La. An. 525; The State v.
Brown, 27 La. An. 286; The State v. Cal-
lum, 28 La. An. 49; The State ». Banks,
28 La. An. 92; The State v. Wikoff, 28
La. An. 654.

Maine. — The State v. Smith, 2 Greenl.
62; The State v. Richardson, 2 Greenl.
115; Dennison’s Case, 4 Greenl. 541;
The State v. Magrath, 81 Maine, 469;
The State v. Gurney, 87 Maine, 156;
Saco v. Wentworth, 87 Maine, 165; The
State v. Boies, 41 Maine, 344; The State
v. Corkrey, 64 Maine, 521.

Maryland. — Jenifer v. Lord Proprie-
tary, 1 Har. & McH. 535; Rawlings v.
The State, 1 Md. 127; The State v. Mace,
5 Md. 837; Keller v. The State, 12 Md.
822; Smith v. The State, 44 Md. 580;
Rhinehart v. The State, 45 Md. 454.

Massachusetts. — Commonwealth v.
Messenger, 4 Mass. 462; Commonwealth
v. Downey, 9 Mass. 520; Cooke, Peti-
tioner, 15 Pick. 234; Commonwealth v.
Brigham, 16 Pick. 10; Commonwealth v.
Richards, 17 Pick. 295; Commonwealth
v. Tuck, 20 Pick. 856 ; Commonwealth v.
Dunham, 22 Pick. 11; Commonwealth »v.
Doty, 2 Met. 18; Commonwealth r. Craw-
ford, 12 Cush. 271; Feeley’s Case, 12
Cush. 598; Sullivan v. Adams, 3 Gray,
476; Commonwealth «. O’Neil, 6 Gray,
843; Commonwealth v. Wingate, 6 Gray,
485; Commonwealth v. Bestin, 11 Gray,
64; Commonwealth v. Dillane, 11 Gray, 67;

Commonwealth v. Sullivan, 11 Gray,
203; Commonwealth v. Hogan, 11 Gray,
3815; Commonwealth v. Sheehan, 12
Gray, 28; Commonwealth ‘v. Tinkham,
14 Gray, 12; Commonwealth v. McCor-
mack, 7 Allen, 532; Commonwealth v
Hardiman, 7 Allen, 588; Commonwealth
v. Hagarman, 10 Allen, 401; Common-
wealth v. Emmons, 98 Mass. 6; Common-
wealth v. McGrath, 102 Mass. 485; Com-
monwealth v. Campion, 105 Mass. 184;
Commonwealth v. Calhane, 108 Mass.
481; Batchelder v. Commonwealth, 109
Mass. 361; Commonwealth v. Dressel,
110 Mass. 102; Commonwealth v. Ma-
honey, 115 Mass. 151; Commonwealth
v. Fields, 119 Mass. 105; Commonwealth
v. Holmes, 119 Mass. 195; Common-
wealth v. Malloy, 119 Mass. 847; Com-
monwealth v. Burke, 121 Mass. 89; Com-
monwealth v. Huard, 121 Mass. 56.

Michigan. — People v. Farwell, 4 Mich.
556.

Minnesota. —The State v. McGrorty,
2 Minn. 224; Kennedy v. Raught, 6 Minn.
235; The State v. Ehrig, 21 Minn. 462;
The State v. Bliss, 21 Minn. 458; The
State v. Christensen, 21 Minn. 500; The
State v. Owens, 22 Minn. 238.

Mississippi. — Tuomey v. The State, 5
How. Missis. 50; Loftin v. The State, 11
Sm. & M. 858; Minor v. The State, 86
Missis. 630; Dawkins v. The State, 42
Missis., 631.

Missouri.— The State v. Epperson, 4
Misso. 90; The State v. Heatherly,
4 Misso. 478; Thomas v. The State, 10
Misso. 235; Manion v. The State, 11
Misso. 578; The State v. McO’Blenis,
21 Misso. 272; The State v. Rowe, 22
Misso. 828; St. Louis v. Murphy, 24
Misso. 41; The State ve. Shehane, 25
Misso. 565; St. Louis v. Bird, 81 Misso.
88; The State v. Gray, 87 Misso. 463;
The State v. Gregory, 88 Misso. 501; The
State v. Smith, 42 Misso. 550; The State
v. Connell, 49 Misso. 282; The State ce.
Cunningham, 51 Misso. 479; The State
v. Martindale, 52 Misso. 81; The State v.
Love, 52 Misso. 106; The State v. Mullix,
58 Misso. 855; The State v. Clarkson, 59

745
§ 1265

PROCEEDINGS AFTER VERDICT.

[BOOK x.

§ 1265. Exceptions. — The statutes as to rehearings under
exceptions, or bills of exception, differ, yet less than those regu-

Misso. 149; The State v. Heed, 62 Misso.
559; The State v. Brown, 1 Misso. Ap. 449.
Nevada. — People v. Logan, 1 Nev.
110; The State v. Logan, 1 Nev. 609; The
State v. Wilson, 5 Nev. 48; The State v.
Keith, 9 Nev. 15; The State v. Summers,
9 Nev. 399 ; The State v. Myatt, 10 Nev.
163; The State v. Rover, 10 Nev. 388.

New Hampshire. — The State v. White,
41 N. H. 194.

New York. —People v. Rensselaer, 6
Wend. 543; Hill v. People, 6 Seld. 463.

North Carolina. — The State v. Had-
cock, 2 Hayw. 162; The State v. Quin-
nery, Taylor, 83; The State v. Jones, 1
Murph. 257; The State v. Washington,
2 Murph. 100; The State v. Osborne, 1
Dev. & Bat. 114; The State v. Valentine,
7 Ire. 141; The State v. Daniel, 8 Ire.
21; The State v. Upchurch, 9 Ire. 454;
The State ‘v. Barnes, 7 Jones, N. C. 20;
The State v. Brannen, 8 Jones, N. C.
208; The State v. Credle, 63 N. C. 506;
The State v. Wiseman, 63 N. C. 586;
The State v. Jefferson, 66 N. C. 3809; The
State v. Divine, 69 N. C. 890; The State
v. Quick, 72. N.C. 241; The State v. Lane,
78 N. C. 547.

Oregon. —The State v. Brown, 5 Ore-
gon, 119.

Pennsylvania. — Schoeppe v. Common-
wealth, 15 Smith, Pa. 51.

Rhode Island. — The State v. Almy, 8
R. I. 149.

South Carolina. — The State v. Friday,
4 Rich. 291; The State v. Sutcliffe, 4
Strob. 372.

Tennessee. — Anonymous, | Tenn. 437;
The State v. Vance, 1 Tenn. 481; The
State vo. Tolls, 5 Yerg. 863; Ex parte
Martin, 5 Yerg. 456; The State v. Solo-
mons, 6 Yerg. 860; Staggs v. The State, 3
Humph. 372; Lewis v. The State, 1 Head,
829; Osburn rv. The State, 4 Coldw. 184.

Texas. — Shannon v. The State, 7
Texas, 492; Hammons v. The State,
8 Texas, 272; Laturner v. The State, 9
Texas, 451; Bacon v. The State, 10 Texas,
98; The State v. Cartwright, 10 Texas,
280; Pierce ». The State, 10 Texas, 556;
Holman v. The State, 10 Texas, 558;
Lawrence v. The State, 14 Texas, 482;

T46

Burrell v. The State, 16 Texas, 147; The
State v. Norton, 19 Texas, 102; Manes
v. The State, 20 Texas, 88; The State
v. Boren, 21 Texas, 591; The State v,
Paschal, 22 Texas, 584; Chaney v. The
State, 23 Texas, 23; Tardiff v. The State,
23 Texas, 169; Fairchild v. The State, 23
Texas, 176; The State v. Fatheree, 23
Texas, 202; Killingsworth v. The State,
23 Texas, 204; Rains v. Hood, 23 Texas,
655; Calvin v. The State, 23 Texas, 577;
Henry v. The State, 24 Texas, 361; Little
v. The State, 26 Texas, 110; Scott v. The
State, 26 Texas, 116; Millican v. The
State, 26 Texas, 865; Nathan v. The
State, 28 Texas, 826; The State v. Stout,
28 Texas, 327; The State o. Fryber,
29 Texas, 181; Adler v. The State, 31
Texas, 61; Breeding v. The State, 31
Texas, 94; Ballew v. The State, 86 Texas,
98; Mullins v. The State, 87 Texas, 387;
Fulcher v. The State, 88 Texas, 505 (over-
ruling Hoppe v. The State, 82 Texas,
38); Mayfield v. The State, 40 Texas,
289; Miller v. The State, 48 Texas, 579;
Anschincks v. The State, 43 Texas, 587;
Moore v. The State, 44 Texas, 595;
Young v. The State, 1 Texas Ap. 64;
Jobe v. The State, 1 Texas Ap. 183; White
v. The State, 1 Texas Ap. 211; Smith v.
The State, 1 Texas Ap. 408; Smith v.
The State, 1 Texas Ap. 516; Choate v.
The State, 2 Texas Ap. 302; Trimble
v. The State, 2 Texas Ap. 803; Butler v.
The State, 2 Texas Ap. 529; Roberts
v. The State, 3 Texas Ap. 47; Richard-
son v. The State, 8 Texas Ap. 69; Bil-
lingsly v. The State, 3 Texas Ap. 686;
Morgan cv. The State, 4 Texas Ap. 33;
Labbaite v. The State, 4 Texas Ap. 169;
Hill v. The State, 4 Texas Ap. 559.

Vermont.— The State o. Haynes, 35
Vt. 565.

Virginia, — Commonwealth v. Crowe,
1 Va. Cas. 125; Commonwealth v. Vaw-
ter, 1 Va. Cas. 127; Baker v. Common-
wealth, 2 Va. Cas. 858; Read v. Common-
wealth, 24 Grat. 618.

Wisconsin. — The State v. Lamont, 2
Wis. 487; The State v. Byron, 33 Wis. 119.

Dnited States. — United States v. Peg-
gy, 1 Cranch, 108,110; Yeaton v. United
CHAP. LXXXIV.]

lating appeals.
cited in a note.?

States, 5 Cranch, 281; Ex parte Kearney,
7 Wheat. 38; Unjted States v. Preston, 3
Pet. 57; United States: v. Wood, 1 Mac-
Ar. 241. ;

1 Alabama, — Ned v. The State, 7
Port. 187; The State v. Jones, 5 Ala.
666; The State v. Ivey, 11 Ala. 47;
Pierson v. The State, 12 Ala. 149; Tharp
v. The State, 15 Ala. 749; Davis v. The
State, 17 Ala. 415; Morris v. The State,
25 Ala. 567; Floyd v. The State, 30 Ala.
511; Frank ev. The State, 40 Ala. 9;
David v. The State, 40 Ala. 69; Murphy
v. The State, 54 Ala. 178; Childs v. The
State, 55 Ala. 28; Stroud v. The State,
65 Ala. 77.

Arkansas. — The State v. Hand, 1
Eng. 169; The State v. Denton, 1 Eng.
259; Steward v. The State, 13 Ark. 720;
Chitwood v. The State, 18 Ark. 453.

California. — People v. McCauley, 1
Cal. 879; People v. Lafuente, 6 Cal. 202;
People v. Lockwood, 6 Cal. 205; People
v. Stonecifer, 6 Cal. 405; People v. Mar-
tin, 6 Cal. 477; People v. Apple, 7 Cal.
289; People v. Honshell, 10 Cal. 83;
People v. Woppner, 14 Cal. 437; People
v. Lee, 14 Cal. 510; People v. Romero,
18 Cal. 89; People v. Martin, 32 Cal. 91;
People v. Ferguson, 84 Cal. 309.

Colorado. — Smith v. People, 1 Col.
Ter. 121.

Florida. — Heffron v. The State, 8 Fla.
73; Gladden v. The State, 12 Fla 562;
John v. The State, 16 Fla. 554; Reed vu.
The State, 16 Fla. 664.

Georgia. — Truluck v. Peeples, 1 Kelly,
1; Harris v. The State, 2 Kelly, 211;
Smith v. Burn, 2 Kelly, 262; Fuller v.
The State, 14 Ga. 268; The State v.
Powers, 14 Ga. 888; Mitchell v. The
State, 22 Ga. 211,229; Brock v. The State,
23 Ga. 871; Wise v. The State, 24 Ga. 31;
Hinch v. The State, 25 Ga. 699; Choice
v. The State, 31 Ga. 424.

Illinois. — Welsh v. People, 17 Ill. 389 ;
O’Hare v. People, 40 Ill. 633; Falk v.
People, 42 Ill. 881; French v. People, 77
Ill. 581.

Indiana.— The State v. Flemons, 6
Ind. 279; Wheeler v. The State, 8 Ind.
118; Woolley v. The State, 8 Ind. 377;

METHODS TO REHEARING.

§ 1265

Some of the adjudications in criminal causes are
This proceeding appears to have been unknown

Leyner v. The State, 8 Ind. 490; Nutter
v. The State, 9 Ind. 178; The State v.
Bartlett, 9 Ind. 569; The State v. Ely, 14
Ind. 291; The State v. Rabourn, 14 Ind.
800; Stewart v. The State, 24 Ind. 142;
Medler v. The State, 26 Ind. 171; Dunn
v. The State, 29 Ind. 259; Fitzenrider v.
The State, 80 Ind. 238; Galvin v. The
State, 56 Ind. 51; Beavers v. The State,
58 Ind. 580.

Iowa. — Ray v. The State, 1 Greene,
Towa, 316; The State ». Moran, 7 Iowa,
236 ; The State v. Fay, 48 Iowa, 651.

Kentucky. — Fowler v. Commonwealth,
4 T. B. Monr. 128; Tipper v. Common.
wealth, 1 Met. Ky. 6; Tweedy v. Com-
monwealth, 2 Met. Ky. 878; Smith vo.
Commonwealth, 1 Duv. 224.

Louisiana. — The State v. Shaw, 5 La.
An. 342; The State v. Upton, 5 La. An.
438; The State v. Patten, 10 La. An. 299;
The State v. Judge, 12 La. An. 118; The
State v. Jackson, 12 La. An. 679; The
State v. Bunger, 14 La. An. 461.

Maine.— The State v. Somerville, 21
Maine, 14; The State ». Wing, 32 Maine,
581; The State v. Mayberry, 48 Maine,
218; The State v. Damery, 48 Maine,
827; The State v. Bartlett, 55 Maine, 200.

Maryland. —Dulany v. The State, 45
Md. 99; Broll v. The State, 45 Md. 356 ;

“Rhinehart v. The State, 45 Md. 454;

Kearney v. The State, 46 Md. 422.
Massachusetts. — Commonwealth  v.
Moore, 8 Pick. 194; Piper v. Willard, 6
Pick. 461; Commonwealth v. Child, 10
Pick. 252 ; Commonwealth v. Sacket, 22
Pick. 894; Commonwealth v. Peck, 1 Met.
428; Commonwealth v. Doty, 2 Met. 18;
Commonwealth v. Dow, 5 Met. 829;
Commonwealth v. Harley, 7 Met. 467;
Commonwealth v. Morris, 1 Cush. 3891;
Commonwealth v. Collins, 2 Cush. 556;
Commonwealth v. Cummings, 3 Cush.
212; Commonwealth v. Savory, 10 Cush.
585; Commonwealth v. Stevens, 10
Cush. 488; Commonwealth v. Hills, 10
Cush. 680; Commonwealth v. Crawford,
12 Cush. 271; Commonwealth v. Robin-
son, 1 Gray, 555; Commonwealth v.
Harmon, 2 Gray, 289 ; Commonwealth
v. Packard, 5 Gray, 101; Commonwealth

T4T
§ 1265

PROCEEDINGS AFTER VERDICT.

[BooK x.

to the ancient common law ;! but it was introduced by the stat-
ute of Westminster 2 (138 Edw. 1), Stat. 1, ¢. 31, a.p. 1285,

v. Bosworth, 6 Gray, 479; Commonwealth
v. Austin, 7 Gray, 51; Commonwealth v.
Burns, 8 Gray, 482; Commonwealth v.
Lincoln, 9 Gray, 288; Commonwealth
v. Sallen, 11 Gray, 52; Commonwealth v.
Slate, 11 Gray, 60 ; Commonwealth: v.
Paulus, 11 Gray, 305; Commonwealth
v. Gould, 12 Gray, 171; Commonwealth
v. Merrill, 14 Gray, 415; Commonwealth
v. Marshall, 15 Gray, 202; Common-
wealth v. Gillon, 2 Allen, 505; Common-
wealth v. Hughes, 2 Allen, 518; Com-
monwealth v. Dower, 4 Allen, 297 ; Com-
monwealth v. Hall, 4 Allen, 805; Com-
monwealth v. McGovern, 10 Allen, 193;
Commonwealth v. Blake, 12 Allen, 188;
Commonwealth v. Wilson, 99 Mass. 427;
Commonwealth v. Greenlaw, 119 Mass.
208; Commonwealth v. Scott, 123 Mass.
418.

Michigan. — Shannon v. People, 5 Mich.
36; People v. Jackson, 8 Mich. 110;
Pond v. People, 8 Mich. 150; Tyler v.
People, 8 Mich. 820; Wattles v. People,
13 Mich. 446 ; Crofoot v. People, 19 Mich.
254; People v. Bristol, 22 Mich. 299.

Minnesota. — The State v. Laliyer, 4
Minn. 368.

Mississippi. — Byrd v. The State, 1
How. Missis. 247; McDaniel v. The State,
8 Sm. & M. 401; Rawls v. The State, 8
Sm. & M. 599; Cain v. The State, 13 Sm.
& M. 456; The State v. Farish, 23 Missis.
483; Van Buren v. The State, 24 Missis.
512; Haynie v. The State, 32 Missis. 400.

Missouri. — Vaughn v. ‘The State, 4
Misso. 290; Ingram v. The State, 7
Misso. 293; The State v. McO’Blenis,
21 Misso. 272; The State v. Weber, 22
Misso. 321; The State v. Shehane, 25
Misso. 565; The State v. Connell, 49 Misso.
282; The State v. Fritterer, 65 Misso.
422; The State v. Foster, 1 Misso. Ap. 1.

Nebraska. — Dodge v. People, 4 Neb.
220.

Nevada, — People v. Gleason, 1 Nev.
175; The State v. Salge, 1 Nev. 455;
The State v. Jones, 7 Nev. 408; The
State v. Rigg, 10 Nev. 284; The State v.
Larkin, 11 Nev. 814.

New Hampshire.— The State v. Ste-
vens, 36 N. H. 59.

New Jersey. — The State v. Fox, 1
Dutcher, 566; Johnson v. The State,
2 Dutcher, 313; Donnelly v. The State,
2 Dutcher, 463.

New York. — People v. Holbrook, 13
Johns. 90; Ex parte Vermilyea, 6 Cow.
555; People v. Vermilyea, 7 Cow. 108;
Ex parte Barker, 7 Cow. 143; People »v.
Colt, 3 Hill, N. ¥. 432; People v. Bodine,
1 Denio, 281; Freeman v. People, 4 Denio,
9; Wynhamer v. People, 20 Barb. 567,
2 Parker C. C. 377; Wood v. People, 3
Thomp. & C. 506, 1 Hun, 381; Meyer »v.
Goedel, 31 How. Pr. 456; People v. Fin-
negan, 1 Parker C. C. 147; People v..
Stockham, 1 Parker C. C. 424; Hayen
c. People, 8 Parker C. C. 175; Hartung
v. People, 4 Parker C. C. 319; Shorter v.
People, 2 Comst. 193; Messner v. People,
45 N. Y.1; People v. Bennett, 49 N. Y.
137; Donohue v. People, 56 N. Y. 208;
People v. Genet, 59 N. Y. 80.

Ohio. — Hooker v. The State, 4 Ohio,
848; The State v. Todd, 4 Ohio, 351;
Baldwin v. The State, 6 Ohio, 15; Loeff-
ner v. The State, 10 Ohio State, 598;
Gandolfo v. The State, 11 Ohio State,
114; O’Meara v. The State, 17 Ohio
State, 515; Goldsmith v. The State, 30
Ohio State, 208. See Van Buskirk v.
Newark, 26 Ohio State, 37.

Pennsylvania. — Middleton v. Common-
wealth, 2 Watts, 285; Fife v. Common-
wealth, 5 Casey, Pa. 429; Schoeppe v.
Commonwealth, 15 Smith, Pa. 61.

Rhode Island. — The State v. Hopkins,
5 R.1. 63; The State v. Williams, 6 R.I
207.

Tennessee. — Yates v. The State, 10
Yerg. 549.

Texas. — Ashworth v. The State, 9
Texas, 490; The State v. Stephenson, 20
Texas, 151; Bell v. The State, 2 Texas
Ap. 215; Williams v. The State, 4 Texas
Ap. 5; Owens v. The State, 4 Texas Ap.
153; Allen v. The State, 4 Texas Ap.
581.

Vermont. — The State v. Carr, 13 Vt.

1 4 Chit. Gen. Pract. 2.

748
CHAP. LXXXIV.] METHODS TO REHEARING. § 1268

which permitted it to ‘cone that is impleaded before any of the
justices.” The provision is plainly enough common law in our
States! Yet, bothin England and this country, it is held not to
extend to criminal causes ;? so that, with us, the law of excep-
tions in these causes is, like that of appeals, entirely statutory.

§ 1266. Case Reserved. — The modern English method of
review, by reserving for the court of review a question of law
arising in a criminal trial,* has something like its counterpart in

a few of our States,® but it is not much practised.
§ 1267. Writ of Error.— The writ of error, to be considered in
a chapter further on, is in some of the States employed in con-

nection with the exceptions.§

§ 1268. Motion for New Trial. — At common law, without stat-
utory aid, any superior court, but not generally an inferior,’ may,

671; The State v. Hebert, 27 Vt. 595;
The State v. Clark, 37 Vt. 471; The State
v. Ward, 39 Vt. 225.

Virginia. — Case v. Commonwealth, 1
Va. Cas. 264; Commonwealth v. Hicker-
son, 2 Va. Cas. 60; Souther v. Common-
wealth, 7 Grat. 673; Vaiden v. Common-
wealth, 12 Grat. 717; Bull v. Common-
wealth, 14 Grat. 613.

West Virginia. — Commonwealth v.
Hall, 8 W. Va. 259.

Wisconsin. — The State v. Jager, 19
Wis. 285; Oleson v. The State, 19 Wis.
560; Rothbauer v. The State, 22 Wis.
468; The State v. Stone, 37 Wis. 204.

United States.— United States v. Gi-
bert, 2 Sumner, 19; Field v. United
States, 9 Pet. 182; Ohio v. Marcy, 18
Wal. 552.

1 Bishop First Book, § 49-59; Report
of Judges, 3 Binn. 595, 606; Kilty Rep.
Stats. 212.

2 Reg. v. Alleyne, Dears. 505, 609,
4 Ellis & B. 186, 29 Eng. L. & Eq. 179;
Vane’s Case, J. Kel. 14, 15,.T. Raym.
484, 6 Howell St. Tr. 119, 180, 181 and
note; Reg. v. Jelly, 10 Cox C. C. 558;
People v. Holbrook, 18 Johns. 90; Ex
parte Barker, 7 Cow. 148; Ned v. The
State, 7 Port. 187. And cee Archb. Crim.
Pl. & Ev. 18th Lond. ed. 145; Rex v.
Preston-on-the-Hill, 2 Stra. 1040; 2 Tidd
Pr. 8th Eng. ed. 911.

3 Wynhamer v. People, 20 Barb. 567,
2 Parker C. C. 877; Schoeppe v. Com-
monwealth, 15 Smith, Pa. 51.

411 & 12 Vict. c. 78 (1848); Reg. v.
Martin, 1 Den. C. C. 898, 2 Car. & K.
950, 38 Cox C. C. 447; Reg. r. Webb, 1
Den. C. C. 338, 2 Car. & K. 933, 3 Cox
C. C. 183; Reg. v! Holloway, 1 Den. C. C.
870, 2 Car. & K. 942, 3 Cox C. C. 241;
Reg. v. Clark, Law Rep. 1 C. C. 54;
Reg. v. Trebilcock, Dears. & B. 453. See
Reg. v. Frost, 2 Moody, 140, 171; In re
Reserved Cases, Jebb, 234.

5 Commonwealth v. Ordway, 12 Cush.
270; The State v. Call, 1 Fla. 92; The
State v. Stevens, 86 N. H. 59; The State
v. Lowry, 29 Ala. 44; Bonfanti v. The
State, 2 Minn. 123; The State v. Glaze,
9 Ala. 288; The State v. Morea, 2 Ala.
275 ; The State v. Harkins, 6 Ala. 57;
Callahan v. The State, 2 Stew. & P. 379.
See Commonwealth vu. Intoxicating
Liquors, 105 Mass. 468; The. State v.
Gardner, 45 Ala. 46; Pynes v. The State,
45 Ala. 52; Bob v. The State, 2 Yerg.
178; Logan’s Case, 5 Grat. 692; Cory v.
The State, 58 Ga. 236.

8 Donohue v. People, 56 N. Y. 208;
Messner v. People, 45 N. Y.1; People v.
Thompson, 41 N. Y. 1; The State v.
Moran, 7 Iowa, 286; Ray v. The State, 1
Greene, Iowa, 316; French v. People, 77
Ill. 581; Tlarris v. The State, 2 Kelly,
211; The State v. Ivey, 11 Ala. 47; The
State v. Jones, 5 Ala. 666 ; Mohler v. Peo-
ple, 24 Ill. 26; Loeffner v. The State, 10
Ohio State, 598. And see Van Buskirk
v. Newark, 26 Ohio State, 87. ~
‘ 7 Brooke v. Ewers, 1 Stra. 118; Tom-

749
§ 1268 PROCEEDINGS AFTER VERDICT. [BooK x.

on good cause being shown, set aside a verdict rendered therein
and order a new trial.!. This practice does not in’ England ex-
tend to felony, yet it does to misdemeanor ;* in the United
States, it prevails equally in all crimes,’ when the application
comes from the defendant.4 The motion is waived by a motion
in arrest of judgment;® it must be made before judgment, or
during the judgment term,® and before the expiration of the
time limited by the practice of the court,’ — rules in some of the
States modified by statutes. By appeal or exceptions, where
these are allowed, a decision granting or refusing a new trial
may be carried for review to a higher tribunal if the question
is strictly of law ;® but not generally with success, or not at all,

if of mere discretion in the lower court.”

kins v. Hill, Holt, 704; Blacquiere v. Haw-
kins, 1 Doug. 378; Rex v. Oxford, 3 Nev.
& M. 877; Bristol’s Case, 2 Salk. 650,
and notes in 6th ed. As to inferior
courts in criminal cases, see Crim. Law,
I. § 1002, note; People v. Chenango Ses-
sions, 2 Caines Cas. 319; Dupont v.
Downing, 6 Iowa, 172; Son v. People, 12
Wend. 344; Tate v. The State, 48 Ga.
37; Wilke v. People, 58 N. Y. 525;
Howser v. Commonwealth, 1 Smith, Pa.
832; People v. McKay, 18 Johns. 212;
People v. Townsend, 1 Johns. Cas. 104,
Col. Cas. 68; People v. Stone, 5 Wend.
39; People v. Montgomery, 13 Abb. Pr.
n. 8. 207; Fralich v. People, 65 Barb. 48;
Willis v. People, 82 N. Y. 715; People v.
Donnelly, 21 How. Pr. 406. is

13 Bl. Com. 387-892; Tidd Pr. 8th
Eng. ed. 935; Argent v. Darrell, 2 Salk.
648; Rex v. Bell, 2 Stra. 995; Carstairs
v. Stein, 4M. & S. 192; Ex parte Barker,
1 Cox, 418; Footner v. Figes, 2 Sim. 319;
McNamara v. Minnesota Central Rail-
way, 12 Minn. 388.

2 Crim. Law, I. § 1001, 1002.

3 Crim. Law, I. § 1003; The State ».
Hill, 48 Maine, 241.

* Crim. Law, I. § 992, 1009, 1026; - post,
§ 1272.

> Bates v. Reiskenhianzer, 9 Ind. 178;
Gillespie v. The State, 9 Ind. 880; Res-
publica v. Lacaze, 2 Dall. 118; Smith v.
Porter, 5 Ind. 429; Philpot v. Page, 4 B.
& C, 160; Rex v. White, 1 Bur. 883; Mc-
Comas v. The State, 11 Misso. 116.

® Rex v. Holt, 5 T. R. 486; Rex v.

750

It is, except per-

Pollard, 8 Mod. 264, 265; Hogan v. The
State, 36 Wis. 226; Rex v. Gough, 2
Doug. 791.

7 Rex v. Holt, supra; Commonwealth
v. Crump, 1 Va. Cas. 172; Anonymous,
Lofft, 160. And see The State v. Rippon,
2 Bay, 99.

3 Bradish v. The State, 35 Vt. 452;
The State v. Heenan, 8 Minn. 44; Com--
monwealth v. McElhaney, 111 Mass.
439; People v. Vanderpool, 1 Mich. N. P.
157.

9 O’Meara v. The State, 17 Ohio State,
515, 520; The State v. Nicholas, 2 Strob.
278; The State v. Sullivan, 14 Kan. 170;
The State v. Powers, 3 Hawks, 876;
Reinhart v. The State, 45 Ind. 147.

The State v. Floyd, 15 Misso. 349;
Kates v. Commonwealth, 17 Grat. 561;
Ethington v. The State, 35 Texas, 125;
Vangerwerker v. People, 5 Wend. 530;
The State v. Haase, 14 La. An. 79;
Franklin v. The State, 29 Ala. 14; The
State v. Nolan, 18 La. An. 276; Killen
v. The State, 50 Ga. 228; Givens v. The
State, 6 Texas, 844; Roberts e. The
State, 3 Kelly, 810; Jones v. The State,
1 Kelly, 610; Crawford v. The State, 50
Ga. 249; Coker v. The State, 20 Ark. 58;
The State v. Morgan, 1 Misso. Ap. 22;
Peri v. People, 65 Ill. 17, 24; Turner v.
The State, 67 Ga. 107; The State v.
Anderson, 19 Misso. 241; Schoeffler v.
The State, 8 Wis. 823; Commonwealth
v. Bennet, 2 Va. Cas. 285; The State v.
Morrow, 18 Kan. 119; McCune v. Com-
monwealth, 2 Rob. Va. 771; Pate v. Peo-
CHAP. LXXXIV.]: METHODS TO REHEARING. § 1269

haps under the constitutions of some..of the States, competent
for the legislature, waiving the rights of the State, to grant by
special act a new trjal to a convicted defendant.!

§ 1269. Procedure.— There are some general rules applicable
to these various methods. Ona hearing before the same judge
who presided at the trial, he will take cognizance of what tran-
spired before him, and it need not be proved.? But when the
hearing is before another judge, or higher court, the presumption
-will be that every thing at the trial was done rightly,’ and mat-
ter must be shown from which the alleged error will affirma-

tively and distinctly appear, or no relief can be had.4

ple, 3 Gilman, 644; Holliday v. People, 4
Gilman, 111; Murphy v. Commonwealth,
1 Met. Ky. 365; Warren v. The State, 1
Greene, Iowa, 106; Whitcomb v. The
State, 14 Ohio, 282; Omit v. Common-
wealth, 9 Harris, Pa. 426; Chitwood v.
The State, 18 Ark. 453; Bull v. Common-
wealth, 14 Grat.618; Vaiden v. Common-
wealth, 12 Grat. 717; McDaniel v. The
State, 8 Sm. & M. 401; United States v.
Wood, 1 MacAr. 241; The State uv. Bas-
sett, 4 Vroom, 26.

! Calkins v. The State, 21 Wis. 501.

2 Commonwealth v. Jones, 1 Leigh,
598.

8 Commonwealth v. Kneeland, 20 Pick.
206; Laird v. The State, 15 Texas, 317;
Salyer v. The State, 6 Ind. 202; Groves
v. The State, 9 Ind. 200; Cathcart v.
Commonwealth, 1 Wright, Pa. 108; Fox
v. Lyon, 8 Casey, Pa. 9; Garrard v. The
State, 25 Missis. 469; Round v. The State,
14 Ind. 498; Morris v. The State, 25 Ala.
.67; The State v. Ballenger, 10 Iowa, 368;
The State v. Schlagel, 19 Iowa, 169; Peo-
ple v. Shuler, 28 Cal. 490; Brooster v. The
State, 15 Ind..190; Pierson v. The State,
12 Ala. 149; The State v. Keith, 9 Nev.
15; The State v. Owens, 22 Minn. 238;
People v. Donahue, 45 Cul. 821; People
v. Strong, 46 Cal. 302; Gill v. The State,
48 Ala. 38; Mullinix v. The State, 10 Ind.
5; Dodge v. The State, 4 Zab. 455; Mel-
ton v. The State, 8 Humph. 389; Ed-
wards v. The State, 47 Missis. 581; The
State uv. Cruise, 16 Misso. 891; The State
v..Felps, 16 Misso. 884; The State v.
Shelledy, 8 Iowa, 477; Barrett v. The
State, 25 Texas, 605; Jack v. The State,
26 Texas, 1; Paris v. The State, 86

And the

Ala. 232: See The State v. Watrous,
13 Iowa, 489; The State v. Spenlove,
Riley, 269; Heath v The State, 34
Ala. 250; The State v. Haven, 43 Iowa,
181.

4 The State v. Scott, 12 La. An. 386;
The State v. Bass, 12 La. An. 862; Bailey
v. The State, 2 Texas, 202; Augustine v.
The State, 20 Texas, 450; Dougherty v.
The State, 5 Ind. 453; People v. York, 9
Cal. 421; Fouts v. The State, 8 Ohio
State, 98; Goins v. The State, 41 Texas,
834; O’Brian v. The State, 14 Ind. 469;
Gillespie v. The State, 9 Ind. 380;
Townsend v. The State, 13 Ind. 357;
Dent v. People, 1 Thomp. & C. 655;
Koontz v. The State, 41 Texas, 570;
Henrie v. The State, 41 Texas, 573;
Ashworth v. The State, 9 Texas, 490;
The State v. Hopkins, 5 R. I. 58; People
v. Lafuente, 6 Cal. 202;-The State v.
Vaughn, 26 Misso. 29; The State v.
Weber, 22 Misso. 821; Ingram v. The
State, 7 Misso. 293; The State v. Farish,
23 Missis. 483; Tyler v. People, 8 Mich.
820; Fowler v. Commonwealth, 4 T. B.
Monr. 128; Wiley v. The State, 52 Ind.
475; The State v. Ely, 14 Ind. 291; The
State v. Bartlett, 9 Ind. 569; Sloan »v.
The State, 8 Ind. 312; Thompson v. The
State, 55 Ga. 47; King v. The Sfate, 21
Ga. 220; Bowie v. The State, 19 Ga. 1;
Burgess v. The State, 12 Gill & J. 64;
Commonwealth v. Kneeland, 20 Pick.
206; People v. Glenn, 10 Cal. 82; Floyd
v. The State, 80 Ala. 511; Scott v. The
State, 81 Missis. 473; The State v. Boyle,
10 Kan. 113; People v. Perdue, 49 Cal.
425; Barron v. People, 1 Barb. 136; Van-

‘pool v. Commonwealth, 1 Harris, Pa. 391

751
§ 1269 PROCEEDINGS AFTER VERDICT. [BOOK x.
showing must be, not in mere general terms, but’ with reasonable
particularity. Alleged facts are commonly established by affi-
davit,? or by a certificate or other approval of the judge who
presided at the trial,? as the case may require. On appeal or
exceptions to a higher court, the record should disclose all these
and other needful things ; 4 together with, in some form, and in,
general,® the fact that the party objected, or otherwise asked for
the redress now sought. But the court in various circum-
stances will not permit an erroneous record to stand, though the

party did not with due promptness demand reversal.’

Weaver v. Commonwealth, 5 Casey,
Pa. 445; Cathcart v. Commonwealth, 1
Wright, Pa. 108; Mitchell v. Common-
wealth, 1 Wright, Pa. 187; Waller v.
The State, 4 Pike, 87; Rex v. Lloyd,
4 B. & Ad. 1385; People v. Williams, 45
Cal. 25; The State v. Schuessler, 3 Ala.
419.

1 People v. Glenn, 10 Cal. 82; The
State v. Wilson, 51 Ind. 96; The State v.
Sater, 8 Iowa, 420; Brown v. The State,
28 Ga. 199; The State v. Flanders, 38
N. H. 324; The State v. Jones, 7 Nev.
408; Doyle v. People, 4 Neb. 220; Wolf-
ington v. The State, 53 Ind. 843; Stone
v. The State, 4 Humph. 27; Riley v. The
State, 9 Humph. 646; The State v. Dove,
10 Ire. 469; People v. Albright, 14 Abb.
Pr. 305, 28 How. Pr. 306; The State v.
Gallagher, 16 La. An. 388; Hamilton »v.
The State, 35 Missis. 214.

2 The State v. McLaughlin, 27 Misso.
111; Gibson v. The State, 9 Ind. 264;
Pleasant v. The State, 13 Ark. 360;
Mingia v. People, 64 Ill. 274; Sarah v.
The State, 28 Ga. 576; Guykowski v.
People, 1 Scam. 476; Rex v. Bowditch,
2 Chit. 278; Hartless «. The State, 32
Texas, 88; Beard v. The State, 54 Ind.
413; Beekman v. The State, 4 Iowa, 452;
Meeks v. The State, 57 Ga. 829; Delany
v. The, State, 41 Texas, 601; Brown v.
The State, 23 Texas, 195; Bennett v.
Commonwealth, 8 Leigh, 745; Friar v.
The State, 3 How. Missis. 422; Giles
v. The State, 6 Ga. 276; Riley v. The
State, 9 Humph. 646; Mann v. The State,
44 Texas, 642; Runnels v. The State, 28
Ark, 121; Long v. The State, 64 Ga.
664. '

3 Commonwealth uv.

752

Jones, supra ;

Snelling v. Dorrell, 15 Ga..507; Rex v.
Poole, Cas. temp. Hardw. 23; Rex uv.
Simons, Say. 34. It appears that a judge
may certify to the evidence even after
his office has expired. Anonymous, 7
Mod. 47.

4 Turney v. The State, 8 Sm. & M.
104; Hornberger v. The State, 5 Ind. 300;
Butler v. The State, 22 Ala. 43; Tharp
v. The State, 15 Ala. 749; The State v.
Connell, 49 Misso. 282; The State v.
Godwin, 5 Ire. 401; The State v. Burge,
7 Iowa, 255; The State v. Strong, 6 Iowa,
72; Bertrong v. The State, 2 Texas Ap.
160, 162; The State v. Bell, 5 Port. 365;
Crippen v. People, 8 Mich. 117; The
State v. Paschal, 22 Texas, 584. See,
under New York statute, O’Brien v. Peo-
ple, 36 N. Y. 276.

5 See The State v. Vaughn, 26 Misso.
29; Rich v. The State, 1 Texas Ap. 206;
White v. The State, 1 Texas Ap. 211,
216.

® Bourne v. The State, 8 Port. 458;
Lawrence v. The State, 14 Texas, 432;
Swarts v. The State, 9 Ind. 298; The
State v. Burgess, 74 N. C. 272; Steinman
v. Toliver, 13 Misso. 590; The State v.
Burge, 7 Iowa, 255; Hinton v. The State,
24 Texas, 454; People v. Haun, 44 Cal.
96; The State v. Gordon, 1 R.I. 179, 191;
Ricks v. The State, 16 Ga. 600; The
State v. Winningham, 10 Rich. 257; The
State v. Rye, 35 N. H. 868; Foley v. Peo-
ple, 22 Mich. 227; Price v. The State, 41
Texas, 215; Moody v. The State, 1 W.
Va. 337; United States v. Flowery, 1
Sprague, 109; Clough v. The State, 7
Neb. 320.

™ Cases cited in note before the last;
ante, § 768, 759; The State v. Henderson,
CHAP. LXXXIV.]. METHODS TO REHEARING. § 1271

§ 1270. Testimony of Jurors — Their Confessions. — Could jurors,
grand or petit, nullify their findings, they would be constantly
subject to corrupt approaches from defeated parties ; for which
reason, and some others, the law does not permit it.!_ Therefore,
as we have seen,” though their evidence may be produced to sus-
tain their verdict,’ their own or fellows’ misconduct in making it
up,‘ or the principles and motives which governed them therein,®
or their views upon its effect,’ or their misunderstanding of or
refusal to obey the instructions of the court,’ or one of. them
having prejudged the cause,’ or any thing else of the like ten-
dency,® cannot thus be established to overthrow their verdict.
A, fortiori, the testimony of a third person as to what he has
heard one of them say, cannot, for the like purpose, be received.”

§ 1271. Bffect of Ordering New Trial. — By the setting aside of
the verdict as to the entire indictment, and the ordering of a new

13 La. An. 489; Cotton v. The State, 29
Texas, 186; O’Mealy v. The State, 1
Texas Ap. 180. See Johnson v. Com-
monwealth, 9 Bush, 224; Reg. v. Banks,
11 Mod. 33; Commonwealth v. Peck, 1
Met. 428.

1 See, as to the reasoning on this sub-
ject, Crawford v. The State, 2 Yerg. 60,
66, 67,68. And see Hudson v. The State,
9 Yerg. 408.

2 Ante, § 874.

8 Gilleland v. The State, 44 Texas,
356 ; Bradford v. The State, 15 Ind. 347;
The State v. Hascall, 6 N. H. 352. Com-
pare Roberts v. Hughes, 7 M. & W. 399;
Rex v. Simmons, 1 Wils. 329.

+ The State v. Coupenhaver, 89 Misso.
430; Tenney v. Evans, 13 N. H. 462;
Leighton v. Sargent, 11 Fost. N. H. 119;
The State v. Tindall, 10 Rich. 212; Vaise
v. Delaval, 1 T. R. 11; Owen ov. War-
burton, 1 New Rep. 326; Hindle v. Birch,
1 Moore, 455; Hannum v. Belchertown,
19 Pick. 811; The State v. Doon, R. M.
Charl. 1; Cain v. Cain, 1 B. Monr. 213;
The State v. McLeod, 1 Hawks, 344;
People v. Carnal, 1 Parker C. C. 256;
People v. Doyell, 48 Cal. 85, But see
Booby v. The State, 4 Yerg. 111, and
other Tennessee cases cited to this sec-
tion.

5 The State ». Hascall, supra; Ward
v. The State, 8 Blackf. 101; Schenck
v. Stevenson, 1 Penning. 887; Bridge v.

VOL. 1. 48

Eggleston, 14 Mass 245; Johnson v. Dav-
enport, 3 J. J. Mar. 390.

6 People v. Columbia Common Pleas,
1 Wend. 297. Contra, perhaps, Cochran
v. The State, 7 Humph. 644.

1 Saunders v. Fuller, 4 Humph. 616;
Norris v. The State, 3 Humph. 333;
Hudson v. The State, 9 Yerg. 408. But
see Packard v. United States, 1 Greene,
Iowa, 225; Grady v. The State, 4 Iowa,
461. See Wickersham v. People, 1 Scam.
128, 180; Johnson v. The State, 27 Texas,
758.

8 People v. Baker, 1 Cal. 403; Vance
v. Haslett, 4 Bibb, 191.

® Clum v. Smith, 5 Hill, N. Y. 560;
The State v. Doon, R. M. Charl. 1; Peo-
ple v. Wyman, 15 Cal. 70; McCray v.
Stewart, 16 Ind. 877; Butt v. Tuthill,
10 Iowa, 585; Stewart v. Burlington,
&c. Railroad, 11 Iowa, 62; The State v.
Accola, 11 Iowa, 246 ; People v. Hartung,
4 Parker C. C. 256; Coleman v. The
State, 28 Ga. 78; Brown v. The State,
28 Ga. 199; Grinnell v. Phillips, 1 Mass.
580, 541; Commonwealth v. Drew, 4
Mass. 391, 899; Rex v. Wooler, 6 M. & S.
866.

10 Drummond ». Leslie, 5 Blackf. 458 ;
Grady v. The State, 4 Iowa, 461; Row-
land v. The State, 14 Ind. 575; Stracker
v. Graham, 4 M. & W. 721; Wilson v.
People, 4 Parker C. C. 619. See The
State v. Burnside, 87 Misso. 343.

158
§ 1271 PROCEEDINGS AFTER VERDICT. [Book x.

trial thereon, the parties are remitted to their position as before
the first trial, and the new trial is to be conducted without
reference to what was done on the first.1 But we have seen
that sometimes the order for a new trial extends, by its terms,
or by constraint of the constitution on its interpretation, only to
a part of the indictment, and then the second trial is limited to
such part.2. Where the sentence alone is set aside and a new
sentence ordered, the proceeding, though it may be correct, is

not termed granting a new trial.®

1 The State v. Newkirk, 49 Misso. 472;
Mills «. The State, 52 Ind. 187; The
State v. Johnson, 10 La. An. 456; Byrd
v. The State, 1 How. Missis. 247; People
v. Rulloff, 5 Parker C. C.77; The State v.
Updike, 4 Harring. Del. 581; The State
v. Hughes, 2 Ala. 102; The State v. Nash,
7 Iowa, 347. And see The State v. Mc-
Cord, 8 Kan. 282.

2 Ante, § 1010, 1011, and places there
referred to; Barnett v. People, 54 IIl.
825; Rolls v. The State, 62 Missis. 391;

754

Stuart v. Commonwealth, 28 Grat. 950;
Johnson v. The State, 29 Ark. 31;
Slaughter v. The State, 6 Humph. 410;
Lewis v. The State, 51 Ala.1; The State
v. Desmond, 5 La. An. 398; Lithgow »v.
Commonwealth, 2 Va. Cas. 297.

8 De Bardelaben v. The State, 50 Ala.
179; Keech v. The State, 15 Fla. 691;
McCue v. Commonwealth, 28 Smith, Pa.
185. See Brown v. The State, 47 Ala.
47,
CHAP. LXXXvV.] WHY GRANT NEW TRIAL.

§ 1272

CHAPTER LXXXV.
ON WHAT PRINCIPLES NEW TRIALS ARE GRANTED.

§ 1272. Application from State. — In another connection,! we
saw in what circumstances the constitutional protection of de-
fendants against a second jeopardy forbids the granting of a new
trial on prayer of the State, and in what it does not. The Texas
constitution of 1876 declares, that “the State shall have no right
of appeal in criminal cases ;”"? but, in most of our States, the
limited right defined in the other connection exists. On com-
mon-law principles, even this is ordinarily denied by the greater
number of our American courts, whether claimed by way of'’
appeal, exceptions, or writ of error, except when expressly
authorized by statute ;* and a statute giving it is construed
strictly. It will be assumed, therefore, in the following sections,

that the application for the new trial is by the defendant.

1 Crim. Law, L § 980, 990-994, 999,
1022-1028; The State v. Baker, 19 Misso.
683; The State v. Kinney, 44 Iowa, 444.

2 Morgan v. The State, 4 Texas Ap.
83, 34.

8 Crim. Law, I. § 1024; and see and
compare the cases here cited and Temple
v. Commonwealth, 1 Va. Cas. 163; Peo-
ple v. Nestle, 19 N. Y. 688; Rex v. Read,
1 Lev. 9; Rex v. Jackson, 1 Lev. 124;
Rex v. Davis, 1 Show. 836, 12 Mod. 9;
Rex v. Jones, 8 Mod. 201, 208; Rex v.
Furser, Say. 90; Steel v. Roach, 1 Bay,
68; Rex v. Sutton, 5 B. & Ad. 52, 2 Nev.
& M.57; The State v. Salge, 2 Nev. 321;
The State v. Lavinia, 25 Ga. 311; People
v. Bangeneaur, 40 Cal. 618 ; The State v.
Kinney, 44 Iowa, 444; The State v. Rowe,
22 Misso. 828; The State v. Brown, 5
Oregon, 119; Paige v. People, 8 Abb. Ap.
489; The State v. Intoxicating Liquors,
40 Iowa, 95; Hannaball v. Spalding, 1
Root, 86; The State v. Daily, 6 Ind. 9;

The State v. Tolls, 5 Yerg. 363; The
State v. Upton, 5 La. An. 488; The State
v. Cason, 20 La. An. 48; The State v.
McGrorty, 2 Minn. 224; Nonemaker v.
The State, 84 Ala. 211; The State v. Car-
michael, 8 Kan. 102; The State v. Credle,
63 N. C. 606; The State v. Rentiford, 14
La. An. 214; The State v. Hand, 1 Eng.
169; The State v. Denton, 1 Eng. 259;
The State v. Taylor, 1 Hawks, 462; The
State v. Martin, 3 Hawks, 883; The State
v. Kanouse, Spencer, 115; The State ou.
Wright, 3 Brev. 421; The State v. Reily,
2 Brev. 444; Commonwealth v. Capp, 12
Wright, Pa. 53; The State v. Lavinia,
25 Ga. 311; The State v. Johnson, Z
Iowa, 549; The State v. Lane, 78 N.C.
647; Terrell v. Commonwealth, 13 Bush,
246; 8 Russ. Crimes, 5th Eng. ed. 320.

4 The State v. Bartlett, 9 Ind. 669.
See The State ov. Clarkson, 59 Misso.
149; Stat. Crimes, § 142.

755
§ 1275 PROCEEDINGS AFTER VERDICT. [Book x.

§ 1273. Compared with Civil. —It is in numerous cases rather
assumed than decided, that the question whether a new trial
shall be granted or not depends on the same rules in criminal
causes as in civil. And justly it does! as to a part of the rules.
But we have seen, that the burden of proof is in a degree differ-
ent ;2 and very different is the weight of evidence, which, in a
criminal cause, requires the jury to be.satisfied of guilt beyond a
reasonable doubt. Therefore, and because by the entire spirit
of the criminal law the prisoner is under.a protection from the
judge which a party in a civil suit is not, many deem, and it is
believed rightly, that new trials should be awarded more freely
in criminal causes than in civil,® and in criminal the more freely
in proportion to the gravity of the punishment.’ _ Again, —

§ 1274. Courts of Trial and Appeal compared. — In most cir-
cumstances, such as where the new trial is. asked because the
verdict is against the weight :of the evidence, and the like, it will
be more readily granted by the judge who saw’and heard the
witnesses while testifying, and is familiar with the entire case,
than by a court of review.’ Nor, in this class of cases, will the
latter court often reverse the decision of an inferior judge refus-
ing a new trial in a cause tried before him. But, —

§ 1275. Law and Fact compared. —In any court, a new trial
will be more readily granted for an alleged error of law than of
fact. By all opinions, even conceding to the jury the utmost
right to judge of the law in criminal causes, the court also must
judge of it in them the same as in civil, and must enforce it in
behalf of defendants ;° so that, if one is convicted on evidence
legally inadequate, or not covering every element of the offence,”

7 Riggs v. The State, 80 Missis. 635;

1 Grayson v. Commonwealth, 6 Grat.
: Shannon v. The State, 57 Ga. 482; Peri

712.

2 Ante, § 1048-1051.

3 Ante, § 1091-1095.

4 And see post, § 1278.

5 The State v. Tomlinson, 11 Towa,
401; The State ». Hammond, 5 Strob.
91; Phipps v. The State, 3 Coldw. 344;
Owens v. The State, 35 Texas, 361.

§ Falk v. People, 42 Ill. 331; Quarles
v. The State, 1 Sneed, 407; Troxdale v.
The State, 9 Humph. 411; The State v.
Powers, 1 Ga. Decis. 150; The State v.
Johnson, 40 Conn. 186; Andersen v. The
State, 48 Conn. 514; Landers v. The
State, 835 Texas, 359.

756

v. People, 65 Ill. 17, 24; Dilley v. The
State, Riley, 302; Giles v. The State, 6
Ga. 276; People v. Baker, 39 Cal. 686;
The State v. Webb, 41 Texas, 67.

8 Felton v. The State, 56 Ga. 84,
Carnes v. The State, 28 Ga. 192; Me-
Cune v. Commonwealth, 2 Rob, Va. 771;
Parsons v. Commonwealth, 2 Rob. Va.
771; Bronson v. The State, 2 Texas Ap.
46.

9 Ante, § 983-988. But see Clarke v.
The State, 85 Ga. 75.

10 Ante, § 977, 1052-1055; Fields v.
The State, 48 Texas, 214; The State v.
CHAP. LXXXv.] WHY GRANT NEW TRIAL.

§ 1276

or by reason of any ruling or instruction of the judge contrary to
law and objected to at the time,! the court, whether trial or
appellate, passing upon the error, must set aside the verdict and
order a new trial. It will pay no regard to what the jury
thought of the law. On the other hand, the evidence is specially
for them; and, though views differ as to how much weight their
opinion on the facts as expressed in their verdict should have on
a question of a new trial,? all accept it as of considerable weight,
and many as nearly or quite conclusive. Again, —

§ 1276. Injury resulting or not, compared. — It is the doctrine
in civil causes,‘ and it has been widely applied in criminal, that,

Packwood, 20*Misso. 340; Cicely v. The
State, 18 Sm. & M. 202; The State v.
Miller, 10 Minn. 313; Sargent v. People,
64 Ill. 827; Pryor v. Commonwealth, 27
Grat. 1009; People v. Lewis, 36 Cal. 531;
Rice v. The State, 45 Ga. 526; Johnson
v. The State, 48 Ga. 826; Stanton v. The
State, 13 Ark. 317; Mains v. The State,
13 Ark. 285; Hines v. The State, 51 Ga.
801; Topolanck v. The State, 40 Texas,
160; Bailey v. The State, 56 Ga. 314;
Jobe v. The State, 1 Texas Ap. 183; The
State v. Dieckhoff, 1 Misso. Ap. 83;
Wynne v. The State, 5 Coldw. 319;
Manuel v. People, 48 Barb. 548; Green
v. The State, 23 Missis. 509.

1 Ante, § 978, 980, 987, 1015; Sutton
v. The State, 41 Texas, 5138; Bivens v.
The State, 6 Eng. 455; The State'». Sims,
Dudley, Ga. 213; The State v. Nash, 10
Jowa, 81; Morgan v. The State, 48 Ala.
65; Williams v. The State, 48 Ala. 85;
Stokes v. People, 58 N. Y. 164; Simpson
v. The State, 31 Ind. 90; Commonwealth
v. Remby, 2 Gray, 508; The State v.
Bailey, 1 S.C. 1; Floyd v. Abney, 1
S.C. 114; Elmore v. Scurry, 1S. C. 139;
The State v. Neville, 6 Jones, N. C. 423;
Reg. v. Wilts, 6 Mod. 307; Anonymous,
7 Mod. 58; The State v. Ingold, 4 Jones,
N. C. 216; Rand v. Commonwealth,
9 Grat. 738; Rex v. Simons, Say. 34,
85; Commonwealth v. Green, 17 Mass.
615; The State v. Gray, 39 Maine,
853; Morehead v. The State, 9 Humph.
685; Leoni v. The State, 44 Ala. 110;
Cato v. The State, 9 Fla. 163; Common-
wealth «. Manson, 2 Ashm. 81; The State
v. Camp, 23 Vt. 551; Licett v. The State,

23 Ga..57; Drake v. Commonwealth, 10
B. Monr. 225; Olds vz. Commonwealth, 3
A. K. Mar. 465.. There are objections
which, in some courts, and perhaps. all,
may be made for the first time on a mo-
tion for a new trial. Ante, § 980, 1269;
People v..Ah Fong, 12 Cal. 345.

2 Post, § 1278.

3 People v. Ah Ti, 9 Cal. 16; Pleasant
v. The State, 15 Ark. 624; United States
v. Duval, Gilpin, 356; Revel v. The State,
26 Ga. 275; The State v. Green, Kirby,
87; Funkhouser ev. Pogue, 138 Ark. 295;
Hendryx v. Sharp, 13 Ark. 306 ; Mains v.
The State, 18 Ark. 285; Alfred v. The
State, 6 Ga. 483; The State v. Murphy,
46 Misso. 347; Browning v. The State,
83 Missis. 47; Skinner v. The State, 53
Missis. 399; Kirby v. The State, 3 Humph.
289; Riggs v. The State, 30 Missis. 635;
Oliver v. Chapman, 15, Texas, 400; Tay-
lor v. The State, 4 Ind. 540. Two Ver-
dicts.— Two concurring verdicts of guilty
by different juries, the second on a new
trial granted after the first, are very strong,
but not absolutely conclusive. The State
v. Cordes, 1 Rice, 152; The State v.
Cross, 12 Iowa, 66; Grayson v. Common-
wealth, 7 Grat. 613.

1 Burton v. Thompson, 2 Bur. 664;
Marsh v. Bower, 2 W. Bl. 851; Edmond-
son v. Machell, 2 T. R. 43; Bather v.
Brayne, 5 C. B. 653; Welsh v. Langfield,
16 M. & W. 497, 515, 616; Edwards v.
Evans, 8 East, 451; Bragg v. Boston and
Worcester Railroad, 9 Allen, 54, 57;
Thorndike v. Boston, 1 Met. 242, 248,
249; Lynd v. Picket, 7 Minn. 184; Sharp
v. Johnson, 22 Ark. 79; Barringer rv.

ToT
§ 1276

PROCEEDINGS AFTER VERDICT.

[BOOK x.

though something was done at the trial contrary to the right of
the party, yet, if it resulted in only a trivial injury to him (for
the law does not regard small things+), or in none, a new trial

will not be granted?

But the limits of this doctrine in civil

causes are not exactly the same in all courts ;? and, in criminal
causes, some restrict it within narrower bounds than in civil.
For example, in Kentucky, if in a criminal cause evidence
directly to the issue is improperly rejected, a new trial will be
granted though the verdict on the whole is right, contrary to the

Nesbit, 1 Sm. & M. 22; Bootle v. Blun-
dell, 19 Ves. 494, 503; Hampson v. Hamp-
son, 3 Ves. & B. 41; Farewell v. Chaffey,
1 Bur. 64; Kilham v. Ward, 2 Mass. 236,
267; Tomlinson v. Driver, 538 Ga. 9;
Shacklett v. Ransom, 54 Ga. 850; Porter
v. Peckham, 44 Cal. 204; Rogers v. Page,
Brayt. 169; Breckenridge v. Anderson,
38 J.J. Mar. 710; The State v. Beem, 3
Blackf. 222; Turner v. Lewis, 1 Chit.
265; Freeman v. Price, 1 Y. & J. 402;
Young v. Harris, 2 Cromp. & J. 14; Pack-
ham v. Newman, 1 Cromp. M. & R. 585;
Fleetwood v. Taylor, 6 Dowl. P. C. 796;
Scott v. Watkinson, 4 Moore & P. 287;
Armstrong v. Free, 2 Hodges, 197; Ga-
resche v. Deane, 40 Misso. 168; Bailey v.
Chapman, 41 Misso. 586; The Justices v.
Griffin, &c. Plank Road, 15 Ga. 89.

1 Crim. Law, I. § 212; Broom Leg.
Max. 2d ed. 106.

2 Ante, § 949 5, 9805; Ballew v. The
State, 86 Texas, 98; Commonwealth v.
Drew, 4 Mass. 391, 899; Commonwealth
v. Turner, 8 Met. 19, 26; Lester v. The
State, 11 Conn. 415; The State v. Law-
son, 14 Ark. 114; Rachels v. The State,
51 Ga. 874; Rex v. Oldroyd, Russ. & Ry.
88; Rex v. Ball, Russ. & Ry. 182; Rex
v. Tinckler, 1 East P. C. 854; Manson v.
The State, 24 Ohio State, 590; Hester v.
The State, 17 Ga. 130; Lynes v. The
State, 86 Missis. 617; People v. Scott, 6
Mich. 287, 297; The State v. Kingsbury,
58 Maine, 238; The State v. Neville, 6
Jones, N. C. 423; The State o. Frank, 5
Jones, N. C. 384; The State v. Pike, 20
N. H. 344; Commonwealth v. Churchill,
2 Met. 118; Garrard v. The State, 50
Missis. 147; Thurmond v. The State, 55
Ga. 600; The State v. Potter, 15 Kan.
802; Wallace v. The State, 28 Ark. 631;

758

The State v. Guisenhause, 20 Iowa, 227;
Boyd v. The State, 17 Ga. 194; Braswell
v. The State, 42 Ga. 609; Watts v. The
State, 38 Ind. 2837; Wheelé& v. The State,
23 Ga. 292; Thomas v. The State, 27 Ga.

, 287; Commonwealth v. Gill, 14 B. Monr.

20; Champ v. Commonwealth, 2 Met. Ky.
17; The State ». Jennings, 18 Misso. 435;
Henderson v. The State, 12 Texas, 525;
Boon v. The State, 42 Texas, 287;
Mitchell v. The State, 1 Texas Ap. 194;
The State v. Engle, 1 Zab. 347; The State

.v. Fox, 1 Dutcher, 566; The State v. Mc-

Curry, 63 N.C. 38; The State v. Her-
rick, 12 Minn. 182; Sarah v. The State,
28 Ga. 576; The State v. Givens, 5 Ala.
747; People v. Keith, 50 Cal. 187; The
State v. Ford, 3 Strob. 517, note; Jimv.
The State, 15 Ga. 535; Bird v. The State,
14 Ga. 48; People v. Colmere, 23 Cal.
681; The State v. Tindall, 10 Rich. 212;
Ogle v. The State, 83 Missis. 383; The
State v. Orsini, 22 La. An. 98; The State
v. Pike, 65 Maine, 111; Beck v. The
State, 57 Ga. 851; Hill v. The State, 43
Ala. 335; People v. Donahue, 45 Cal.
821; Hall v. The State, 8 Ind. 4389, 442;
Perkins v. Commonwealth, 7 Grat. 651;
United States v. Flowery, 1 Sprague,
109; The State v. Camp, 23 Vt. 551, 554;
The State v. Floyd, 15 Misso. 849; Pines
v. The State, 21 Ga. 227; People v. Ver-
milyea, 7 Cow. 369; Myer v. People, 8
Hun, 528; Clark v. People, 31 Ill. 479 ;!
Young v. Commonwealth, 4 Grat. 550;
The State v. Fuller, 89 Vt.74; People v.
Rodundo, 44 Cal. 588; The State v. An-
drews, 29 Conn. 100; People v. Ah Who,
49 Cal. 32.

3 See, for example, Wright v. Tat-
ham, 7 A. & E. 818, 380.
CHAP. LXXXvV.] WHY GRANT NEW TRIAL.

§ 1277
rule in civil suits. And there may be, in some of the States,
statutes having the like effect.?

§ 1277. Judicial Discretion — Satisfied or not with Verdict. —
The motion for a new trial is generally deemed addressed to the
judicial discretion.2 And where the application is by bill of ex-
ceptions or writ of error, still it is not necessarily to be granted,
if, in the particular instance, the error resulted in no injury to
the applicant. Therefore one general rule governs the whole
question, and reconciles multitudes of cases which seem at the
first view conflicting; namely, that, whatever be the grounds
whereon the interposition of the court is asked, it will look
through the entire proceedings which led to the verdict, consid-
ering in connection with them the new facts and reasons, should
there be such, and order the new trial if it deems there has
been injustice which may probably be corrected thereby, other-
wise refuse. And herein also we see the force of the proposition
already stated,® that the trial court can act more freely on this
question than a court of review. This general doctrine embraces
many minor propositions, some of which appear in the cases cited
in the note, but only the following need be here particu-

larized : —

1 Cornelius v. Commonwealth, 15 B.
Monr. 589, 547. A similar doctrine pre-
vails in Tennessee. Peck v. The State,
2 Humph. 78, 88; Morehead v. The
State, 9 Humph. 635. Also in Texas,
Draper v. The State, 22 Texas, 400. And
see People v. Williams, 18 Cal. 187;
Frain v. The State, 40 Ga. 529; Gaines v.
Buford, 1 Dana, 481; Wardell v. Hughes,
8 Wend. 418; Gillespie v. Gillespie, 2
Bibb, 89.

2 Terry v. The State, 17 Ga. 204 (com-
pared with Boyd v. The State, 17 Ga.
194).

3 Ante, § 949 6; Commonwealth v.
Manson, 2 Ashm. 81; Tefft v. Marsh, 1
W. Va. 38; Howser v. Commonwealth,
1 Smith, Pa. 332.

4 Crim. Law, I. § 980-932; The State
v Pike, 65 Maine, 111; The State v. Fox,
1 Dutcher, 566; The State v. Brette, 6
La. An. 658; Commonwealth v. Kimball,
24 Pick. 866; Dave v. The State, 22 Ala.
23.

5 Ante, § 1274.

6 Cooper v. The State, 53 Missis. 393 ;

Dacy v. The State, 17 Ga. 489; Robert-
son v. The State, 88 Texas, 187; Curtis
v. The State, 6 Coldw. 9; The State »v.
Winningham, 10 Rich. 257; March v.
The State, 44 Texas, 64; Trulock v. The
State, 1 Iowa, 515; Pilkinton v. The
State, 19 Texas, 214; Boxley v. Common-
wealth, 24 Grat. 649; Landers v. The
State, 85 Texas, 359; Rosencrants v.
The State, 6 Ind. 407; People v. Taylor,
86 Cal. 255; Haynes v. The State, 45
Ind. 424; People v. Phillips, 42 N. Y. 200;
People v. Acosta, 10 Cal. 195; The State
v. Ross, 2 Dutcher, 224; Staten v. The
State, 30 Missis. 619; Nelms v. Tho
State, 13 Sm. & M. 600; Jones v. People,
2 Col. Ter. 351; Reg. v. Helston, 10 Mod.
202; The State v. Watkins, 9 Conn. 47;
Son v. People, 12 Wend. 844; Wray »v.
People, 78 Ill. 212; Worthy v. The State,
44 Ga. 449; Tuberville v. The State, 4
Texas, 128; O’Shields v. The State, 55
Ga. 696; Jackson v. The State, 54 Ga,
439; The State v. Posey, 4 Strob. 142;
Blemer v. People, 76 Ill. 265; Mc Whirt’s
Case, 3 Grat. 594; People v. Hamilton,

759
§ 1278 PROCEEDINGS AFTER VERDIOT. [Book x.

§ 1278. verdict against Evidence. — We have seen that a ver-
dict against law will be set aside as of course,! but one against
evidence appeals rather to the judicial discretion. It is difficult
to perceive how, in a criminal case, where the interests of the
State are even more injured by a wrongful conviction than those
of the defendant,? the judicial mind can be satisfied with a ver-
dict of guilty, which, after giving the opinion of the jury all due
weight,’ creates still the distinct and not unreasonable apprehen-
sion that a great wrong may have been done, though there is no
absolute showing that it has been, alike to both parties in the
controversy. That it cannot is perhaps reasonably well in
accord with the utterances of some of the courts;* while, on the
other hand, in others the responsibility is left almost or quite
without judicial revision to the jury; and, between these outer

views, there are varying middle ones.

Yet the doctrine here

deemed the correct one is of necessity practically restricted very

much in a court of review.®

46 Cal. 540; The State v. Scates, 3 Strob.
106; United States v. Harding, 1 Wal.
Jr. 127.

1 Ante, § 1275.

2 Ante, § 1092.

3 Ante, § 1275.

4 Ante, § 1273; Peri v. People, 65 Ill.
17, 24; Owens v. The State, 35 Texas,
861; GalHoway v. The State, 41 Texas,
289; Turner v. The State, 38 Texas, 166;
The State v. Webb, 41 Texas, 67, 76;
Falk v. People, 42 Ill. 831; Simpson v.
The State, 3 Texas Ap. 425; The State
v. Hammond, 6 Strob. 91; Garland v.
The State, 2 Swan, Tenn. 18; Leake v.
The State, 10 Humph. 144; Copeland
v. The State, 7 Humph. 479; Cochran v.
The State, 7 Humph. 544. Rashness in
Jury.— The rule in civil causes, that
the “court will not grant a new trial
upon the facts, unless the jury shall ap-
pear to have been guilty of great rash-
ness, does not apply to criminal.” Dains
v. The State, 2 Humph. 439; Bedford v.
The State, 5 Humph. 662.

5 Commonwealth v. Dillane, 1 Gray,
483; March v. The State, 35 Texas, 115;
Bivens v. The State, 6 Eng. 455; The
State v. Dame, 15 Misso. 263; People v
Ardaga, 51 Cal. 371; The State v. John-
son, 40 Conn. 186; People v. Ah Loy,

760

10 Cal. 301; The State v. Powers, 1 Ga.
Decis. 150; The State v. Jeffreys, 3
Murph. 480; The State v. Peter, 1 Ga.
Decis. 46; Giles v. The State, 6 Ga. 276;
Guilford v. The State, 24 Ga. 315; Dixon
v. The State, 22 Ark. 218; Carr v. The
State, 13 Ga. 328; People v. Baker, 89
Cal. 686; Gibbons v. People, 28 Ill. 518;
Newman v. The State, 26 Ga. 633; The
State v. Carr, 13 Vt. 571; Reynolds v.
The State, 24 Ga. 427; Thomasson v.
The State, 22 Ga. 499; Tipper v. Com-
monwealth, 1 Met. Ky.6; The State v.
McClure, 25 Misso. 388; Williams v.
The State, 45 Ind. 157; Joseph v. The
State, 47 Ind. 255; The State v. Madden,
85 Iowa, 511; Holcombe v. The State,
28 Ga. 66; Winfield v. The State, 3
Greene, Iowa, 339; People v. Simpson,
50 Cal. 304; Thompson v. The State, 55
Ga. 47; Mitchell v. The State, 55 Ga.
656 ; Thurmond v. The State, 55 Ga.
600 ; O’Shields v. The State, 55 Ga. 696;
Palmer v. People, 4 Neb. 68; Common-
wealth v. Cunningham, 104 Mass. 545;
Cook v. The State, 29 Ga. 75; Bennett
v. The State, 138 Ark. 694; Stanton v.
The State, 13 Ark. 817; Pryor v. Com-
monwealth, 27 Grat. 1009; Gibson »v.
The State, 9 Ind. 264; The State v. La-
mont, 2 Wis. 437; The State v. Lyon, 12
CHAP. LXXXV.] WHY GRANT NEW TRIAL. § 1279

§ 1279. Newly-discovered Evidence. — As in’ civil cases, so in
criminal, newly-discovered evidence is a common ground — per-
haps the most common —of application for a new trial.! To
be adequate, it must have been discovered since the trial,? want
of diligence must not have been the cause of its non-discovery
before,’ and its purpose must not be the establishment of a de-
fence before known:+ It must not, in general, be cumulative, or
to the same matter with evidence which was heard at the trial;
yet, in some circumstances, even this, when very conclusive,
will suffice It must be presumably to be had at the new
trial, must be relevant, and so full and such in other respects
as may probably change the result.’ Hence, if it is merely

Conn. 487; The State v. Fisher, 2 Nott
& McC. 261; The State v. Bird, 1 Misso.
585 ; People v. Townsend, Col. Cas. 68;
Carpenter v. The State, 26 Ga. 622; The
State v. Glovery, 10 Nev. 24; Raines v.
The State, 88 Ga. 571; Cicely v. The
State, 18 Sm. & M. 202; The State v.
Moody, 24 Misso. 560; Whiteside v. The
State, 4 Coldw. 175; Shannon v. The
State, 57 Ga. 482.

1 Andersen vu. The State, 43 Conn.
514; The State v. Lockier, 2 Root, 84;
Scott v. The State, 1 Root, 155. Contra,
The State v. Harding, 2 Bay, 267.

2 White v. The State, 17 Ark. 404;
United States v. Smith, 1 Saw. 277;
Holeman v. The State, 18 Ark. 105; The
State v. Ray, 53 Misso. 345, 349. If evi-
dence is discovered after the proper time
for introducing it, but before the verdict
is rendered, —see ante, § 966, — applica-
tion should be made for leave to submit
it to the jury out of its order; in the ab-
sence of which, it will not be ground for
anew trial. Higden v. Higden, 2 A. K.
Mar. 42; United States v. Gibert, 2 Sum-
ner, 19; People v. Vermilyea, 7 Cow.
869; Oneal v. The State, 47 Ga. 229.

3 Avery v. The State, 26 Ga. 238;
Bourland v. Skimnee, 6 Eng. 671; People
v. Mack, 2 Parker C. C. 673; White v.
The State, 17 Ark 404; Commonwealth
v. Murray, 2 Ashm. 41; Commonwealth
v. Williams, 2 Ashm. 69; Runnels v. The
State, 28 Ark. 121; Oneal v. The State,
47 Ga. 229; Roberts v. The State, 3
Kelly, 310; Bennett v, Commonwealth,
8 Leigh, 745; Thompson v. Common-

wealth, 8 Grat. 637 ; Yanez v. The State,
20 Texas, 656.

4 Case v. The State, 5 Ind. 1; New-
comb v. The State, 37 Missis. 383.

5 Andersen v. The State, supra;
O’Shields v. The State, 55 Ga. 696; The
State v. Stumbo, 26 Misso. 306; Palmer
v. Fiske, 2 Curt. C. C. 14; The State v.
Larrimore, 20 Misso. 425; Briggs v.
Gleason, 27 Vt. 114; Potter v. Padelford,
3 R. L162; Bixby v. The State, 15 Ark.
895; Gardner v. Gardner, 2 Gray, 434;
Jackson v. Sharff, 1 Oregon, 246; Bur-
nett v. Phalon, 4 Bosw. 622; Loeffner v.
The State, 10 Ohio State, 598; Harris v.
Rupel, 14 Ind. 209; Morrison v. Stewart,
24 Ill. 24; Brown v. The State, 51 Ga.
502; Long v. The State, 54 Ga. 564;
Coggin v. Jones, 29 Ga. 257; Milton v.
Blackshear, 8 Fla. 161; Newcomb v. The
State, 37 Missis. 383.

6 Friar v. The State, 3 How. Missis.
422.

7 Young v. The State, 56 Ga. 403;
White v. The State, 17 Ark. 404; United
States v. Smith, 1 Saw. 277; The State
v. Burge, 7 Iowa, 255; Avery v. The
State, 26 Ga. 233; Rainey v. The State,
63 Ind. 278; Ash v. The State, 66 Ga.
688; Long v. The State, 51 Ga. 564;
The State v. J. W., 1 Tyler, 417; Oneal
v. The State, 47 Ga. 229; Jones v. The
State, 48 Ga. 163; Lynes v. The State,
46 Ga. 208; Teal v. The State, 22 Ga.
75; Wise v. The State, 24 Ga. 31; The
State v. Locke, 26 Misso. 603; Carter v.
The State, 46 Ga. 637; Holeman v. The
State, 18 Ark. 105; Attaway v. The

761
§ 1281

PROCEEDINGS AFTER VERDICT.

[Book x.

to impeach a witness,! or to show him hostile to the defend-
ant,? it will generally be inadequate.

§ 1280. Surprise. — The well-known ground of surprise may
be available for a new trial in a criminal case, the same as in a

civil.3

It must arise before the verdict, not after;4 and come

within the various principles familiar in the law of new trials.
§ 1281. Counsel. — A man is bound by the acts and knowl-
edge of his lawyer or other agent, the same on a question of new

trial as on any other.®

Still, in some circumstances, he may

have the new trial by reason of a mistake of his counsel ;7 a for-
tiort, by reason of counsel's misconduct.®

State, 56 Ga. 863; Giles v. The State, 6
Ga. 276; Carr v. The State, 14 Ga. 358;
Meeks v. The State, 57 Ga. 329; Peterson
v. The State, 50 Ga. 142.

1 Hauck v. The State, 1 Texas Ap.
857 ; Gibbs v. The State, 1 Texas Ap.
12; Thompson v. The State, 2 Texas
Ap. 289; Wallace v. The State, 28 Ark.
631; Brown v. The State, 55 Ga. 169;
Levining v. The State, 13 Ga. 513; Her-
ber v. The State, 7 Texas, 69; Bland v.
The State, 2 Ind. 608; Fleming vo. The
State, 11 Ind. 284; Brugh v. Shanks, 5
Leigh, 598; The State v. Henley, R. M.
Charl. 505 ; Thompson v. Commonwealth,
8 Grat. 637; The State v. McLaughlin,
27 Misso. 111, 112. See Walsh v. People,
65 111.58. Mistake of a Witness — may
justify a new trial. Scofield Rolling Mill
Co. v. The State, 54 Ga. 685; Mann o.
The State, 44 Texas, 642.

2 The State v. Carr, 1 Fost. N. H. 166.

8 Reg. v. Whitehouse, Dears. 1, 6 Cox

762

C. C. 129, 18 Eng. L. & Eq. 105; The
State v. Williams, 27 Vt. 724; Thomas v.
The State, 52 Ga. 509.

4 People v. Mack, 2 Parker C. C. 678.

» Yanez v. The State, 20 Texas, 656;
People v. O’Brien, 4 Parker C. C. 203;
Wholford v. Commonwealth, 4 Grat. 553;
Robinson v. The State, 15 Texas, 311;
Mayfield v. The State, 44 Texas, 59;
The State v. Wightman, 27 Misso. 121.

6 Reg. v. Helston, 10 Mod. 202; Peo-
ple v. O’Brien, 4 Parker C. C. 208; Ditto
v. Commonwealth, 2 Bibb, 17.

7 The State v. Williams, 27 Vt. 724;
The State v. Johnson, 40 Conn. 186;
Barber v. The State, 5 Fla. 199; Tomkins
v. Hill, Holt, 704.

8 Augustine v. The State, 20 Texas,
450. And see on the general subject of
this section, Wray v. People, 78 Ill. 212;
Robertson v. The State, 38 Texas, 187;
Dacy v. The State, 17 Ga. 489; Young
v. Commonwealth, 4 Grat. 550.
CHAP. LXXXVI.]

ARREST OF JUDGMENT. § 1285

CHAPTER LXXXVI.
THE ARREST OF JUDGMENT.

§ 1282. In General.— The proceeding known as arrest of judg-
ment pertains equally to criminal causes and to civil. It is an
order of the court, that, for ‘‘ error appearing on the face of the
record,” ‘the judgment for the plaintiff be arrested or with-
held.” 1 If, in a criminal cause, the judge before the trial sees
in the indictment or other parts of the record what will render a
conviction thereon erroneous, he has a discretion to quash or
decline to try it;? or the defendant may of right demur.2 But
when the cause has progressed to a conviction, whether by plea
or by verdict of guilty,t the corresponding proceeding, before
sentence, is arrest of judgment.

§ 1283. On Motion or not — (Of Right).— The court may, and
sometimes does, arrest the judgment self-moved.’ But generally
there is a motion in arrest, from the convicted defendant. It is
of right in him, like a demurrer ; not of mere discretion in the
court, like a motion to quash an indictment.

§ 1284. When.—It may be made at any time after convic-
tion and before sentence, but not after sentence.®

§ 1285. For what Defects. — This motion will, at the common
law, reach whatever defects are apparent on the face of the
record, but no others.’ If the indictment is inadequate in alle-

1 Stephen Pl. 4th ed. 96.

2 Ante, § 758 et seq.

3 Ante, § 775 et seq.

4 Rex v Knightley, 13 Howell St. Tr.
897, 403.

5 Ante, § 758, 759; Rex v. Wadding-
ton, 1 East, 148, 146; Rex v. Price, 6
East, 828, 8328; Thurston v. The State,
8 Coldw. 115; Old v. Commonwealth, 18
Grat. 915; Matthews v. Commonwealth,
18 Grat. 989.

6 Note to Anonymous, 11 Mod. 8 (re-
ferring to Rex v. Hayes, 2 Stra. 848, 846;

Taylor v. Whitehead, 2 Doug. 745, 746;
Rex v. Holt, 5 T. R. 486, 4387, 2 Leach, 4th
ed. 598); 1 Chit. Crim. Law, 661; Rex v.
Lookup, 3 Bur. 1901; Rex v. Robinson,
2 Bur. 799, 801 (overruling Reg. v. Darby,
1 Salk. 78); Reg. v. Deman, 2 Ld. Raym.
1221.

1 Sutton v. Bishop, 4 Bur. 2283, 2287;
Jacobowsky v. People, 6 Hun, 524; Case
v. The State, 6 Ind. 1; The State v. Ban-
gor, 88 Maine, 592; The State v. Hey-
ward, 2 Nott & McC. 3812; Common-
wealth v. Edwards, 12 Cush. 187; Peter

763
§ 1286 PROCEEDINGS AFTER VERDICT. [Book x.

gation,! and not cured by the verdict,? or if the verdict does not
conform to the indictment,? or there is error in any other part of
the record,‘ or the statute on which the indictment was drawn
has heen repealed,® — if, in any way, the prisoner appears by the
record entitled to be discharged,6— the motion in arrest of judg-
ment is an appropriate remedy. On the other hand, a variance
between proofs and allegation, any matter in abatement, or
matter appearing only in the evidence at the trial;7 a defect in
the process for bringing the defendant into court,’ in the serving
of it,9 in the examination before the committing magistrate,” or
in the summoning or impanelling of the grand or petit jury ;" or
any misconduct of either jury,*— will not be reached by this
motion.

§ 1286. Compared with Demurrer.—In general terms, at the
common law, objections which would have been fatal on demurrer

v. The State, 11 Texas, 762; Terrell v.
The State, 9 Ga. 58; The State v. Nixon,
18 Vt. 70; The State v. Thibeau, 80 Vt.
100; Heward v. The State, 13 Sm. & M.
261; The State v. Chitty, 1 Bailey, 879;
Gardner v. People, 8 Scam. 88; Garner
v. The State, 42 Ga. 203; Rex v. Royce,
4 Bur. 2078, 2084, 2085.

1 Black v. The State, 86 Ga. 447; The
State v. Gove, 84 N. H. 510; The State
v. Smith, 20 N. H. 399.

2 Ante, § 707 a, 1005; Lord v. The
State, 20 N. H. 404. See The State v.
Barrett, 42 N. H. 466; Lutz v. Common-
wealth, 5 Casey, Pa. 441,444. There are
formal objections to an indictment not
reached by this motion. Guykowski v.
People, 1 Scam. 476; Lutz v. Common-
wealth, supra. And see The State vo.
Holmes, 28 Conn. 280; People v. Wallace,
9 Cal. 80; People v. Cox, 9 Cal. 82. Du-
plicity is one illustration of this. Ante,
§ 443; House v. Lowell, 45 Misso. 881;
Pickering v. Mississippi Valley National
Telegraph Co., 47 Misso. 457; Wright v.
The State, 4 Humph. 194; Rex v. John-
son, 2 Leach, 4th ed. 1108, 1107. An-
other is where bad counts are mingled
with good ones. Ante, § 1015; Frain v.
The State, 40 Ga. 629. Another is an
amendable defect. The State v. Johnson,
29°La. An. 717.

8 The State v. Lohmdn, 3 Hill, S. C.

67.
T64

£ 1 Chit. Crim. Law, 662.

5 Stat. Crimes, § 177; Reg. v. Denton,
Dears. 3, 18 Q. B. 761, 14 Eng. L. & Eq.
124,

6 Atkins v. The State, 16 Ark. 568.

7 Foster v. The State, 1 Texas Ap.
531; People v. General Sessions, 1 Wend.
296 ; The State v. Graham, 15 Rich. 810;
The State v. Thompson, Cheves, 31;
Scull v. Briddle, 2 Wash. C. C. 200; The
State v. Crank, 2 Bailey, 66; Common-
wealth v. Cohen, 2 Va. Cas. 158.

5 Commonwealth v. Loghlin, 15 Gray,
569.

® Commonwealth v. Gregory, 7 Gray,
498.

30 Morris v. Commonwealth, 9 Leigh,
636; or omitting the examination, Angel
v. Commonwealth, 2 Va. Cas. 281; ora
variance between the presentment and
indictment, Commonwealth v. Chalmers,
2 Va. Cas. 76; Wells v. Commonwealth,
2 Va. Cas. 838; or an omission to read
the indictment to the jury, Wright v. The
State, 18 Ga. 383. And see Common-
wealth v. Kingman, 15 Gray, 208.

11 Ante, § 887-889 ;\ Hurley v. The
State, 6 Ohio, 899; Stone v. People, 2
Scam. 326; Rex v. Sheppard, 1 Leach,
4th ed. 101; Veatch v. The State, 56 Ind.
584.

‘22 Brister v. The State, 26 Ala. 107.
CHAP. LXXXVI.] °° ARREST OF JUDGMENT. § 1288

will be so equally on motion ‘in arrest of judgment.! . But a de-
fective indictment which is cured by verdict will sometimes be
ground for a demurrer,? yet it can never be for this motion.?
On the other hand, there may be an arrest of judgment for mat-
ter appearing in the verdict, when the time for demurring is
past.

§ 1287. Statutory Restrictions. — By statutes in England,® and
in perhaps the greater number of our States, certain objections
to the indictment are required to be taken at a stage of the cause
too early for this motion in arrest of judgment, or the motion
is expressly limited in its scope.6 Some questions as to the
constitutionality of this sort of jegislation have already been
considered.’

§ 1288. Effect of Arrest of Judgment. — “If,” says Chitty,’ “ the
judgment is ultimately arrested, all the proceedings will be set
aside, and judgment of acquittal will be given; but it will be

1 1 Chit. Crim. Law, § 442, 662; The
State v. Barrett, 42 N. H. 466; Murray
v. The State, 9 Fla. 246; The State v.
Doyle, 11 R. I. 574, 576; The State v.
James, 2 Bay, 215.

2 Ante, § 442, 775.

8 Ante, § 448, 1285.

4 Ante, § 1285. And see Rex v. Fran-
ces, 2 Comyns, 478.

5 14 & 15 Vict. c. 100, § 25, and some
of earlier dates. And see 1 Russ. Crimes,
5th Eng. ed. 85-37; Reg. v. Law, 2
Moody & R. 197; Reg. v. Ellis, Car. & M.
664.

6 See ante, § 707 a. For authorities
as to this, and a few other things of a
local nature, see : —

Alabama. — Hood v. The State, 44 Ala.
81.

California. — People v. Swenson, 49
Cal. 388.

Georgia. — Wise v. The State, 24 Ga.
81; Camp v. The State, 25 Ga. 689.

Indiana. — Hare v. The State, 4 Ind.
241; Dillon v. The State, 9 Ind. 408;
Mullen v. The State, 50 Ind. 169; Laydon
v. The State, 52 Ind. 459.

Kansas. — Wessells v. Territory, Mc-
Cahon, 100.

Kentucky. — Walston v. Common-
wealth, 16 B. Monr. 15; Tipper v. Com-
monwealth, 1 Met. Ky. 6; Commonwealth

v. Haderaft, 6 Bush, 91; Tully v. Com-
monwealth, 11 Bush, 154.

Louisiana.— The State v. Boudreaux,
14 La. An. 88; The State v. Nicholson,
14 La. An. 785; The State v. Millican, 15
La. An. 557.

Maryland. — Kellenbeck v. The State,
10 Md. 481; Wedge v. The State, 12 Md.
232; Cowman v. The State, 12 Md. 250;
The State v. Reed, 12 Md. 268, 278.

Massachusetts. — Stat. 1864, c. 250, § 2,
8; ante, § 114, and cases there cited;
Commonwealth v. Galligan, 113 Mass.
208.

Missouri. — The State v. York, 22
Misso. 462; The State v, Pemberton, 30
Misso. 376; The State v. Koerner, 51
Misso. 174.

Nevada. — The State v. O’Connor, 11
Nev. 416.

Pennsylvania. — Weaver v. Common-
wealth, 6 Casey, Pa. 445; Commonwealth
v. Frey, 14 Wright, Pa. 245.

Rhode Island.— The State v. Paul, 5
R. I. 185; The State v. Keeran, 5 R. I.
497.

Washington Territory. —Freany v. Ter-
ritory, 1 Wash. Ter. 84.

7 Ante, § 96-98, 112, 114, 115, 123-125,
885, 711. And see the chapters com-
mencing ante, § 77, 118, and 117.

8 1 Chit. Crim. Law, 664.

765
§ 1288 PROCEEDINGS AFTER VERDICT. [Book x.

no bar to a subsequent indictment, which the prosecutor may
immediately prefer.”! Nor need the prisoner be discharged ;
for he may be held to answer to the new prosecution.2 But, if
the indictment is good, and the arrest is because of a wrong ver-
dict, only the verdict will be vacated, and a new trial will be
ordered. And the like rule extends to all other cases which
involve the same reason.+

1 Crim. Law, I. § 998-1003; Rex v. 3 The State v. Koerner, 51 Misso.
Burridge, 8 P. Wms. 489, 499; Vaux’s 174.
Case, 4 Co. 44 a, 45; Com, Dig. Indict- 4 Rex v. Price, 6 East, 8328 ; Common-
ment, N; 4 Bl. Com. 875; The State v. wealth v. Galligan, 118 Mass. 208. See
Thomas, 8 Rich. 295. Mobley v. The State, 46 Missis. 501; post,
2 Ante, § 229, 269, 277; The State v. 1878.
Holley, 1 Brev. 35. ;

766
CHAP. LXXXVII.] THE SENTENCE. § 1291

CHAPTER LXXXVII.

THE SENTENCE.

§ 1289, 1290. Introduction.
1291-1299. In General.
1800-1309. Fine and its Incidents.
1310-1812. Corporal Punishment and its Incidents.
13138-1821. Costs.
1322-1324. Pregnancy of the Female Prisoner.
1825-1834. More Counts than One.

§ 1289. Already considered. — In other connections, we saw
what is the punishment by law provided in general, and for the
several offences.}

§ 1290. What for this Chapter, and how divided. — The sentence,
in particulars not considered in the other connections, will be
explained in this chapter as to, I. In General; II. Fine and its
Incidents ; III. Corporal Punishment and its Incidents; IV.
Costs; V. Pregnancy of the Female Prisoner; VI. More
Counts than One.

I. In General.

§ 1291. When and Where.— A plea or verdict of guilty puts
the cause in a condition for sentence. It may be rendered in-
stantly unless the practice of the court allows time for a motion
in arrest of judgment,” or some’other step involving delay ;? or
unless the court, for its own convenience, or on cause shown,!
postpones, as it commonly does, the sentence to a future day or
term.6 It must be given in open court, not privately in the

1 Crim. Law, I. § 927 et seq.; and in 4 Rex v. Heydon, 1 W. BI. 404; 5. c.
the discussions of the several offences in nom. Rex v. Haydon, 3 Bur. 1887; The
Crim. Law II. and in Stat. Crimes... State v. Brinyea, 5 Ala. 241; Rex v.

2 Rex v. Knightley, 18 Howell St. Tr. Southampton, 2 Chit. 215.

897, 408, Comb. 864; Rice v. Rex, Cro. 5 People v. Felix, 45 Cal. 163; Wil-

Jac. 404. liams v. Commonwealth, 5 Casey, Pa.
3 Peuple v. General Sessions, 5 Wend. 102; Commonwealth v. Foster, 122 Mass.
110. 817; The State v. Guild, 5 Halst. 163.

167
§ 1298 PROCEEDINGS AFTER VERDICT. [Book x,

judge’s chamber;! on a judicial day, and not on Sunday ;? the
convicted person being present, unless only a fine is to be im-
posed ;® and the case being in all respects properly in court.!

§ 1292. Proclamation of Silence. — The crier’s proclamation of
silence,® usually found in the old forms, is not legally essential.

§ 1293. “any thing. to say ?” — Not necessarily in all criminal
cases, but by nearly unanimous doctrine in all capital ones,’
opinions being divided as to felonies not capital,’ and even in
misdemeanors by statutes in some of the States,® the prisoner must
be asked,” preparatory to the passing of sentence, whether he
has any thing to say why it should not be pronounced." He
may then move in arrest of judgment, if he has not done it
before ; 2 if he has, perhaps this interrogatory has been rendered
thereby unnecessary, the right tendered by it having already
been exercised.3 Or he may plead a pardon, should he have
one.# While the omission of this form, when required, is error,
the entire proceedings are not necessarily to be reversed, but
only this part, and thereupon a new sentence under due formali-

ties may be rendered.

1 Anonymous, T Raym. 68.

..2 Ante, § 1001; Blood v. Bates, 31 Vt.
147.

3 Ante, § 275; Young». The State, 39
Ala. 357. z

4 Hill v. Commonwealth, 2 Va. Cas.
61; McNeill’s Case, 1 Caines, 72; O’Con-
nell v. The State, 18 Texas, 343; United
States v. May, 2 McAr. 512; Lowenberg
v. People, 27 N. Y. 836; Cleek v. Com-
monwealth, 21 Grat. 777. See also as
to preliminaries, Bond v. The State, 23
Ohio State, 349 ; People v. Robinson, 46
Cal. 94; Fanning v. Commonwealth, 120
Mass. 888; Weaver v. People, 83 Mich.
296; Commonwealth v. Dowdican, 116
Mass. 1838, 186; Reg. v. Ryan, 7 Cox C.C.
109.

5 Rex v. White, 17 Howell St. Tr.
1079, 1091.

6 1 Chit. Crim. Law, 699; Rex v.,
Ward, 2 Ld. Raym. 1461, 1469,

7 Dougherty ». Commonwealth, 19
Smith, Pa. 286; Hamilton v. Common-
wealth, 4 Harris, Pa, 129; West v. The
State, 2 Zab. 212; Jones »v. The State,
51 Missis. 718; Messner v. People, 45
N. Y.1; The State ». Johnson, 67 N.C.
65 ; James v. The State, 45 Missis. 572.

768

8 Necessary. — Safford v. People, 1
Parker C. C. 474, 477; Mullen v. The
State, 45 Ala. 483; Croker v. The State,
47 Ala. 58; Perry v. The State, 43 Ala.
21; Crim v. The State, 43 Ala. 53. Un-
necessary. — Jones v. The State, supra;
The State v. Ball, 27 Misso. 824; Jeffries
v. Commonwealth, 12 Allen, 145, 153.

9 Carper v. The State, 27 Ohio State,
672.

10 For the form see Rex v. White, 17
Howell St. ‘Tr. 1079, 1090, 1091.

11 1 Chit. Crim. Law, 699, 700; Rex v.
Speke, 3 Salk. 358, Comb. 144; Rex v.
Geary, 2 Salk. 6830; Anonymous, 8 Mod.
265; Rex v. Royce, 4 Bur. 2078, 2086.

12 Popish Lords’ Case, 7 Howell St. Tr.
1217, 1554.

18 Jeffries v. Commonwealth, 12 Allen,
145; The State v. Johnson, 67 N. C. 55;
Edwards v. The State, 47 Missis. 581.

M4 Rex v. Garside, 2 A. & E. 266.

16 Keech v. The State, 15 Fla. 591;
McCue v. Commonwealth, 28 Smith, Pa.
185; Dodge v. People, 4 Neb. 220. And
see, on the general subject of this section,
People v. Stuart, 4 Cal. 218, 226; Dyson
v. The State, 26 Missis. 362; Grady v.
The State, 11 Ga. 258; Sarah v. The
CHAP. LXXXVII. |

THE SENTENCE. § 1298

§ 1294, Mitigation and Aggravation of Punishment. — This is the
time to produce evidence and arguments for and against a miti-
gation of punishment.!

§ 1295. Address to Prisoner. — Prefatory to the sentence, the
judge makes to the prisoner any observations for his benefit
deemed desirable, or explanations for the general good. But
they are not legally essential.?

§ 1296. Style of Sentence — (“ Ordered" — “ Opinion” — “Con-
sidered”). — The sentence is the conclusion of the law, not of the
judge. Its style should therefore be, not that “it is ordered”
so and so,* or “the court is of opinion” so and so;‘ but “It is
considered,” &c.6 Again, —

§ 1297. Certain.— A sentence, like any other writing, must,
to be valid,® be in such terms that its meaning can be under-
stood.’ And always the court should take special care to make
it precise and accurate.§

§ 1298. Altering. — As tho court may alter its docket entries
and other records at pleasure during the term in which they are
made,® it may, until the term ends, revise, correct, and change
its sentences, however formally pronounced, if nothing, has been
done under them.” But steps taken under a sentence — it may

State, 28 Ga. 576; Leschi v. Territory, 1
Wash. Ter. 23; Taylor v. The State, 42
Ala. 529; The State v. Fritz, 27 La. An.
860; The State v. Hugel, 27 La. An. 375;
The State v. Stiefle, 13 Iowa, 603.

1 Crim. Law, I. § 948-950; Rex v.
Wilson, 4 T. R. 487; Reg. v. Dignam, 7
A. & E. 593; The State v. Smith, 2 Bay,
62; Rex pv. Cox, 4 Car. & P. 588; Rex v.
Withers, 3 T. R. 428; Reg. v. Gregory, 1
Car. & K. 228; Rex v. Turner, 1 Stra.
189; Kistler v. The State, 54 Ind. 400;
Eastman v. The State, 54 Ind. 441; Rex
v. Sharpness, 1 T. R. 228; Lewis v. The
State, 8 Head, 127; Reg. v. Clueworth,
Holt, 339. :

2 And see 1 Chit. Crim. Law, 700, 701;
Rex v. Kenworthy, 1 B. & C. 711, 3D. &
R. 178. ;

8 Baker v. The State, 8 Pike, 491.
But see Franz v. The State, 12 Wis. 536.

4 Knowles v. The State, 2 Root, 282.

5 Rex v. Kenworthy,1 B. & C. 711;
Rex v. Fanshaw, 1 Trem. P. C. 199, 204,
and the other entries in this book. And
see Hawkins v. The State, 9 Ala. 187;

VOL. I. 49

Reg. v. King, 7 Q. B. 782; Johnson v.
The State, 2 Dutcher, 318; Easterling v.
The State, 35 Missis. 210; Franz v. The
State, 12 Wis. 536; The State v. Huber,
8 Kan. 447; Mayfield v. The State, 40
Texas, 289; Butler v. The State, 1 Texas
Ap. 638; The State v. McGinnis, 12 La.
An. 743.

6 Bishop Con. § 581, 601.

7 Reg. v. Woodside, 7 Cox C. C. 238.

8 Groenvelt’s Case, 1 Ld. Raym. 213.
And see Riley v. The State, 16 Conn. 47;
Brock v. The State, 22 Ga. 98; In re
Sweatman, 1 Cow. 144; Ex parte Mauls-
by, 18 Md. 625; post, § 1308, 1309. And
see Drew v. Commonwealth, 1 Whart.
279.

9 Post, § 1842.

10 Commonwealth v. Weymouth, 2 Al--
len, 144 (referring to Reg. v. Fitzgerald,
1 Salk. 401; Turner v. Barnaby, 2 Salk.
566; Rex v. Price, 6 East, 823, 327; Rex
v. Leicestershire Justices, 1 M. & S.
442, 444; Darling v. Gurney, 2 Dowl.
P. C. 101); United States v. Harmison, 3
Saw. 556; Memphis v. Brown, 94 U.S.

769
PROCEEDINGS AFTER VERDICT.

§ 1800 [Book x.

not be precisely certain what steps; doubtless, at least, a part
execution thereof !— will cut off the right to alter it, even dur-
ing the term.? And with the expiration of the term the power
expires.?

§ 1299. Respite — Reprieve. — The law of respite or reprieve
appears to apply only to capital sentences.4 The two terms are
nearly synonymous. Either signifies the suspension, for a time,
of the execution of a sentence which has been pronounced.5
Every court ‘ which,” says Hawkins, “has power to award an
execution,” ® may grant it of its own sentences.’ In England, it
appears, a reprieve may be ordered by the judges even in vaca-
tion; and perhaps the same may be done under the common
law of this country. The crown, also, has the power of reprieve
in England; and so have our executives, under some, at least,
of the constitutions.“ It would seem, in reason, to be a part of
the power of pardon, and included therein ; but the question has
probably not been judicially decided. If a statute requires a
respite, it becomes a right in the prisoner.”

‘ II. Fine and its Incidents.

§ 1300. Conform to General Rules and to Statutes. — The sen-
tence to a fine must conform to the general rules stated under
our last sub-title, and likewise to any special requirements of

the statute on which it is rendered.¥

715; Miller v. Finkle, 1 Parker C. C.
874; Burnside v. Ennis, 48 Ind. 411.

1 Brown v. Rice, 57 Maine, 55, 58;
Ex parte Lange, 18 Wal. 163; Parker v.
The State, 51 Missis. 535.

2 People v. Duffy, 5 Barb. 205, 208;
Miller v. Finkle, supra.

3 Commonwealth v. Mayloy, 7 Smith,
Pa. 291; Parker v. The State, supra;
Rex v. Walcot, Comb. 369, 2 Salk. 632.
And see, as to the doctrine of this sec-
tion, Rex v. Fletcher, Russ. & Ry. 58;
People v. Thompson, 4 Cal. 238; Jobe v.
The State, 28 Ga. 235; In re Mason,
8 Mich. 70.

* 1 Chit. Crim. Law, 757; Sterling v.
Drake, 29 Ohio State, 457.

5 Mishler v. Commonwealth, 12 Smith,
Pa. 55. ’

6 2 Hawk. P. C.c. 51, § 8.

770

And, —

7 1 Chit. Crim. Law, 757, 758; 1 Hale
P. C. 368; 2 Hale P. C. 412; Archb.
Crim. Pl. & Ev. 19th ed. 193; Weaver v.
People, 33 Mich. 296, 297, 298; Fults »v.
The State, 2 Sneed, 232, 235. See also
Allen v. The State, Mart. & Yerg. 294.

3 Anonymous, 2 Dy. 205, pl.6; Hawk.
ut sup.; 2 Hale P. C. 412, 418.

9 Miller’s Case, 9 Cow. 730.

1 See the before-cited authorities.

1 Sterling v. Drake, 29 Ohio State,
457; The State v. Rose, 29 La. An. 755.

2 John v. The State, 2 Ala. 290.

13 Werfel_v. Commonwealth, 5 Binn.
65; Warfield v. The State, 34 Ala. 261;
Barth v. The State, 18 Conn. 482; Raw-
lings v. The State, 2 Md. 201; People v.
Ontario, 4 Denio, 260; MceMeekin v. The
State, 48 Ga. 835; Ex parte Tongate, 31
Ind. 870; The State v. Harding, 39 Conn.
CHAP. LXXXVII. ] THE SENTENCE.

§ 1303

§ 1301. Stand committea.— To secure the collection of the
fine, the judgment, by the common-law rules, confirmed by stat-
utes in many of the States, should also contain the order that
the defendant stand committed till it is paid.1_ There is author-
ity for deeming a sentence voidable which omits this order ;? but,
in reason, the defendant could not avoid it, though the State
might be entitled to resort only to his goods for payment., And
the New York court has held, that, where the sentence is to pay
a fine, if it then proceeds to award process for its recovery
according to the practice of the court, this is good, though there
is no clause of commitment.®

§ 1802. Not in Custoay — (Capias).— Where the defendant is
not in custody when the sentence to pay a fine is rendered (for
it is in the discretion of the court to dispense with or require his
presence *), a capias pro fine may, under the common-law prac-
tice, be issued, and thereon he may be imprisoned under the
order to stand committed till the fine is paid. Such is plainly
enough the law on an obscure question which does not often
arise ; but practically, when the necessity of a step like this is
anticipated, the court will secure the custody of the defendant
before pronouncing sentence.

§ 1803. Collecting Fine out of Effects. — Whether a defendant
is committed for non-payment of his fine or not, the State, by the
common-law practice, may collect it out of his property under a
levari facias.6 And, —

,

661; Ex parte Bollig, 31 Ill. 88; The
State v. Stanford, 20 Ark. 145; People v.

keeper.” Holt, C. J.,in Rex v. Bethel, 6
Mod. 19, 21. For the form see Rex v.

Sacramento, 6 Cal. 422; Commonwealth
v. Howard, 13 Mass. 221.

! Rex v. Hord, Say.176; Reg. v. Lay-
ton, 1 Salk. 358, Keilw. 41; Godfrey’s
Case, 11 Co. 42 u, 48 6; Rex v. Ster-
ling, 1 Ley. 125; Hill v. The State, 2
Yerg. 247; Harris v. Commonwealth, 23
Pick. 280; Faris v. Commonwealth, 3 B.
Monr. 79; Ex parte Bollig, 31 Ill. 88.
See Hudeburgh v. The State, 38 Texas,
635; Dunn v. Reg. 12 Q. B.1031. “ The
commitment ought to be to the sheriff,
or generally quousque he paid the fine.
It is true, justices of the peace commit
felons to the keeper of the prison; but,
where the court commits, it is to the
sheriff, who is their officer, to whom the
court must award a capias, and not to the

Broughton, 1 Trem. P. C. 111, 119; Rex
v. Taylor, 1 Trem. P. C. 226, 227.

2 Rex v. Hord, supra.

8 Kane v. People, 8 Wend. 208.

4 Ante, § 275, 1291.

5 Ante, § 275, note; Kane v. People, 8
Wend. 208, 215; Tomlins Law Dict. Ca-
pias pro Fine. And see Reg. v. Temple-
man, 1 Salk. 55; Pifer v. Commonwealth,
14 Grat. 710; Huddleson v. Ruffin, 6 Ohio
State, 604.

6 Rex v. Woolf, 2 B. & Ald. 609,
1 Chit. 428; Kane ev. People, 8 Wend.
208; Rex v. Woolfe, 1 Chit. 683; Rex v.
Carlisle, 1 D. & R. 474; 1 Chit. Crim.
Law, 811. And see Rex v. Speed, 1
Salk. 379, 1 Ld. Raym. 583; Anonymous,
T. Jones, 288; In re Beall, 26 Ohio State,

771
§ 1309 PROCEEDINGS AFTER VERDICT. ~—. [BOOK X.

§ 1804.. Judgment Debt. — Very generally in this country, by
statutes or under the common law, the fine is thus treated as a
sort of judgment debt.1 Yet it cannot be proved as a “ debt”
in bankruptey ;? nor is it such within statutes abolishing impris-
onment for debt.2 It is collectible out of an infant’s property,‘
binds a married woman,® and does not bear interest under the
Texas statute allowing interest on judgments. Therefore, — .

§ 1305. Escape. —If one committed for the non-payment of a
fine escapes, it is not thereby discharged.”

§ 1306. Poor. — Neither, in the absence of a statutory direc-
tion, can the judge set him at liberty because poor and unable to
pay.’ Yet in most of our States there. are statutes allowing such
release after a period of imprisonment.? But, in the absence of
special terms, they leave his property still. holden for the fine.”

§ 1807. alternative, Fine or Imprisonment. — There are statutes
which permit the sentence to be in the alternative, — to pay a
particular fine, or be imprisoned for a time specified." But, leav-
ing out of view what may be done under such a statute, —

§ 1308. Order for Release — (Conditional). — Though a statute
gives the court authority to release prisoners after a certain time,
this act is to be performed only when the time arrives; and a
sentence “ until released,” * or with a provision for subsequent
remission,# will be ill. ‘ And,” said Lord Holt, ‘a fine, unless
such a thing be done in futuro, is void.” 4 Hence, —

§ 1809. Definite. — The sentence must be definite, so that the
defendant can know what to do and how to obtain his release.®

195. In Texas, the two remedies cannot
be pursued together. O’Conner v. The
State, 40 Texas, 27.

1 R.S. of U.S. § 1041; Cagle v. The
State, 6 Humph. 391; Strafford v. Jack-
son, 14 N. H. 16. See The State v. Rob-
inson, 17 N. H. 263.

2 Jn re Sutherland, 3 Bankr. Reg. 314.

8 Dixon v. The State, 2 Texas, 481;
The State v. Mace, 5 Md. 887.

4 Beasley v. The State, 2 Yerg. 481.

5 Bates v. Enright, 42 Maine, 105.

6 The State v. Steen, 14 Texas, 396.

7 The State v. Simpson, 1 Jones, N.C.
80.

38 Luckey v. The State, 14 Texas,
400.

8 See Strafford v. Jackson, 14 N. H.
16; The State v. Robinson, 17 N. H. 268;

172

Ex parte Scott, 19 Ohio State, 581; Ex
parte Bollig, 31-Ill. 88; Gannon v.
Adams, 8 Gray, 3895.

10 Commonwealth v. Long, 5 Binn. 489.
And see, as to the matter of this section,
Ex parte Tongate, 31 Ind. 870; Me-
Meekin v. The State, 48 Ga. 885; The
State v. Jordan, 39 Iowa, 887; The State
v. Anwerda, 40 Iowa, 151.

ll The State v. Markham, 15 La. An.
498; Broomhead vo. Chisolm, 47 Ga. 890.
See Reg. v. Green, Gilb. Cas. 231; Doug-
las v. Reg. 13 Q. B. 74.

12 Washburn v. Belknap, 8 Conn. 502,
606.

18 The State v. Bennett, 4 Dev. & Bat.
48, 50.

4 Rex v. Hertford, Holt, 320.

15 Rex v. Catterall, Fitzg. 266; Rex v.
OHAP, LXXXVII. ]

THE SENTENCE. § 1311

III. Corporal Punishment and its Incidents.

§ 1310. Time in Sentence to Imprisonment — (When begins —
Sentence’ expiring). —- The substance of every sentence is the
punishment, not the time of its infliction! Therefore the day
when an imprisonment is to begin or end need not be, and. by
the better practice it is not, inserted in the sentence ;? though it
may be otherwise under the command of a statute.2 And, at
common law, if a sentence to imprisonment. is to commence run-
ning on the expiration of another one, it must be so stated, else
the two punishments will be executed. simultaneously. Hence,
also, —

Not going into Prison. —If the sentence does fix its time of
beginning, yet the defendant does not then go into prison,
the court may afterward order it executed for the full period.®

Or, —

Escaped and retaken. —If a prisoner has escaped and is re-
taken, the keeper in executing the sentence will deduct the

period of absence.§

§ 1811. Time in Capital Sentence — Place — (Special Corporal
Punishment). — Under the common-law practice, a sentence to

Rainer, 1 Sid. 214; Morris v. The State,
1 Blackf. 87. See, also, Rex v. Barnes, 2
Stra. 917; Rex v. Stevens, 8 Smith, 366;
People v. King, 28 Cal. 265; People v.
Hughes, 29 Cal. 257; McIntosh v. The
State, 62 Ala. 355; White v. The State,
80 Ala. 518; People v. Degnen, 54 Barb.
105, 6 Abb. Pr. n. 8. 87; ante, § 1297.

1 Crim. Law, L § 951, 952; Stat.
Crimes, § 255.

2 Clifford v. The State, 30 Md. 575;
Johnson v. People, 83 Ill. 481; The State
v. Smith, 10 Nev. 106, 125; Ex parte Gib-
son, 31 Cal. 619, 626. And see People v.
King, 28 Cal. 265; People v. Hughes, 29
Cal. 257. For example, the sentences
are so in Tremaine; as, Rex v. Wordell,
1 Trem. P. C. 182, 134, 185; Rex v. Bax-
ter, 1 Trem. P. C. 265, 266. Contra, Kel-
ly v. The State, 3 Sm. & M. 518.

8 The State v. Gaskins, 65 N. C. 3820.
And see Cole v. The State, 6 Eng. 318;

Miller v. The State, 15 Fla. 575; Ex parte
Meyers, 44 Misso. 279; People v. Degnen,
64 Barb. 105, 6 Abb. Pr. n. 8. 87; Isaacs
v. The State, 23 Md. 410.

* Crim. Law, I. § 953; Russell ».
Commonwealth, 7 S. & R. 489; The State
v. Smith, 5 Day, 175; Wilkes v. Rex, 4
Bro. P. C. 860, 867; Commonwealth v.
Leath, 1 Va. Cas. 151; Ex parte Ryan,
10 Nev. 261; Holloway v. Reg. 2 Den.
C. C. 287, 297; Rex v. Hart, 80 Howell
St. Tr. 1131, 1821 et seq.; Martin ». Peo-
ple, 76 Ill. 499; Johnson v. People, supra ;
Reg. v. Cutbush, Law Rep. 2 Q. B. 379,
and multitudes of other cases. See post,
§ 1827.

5 The State v. Cockerham, 2 Ire. 204.
And see Mills v. Commonwealth, 1 Har-
ris, Pa. 634.

6 Dolan’s Case, 101 Mass. 219; Cleek
v. Commonwealth, 21 Grat. 777; Ex
parte Clifford, 29 Ind. 106; post, § 1884.

173
§ 1313 PROCEEDINGS AFTER VERDICT. [BOOK x.

death! or any other corporal infliction? is generally silent as to
the time, which is left to the discretion of the officer, or is
appointed by a subsequent rule of the court. It is so even of
the place. In some of our States, the day of inflicting a capital
punishment is determined by the governor; then, of course, it
cannot appear in the sentence.®

Not executed at Time. — If the time fixed for executing a capi-
tal sentence passes and it is not done,‘ or if the condemned man
**come to life after he be hanged,”’5 another day should be assigned,
the prisoner being taken before the tribunal for the purpose.§
But the majority of'the Alabama court held that this cannot be,
if, in the mean time, the statute authorizing the conviction has
been repealed.7

§ 1312. Sureties of Peace.—If sureties of the peace are re-
quired as a part of the sentence,’ it may be added that he stand
committed till he gives them.®

IV. Costs.

§ 1313. Howat Common Law — Under Statutes. — No costs, in
causes civil or criminal, are allowable by the common law of
England.” There are English statutes giving them, apparently
limited to civil suits, early enough to be common law with us;
but practically, in criminal causes, not inquiring how it may be

in civil,” all the costs known with us are the creatures of our own

1 Rex vu. Doyle, 1 Leach, 4th ed. 67;
Cathcart v. Commonwealth, 1 Wright,
Pa. 108 (referring to Rastell’s Entries ; 2
Hale P. C. 399; Coke’s Entries, 352, 353 ;
and Rex v. Rogers, 3 Bur. 1809, 1812);
Webster v. Commonwealth, 5 Cush. 386.
See also Russell v. The State, 83 Ala. 366.
Still it is held in Alabama, that the sen-
tence should fix the day of execution,
else it will be defective. Aaron v. The
State, 40 Ala. 307, 309.

2 Atkinson v. Reg. 8 Bro. P. C. 517.

3 Webster ». Commonwealth, supra.

4 In re Ferris, 85 N. Y. 262; Ex parte
Nixon, 2 8. C. 4; Rex v. Ferrers, Foster,
1388; The State v. Osear, 18 La. An.
297; The State v. Kitchens, 2 Hill, S. C.
612.

5 2 Hawk. P. C. c. 51, § 7.

§ Rex v. Harris, 1 Ld. Raym. 482.

TTA

T Aaron v. The State, supra. See
Stat. Crimes, § 177.

® Crim. Law, I. § 945.

* Dunn v. Reg. 12 Q. B. 1081; Anony-
mous, Fort. 242; Rex v. Hart, 30 Howell
St. Tr. 1131, 13821, 1822, 1844.

10 Kendall v. John, Fort. 104, 116;
Dibben v. Cooke, 2 Stra. 1005; Greene v.
Cole, 2 Saund. 252, 257.

M1 Middleton v. Crofts, Andr. 57; Pil-
fold’s Case, 10 Co. 115, 116a; Tyte ».
Glode, 7 T. R. 267; Anonymous, 8 Dy.
870 b, pl. 61; Thorp ». Fowle, 2 Mod. 58;
Williams v. Drewe, Willes, 392; Plymouth
v. Werring, Willes, 440. See the statutes
collected and stated, 1 Har. Dig. 8d ed.
17165, 1716.

22 Swainson v. Bishop, 52 Misso. 227;
Commonwealth v. Carpenter, 8 Mass.
268, 270.
CHAP. LXXXVII.]

_statutes.!

THE SENTENCE.

§ 1816

These statutes are so diverse in our different States,

rendering the law on this subject in each State in effect special
to its own jurisdiction, that it is best here to do little more than
classify the principal authorities for convenient reference.

§ 1814. To and from Prosecutor.— We have seen something of
statutory costs to and from the prosecutor.

§ 1315. The State. — Except under express words of a statute,?
the State or United States never pays costs to the defendant.*
But there are statutes providing for such payment.

§ 1816. The County. — There are statutes which, in some cir-
cumstances, not necessarily in the form of costs taxed, require
the payment of costs by the county.®

1 Compare The State v. Kinne, 41
N.H. 288; Prince v. The State, 7 Humph.
187; Rex v. Edwards, 1 Salk.193; Rex v.
Glassenby, 2 Stra. 1069; s. c. nom. Rex v.
Glastonby, Cas. temp. Hardw. 355; Rex
v. Sidney, 2 Stra. 1165. Chitty says, that,
at the common law, “the king neither
pays nor receives costs; and, as an indict-
ment, though carried on by an individual,
is always considcred as his suit, no costs
are payable, whatever may be the event of
the prosecution.” He refers to statutes
breaking in upon this doctrine, but evi-
dently none of them are common law with
us. 1 Chit. Crim. Law, 825 et seq.

2 Ante, § 690 et seq.; Fowler v.
Bishop, 1 Root, 198; Ex parte Manning,
1 Caines, 59; Rex v. St. John, 6 M. &
S. 180; Rex v. Bartrum, 8 East, 269;
Rex v. Tremaine, 8 D. & R. 590; Rex v.
Tremaine, 5 D. & R. 413; 8. c. nom.
Rex v. Tremearne, 5 B. & C. 761; The
State v. Campbell, 19 Kan. 481; The
State v. Reisner, 20 Kan. 548; Rex v.
Sheering, 7 Car. & P. 440; Reg. v. Major,
Dears. 18, 14 Eng. L. & Eq. 144; Reg. v.
Latimer, 15 Q. B. 1077, 2 Eng. L. & Eq.
226; Durkin’s Case, 2 Lewin, 163; Reg.
v. Wilson, 1 Ellis & B. 597, Dears. 79, 16
Eng. L. & Eq. 889; The State v. Fawcett,
16 Misso. 880; Tuck v. The State, 8 Ala.
664; The State v. Lumbrick, 1 Car. Law
Repos. 543; Guffy v. Commonwealth, 2
Grant, Pa. 66; Reg. v. Manchester, 7
Ellis & B. 453, 40 Eng. L. & Eq. 141;
Rex v. Incledon, 1 M. & S. 268; Rex v.
Commerell, 4 M. & S. 208; Rex v. Edge-
worth, 4 T. R. 218; Rex v. Rawson, 2 B.

& C. 598, 4 D. & R. 124; Heiderer »v.
People, 2 Col. Ter. 672; Jacobs v. The
State, 20 Ga. 839.

3 Stat. Crimes, § 142. And see Prince
v. The State, 7 Humph. 137.

4 The State v. Harrington, 2 Tyler, 44;
The State v. Greenwell, 4 Gill & J. 407;
United States v. Barker, 2 Wheat. 395;
United States v. Hooe, 3 Cranch, 738, 92;
The Antelope, 12 Wheat. 546; United
States v. Ringgold, 8 Pet. 150, 163; United
States v. Boyd, 5 How. U. S. 29. And
see Israel v. The State, 8 Ind. 467.

_ 5 Britton v. Commonwealth, 1 Cush.
302, 306; Commonwealth v. Evans, 10
Gray, 463; Commonwealth v. Intoxi-
cating Liquors, 14 Gray, 375; Common-
wealth v. Cambridge, 4 Met. 35, 42; Cal-
houn v. Buffington, 25 Misso. 443; Anne
v. The State, 11 Humph. 205; Stephens
v. Bradford, 7 Watts & S. 488; The State
v. Brigham, 63 Misso. 258.

6 Rexv. Austen, D.& R.,N. P. 24; Rex
v. West Riding of Yorkshire Justices, 7 T.
R. 877; Commonwealth v. Huntingdon, 3
Rawle, 487; Needham v. Thresher, 49 Cal.
892; Raber v. Wayne, 12 Ohio State, 429;
Commonwealth v. Philadelphia, 2 S. & R.
299; Miami v. Blake, 21 Ind. 82; The
State v. Rum, 35 N. H. 222; Prince v.
The State, 7 Humph. 137; Agnew v.
Cumberland, 12 S. & R. 94; The State
v. Buchanan County Court, 41 Misso.
254; Shawnee v. Whiting, 4 Kan. 273;
Shawnee v. Hanback, 4 Kan. 282; Berks
v. Pile, 6 Harris, Pa. 493; Wayne v. Com-
monwealth, 2 Casey, Pa. 154; In re
Speer, 54 Ga. 40; Ex parte Taylor, 4

715
§ 1817 PROCEEDINGS AFTER VERDICT. - [Book x.

§ 1317. Defendant. —It is not just that one guilty of no fault
should be condemned in costs.1_ Hence, in general, costs are not
adjudged against an acquitted defendant ;? but, in Pennsylvania
(the writer is not aware of any other State), they are, under
special circumstances. On a conviction, the reasons are re-
versed. What costs he pays under various circumstances, and
when exempt, will appear in the cases cited in the note.*

Ind. 479; Rex v. Myers, 6 T. R. 237;
Reg. v. Jones, 2 Moody, 171, 9 Car. & P.
401; Ouachita v. Sanders, 5 Eng. 467;
Johnson v. Wilson, 19 Kan. 485.

1 Clay v. Richardson, 2 A. K. Mar.
199.

2 Giles v. The State, 28 Ga. 462;
Scott’s Case, Kirby, 362; Wells v. Mc-
Cullock, 18 Ill. 606; Commonwealth v.
Bundy, 6 Gray, 305; Tucker v. The State,
2 Head, 555.

3 Wayne v. Commonwealth, 2 Casey,
Pa. 154; Guffy v. Commonwealth, 2
Grant, Pa. 66; Baldwin v. Common-
wealth, 2 Casey, Pa. 171; Harger »v.
Washington, 2 Jones, Pa. 251; Keefhaver
v. Commonwealth, 2 Pa. 240; Common-
wealth v. Tilghman, 4 S. & R. 127. See
Reg. v. Heanor, 2 Moody & R. 445, note.

4 Alabama.— Tomlin v. The State, 19
Ala. 9; Michael v. The State, 40 Ala.
861; Dent v. The State, 42 Ala. 514;
Caldwell v. The State, 55 Ala. 188; Wil-
liams v. The State, 55 Ala. 166.

Arkansas. —Edwards v. The State, 7
Eng. 122; Bales v. The State, 19 Ark.
220.

Connecticut. — Scott’s Case, Kirby, 862.

Georgia. — Peters v. The State, 9 Ga.
109; Giles v. The State, 28 Ga. 462;
Gilliam v. The State, 32 Ga. 111.

Illinois. — Wells v. McCullock, 18 “Ill.
606 ; People v. Phelps, 17 Ill. 200; Moody
v. People, 20 Ill. 815; Borschenious v.
People, 41 Ill. 236.

Indiana. — The State v. Abrams, 4
Blackf. 440; The State v. Smith, 6 Blackf.
649; The State v. Thurston, 7 Blackf.
148; Ix parte Taylor, 4 Ind. 479; Wood-
ruff v. The State, 8 Ind. 521; The State
v. Foster, 9 Ind. 189; The State v. Sau-
vaine, 14 Ind. 21; Thompson v. The
State, 16 Ind. 516; Patterson v. Daviess,
18 Ind. 141; Miami v. Blake, 21 Ind. 32;
The State v. Kinneman, 39 Ind. 86; The
State v. Wallace, 41 Ind. 445,

T16

Iowa. — Houston v. United States,
Morris, 174; The State v. Donnell, 11
Iowa, 452; The State v. Leathers, 16
Towa, 406; The State v. Holliday, 22
Iowa, 397.

Louisiana.— Parker v. Robertson, 14
La. An. 249; Parker v. New Orleans, 15
La. An. 43.

Maine. — Ricker, petitioner, 82 Maine,
87. x
Massachusetts. — Commonwealth v.
Morey, 8 Mass. 78; Commonwealth »v.
Williams, 13 Mass. 501; Commonwealth
v. Ewers, 4 Gray, 21; Commonwealth v.
Bundy, 5 Gray, 305.

Missouri.— The State v. Wright, 18
Misso. 243; The State v. Fawcett, 16
Misso. 880; The State v. Hoffman, 18
Misso. 329; Ex parte Craig, 19 Misso.
887; The State v. O’Blenis, 21 Misso.
272; The State v. Beard, 31 Misso. 34;
The State v. Daily, 45 Misso. 153.

New Hampshire. — Fox v. Whitney,
33 N. H. 516; The State v. Rum, 85 N. H.
222.

North Carolina. — The State v. Har-
gate, Conference, 63; The State v. Whit-
hed, 8 Murph. 223; The State v. Lum-
brick, 1 Car. Law Repos. 543; The State
v. Hashaw, 2 Car. Law Repos. 251; The
State v. Red, 2 Ire. 265; The State v.
Locust, 68 N. C. 574; The State »,
Mooney, 74 N. C. 98.

Pennsylvania. — Commonwealth v.
Wood, 3 Binn. 414; Commonwealth 2.
Long, 5 Binn. 489; Commonwealth »v.
Philadelphia, 6 Binn. 897; Common-
wealth v. Cozens, 1 Ashm. 265; Com-
monwealth v. Philadelphia, 2S. & R. 290; |
Playford v. Commonwealth, 4 Barr, 144;
York v. Dalhousen, 9 Wright, Pa. 372;
Commonwealth v. Peiffer, 30 Smith, Pa.
191.

South Carolina, — The State v. Kenny,
1 Bailey, 375.

Tennessee. — Hill v. The State, 2 Yerg.
CHAP. LXXXVIL.] THE SENTENCE. § 1821

§ 1818. Witness Fees and how taxed. — There have been some
questions as to witness fees and how to tax them in bills of
costs.! Experts are sometimes distinguished from other wit-
nesses.”

§ 1319. Fee of State's Attorney.—In some States, there is a
fee to the prosecuting officer, either in all cases or in special
ones, generally, but not always, taxed with the other costs.

§ 1320. Taxation. — With only a few exceptions, the costs
spoken of in this sub-title require to be ascertained by due taxa-
tion, and at the proper stage of the cause, usually, not always, at
its close, in order to, be enforcible.4

§ 1821. How enforced — (Stand committed). — It is familiar
practice in civil causes, that costs taxed against a defendant of
whom damages are recovered become “parcel of the damages,”
enforcible in the same way with the rest. Hence, by analogy,
as one ordered to pay a fine or provide sureties of the peace is

247; Beasley v. The State, 2 Yerg. 481;
Dyer v. The State, 9 Yerg. 895; Mc-
Cracken v. The State, 8 Yerg. 171; Pen-
land v. The State, 1 Humph. 883; Con-
nell v. County Judge, 2 Head, 189; The
State v. Logston, 3 Heisk. 276.

Virginia. — Souther v. Commonwealth,
7 Grat. 673; Finch v. Commonwealth, 14
Grat. 643.

England. — The following are a few
selected cases which, it is thought, may
be useful: Rex v. Passman,1 A. & E. 608;
8. c. nom. Rex v. Pasman, 3 Nev. & M.
730; Rex v. Jenkinson, 1 T. R. 82; Rex
v. Ford, 1 Nev. & M. 776; Reg. v. White-
house, Dears. 1, 6 Cox C. C. 129, 18 Eng.
L. & Eq. 105; Rex v. Hunter, 3 Car. & P.
691; Reg. v. Heanor, 6 Q. B. 745; Reg.
v. Binney, 1 Ellis & B. 810, 18 Eng. L. &
Eq. 318. Given to Justices of Peace. —
Rex v. Palmer, 2 Bur. 1162; Rex v. Ket-
tleworth, 5 T. R. 33; Rex v. Sharpness, 2
T. R. 47. Imposed as Penalty for pro-
lixity in indictment. — Rex v. May, 1
Leach, 4th ed. 201, note, 1 Doug. 193.

1 Schlicht v. The State, 56 Ind. 173;
Gilliam v. The State, 82 Ga. 111; Ex
parte Johnson, 1 Wash. C. C. 47; Rex v.
Rees, 5 Car. & P. 302; Franklin v. Con-
rad, 12 Casey, Pa. 317; Rex v. Cooke, 1
Car. & P. 821, 822; Commonwealth v.
Ewers, 4 Gray, 21; Barrett v. The State,

24 Ala. 74; The State v. Hashaw, 2 Car.
Law Repos. 251; The State v. Stewart, 1
Car. Law Repos. 524; Commonwealth v.
Wood, 3 Binn. 414.

2 Allegheny v. Shaw, 10 Casey, Pa.
801; Rex v. Taylor, 5 Car. & P. 801;
Snyder v. Iowa City, 40 Iowa, 646.

3 Ante, § 286; Fox v. Whitney, 33
N. H. 516; Bales v. The State, 19 Ark.
220; Commonwealth v. Bundy, 5 Gray,
805; Taylor v. Van Epps, 58 Ga. 189;
The State v. Hill, 8 Coldw. 98; United
States v. One Horse, &c., 7 Ben. 405;
Reg. v. Waldegrave, 1 Gale & D. 615;
The State v. Red, 2 Ire. 265; Common-
wealth v. Spraggins, 18 B. Monr. 512;
Ashlock v. Commonwealth, 7 B. Monr.
44; Fowler v. Bishop, 1 Root, 198; Pee-
ples v. Walker, 12 Ga. 853; Stamper ».
The State, 11 Ga. 643; The State v.
Beard, 81 Misso. 384.

4 Rex v. Hall, Cowp. 60; Rex ».
Payne, 4 D. & R. 72; Reg. v. Clark, 5
Q. B. 887; Harger v. Washington, 2
Jones, Pa. 251; Rex v. Philipps, 2 Bur.
757; Rex v. Heydon, 8 Bur.:1304; The
State v. Ray County Court, 52 Misso. 27;
The State v. Foss, 52 Misso. 416; In re
Esten, 9 R. I. 191; and cases cited to the
foregoing sections.

5 2 Tidd. Pr. 8th ed. 979.

TIT
§ 1823 PROCEEDINGS AFTER VERDICT. [Book x.

by the sentence required to stand committed till he complies ;!
so should be one condemned to pay costs asa part of his punish-
ment. It isso in perhaps the greater number of the States ;? in
others, this order is deemed unauthorized. This question, with
some others relating to the enforcement of costs,* depends partly
upon the special terms of statutes.

V. Pregnancy of the Female Prisoner.

§ 1822. Not executed. — The common law, following the dic-
tates of natural justice, forbids the taking of an unborn infant’s
life in punishment for the misdeeds of the mother. More par-
ticularly,® —

§ 1323. English Practice. — The modern doctrine and practice
are derived from a few cases in the Year Books, a less number in
later periods, and the expositions of early writers. Pregnancy
is not a ground for delaying sentence ; but, after a capital sen-
tence is pronounced, the woman — it appears, any woman — is
to be asked, if she has any thing to allege why execution shall not
be made.® Should she reply that she is with child, a jury of
women is at once summoned and charged by the court to pass
upon the question whether or not she is “ quick with child;”?
pregnancy at an earlier period not being adequate.’ ‘TIf,” says
Chitty,® “they find in the affirmative, which, it is said, the gen-
tleness of their sex generally inclines them to do, when preg-
nancy exists at all,’ she is respited till a reasonable time after her
delivery, or till the ensuing session.” 1 A second pregnancy, the

1 Ante, § 1801, 1312.

2 Cases cited ante, § 1801; Dowding
v. Herrick, 47 Maine, 462 ; Sheehy v. Pro-
fessional Life Assurance Co, 2C.B.N.8.
211; Hill vw The State, 2 Yerg. 247;
Keefhaver v. Commonwealth, 2 Pa. 240;
In re Howard, 26 Vt. 205; Nelson v. The
State, 46 Ala. 186; Schuylkill v. Reifsny-
der, 10 Wright, Pa. 446.

3 Porter v. The State, 17 Ind. 415;
The State v. Erwin, 44 Iowa, 637;
Thompson v. The State, 16 Ind. 516;
The State v. Gray, 35 Iowa, 503; Gray
v. Ferreby, 36 Iowa, 146. See Naper v.
Bowers, Wright, Ohio, 692; Whaley »v.
The State, 11 Ga. 128.

4 Parker v. Robertson, 14 La, An. 249;

778

Harger v. Washington, 2 Jones, Pa. 251;
Reg. v. Roberts, Law Rep. 9 Q. B. 77.

5 See the practice in detail, 1 Chit.
Crim. Law, 759-761.

§ 3 Inst. 17; 1 Hale P. C. 368; 2 Ib.
407, 413; Reg. v. Baynton, 14 Howell St.
Tr. 597, 631, 634.

7 As to “quick with child,” see Stat.
Crimes, § 744-746.

8 Reg. v. Baynton, supra; Hale, supra;
Reg. v. Wycherley, 8 Car. & P. 262.

9 1 Chit. Crim. Law, 760.

10 2 Hale P. C. 418.

113 Inst. 17; 1 Hale P. C. 868, 369; 2
Tlale P.C. 413; 2 Hawk. P. C. c. 61, § 9;
4 Bl. Com. 306.
CHAP. LXXXVII.] THE SENTENCE. § 1326

old books tell us, is no ground of respite;! but it is doubtful
whether this doctrine, which would inflict on one not born, and
_ chargeable with no fault, the injury which the first reprieve
was granted to prevent, or the other doctrine which would leave
unprotected the new life previous to the time when the mother
first felt its motions, would be followed by the courts of the
present day.2 If the woman declines to allege her pregnancy,
still she should not be hung to the destruction of the child.

§ 1324. American. — In an early South Carolina case, a plea of
pregnancy in delay of sentence was accepted by the court and
tried by a jury of matrons.* In Arkansas, pregnancy was held
to be no ground for a new trial of a penitentiary offence.» These
two cases appear to be all we have on the subject. Practically,
the judge, with the consent of counsel, will grant such continu-
ances where this cause is suspected as will prevent any question
of law often arising.

VI. More Counts than One.

§ 1825. Difficulties — How in Principle — (On Error). — As
already seen,® an indictment in more counts than one, with a
verdict or plea of guilty covering all, may, on its face, furnish no
indication whether the conviction is for one offence charged in
different ways, or for more and how many offences within the
number of counts. Now, in principle, the judge pronouncing
the sentence should inform himself from his minutes of the
trial, and when necessary from testimony; then, on a writ of
error, the judgment.should be held good if it conforms to any
permissible theory of the numbers and natures of the offences.7
Yet not always has this view been present in the minds of judges,
so that some diversities of practice and decision have arisen.

§ 1826. Known to be more Offences than One : —

Form of Sentence.— When the sentence proceeds on the fact
of more offences than one, it should be in substance the same as

1 2 Hawk. P. C. ¢. 51, § 10. 5 Holeman v. The State, 13 Ark. 105.
2 Chit. ut sup.; Stat. Crimes, ut sup. ; 6 Ante, § 422, 427, 428, 442, 450, 452,
4 BI. Com. 395 and note; 1 Hale P.C.369; 457, 458, 1016, 1015 a.

2 Ib. 413. 1 And see People v. Shotwell, 27 Cal.
8 Reg. v. Hunt, 2 Cox C. C. 261. 894; Smith v. Penny, 44 Cal. 161 ; Crow-
4 The State v. Arden, 1 Bay, 487, 489, ley v. Commonwealth, 11 Met. 575; Vol.
490. II. § 144.

779
§ 1827 PROCEEDINGS AFTER VERDICT. [Book x.

if there were separate indictments; for, in effect, each count: is
an indictment.1 Thus, —

§ 1827. Separate as to Hach —- When Imprisonment to com-
mence. — The sentence should be separate for each offence, based
on its corresponding count or counts.” If, in disregard of this
rule, it is consolidated and made general on the whole, it will
still not be ill on error should it be such as would: be permissible
on any one good count alone; because,® the tribunal being on
this inquiry enlightened only by the record, the presumption will
now be that there was but one offence.t Yet, under the com-
mon-law rules, if there is a consolidated sentence to imprison-
ment for a term beyond what is permissible on a single count, it
will be erroneous ;5 because, among other reasons, as, even on a
writ of error, it must, to be good, be conceded to be for more
offences than one, the punishments for the two or more will run
simultaneously, and they cannot take effect one after the other
so as to cover the longer period, unless the beginning of the

second is declared to be after the expiration of the first.

1 Ante, § 426, 452, 458.

2 Kroer v. People, 78 Ill. 294; Com-
monwealth v. Birdsall, 19 Smith, Pa. 482;
Baker v. The State, 4 Pike, 56; The
State v. Hood, 51 Maine, 368. For the
form, in part, see Douglas v. Reg. 13
Q. B. 74, 88; Gregory v. Reg. 15 Q. B.
974,

8 Ante, § 1325.

4 Ante, § 1015, 1015 a; Patteson, J.
in O’Connell v. Reg. 1 Cox C. C. 418, 484,
11 Cl. & F. 155; Cawley v. The State, 37
Ala. 152.

5 Rex v. Robinson, 1 Moody, 418; the
statute (not set out in the report, namely,
2 Will. 4, c. 34, § 7) providing, that, “if
any person shall tender, utter, or put off
any false or counterfeit coin, resembling,”
&e., “every such offender shall,” &c.,
“be guilty of a misdemeanor,” &c., “and,
being convicted thereof, shall be impris-
oned for any term not exceeding one year.”
The indictment was in two counts, and
the sentence was to two years’ imprison-
ment. The judges were unanimously of
opinion that this was wrong, and that
“there should have been consecutive
judgments of one year’s imprisonment
each.” But a sentence, objectionable on
the same ground, was held good in Mas-

780

By the

sachusetts, though this case was cited by
counsel in argument against it. Carlton
v. Commonwealth, 5 Met. 582; Booth »v,
Commonwealth, 5 Met. 585. See Baker
v. The State, 4 Pike, 56; The State v.
Ambs, 20 Misso. 214; Stevens v. Com-
monwealth, 4 Met. 360, 864. For further
authorities, see note to this section com-
mencing Martin v. People, post.

8 See Crim. Law, I. § 953; ante, § 1310;
Holloway v. Reg. 2 Den. C. C. 287, 297.
In accordance with this view, when, in
England, there are several counts, yet
the conviction, while in form on all, is
really for only one offence, the modern
practice, adopted to avoid embarrassment
from a doubtful doctrine supposed to
have. been laid down in O’Connell v. Reg.
supra, is, says Archbold, “to pronounce
and enter up the same judgment sepa-
rately on each count of the indictment.”
Archb. Crim. Pl. & Ev. 13th Lond. ed.
62. Then the imprisonment, being con-
current on the several counts, is satisfied
when that ordained for any one is ful-

filled ; and no harm will come from a

reversal of the sentence as to a count
which may be discovered to be bad. It
may ‘be doubted whether this. practice
would be approvedin Ohio. Buck v. The
CHAP. LXXXVII.] THE SENTENCE.

§ 1327.
common law, as held in England and generally in our States,}
though in some States it is denied or is otherwise by statute,” the
court may order the imprisonment on one count or indictment to
begin on the expiration of that on another; and, where it has the
power, it should put the sentence in this form.3 But, in some
of the States, a statute expressly provides that the respective
periods of imprisonment shall commence in this way ; and then,
it appears, there is no need for the sentence to repeat the pro-
vision, and the consolidated form will be good. In one New
York case, it was held that, on a conviction for several misde-
meanors charged in separate counts, though the sentences are
separate, and though one imprisonment or fine may lawfully
begin where another has ended, the sum of the sentences must
not exceed the extreme limits*of the law for a single offence ;5 a
doctrine elsewhere never heard of before, and generally rejected

since.§

State, 1 Ohio State, 61; Woodford v. The
State, 1 Ohio State, 427.

1 Crim. Law, I. § 958; ante, § 1310;
Ex parte Brunding, 47 Misso. 255; Rex
v. Hart, 30 Howell St. Tr. 1131, 1821;
Rex v. Wilkes, 19 Howell St. Tr. 1075,
1186; Rex v. Williams, 1 Leach, 4th ed.
529. See Reg. v. Cutbush, Law Rep. 2
Q. B. 379, 10 Cox C. C. 489, 491.

2 Prince v. The State, 44 Texas, 480;
James v. Ward, 2 Met. Ky. 271.

8 Martin v. People, 76 Ill. 499; Mul-
linix v. People, 76 Ill. 211; Stack ». Peo-
ple, 80 Ill. 32; Bolun v. People, 73 Ill.
488; Fletcher v. People, 81 Ill. 116;
Johnson v. People, 83 Ill. 481; Rex v.
Williams, 1 Leach, 4th ed. 529, 536; Ex
parte Roberts, 9 Nev. 44; Williams v.
The State, 18 Ohio State, 46; Ex parte
Dalton, 49 Cal. 463; Kite v. Common-
wealth, 11 Met. 581; People v. Forbes,
22 Cal. 135, 187; Crim. Law I. § 953.

4 People v. Forbes, 22 Cal. 185, 188 ;:

People v. Liscomb, 60 N. Y. 559; Ex
parte Meyers, 44 Misso. 279; Ex parte
Turner, 45 Misso. 331.

6 People v. Liscomb (Tweed’s Case),
supra.

6 Ante, § 454, 458 and note; 3 South.
Law Rev. n.». 50; Douglas v. Reg. 18
Q. B. 74; Rex v. Robinson, 1 Moody,
418; Rex v. Jones, 2 Camp. 131; Camp-
bell vy. Reg. 1 Cox C. C. 269, 2 Ib. 463,

11 Q. B. 799; Gregory v. Reg. 15 Q. B.
974. “In our own States,” to copy from
the article in the “Southern Law Re-
view” just cited, “not speaking now of
New York, the decisions are uniform, and
in harmony with the English doctrine.
For example, two or more offences of
unauthorized liquor-selling, where each
is punishable by a specific fine, may be
joined in distinct counts in one indict-
ment, and, on conviction, the full fine for
every count may be imposed. Barnes v.
The State, 19 Conn. 398. So it has been
held, under a statute, that the keeping
open of an ale-house and the selling of
ale on a Sunday are two distinct offences ;
and, on an indictment in two counts, one
for each, the fine for both may be im-
posed. The State v. Ambs, 20 Misso.
214. But not further to particularize,
and observing that our courts hold the
doctrine to be applicable equally where
the punishment is imprisonment as where
it is a fine, the English view of the ques-
tion, directly contrary to what is adjudged
in Tweed’s case, is maintained in Massa-
chusetts, Carlton v. Commonwealth, 5
Met. 582; Booth v. Commonwealth, 6
Met. 685; Josslyn v. Commonwealth,
6 Met. 236, 240; Crowley v. Common-
wealth, 11 Met. 575; , Kite v. Common-
wealth, 11 Met. 681; Commonwealth v.

Tuttle, 12 Cush. 505; ia Connecticut,

781
§ 1830 PROCEEDINGS AFTER VERDICT. [Book x.

§ 1328. Mot known to be more Offences than One : —

Hlection. — Where there is understood to be but one offence,
yet there are more counts than one, the court has an election as
to the form of the sentence. Thus, —

§ 1829. Consolidated Sentences. — A consolidated sentence,
rendered on all the counts, for the one entire offence, is good,!
especially if there are no bad counts.* It conforms precisely to
the facts; and, on writ of error, the presumption necessary to
sustain it?— namely, that there was only one offence —is the
exact truth. Again, —

§ 1880. Separate on each Count.— The modern English prac-
tice, before described in a note,’ of awarding separate imprison-
ments on the several counts, to run concurrently, is, in reason,
adequate ; but it is based on fictidn, not practically commend-
able except when essential to the establishment of justice.

Again, —

The State v. Tuller, 84 Conn. 280; Barnes
v. The State, 19 Conn. 398; in Pennsyl-
vania, Commonwealth v. Birdsall, 19
Smith, Pa. 482; in Missouri, The State
v. Amnbs, 20 Misso. 214; The State v.
Peck, 51 Misso. 111; in Illinois, Mullinix
v. People, 76 Ill. 211, 215; Martin v. Peo-
ple, 76 Ill. 499; and it would seem to be
also in Maine, The State v. Hood, 51
Maine, 363; Ohio, Buck v. The State, 1
Ohio State, 61; Woodford v. The State,
1 Ohio State, 427; Arkansas, Baker v.
The State, 4 Pike, 56; Wisconsin, The
State v. Gummer, 22 Wis. 441; California,
People v. Forbes, 22 Cal. 185; People ».
Shotwell, 27 Cal. 804; Ex parte Dalton,
49 Cal. 468; and probably some of the
other States. On the other hand, I have
looked into all the cases cited from the
books of reports in Tweed’s case, and
into such others as seemed to afford any
promise of instruction, and I find no one,
English or American, ancient or modern,
which furnishes a precedent, or an au-
thority, or even a dictum, for the conclu-
sion arrived at by the court. Still, as I
have said, I do not question the correct-
ness of this decision as an exposition of
New York law. That inquiry does not
lie within my path. But if the law out
of New York is not settled, as I have thus

explained it, contrary to this New York |

782

view, then neither adjudication nor legal
argumentation can establish any thing;
our professional books are useless; juris-
prudence is a myth.” Of course, in a
State where the court cannot postpone a
term of imprisonment to take effect on
the expiration of a prior term, it cannot,
either on separate indictments or on dis-
tinct counts in one indictment, practi-
cally inflict an imprisonment beyond the
longest which it awards for any one of
the offences. And this is so even though
no one imprisonment is so long as the
law permits for the one offence. But this
doctrine has no relation to that in Tweed’s
Case. The court, in the latter, had not
only the common-law but the express
statutory power to cause one term of im-
prisonment to begin where another ended;
and it declared its authority to do this;
the limit, it deemed, being, not that there
could be no second imprisonment which
was not contemporaneous with the first,
but that the second and first could not
amount together to more than the first
might have been.

' Ante, § 1827; Ryalls v. Reg. 11
Q. B. 795, 8 Cox C. C. 254; O’Brien v.
Reg. 2 Cox C. C. 122.

2 Ante, § 1015, 1016 a; post, § 1882.

3 Ante, § 1825.

4 Ante, § 1827, note.
CHAP. LXXXVII.] THE SENTENCE. § 1334

§ 1831, Highest Count-— A method legally adequate, and pur-
sued by some courts, yet a little fictitious, is to render judgment
simply on the one count which charges the offence in its highest
grade.' And, as we have seen, the general verdict of guilty is
by some courts attributed to such count.?

§ 1832. Good and Bad Counts. — Practically, if the judge at the
sentence discovers a part of the counts to be bad, he will render
it only on the good ones. Yet if, not observing this, he enters
a general judgment on the whole, it will still be adequate, if,
when the bad counts are removed, enough of good allegation

remains.

But a general sentence on good and bad counts,

heavier than is permissible on the good alone, will be erroneous.®

So, —

§ 1338. Aggravating Matter defective. Where there is only
one count, and it has matter in aggravation defectively laid, a
sentence on it will be good if within what the law permits for

the good part, not otherwise.

When it is thus erroneous, the

court should not arrest the judgment, but impose the milder

sentence.®

§ 1834. Complicated and Anomalous Cases.— Complicated and
anomalous cases will sometimes arise, presenting practical dif-
ficulties, but the foregoing principles will suffice for their

solution.’

1 Manly, v. The State, 7 Md. 185; The
State v. Hood, 51 Maine, 363; Conkey v.
People, 1 Abb. Ap. 418. And see Wood-
ford v. The State, 1 Ohio State, 427;
Hudson v. The State, 1 Blackf. 817; The
State v. Phinney, 42 Maine, 384; The
State v. Comstock, 27 Vt. 553.

2 Ante, § 1014; Estes v. The State, 55
Ga. 131.

8 Manly v. The State, 7 Md. 135;
Shaw v. The State, 18 Ala. 547; The
State v. Brown, 8 Strob. 508; Wash v.
The State, 14 Sm. & M. 120. And see
Baker v. The State, 30 Ala. 521.

4 Boose v. The State, 10 Ohio State,
675; Frain v. The State, 40 Ga. 529;
The State v. Mathis, 8 Pike, 84; The
State v. Coleman, 5 Port. 82; The State
v. Stebbins, 29 Conn. 463; The State v.
Watson, 31 Misso. 361 ; People v. McKin-

ney, 10 Mich. 54. And see Bennett v.
The State, 8 Humph. 118; People v. Stein,
1 Parker C. C. 202; The State v. Pace,
9 Rich. 355.

5 The State v. Bean, 21 Misso. 269.
And see Buck v. The State, 1 Ohio State,
61.

8 Commonwealth v. Kirby, 2 Cush.
577.
7 Consult Manly v. The State, 7 Md.
185; Commonwealth v. Hope, 22 Pick. 1;
Cribb v. The State, 9 Fla. 409; The State
v. Nelson, 14 Rich. 169; Crowley v. Com-
monwealth, 11 Met. 575; The State v.
Tuller, 84 Conn. 280, 299; Ex parte
Kayser, 47 Misso. 253; The State v. Wat-
son, 63 Maine, 128; The State v. Bridges,
1 Murph. 184; Woodford v. The State,
1 Ohio State, 427; Commonwealth »v
Remby, 2 Gray, 508.

783
§ 13836 PROCEEDINGS AFTER VERDICT. [Book x.

CHAPTER LXXXVIII.
THE EXECUTION OF THE SENTENCE.

§ 1385. Fine, &.— We have already seen how a sentence to
a fine, or costs, or to furnish sureties of the peace, is enforced.

§ 1386. Capital Sentence. — The course for inflicting the death
penalty differs somewhat in our several States ; and, in England,
even in the different courts.2. The warrant for the execution has
always been known to the English practice and more or less
employed; but, at common law, when the court has pronounced
a sentence of death, the officer having the custody of. the prisoner
is required to inflict it, with no other authority or command than
is contained in the record of the sentence itself; unless some-
thing therein, or in the nature of the case, or an order from the
judge, precludes. When another officer is to do execution,
there must be a special command to him, and a transfer of the
custody of the prisoner.t From a pretty early period the prac-
tice at the assizes has been, says Chitty,® for the clerk at the
close to “make out in writing four lists of the prisoners, with
separate columns containing their crimes, verdicts, and sen-
tences ; and a blank column, in which the judge writes what is
his pleasure respecting those capitally convicted, as to be exe-
cuted, respited, or transported. If the sheriff afterwards receives
no special order from the judge, he executes the judgment of the
law in the usual manner, according to the directions of his calen-
dar.” * But the calendar is deemed a mere memorandum, not a
warrant to the officer, whose authority is in the record.8 Not
unfrequently, when sentence has been pronounced, its execution

1 Ante, § 1301, 1312, 1321. side, 4 Nev. & M. 83, 2 A. & E. 266; Rex
2-1 Chit. Crim. Law, 780-789. v. Rogers, 3 Bur. 1809, 1812.
3 2 Hale P. C. 409-411; 2 Hawk. P.C. 5 1 Chit. Crim. Law, 781.

c. 51,§4; Rex v. Antrobus, 2 A. & BE. 8 4 Bl. Com. 404, note 1; 2 Hale P. C.
788, 798, 4 Nev. & M. 565. 409.

4 Rex v. Antrobus, supra; Rex v. Gar- 7 4 BL Com. 404, note 1.
8 Rex v. Antrobus, supra.
784
CHAP. LXXXVIII.] EXECUTION OF SENTENCE. § 1888

is directed by rule of court.1 The English books contain some
other matter relating to this subject, but of no special importance
to us.2 The varying practice in our different States is’ largely
statutory.8

§ 1337. Imprisonment. — Since a separate warrant to the officer
is not necessarily required to justify the infliction of a capital
sentence, a fortiori it is not to authorize an imprisonment. In
some circumstances it is indispensable, not in others. In prac-
tice, with us, the warrant of commitment is nearly or quite uni-
versal.® The sentence ought to be right in form,® and it must
not be so erroneous as to be void.’

§ 1838. What Prison.—In England, all the prisons are the
queen’s, therefore the Court of Queen’s Bench may commit to
any one of them.§ Generally, with us, the prison is determined
by statute ; and then a committal to one unauthorized will be

void, and the imprisonment therein unlawful.®

' Rex v. Layer, 16 Howell St. Tr. 93,
321; Ratcliffe’s Case, Foster, 40, 43; Rex
v. Rogers, supra; Holloway’s Case, 3
Mod, 42.

2 At common law, the bodies of exe-
cuted murderers were at the disposal of
the king, Rex v. Hall, 1 Leach, 4th ed.
21,—a question now regulated by stat-
utes in England and our States.

8 Ante, § 1311; Jackson v. People, 18
Til. 269; Regan v. Territory, 1 Wash. Ter.
21.

4 Rex v. Clerk, 1 Salk. 349; In re
Clarke, 2 Q. B. 619; Furlong v. Bray, 2
Saund. 182; In re Smith, 3 H. & N. 227.

5 And see Kenney v. The State, 5 R. I.
885; Rafferty v. People, 72 Ill. 87; Phin-
ney, Petitioner, 82 Maine, 440.

8 Weed v. People, 31 N. Y. 465; Ste-
vens v. Commonwealth, 4 Met. 3860;
Shepherd v. Commonwealth, 2 Met. 419;
Benedict v. The State, 12 Wis. 313; Peg-
low v. The State, 12 Wis. 534; Ex parte
Karstendick, 98 U. S. 396; Daniels v.
Commonwealth, 7 Barr, 371.

1 Ex parte Gibson, 31 Cal. 619.

8 Rex v. Hart, 80 Howell St. Tr. 1131,
1194, 1894, 12 Q. B. 1041, note; 1 Chit.
Crim. Law, 800. See also Rex v. Musson,
9D, & R.172; Ex parte Evans, 8 T. R.
172.

® Weed v. People, 31 N. Y. 465; The

VOL. I. 60

State v. Ellis, 2 Dutcher, 219; The State
v. McNeill, 75 N. C. 15; Swinstead v.
Lyddal, 1 Salk. 408. See further, as to
what is the proper prison, Adams v.
Vose, 1 Gray, 51; Clellans v. Common-
wealth, 8 Barr, 223; Horner v. The State,
1 Oregon, 267; Revel v. The State, 26
Ga. 275; Barlow v. Commonwealth, 3
Binn. 1; Millar v. The State, 2 Kan. 174;
In re Hartwell, 1 Lowell, 536 ; People v.
Cavanagh, 1 Parker C. C. 588. In Mas-
sachusetts, for Conspiracy.—I am re-
ferred by George Bemis, Esq., of Boston
(now deceased), well known for extensive
criminal-law learning, to the unreported
Massachusetts case of Commonwealth v.
Ebenezer Shives, who, as appears by the
State prison records, was, at Lenox, May
5, 1818, sentenced by the Supreme Ju-
dicial Court to confinement in the State
prison five years at hard labor, and thirty
days solitary, for a common-law conspir-
acy against the character of a young girl.
House of Refuge. — A statute in Penn-
sylvania, authorizing the commitment of
infants to the house of refuge without
trial by jury, was held to be constitu-
tional. Said the court: “The house of
refuge is not a prison, but a school, where
reformation and not punishment is the
end.” Ex parte Crouse, 4 Whart. 9.

785
§ 1839 PROCEEDINGS AFTER VERDICT. [BOOK x.

§ 1339. Management of Prison.— A court has no common-law
authority to interfere with the management of a prison,! or to
discharge a prisoner because treated improperly.? Still the stat-
utes provide methods of redress for a wrong of this sort. And
where the wrong amounts to a crime, the keeper is liable to
indictment.

1 Rex v. Carlile, 1 D. & R. 535. v. Miller, 14 Ind. 577; Lark v. The State,
2 Pember’s Case, 1 Whart. 439, 448, 655 Ga. 435.
444; Reddill’s Case, 1 Whart. 445, 448. 4 The State v. Lull, 48 Vt. 581.

3 Ex parte Bradley, 4 Ire. 543; Helton
786
CHAP, LXXXIX.] THE RECORD. § 1841

CHAPTER LXXXIX.

THE RECORD.

§ 1840. Introduction.
1841-1346. How made up.
1347-1360. Particular Questions.

§ 1840. How the Chapter divided. — We shall consider, I. How
the Record is made up; II. Particular Questions as to its Form
and Contents.

I. How the Record is made up.

§ 1841. Docket Entries and Record distinguished. — The record
of a cause, like any thing else, has its transitions from a crude
or imperfect to its perfected state. It begins with minutes and
returns of officers and the grand jury, these are followed by
docket entries of the clerk; then, at last, the whole, or so much
of it as is required, takes the perfected form of the record. The
practice in our States differs; but, in general, the record is not
made up until the cause is ended and the term of the court is
closed.!_ Until which time, the docket entries are practically the
record ;? though, where the record is required for use as evi-
dence in another court, it should be drawn out in form.2 There
are exceptional States in which the record always remains in this
imperfect form except when’ written out in full for some especial
purpose.*

1 Stickney v. Davis, 17 Pick. 169.
And see Commonwealth v. Weymouth,
2 Allen, 144, 146; Weed v. Weed, 25
Conn. 837; Osborne v. Toomer, 6 Jones,
N. C. 440; Cromwell v. Bank of Pitts-
burg, 2 Wal. Jr. 569; Gibson v. Com-
monwealth, 2 Va. Cas. 111; Read v. Sut-
ton, 2 Cush. 115; Croswell v. Byrnes, 9
Johns, 287. See People v. Snyder, 1
Johns. 620.

2 Read v. Sutton, 2 Cush. 115, 123.
See Weighorst v. The State, 7 Md. 442;
Commonwealth v. Bolkom, 3 Pick. 281;
Rex v. Bellamy, Ryan & Moody, N. P.
171.

3 Rex v. Smith, 8 B. & C. 841; Rex v,
Ward, 6 Car. & P. 866. And see Mar-
shall v. The State, 8 Ind. 498.

4 Hamilton v. Commonwealth, 4 Har-
ris, Pa. 129, 188; Cromwell v. Bank of

787
§ 1843 PROCEEDINGS AFTER VERDICT. [BOOK x.

§ 1842. Amendments during Term.— These docket entries are
often spoken of as the record ; and, the reader perceives, what is
said in the books respecting the amending of the record during
the term necessarily applies, in general, to them. The docket,
though kept by the clerk, is under the control of the judge.1
And, subject to exceptions, such as where rights are acquired or
relinquished through entries accepted as perfected judicial trans-
actions, the orders and judgments of the court appearing upon
the docket may be abrogated or modified, or new ones may be
added, or substituted for the former ones, or the entries may be
amended to conform to the facts, whenever the judge in his dis-
cretion sees fit to direct, but not after the close of the term.?

§ 1343. Amendments after Term closes — (Nunc pro Tunc).—
On other principles, to correct a clerical error,? to supply an
omission of fact, or prevent an injury accruing through a delay
of the court,’ and perhaps in some other circumstances, there is
an undefined yet limited’ power of making amendments and
nune pro tune entries at a subsequent term. There ought, in
general, or always, to be something to amend by;® yet by some

Pittsburg, 2 Wal. Jr. 569. See Rex v.
Bellamy, supra; Allis v. Beadle, 1 Tyler,
179.

1 Read v. Sutton, 2 Cush. 115.

2 Ante, § 1298; Morgan v. Holladay,
88 N. Y. Superior, 117; Perryman v. Gard-
ner, 42 Missis. 548; Commonwealth v.
Miller, 6 Dana, 315; Mobley v. The State,
46 Missis. 501; Gibson v. Commonwealth,
2 Va, Cas. 111; Commonwealth v. Quann,
2 Va. Cas. 89; Franklin v. The State, 28
Ala. 9; The State v. Nutting, 89 Maine,
359; Commonwealth v. Goddard, 13 Mass.
455, 458; Commonwealth v. Weymouth,
2 Allen, 144; The State ». Womack, 17
Texas, 237; Van Dyke v. The State, 22
Ala. 57; Brush v. Robbins, 3 McLean,
486; Rex v. Hunter, 1 Wils. 168; Com-
monwealth v. Shanks, 10 B. Monr. 304;
Morrison v. Dapman, 3 Cal. 255; Van
Dyke v. The State, 22 Ala. 57. This
form of averment does not exist in Min-
nesota, the distinction of terms being
there unknown. Grant vo. Schmidt, 22
Minn. 1.

3 Brady v. Beason, 6 Ire. 425; Com-
monwealth v. Phillips, 11 Pick. 28; The

788

State v. Ball, 27 Misso. 8324; Common-
wealth v. Miller, 6 Dana, 3815; The State
v. Primm, 61 Misso. 166; Robertson v.
Neal, 60 Misso. 579; Dumas v. Hunter,
30 Ala. 188. See Cornwell v. The State,
53 Missis. 385. ‘

* The State v. Craton, 6 Ire. 164; The
State v. Clark, 18 Misso. 432; Morrison
v. Dapman, supra; Bilansky v. The State,
8 Minn. 427; The State v. Pearce, 14 Ind.
426; Jones v. Lewis, 8 Ire. 70; Day
v. The State, 13 Misso. 422; Brady »v.
Beason, 6 Ire. 425; Nelson v. Barker, 8
McLean, 379; Stewart v. Bennett, 1 Fla.
437; Pinkston v. Taliaferro, 9 Ala. 547;
Green v. The State, 19 Ark. 178; In
re Toney, 11 Misso. 661; The State v.
Maher, 385 Maine, 225; Rhoads v. Com-
monwealth, 3 Harris, Pa. 272.

5 Fishmongers’ Co. v. Robertson, 8 C.
B, 970.

58 Commonwealth v. Weymouth, 2 Al-
len, 144, 146.

« The State v. Jeffors, 64 Misso. 376.

8 Ante, § 1018; The State v. Jeffors,
supra; The State v. Primm, 61 Misso. 166;
Robertson v. Neal, 60 Misso. 579.
CHAP. LXXXIX.] THE RECORD. § 13846

opinions the court is not thus absolutely restricted as to the
evidence.

§ 1844. Record’ from Docket Entries. — A fortiori, if the clerk
errs in making up the record from his docket entries and other
papers, the court may, though at a subsequent term, interpose
with the needful amendment.?

§ 1345. How ?— Amendments after the. term, though merely
to bring the record to the fact,.are not to be made by the clerk
of his own motion. The court must order them. And it has
been said that then the clerk should actually alter the record.
On the other hand, interlineations are objected to, and for grave
reasons.2 The better way is believed to be to make, in the
records of the term at which the amendment is ordered, an entry
to the effect that, whereas on inspection of the record of the
preceding term an error therein appears, &c., it is considered
that the same be corrected and amended, &c., setting out the
amendment. Then let the clerk enter the amendment also, in
full, if there is space, in the margin of the preceding record;
adding a reference to the record requiring it. The books will
thus show the amendment; yet, when the clerk is called on for
a transcript of the record, he will make it as though it originally

stood as amended.®
after the order.’

The amendment may be made at any time

§ 1846. verity. The record, importing absolute verity,? can-
not be contradicted even by the docket entries.?

1 Mayo v. Whitson, 2 Jones, N. C. 281;
Clammer v. The State, 9 Gill, 279. Su-
perior Court. — As to amendments in or
by order of the court of review, see The
State v. Littlefield, 3 R. I. 124; Benedict
v. The State, 12 Wis. 313; Reg. v. Nott,
4 Q. B. 768, Dav. & M. 1. Immate-
rial.— An amendment which does not
vary the legal effect of the record does
not afford an available objection. The
State c. Hughes, 1 Ala. 655; Jackson v.
The State, 11 Texas, 261.

2 Stickney v. Davis, 17 Pick. 169; Til-
den v. Johnson, 6 Cush. 854; Balch v.
Shaw, 7 Cush. 282; Fay v. Wenzell, 8
Cush. 815; Commonwealth v. Weymouth,
2 Allen, 144; Weighorst v. The State, 7
Md. 442; Watkins v. The State, 14 Md.
412; Rex v. Barker, 1 East, 186; Taylor
v. Commonwealth, 8 Wright, Pa. 131.

8 McQuillen v. The State, 8 Sm. & M.
587.

+ Jones v. Lewis, 8 Ire. 70, 72.

5 Farrelly v. Cross, 5 Eng. 197. And
see Jennings ». The State, 1 Oregon, 290.

& And see Scott v. People, 63 Ill. 508;
Sumner v. Cook, 12 Kan. 162; ante, § 706.

7 Marshall v. Fisher, 1 Jones, N. C.
111.

8 Hall v. The: State, 4 Greene, Iowa,
73; Case v. The State, 5 Ind. 1; The
State v. Allen, 1 Ala. 442; Common-
wealth v. Slocum, 14 Gray, 395; The
State v. Clemons, 9 Iowa, 584. And see
Reg. v. Bourdon, 2 Car. & K. 866, 2 Cox
C. C. 169; The State v. Clarkson, 8 Ala.
3878.

9 Cherry v. The State, 6 Fla. 679.
There are circumstances in which an
omission may be supplied even by parol

789
§ 1849

II. Particular Questions as to

PROCEEDINGS AFTER VERDICT.

[BooK x.

the Form and Contents of the

Record.

§ 1847. To embrace what. — The leading purpose of the record,
wherein, if it fails, it is certainly inadequate, is to set down and

justify the punishment.

Hence it must state what will affirma-

tively show the offence, the steps without which the sentence

cannot be good, and the sentence.1

Beyond this, as already seen,?

there may be something which, while not necessary to make the
record adequate, is important to the party as foundation for a

question of law, therefore to be inserted at his request.

Thus, a

motion,’ the evidence,‘ or the swearing of a witness 5 is properly
no part of the record, but under some circumstances a party may

require it to be made such.®

§ 1848. How interpreted.— All parts of the record are to be
interpreted together, effect being given to all if possible,’ and a
deficiency at one place may be supplied by what appears in

another.8

§ 1349. The Tense — (Acts of Court and of Party compared). —
Chitty says:® “In the record, all the acts of the court ought to

evidence. The State v. Womack, 17
Texas, 287; Blair v. Hamilton, 32 Cal.
49; Eastman v. Cooper, 15 Pick. 276.
But not always. The State v. Glover, 3
Greene, Iowa, 249.

1 Gaiter v. The State, 45 Missis. 441;
Ross v. The State, 23 Ark. 198; Stubbs
v. The State, 49 Missis. 716; Common-
wealth v. Snider, 2 Leigh, 744; Reg. v.
Jones, 2 Car. & K. 524; Reg. v. Finney,
2 Car. & K. 774; Parks v. The State, 20
Ind. 518; Anderson v. The State, 3 Heisk.
86; Vincent v. The State, 8 Heisk. 120;
Duggan v. The State, 9 Fla. 616; White-
head ». Reg. 7 Q. B. 582; Werfel v.
Commonwealth, 5 Binn. 65; Common-
wealth v. McCaul, 1 Va. Cas. 271, 300;
Mulligan v. The State, 47 Missis. 304; The
State v. Van Matre, 49 Misso. 268; Rex
v. Watson, Russ. & Ry. 468; Rex v. Sut-
cliffe, stated, Russ. & Ry. 469; Taylor
v. Commonwealth, 8 Wright, Pa. 181.
Chitty says: The record “ states the ses-
sion of Oyer and Terminer—the com-
mission of the judges — the presentment

790

by the oath of the grand jurymen by
name —the indictment — the award of
the capias or process to bring in the
offender — the delivery of the indictment
into court—the arraignment — the plea
—the issue —the award of the jury
process — the verdict — the asking the
prisoner why sentence should not be:
passed on him—and the judgment of
death passed by the judges.” 1 Chit.
Crim. Law, 720. To the like effect, but
differing somewhat in terms, see McKin-
ney v. People, 2 Gilman, 540; Pate »v.
People, 3 Gilman, 644.

2 Ante, § 826, 1267.

8 United States v. Gamble, 10 Misso. ,
467.

4 Scott v. The State, 26 Ark. 521.

5 Gilman v. The State, 1 Humph. 59.

6 And see Isler v. Murphy, 71 N. C. 486.

7 Loper v. The State, 3 How. Missis.
429.

8 Ante, § 667; Rex v. Fowler, 4 B. &
Ald. 278 ; Crist v. The State, 21 Ala. 187.

® 1 Chit. Crim. Law, 720.
CHAP. LXXXIX.]

THE RECORD. § 1351

be stated in the present tense, as preceptum est, not preceptum
uit; but the acts of the parties themselves may be properly
stated as past.!| And therefore, if it state that the sheriff was
commanded instead of is commanded, the error will be fatal.” 2
Some of our courts have sustained records wherein the acts of
the court were in the past tense, though deeming the present the
better form.® ;

§ 1850. Jurisdiction — (Inferior and Superior Courts distin-
guished). — We have already seen what is the rule of jurisdiction
as to inferior and superior courts. And the doctrine, to which,
however, the cases are not all distinct or quite harmonious, is,
that the record of an inferior court must set forth what will make
its jurisdiction in the matter appear, while that of a superior
need not.

§ 1851. Time and Place of Court.— On this distinction, the
time and place of holding the court would seem not important in
the record, if it is of superior jurisdiction, but essential if of in-

ferior.

Yet, in truth, the decisions on this question are appar-

ently contradictory, not all being pronounced with any reference

to this distinction.
more or less affect the question.®

1 Hall v. Clarke, 1 Mod. 81; Rex v.
Youngman, Comb. 358; Rex v. Perin, 2
Saund. 393; Rex v. Hall, 1 T. R. 320.

2 Rex v. Perin, supra.

3 The State v. Martin, 2 Ire. 101;
The State v. Reeves, 8 Ire. 19; Hamilton
v. Commonwealth, 4 Harris, Pa. 129, 138 ;
Taylor v. Commonwealth, 8 Wright, Pa.
181.

£ Ante, § 236, 664; Peacock v. Bell, 1
Saund. Wms. ed. 78, 74. As said by
Smith, J.: “ The only difference between
the judgment of a court of general juris-
diction and one of special and limited
jurisdiction is this, —in the one case, the
jurisdiction of the court is presumed, until
the:contrary appear; in the other, a party
claiming a right under it must know
affirmatively that the court had jurisdic-
tion.” Byrd v. The State, 1 How. Missis.
163,178. Superior courts are presumed
to do every thing in the prescribed man-
ner and form. The State v. Kimbrough,
2 Dev. 431; The State v. Seaborn, 4 Dev.
805; People v. Blackwell, 27 Cal. 65.

5 Ante, § 664; Curry v. Munford, 5

Probably the peculiar terms of the statutes

Heisk. 61; Wynne v. Taylor, 5 Heisk.
691; Bittick v. McEwen, 7 Heisk. 1;
Gunn v. Boone, 7 Heisk. 8; People v.
Powers, 7 Barb. 462; Mulligan v. The
State, 47 Missis. 304; Boyd v. The State,
6 Coldw. 1; Anonymous, 10 Mod, 71;
Rex v. Carlile, 2 B. & Ad. 362, 4 .&
P. 415; People v. Mack, 1 Parker C. C.
567; The State v. Hartwell, 35 Maine,
129; The State v. Metzger, 26 Misso. 65;
The State v. Williamstown Turnpike, 4
Zab. 547; Proctor v. The State, 5 Har-
ring. Del. 887; Burley v. The State, 1
Neb. 885. That the term of the court
was only for criminal business need not
be stated in the record. Turns v. Com-
monwealth, 6 Met. 224.

6 Commonwealth v. Hogan, 118 Mass.
7; West v. The State, 2 Zab. 212; People
v. Beatty, 14 Cal. 666; Bob v. The State,
7 Humph. 129; Carpenter v. The State,
4 How. Missis. 163; Smith v. The State,
9 Humph. 9; Grandison v. The State, 2
Humph. 451; Melton v. The State, 3
Humph. 389.

791
§ 1854 PROCEEDINGS AFTER VERDICT. [Book x.

§ 1852.- Aajournments. — By a fiction of law the whole term
of the court is regarded as one day; though, when important,
the particular day or even hour may be shown.! Hence the
record need not specify the adjournments from day to day within
the term.?

§ 1853. Presence of Prisoner.— We have seen? in what cases
and at what steps the presence of the prisoner in court is essen-
tial. And, where the law requires it, the record must show it.4
But the fact need not be said and repeated at each recorded step ;
it being sufficient where the presence necessarily results from.
other matter stated, or it otherwise appears from a consideration
of the whole record.5

§ 1354. Plea and Joinder in Issue. — The record must show the
defendant’s plea of not guilty, without which there can be no
valid conviction.® But, by the better opinion, the omission of
the similiter, or joinder in issue by the prosecuting officer, is at
most a mere formal defect, at any time amendable, and it does

not render the record bad.’

1 People v. Beatty, 14 Cal. 566;
Whitaker v. Wisbey, 6 Cox C. C. 109.

2 The State v. Martin, 2 Ire. 101; Ber-
rian v. The State, 2 Zab. 9; Taylor v.
Commonwealth, 8 Wright, Pa. 181.

3 Ante, § 265 et seq.

4 Scaggs v. The State, 8 Sm. & M.
722; The State v. Matthews, 20 Misso.
65; The State v. Cross, 27 Misso. 332;
Sperry v. Commonwealth, 9 Leigh, 628;
Dysgn v. The State, 26 Missis. 8362; Gra-
han®v. The State, 40 Ala. 659; The
State v. Ott, 49 Misso. 326; Burley v.
The State, 1 Neb. 885; The State v. Al-
len, 64 Misso. 67; The State v. Barnes,
59 Misso. 154; Shapoonmash v. United
States, 1 Wash. Ter. 219; The State v.
Jones, 61 Misso. 232, 285; Long v. The
State, 52 Missis. 23; Brown v. The State,
24 Ark. 620; Hooker v. Commonwealth,
13 Grat. 763, 766. In Pennsylvania, it is
deemed that the presence should be pre-
sumed in felonies not capital, but not in
capital ones. Dunn v. Commonwealth,
6 Barr, 384; Holmes v. Commonwealth,
1 Casey, Pa. 221, 224. And see People v.
Stuart, 4 Cal. 218, 226.

5 Ante, § 1348; Dodge v. People, 4
Neb. 220; The State v. Craton, 6 Ire.
164; Sweeden v. The State, 19 Ark. 206;
Stephens vo. end C. C. 396;

The State v. Langford, Busbee, 486; Ste-
phens v. People, 19 N. Y. 549; Schirmer
v. People, 33 Ill. 276; The State v. Wood,
17 Iowa, 18; Rhodes v. The State, 23 Ind.
24. And see Jeffries v. Commonwealth,
12 Allen, 145.

6 Ante, § 728, 783, 801. Yundt vw.
People, 65 Ill. 8372; Aylesworth v. Peo-
ple, 65 Ill. 801; Grigg v. People, 31 Mich.
471; Satterwhite v. The State, 3 Texas
Ap. 428; Pringle v. The State, 2 Texas
Ap. 300; Peeler v. The State, 8 Texas
Ap. 347; Parchman v. The State, 3 Texas
Ap. 225; Commonwealth v. Costley, 118
Mass. 1; Commonwealth v. Harvey, 108
Mass. 451. Arraignment. —If the plea
appears, a formal arraignment need not
also be shown. Ante, § 733; Harman v.
The State, 11 Ind. 811; The State »v.
Braunschweig, 86 Misso. 897; Sohn v.
The State, 18 Ind. 889. And see The
State v. Reeves, 8 Ire. 19.

7 Ante, § 801; 1 Chit. Crim. Law, 720;
Reg. v. Purchase, 15 Howell St. Tr. 651,
696 and note; Rex v. Royce, 4 Bur. 2078,
2085; Hawkins v. The State, 7 Misso. 190;
The State v. Carroll, 5 Ire. 189; Berrian
v. The State, 2 Zab. 9. See Jolinson v.
People, 22 Ill, 814. Contra, The State
v. Monaquas, T. U. P. Charl. 16; The
State v. Roberts, T. U. P. Charl. 30;
CHAP. LXXXIX.] THE RECORD. § 13856

§ 1855. Other Questions. — What is said in the last few sec-
tions is simply illustrative of the proposition with whieh this sub-
title opened, that the record must affirmatively show and justify
the punishment. Other illustrations appear at various places
throughout this volume. Some of the others, in brief, and partly
to repeat, are that —

Indictment. — The record must recite the finding and contents
of the particular indictment, which must itself be sufficient in
law.

Venue. — It must show that the offence was committed within
a locality over which the court has jurisdiction.?

Change of Venue.— Where there has been a change of venue,
this must duly appear.

§ 1856. Presumptions.— There are things which, in favor of
the record, the court will be presumed to have performed, though
not stated.* No absolute rule, distinguishing these things from
those which must affirmatively appear, is possible on the authori-
ties; but, in general, what is declared to have been done will be

presumed to have been done rightly.®

The State v. Fort, 1 Car. Law Repos.
510.

1 Ross v. The State, 23 Ark. 198;
Commonwealth v. Snider, 2 Leigh, 744;
Beauchamp v. The State, 6 Blackf. 299;
Earhart v. Commonwealth, 9 Leigh, 671;
Lee v. The State, 45 Missis. 114; The
State v. Williams, 3 Stew. 454; Sattler
v. People, 59 Ill. 68; Rex v. Hughes, 4
Car. & P. 873; The State v. Fitzpatrick,
8 W. Va. 707; Blevins v. The State,
Meigs, 82; Gardner v. The State, 25 Md.
146; Crookham v. The State, 5 W. Va.
610; Chappel v. The State, 8 Yerg. 166 ;
Green v. The State, 19 Ark. 178; Jenkins
v. The State, 80 Missis. 408; Adams v.
The State, 11 Ind. 304; Gardner v. Peo-
ple, 20 Ill. 480; Hague v. The State, 34
Missis. 616; McKenzie v. The State, 24
Ark. 636; Pond v. The State, 47 Missis.
389; Commonwealth v. Cawood, 2 Va.
Cas. 527; Hite v. The State, 9 Yerg. 198;
Brown v. The State, 7 Humph. 155; The
State v. Muzingo, Meigs, 112, 118; Mose
v. The State, 35 Ala. 421.

2 Yates v. The State, 10 Yerg. 549;
Thompson v. The State, 51 Missis. 353;
Jackson v. People, 40 Ill. 4C5; In re New-

Thus, —

ton, 16 C. B. 97, 80 Eng. L. & Eq. 482.
And see ante, § 45 et seq., 384, 385.

3 Jenkins v. The State, 30 Missis. 408;
The State v. Denton, 6 Coldw. 539; Cal-
houn v. The State, 4 Humph. 477. And
see ante, § 68 et seq. Compare Cruiser
v. The State, 3 Harrison, 206.

4 Ante, § 1850; Cathcart v. Common-
wealth, 1 Wright, Pa. 108; Harrington
v. The State, 36 Ala. 236; Bell v. The
State, 42 Ind. 885; Earhart v. Common-
wealth, 9 Leigh, 671; Bond v. The State,
23 Ohio State, 849; Dias v. The State, 7
Blackf. 20; The State v. Lawson, 14 Ark.
114; Mansell v. Reg. 8 Ellis & B. 54;
Mohler v. People, 24 Ill. 26; Woodsides
v. The State, 2 How. Missis. 655; People
v. Blackwell, 27 Cal. 65; The State v.
Guilford, 4 Jones, N. C. 88, 85; Bedford
v. The State, 2 Swan. Tenn. 72; West v.
The State, 2 Zab. 212; The State v. Price,
6 Halst. 203; Commonwealth v. Stephen,
4 Leigh, 679; Horsey v. The State, 3
Har. & J. 2; Schirmer v. People, 33 IIL.
276; Parks v. The State, 4 Ohio State,
234; Mahan v. The State, 10 Ohio, 232;
Shoemaker v. The State, 12 Ohio, 43.

5 It has been deemed that this pre-

793
§ 1859 PROCEEDINGS AFTER VERDICT. [BOOK x.

§ 1857. Swearing of Jury.— The law requires both the grand
and petit jurors to be duly sworn, and that they were must in
some way be manifest in the record.! If, then, the oath, whether
of the one jury or the other, is set out, and it is insufficient, the
judgment will be erroneous.? But if the statement is simply
that the presentment or verdict is on oath, or that the jury are
sworn, it will suffice; the presumption being, that the oath was
lawful and in due form.’

§ 1858. “Any thing to say?” &c.— Where it is necessary to
ask the prisoner, before sentence, whether he has any thing to
say why it should not be pronounced,* most courts hold that the
record must show this to have been done. But some deem it
not essential, or not in all circumstances ; compliance with this
formality being presumed, or having been presumptively waived.®

§ 1359. Essential in Earlier but not in Final Record. — As, step
by step in a cause, objections which once might have been taken
are rendered unavailing,’ it follows that, where a subsequent

sumption cannot supply the substantive
parts of a proper record. Dougherty v.
Commonwealth, 19 Smith, Pa. 286.

1 Lawson v. The State, 25 Ark. 106;
Harper v. The State, 25 Ark. 83; The
State v. Gates, 9 La. An. 94; The State
v. Phillips, 28 La. An. 387; The State v.
Douglass, 28 La. An. 425; Foster v. The
State, 31 Missis. 421; Cody v. The State,
3 How. Missis. 27; Nels v. The State, 2
Texas, 280; Boose v. The State, 10 Ohio
State, 575.

2 Johnson v. The State, 47 Ala. 9;
Bugg v. The State, 47 Ala. 50; Horton
v. The State, 47 Ala. 58; Johnson v. The
State,47 Ala. 62; Smith v. The State, 47
Ala. 540; Smith v. The State, 1 Texas
Ap. 408; Smith v. The State, 1 Texas
‘Ap. 516; Gardner v. The State, 48 Ala.
263 ; Murphy v. The State, 54 Ala. 178.

3 McNeil v. The State, 47 Ala, 498;
Lockett v. The State, 47 Ala. 42; The
State v. Pearce, 14 Fla. 153; Johnson v.
The State, 1 Texas Ap. 519; Smith v.
The State, 1 Texas Ap. 408; McCuller
v. The State, 49 Ala. 39; Edwards v.
The State, 49 Ala. 8384; Walker v. The
State, 49 Ala. 369; Edwards v. The State,
47 Missis. 681; Anderson v. The State,
42 Texas, 889; Collier v. The State, 2
Stew. 888; Blair v. The State, 52 Ala.

794

848; Moore v. The State, 52 Ala. 424;
Bell v. The State, 5 Eng. 586; Bivens v.
The State, 6 Eng. 455; Lawson v. The
State, 25 Ark. 106; The State v. Schoen-
wald, 81 Misso. 147; Drake v. Brander,
8 Texas, 351; Arthur v. The State, 3
Texas, 403; Pierce v. The State, 12
Texas, 210; Russell v. The State, 10
Texas, 288; Wrocklege v. The State, 1
Iowa, 167; The State v. Ostrander, 18
Iowa, 485; The State v. Reid, 20 Iowa,
413; The State v. Christmas, 4 Dev. &
Bat. 410. See Bird v. The State, 58 Ga.
602; Holmes v. People, 5 Gilman, 478.

4 Ante, § 1298.

5 1 Chit. Crim. Law, 700; James v.
The State, 45 Missis. 572; Dougherty v.
Commonwealth, 19 Smith, Pa. 286; Gra-
ham v. People, 63 Barb. 468, 6 Lans. 149;
West v. The State, 2 Zab. 212. And see
cases cited ante, § 1293.

* The State v. Stiefle, 13 Iowa, 603;
Taylor v. The State, 42 Ala. 529; Ed-
wards y. The State, 47 Missis. 681; Bart-
lett v. The State, 28 Ohio State, 669;
The State v. Fritz, 27 La. An. 860; The
State v. Hugel, 27 La. An. 875.

7 See, for illustrations, ante, § 117-126,
268, 271, 442, 448, 677, 707 a, 738, 746,
766, 762, 780, 791, 818, 888, 872-889, 893,
911, 982, 946, 949 a, 966 b, 974, 980, 1004,
CHAP. LXXXIX.]

THE RECORD. § 1860

step leaves unimportant something which went before, it, though
essential in the record until the step was taken, becomes now
non-essential, and it may be omitted. The cases cited! show,
that, while on the whole this proposition is abundantly sustained
in authority, it has not been in the mind of every judge pro-
nouncing a decision; for which reason, and because the rule
would sometimes lead to different results in different States, and
because the cases do not always inform us at what stage of the
cause an objection to the record was taken, it is deemed best not
to particularize further here.

"§ 1860. Under Statutes. — It will be seen, from the cases cited
to the foregoing sections, that, in some of the States, statutes
have either expressly or in their consequences modified more or

less the common-law rules as to the record.”

1015, 1016, 1181, 1285; The State v.
Matthews, 9 Port. 370.

1 Commonwealth v. McCaul, 1 Va.
Cas. 271; Alley v. The State, 32 Ind. 476
(overruling Sawyer v. The State, 17 Ind.
485; Conner v. The State, 18 Ind. 428;
Jackson v. The State, 21 Ind. 171; and
Hall v. The State, 21 Ind. 268); Doherty
v. Commonwealth, 109 Mass. 359; Ben
v. The State, 22 Ala. 9; Holliday v. Peo-
ple, 4 Gilman, 111; Wallace v. The State,
‘28 Ark. 581; Cathcart v. Commonwealth,
1 Wright, Pa. 108 ; Jewell v. Common-
wealth, 10 Harris, Pa. 94; The State ».
Darnal, 1 Humph. 290; Turns v. Com-
monwealth, 6 Met. 224; People v. Rob-
erts, 6 Cal. 214; Townsend v. The State,
2 Blackf. 151; Milan v. The State, 24
Ark. 346; Russell v. The State, 33 Ala,
866; Laurent v. The State, 1 Kan. 313;

Wrocklege v. The State, 1 Iowa, 167;
Herring v. The State, 1 Iowa, 205; The
State v. Harwood, Winston, No. I. 228;
The State v. Rolland, 14 La. An. 40; The
State v. Wilson, 8 Misso. 125; McGregg
v. The State, 4 Blackf. 101; The State v.
Collins, 8 Ire. 407; Frances v. The State,
6 Fla. 806; The State v. Glover, 8 Greene,
Iowa, 249; Shaw v. The State, 18 Ala.
647; McGuire v. People, 2 Parker C. C.
148; Conner v. The State, 4 Yerg. 187;
Eaton v. Commonwealth, 6 Binn. 447;
Bugg v. The State, 47 Ala. 50; Rodgers
v. The State, 50 Ala. 102; Wade v. The
State, 50 Ala. 164; Wesley v. The State,
52 Ala. 182; Walker v. The State, 62
Ala. 192; Collins v, The State, 13 Fla.
651; Williams v. People, 54 Ill. 422.

2 And see The State v. Bartlett, 11
Vt. 650.

795
§ 1362 PROCEEDINGS AFTER VERDICT. [Book x.

CHAPTER XC.
THE WRIT OF ERROR.

§ 1861. What for this Chapter. — The writ of error and. the
procedure under it are nearly the same in criminal causes as in
civil. Yet there are some differences as well as similitudes ; and,
to make the chapter brief, we shall simply inquire how it is in
the criminal law.

§ 1362. Of Right or of Grace — (How granted). — In England,
a writ of error (though in civil causes procurable from the courts
as of right, when not waived, or by misconduct forfeited+) can
in no criminal case be obtained except on permission from the
crown, expressed, when to be heard before one of the ordinary
courts, by the fiat of the attorney-general ;? or, when before the
House of Lords, by that of the secretary of State, perhaps with
the attorney-general’s concurrence.? Yet it is deemed that, in
misdemeanor, the party is entitled to the: fiat as of right,*
on probable cause appearing, not otherwise;® though, if the
attorney-general refuses, the courts can neither compel him
(they may simply require him to hear the application®) nor
grant it themselves.’ In treason and felony, on the other hand,
the granting of the fiat is of pure grace from the crown; it may
be refused, though there is manifest error, or allowed and per-
mitted to prevail though there is no error. The “true reason”
why, in treason and felony, it is of grace, instead of being of

1 Bleasdale v. Darby, 9 Price, 606; 5 Rex v. Wilkes, 19 Howell St. Tr.
Cates v. West, 2 T. R. 183; Cave v. 981, 1099, 1100, 4 Bur. 2527, 2550, 2551;
Masey, 3 B. & C. 785; Camden v. Edie, 4 Bl. Com. 392.
1H. BI. 21; Levett v. Perry, 5 T. R. 669. § Castro v. Murray, supra; Ex parte

2 Castro v. Murray, Law Rep. 10 Ex. Newton, 4 Ellis & B. 869; In re Newton.
213; Ex parte Lees, Ellis, B. & E. 828. 16 C. B. 97.

3 Lavey v. Reg. 2 Den. C. C. 504, 512. T In re Pigott, 11 Cox C. C. 311.

4 Rex v. Earbery, Fort. 87; Reg. v. 8 Rex v. Wilkes, and other cases, au-
Paty, 2 Salk. 608, 604, 14 East, 92, note, pra. And see Hargrave’s opinion on
14 Howell St. Tr. 861, 862, note; Reg. v. several points, 19 Howell St. Tr. 1126,
Ashby, 14 Howell St. Tr. 695, 862, 870, 871. 1127, note.

196
CHAP. XC.]

WRIT OF ERROR. § 1863

right as in misdemeanor, is said to be because the defendant
“has forfeited all he has to the crown,” and the sovereign may
well exercise his pleasure whether or not to give it back! The
English forfeitures being unknown with us,? and executive inter-
ference in judicial affairs being contrary to the genius of our
institutions, nothing corresponding to the fiat from a crown offi-
cer is by the better pravtice required in our States, whether in
treason, felony, or misdemeanor; but the court awards the writ,
as of course, whenever an English court would grant it were the
fiat attached to the application.’ Still it is not so, even at com-
mon law, in all our States; and, in many of them, the practice is
variously modified by statutes.4

§ 1863. The Parties — (Whether the State).— The writ ‘may
be brought,” says Chitty,® “by the party himself, or, after his
death, by his heir or executor, to reverse an attainder of treason
or felony ; but by no other persons, whatever interest they may
claim in the reversal.” As the rights of the heir and the execu-
tor grew out of their interest in the forfeited estate, we may pre-
sume that they could not bring a writ of error with us, where
forfeiture is unknown; “the rule” being to permit it only to
‘him who would have had the thing if the erroneous judgment
had not been given.”? ‘There is not, in most circumstances, any
constitutional objection to a writ of error by the State, and there
are statutes in some States permitting it;® but our courts do not

1 Rex v. Earbery, supra, at p. 40.

2 Crim. Law, I. § 970.

8 Mitchell v. The Stéte, 3 Misso. 283 ;
The State v. Buchanan, 5 Har. & J. 317,
862. And see Calloway v. The State, 1
Misso. 211; Anderson v. The State, 5 Har.
& J. 174; Manly v. The State, 7 Md. 185;
The State v. Jefferson, 66 N. C. 309;
Temple v. Commonwealth, 1 Va. Cas. 163.

4 Miles v. Rempublicam, 4 Yeates,
819; Commonwealth v. Profit, 4 Binn.
424; Loftin v. The State, 11 Sm. & M.
858; Lavett v. People, 7 Cow. 339 ; Jones
v. Commonwealth, 2 Va. Cas. 224; Baker
v. Commonwealth, 2 Va. Cas. 353; Saf-
ford v. People, 1 Parker C. C. 474; Colt
v. People, 1 Parker C.C. 611; Temple v.
Commonwealth, 1 Va. Cas. 163; Farris
v. The State, 1 Ohio State, 188; Bartlett
v. The State, 22 Ohio State, 205; Stanley
v. The State, 23 Ohio State, 581; Comer-

ford v. The State, 28 Ohio State, 599;
People v. Rogers, 18 Abb. Pr. n. 8. 870;
Part of Lot v. The State, 1 Iowa, 507;
Webster v. Commonwealth, 5 Cush. 886,
394; Stout v. People, 4 Parker C. C. 182;
People v. Hendrickson, 1 Parker C. C. 396;
Commonwealth v. Ferrigan, 8 Wright, Pa.
886; Grant v. Commonwealth, 21 Smith,
Pa. 495.

5 1 Chit. Crim. Law, 747.

6 Foxley’s Case, 5 Co. 109 a, 1lla;
Marsh’s Case, Cro. Eliz. 225, 273, 1 Leon.
325; Williams v. Williams, Cro. Eliz. 557,
658; Rex v. Ayloff, 1 Salk. 295; Co. Lit.
13, note ; 2 Hawk. P. C. c. 50, § 11; 4 Bl.
Com. 392.

7 2 Wms. Saund. 5th ed. 46 c, note.

8 Ante, § 1272; The State v. Allen, 8
W. Va. 680; The State v. Fitzpatrick,
8 W. Va. 707; The State v. Kyle, 8 W.
Va. 711.

T9T
§ 1866 PROCEEDINGS AFTER VERDICT. [BOOK x.

generally concede it to the State in the absence of express legis-
lative direction.

§ 1364. The Court — (Of Record — Not of Record — Certio-
rari). — A writ of error lies only to correct the judgments of
courts of record where the procedure was after the course of the
common law. If it was summary, or otherwise in a manner
unknown to the common law, or if the cause had not progressed.
to final judgment, or the court was not of record, the correspond-
ing remedy is certiorari.

§ 1865. United States Courts. — By reason of the absence of
common-law jurisdiction, a writ of error does not lie, in a crimi-
nal cause, from the Supreme Court of the United States to a
Circuit Court. In such a case, the former can correct the errors
of the latter only on a certificate from its judges of disagreement,

not properly given except when the disagreement is real.*
§ 1866. Final Judgment.— The judgment, to sustain a writ of
error, must be final; disposing of the whole cause, including all

the counts.6 And, -—

1 Ante, § 1272; The State v. Brewer,
7 Blackf.45; The State v. Boyle, 1 Misso.
Ap. 18; The State v. Copeland, 65 Misso.
497 (overruling The State v. Newkirk, 49
Misso. 472; and The State v. Peck, 51
Misso. 111. And see The State v. Baker,
19 Misso. 683; The State v. Cunningham,
51 Misso. 479).

2 2Saund. Wms. ed. 101, note ; Thayer
v. Commonwealth, 12 Met. 9, 10; Reg. v.
Bothel, Holt, 157; Reg. v. Paty, 2 Salk.
503, 504, 2 Ld. Raym. 1105; Common-
wealth v. Simpson, 2 Grant, Pa. 488;
Wilde v. Commonwealth, 2 Met. 408;
John v. The State, 1 Ala. 95; Ex parte
Tarlton, 2 Ala. 35; Reg. v. Leighton,
Fort. 178, 175; Groenvelt v. Burwell, 1
Salk. 263, Comyns, 76, 80; s. c. nom.
Groenvelt v. Burnell, Carth. 491; Groen-
welt v. Burwell, 1 Salk. 144. See Scott
v. Bye, 2 Bing. 844, 9 Moore, 649. As to
the Particular Court. — Commonwealth
v. Brown, 3 J. J. Mar. 597; Common-
wealth v. Mitchell, 3 J. J. Mar. 680;
Commonwealth v. Jefferson, 6 B. Monr.
318; Tomlin v, The State, 19 Ala. 9;
Abrahams v. Commonwealth, 11 Leigh,
675; Anderson v. Commonwealth, 4 Leigh,
693; Anderson v. Commonwealth, 6 Leigh,

798

740; People v. Stearns, 28 Wend. 634;
The State v. Tuomey, 5 How. Missis. 50;
Hayden v. Commonwealth, 10 B. Monr.
125; United States v. Eliason, 16 Pet.
291; Thayer v. Commonwealth, supra;
Jackson v. People, 8 Mich. 262.

3 Ex parte Gordon, 1 Black, 503, 505;
United States v. Plumer, 8 Clif. 1. As
between the Circuit and District courts,
&c., see United States v. Plumer, 8 Clif.
28. As to cases in Utah, Wiggins v.
People, 93 U. S. 465.

4 Ex parte Gordon, supra.

5 People v. Merrill, 4 Kernan, 74;
Miles v. Rempublicam, 4 Yeates, 819;
Loftin v. The State, 11 Sm. & M. 358;
People v. Nestle, 19 N. Y. 583 ; The State
v. Dillon, 3 Hayw. 174; Rex v. Kenwor-
thy, 8D. & R.173,1 B. & C. 711; Jenks
v, The State, 16 Wis. 332; Bogert »v.
People, 6 Hun, 262; Kinsley v. The
State, 3 Ohio State, 608; Cochrane v.
The State, 30 Ohio State, 61; Willing-
ham v. The State, 14 Ala. 6389; Patten v.
People, 18 Mich. 314. And see Bank of
Lexington v. Taylor, 2 Sm. & M. 27;
Hedges v. Madison, 1 Gilman, 306;
Latham v. Reg. 5 B. & S. 635; Wright
v. Reg. 14 Q. B. 148.
CHAP. XC.] WRIT OF ERROR. § 1369

§ 1867. only Methoa. — After final judgment, the writ of error
is the only method of reversal known to the common law.!

§ 1868. What Errors — (Compared with Motion in Arrest). —
Except when this writ proceeds on some alleged error of fact, it
reaches only errors appearing in the record; not extending to
preliminary steps, to what pertains to a plea in abatement, to
papers merely on the files, or the like.2 It may be employed
where the error is in the indictment,’ in the verdict,‘ in the sen-
tence,® in any other part of the record,’ or where the statute
authorizing the punishment is repealed ;7 or, in short, in any
case where the motion in arrest® could have been maintained
before judgment.®

§ 1869. Errors of Fact.— A writ of error will not lie to reverse
the decision of a jury upon a fact, or ordinarily to set up a fact
not in issue at the trial.“ Nor, on this writ, can one allege as
fact any thing contrary to the record.11 But in civil cases an
error of fact, not within the record, and rendering irregular and
invalid the whole proceeding —‘‘such as the defendant having,
while under age, appeared in the suit by attorney and not by
guardian, or the plaintiff or defendant having been a married
woman when the suit was commenced ”  — is familiar ground for
the writ of error coram nobis, where the rehearing is in the same

! Post, § 1877; Rice v. Rex, Cro. Jac.
404; Rex v. Seton, 7 T. R. 878; Rex v.
West Riding of Yorkshire Justices, 7 T.R.
467; Reg. v. Carlile, 2 B. & Ad. 971; The
State v. Sheppard, 37 Wis. 895; Ex parte
Shaw, 7 Ohio State, 81; Ex parte Van
Hagan, 25 Ohio State, 426.

2 Nash v. Reg. 9 Cox C. C. 424, 10
Jur. n. s. 819; Campbell v. Common-
wealth, 2 Va. Cas. 314; Turns v. Com-
monwealth, 6 Met. 224; Byrd v. The
State, 1 How. Missis. 247; Grant v.
People, 4 Parker C. C. 527; Common-
wealth v. Offner, 2 Va. Cas. 17; Samp-
son e. Commonwealth, 5 Watts & S. 385;
Commonwealth v. Church, 1 Barr, 105 ;
Turner v. The State, 28 Missis. 684;
People v. McMahon, 2 Parker C. C. 663;
Rex v. Wildey, 1 M. & S. 183; Reg. v.
Overton, Car. & M. 655; Hall v. The
State, 40 Ala. 698; Alleyne v. Reg. 5
Ellis & B. 399, Dears. 506; People v.
Casey, 72 N. Y. 893.

3 Archb. Crim. Pl. & Ev. 19th ed. 203,
204; King v. Reg. 7 Q. B. 795, 807.

4 Reg. v. Chadwick, 11 Q. B. 205.

5 Rex v. Bourne, 7 A. & E. 58; Riley’s
Case, 2 Pick. 172 ; Cooke, Petitioner, 15
Pick. 234.

8 Archb. Crim. Pl. & Ev. 19th ed. 205;
Taylor v. Commonwealth, 8 Wright, Pa.
181; People v. Casey, 72 N. Y. 393.

7 Hartung v. People, 22 N. Y. 95.

8 Ante, § 1286.

® The State v. Van Matre, 49 Misso.
268; Jesse v. The State, 28 Missis. 100.
See ante, § 1285; Stewart v. The State,
138 Ark. 720, 750.

10 Stephen Pl. 4th ed. 118.

11 Rex v. Carlile, 2 B. & Ad. 362, 4
Car. & P. 415; Rex v. Carlile, 2 B. & Ad.
971.

12 Stephen Pl. 4th ed. 119,

13 Tb. 117,118; 2 Wms. Saund. 5th ed.
101, note. See Smith v. Rhodes, 29
Maine, 8360; Memphis German Sav. Inst.
v. Hargan, 9 Heisk. 496.

799
PROCEEDINGS AFTER VERDICT.

§ 1871 _ [Book x.

court, not in a court of review.! In theory, this branch of our
legal practice pertains equally to criminal causes; so the courts
have said from early times,? possibly even permitting errors of
fact to be heard in a court of review. But it is not easy to
name classes of criminal cases within the principles justifying
this form of the writ of error.

§ 1370. Concurrent with other Remedies. — It is perceived that
the writ of error is not strictly concurrent with any other rem-
edy; yet in a certain sense it is, it may be employed where at
earlier stages the demurrer or the motion in arrest of judgment
might have been. According to the constant practice of the
courts, therefore, the fact that one of these other remedies might
have been resorted to i$ no obstacle to this one, when the error
appears in the completed record. Nor is it any obstacle that
there might have been an appeal.t Whether an objection which
was taken and overruled on a motion in arrest of judgment may
be again brought forward or not, on a writ of error, —‘a question
once agitated, but not determined,>— seems to be merely the
common question as to what is the effect of an adjudication of a
point of law upon the same point when afterward it arises in the
same cause.

§ 1371. Questions of Practice. — The procedure, on writs of
error, is nearly the same in criminal causes as in civil. The writ
must be in due form,’ and there must be a proper return to
it when to a lower court.’ The party bringing it must assign
errors in the nature of a declaration; and, by the English rules,
in person. The prosecuting officer must make answer or plea

! Irwin v. Grey, Law Rep. 2 H. L. 20,
26. Plainly, therefore, the courts being,

145, 164. See Reg. v. Dunn, 12 Q. B.
1026 ; Hargraves v. Lewis, 6 Ga. 207;

in general, different, errors of fact and law
cannot be joined. Lightfoot v. Common-
wealth Bank, 4 Dana, 492; Connelly v.
Magowan, 3 T. B. Monr. 152; Molins v.
Werby, 1 Lev. 76.

2 In re Newton, 16 C. B. 97, 102, 108,
30 Eng. L. & Eq. 432; Rex v. Davis, 1
Bur. 638, 641; Rex v. Carlile, 2 B. & Ad.
862, 4 Car. & P. 415; United States v.
Plumer, 3 Clif. 28, 59, 60.

8 Anonymous, 8 Salk. 147 ; Cornhill’s
Case, 1 Lev. 149.

4 Barnett v. The State, 86 Maine, 198,
200, 201. See ante, § 1267.

5 Jeffries v. Commonwealth, 12 Allen,

800

Hopkins v. Commonwealth, 3 Met. 460;
Wilde v. Commonwealth, 2 Met. 408.

® The State v. Boyle, 25 Md. 609. As
to amending, see McVeigh v. United
States, 8 Wal. 640.

7 Cancemi v. People, 18 N. Y. 128;
Graham v. People, 63 Barb. 468, 6 Lans.
149,

8 2Ilawk. P. C. c. 50, § 12; Rex ec.
Foxby, 6 Mod. 178; Hollingsworth ».
The State, 8 Ind. 257; Donnelly y». The
State, 2 Dutcher, 463; Mansell v. Reg.
Dears. & B. 375, 410, 8 Ellis & B! 54.
Assignment of errors not necessary in
Arkansas, Dunn v. The State, 2 Pike,
CHAP. Xc.]

WRIT OF ERROR. § 1878

to the assignment, termed joining in error;! in default whereof,
the judgment, whether truly erroneous or not, will be reversed.?
In proper cases, the court may quash the writ.3 In some or all
of the States, there are limitations as to the time of bringing the
writ.*

§ 1372. Reversal — (Part or All, &c.). — The court will look at
the entire record, not alone at what is brought to its attention
by the parties, and render the judgment which the whole re-
quires.5 Generally it will be for affirmance or reversal of all;¢
but when, in the nature of the case, the parts are separable, there
may be an affirmance of a part and reversal of the residue,’ — a
question on which there are some differences of judicial opinion.
Thus, —

§ 1878. Affirming Verdict and Reversing Sentence. —In Eng-
land, under the common-law rules,§ and in a part of our States,°
the higher court has no jurisdiction on a writ of error either to
pass a new sentence or to send back the record to the lower for
sentence ; consequently, even for an error in the sentence, the
reversal is complete. But in some of the States, a statute ex-
pressly authorizes a new sentence in the appellate court or a
remission of the cause to the lower court for sentence,” and in

229. In England, personal presence at
the assignment of errors was dispensed
with under very special circumstances.
Murray v. Reg. 7 Q. B. 700. See Rex v.
Erbury, 8 Mod. 177. Hscape.— As to
the effect of an escape on a writ of error,
see People v. Genet, 59 N. Y. 80; Par-
sons v. The State, 22 Ala. 50; Sherman
v. Commonwealth, 14 Grat. 677.

1 Archb. Crim. Pl. & Ev. 19th ed. 211;
Haggett v. Commonwealth, 3 Met. 457;
Christian v. Commonwealth, 5 Met. 334.

2 Rex v. Howes, 7 A. & E. 60, note,
8 Nev. & M. 462; 1 Chit. Crim. Law, 750.

3 Alleyne v. Reg. 5 Ellis & B. 399, 32
Eng. L. & Eq. 180; Reg. v. Alleyne, 4
Ellis & B. 186, Dears. 505. See Lark v.
The State, 55 Ga. 485.

4 The State v. Holmes, 7 Vroom, 62;
The State v. Hatcher, 11 Rich. 525.
And see, for other questions of practice,
Perteet v. People, 70 Ill. 171; Scott v.
Scott, 5 Mich. 106; Benedict v. The
State, 12 Wis. 313; Styles v. The State,
28 Ga. 388; Lazier v. Commonwealth,
10 Grat. 708; People v. Holmes, 3 Parker

VOL. IL. 61

C. C. 567. As to Supersedeas and
Bail. — Rabon v. The State, 7 Fla. 10;
Dugdale v. Reg. 2 Ellis & B. 129, Dears.
254; The State v. McCloskey, 4 Iowa,
496; People v. Lohman, 2 Barb. 450;
The State v. Craft, Walk. Missis. 587;
The State v. Clark, 15 Ohio, 595.

5 Stephen v. The State, 11 Ga. 225.

6 Christian v. Commonwealth, 5 Met.
530.

7 Montgomery v. The State, 7 Ohio
State, 107; Lougee v. The State, 11 Ohio,
68; Fletcher v. People, 52 Ill. 395; Gra
ham v. People, 63 Barb. 468, 6 Lans. 149.

8 Silversides v. Reg. 2 Gale & D. 617;
Bourne v, Rex, 2 Nev. & P. 248, 7 A. & E.
58; Rex v. Ellis, 5 B. & C. 395, 8 D. & R.
173. +

9 Christian v. Commonwealth, 5 Met.
530; Tully v. Commonwealth, 4 Met. 857;
Shepherd v. Commonwealth, 2 Met. 419;
Sumner v. Commonwealth, 3 Cush. 521;
McDonald v. The State, 45 Md. 90; EL
liott v. People, 13 Mich. 365; Howell v.
The State, 1 Oregon, 241.

40 For example, Massachusetts under

801
PROCEEDINGS AFTER VERDICT.

§ 1374 [Book x.

others the authority is maintained on the principles of the com-
mon law.}

§ 1874. Error in Prisoner's Favor.— In another connection? we
saw that our American courts are divided on the question,
whether, upon a writ of error, one can avail himself of an error
in his own favor ; some holding that he can,® others that he can-
not.! For an error to his prejudice, all admit that he may have

the judgment vacated.5

Stat. 1851, c. 87; Gen. Stats. c. 146, § 16;
Jacquins v. Commonwealth, 9 Cush. 279.
As to New York, see Ratzky v. People,

29 N. Y. 124; McKee v. People, 32 N. Y. .

239; Harris v. People, 59 N. Y. 599. It
is so now in England, under 11 & 12 Vict.
c. 78, § 5. See Archb. Crim. Pl. & Ev.
19th ed. 215.

1 Oliver v. The State, 5 How. Missis.
14; Kelly v. The State, 3 Sm. & M. 518;
Beale v. Commonwealth, 1 Casey, Pa. 11,
22. (Lewis, C. J., in the last-mentioned
case, citing, as maintaining this doctrine,
Drew v. Commonwealth, 1 Whart. 279;
Daniels v. Commonwealth, 7 Barr, 371;
Commonwealth v. Ellis, 11 Mass. 465;
Kane v. People, 8 Wend. 203. “It has
also the power to award a procedendo in a
criminal case, Rex v. Kenworthy, 1 B. &
C. 711; and it may in its discretion remit
the record, with orders to proceed on the
indictment after the reversal of the erro-

802

neous judgment. Commonwealth v. Mc-
Kisson, 8 S. & R. 420; Commonwealth »v.
Church, 1 Barr, 105.”) Burch v. The
State, 55 Ala. 188. Consult, also, Lacy
v. The State, 15 Wis. 13; People v. Riley,
48 Cal. 549; The State v. Shaw, 23 Iowa,
316; Brown v. The State, 13 Ark. 96;
The State v. Nicholson, 14 La. An. 785;
Clellans v. Commonwealth, 8 Barr, 228;
Ex parte Page, 49 Misso. 291; ante,
§ 1288.

2 Crim. Law, I. § 930-982.

3 Haney v. The State, 5 Wis. 529;
Fitzgerald v. The State, 4 Wis. 395; The
State v. Smith, 6 Blackf. 549; Brown v.
The State, 47 Ala. 47.

4 McQuoid v. People, 8 Gilman, 76;
Lark v. The State, 55 Ga. 485; The State
v. Price, 6 Halst. 208.

5 Kromer v. Commonwealth, 3 Binn.
677.
CHAP. XCI.]

WRIT OF CERTIORARI.

§ 1878

CHAPTER XCI.

THE WRIT OF CERTIORARI.

§ 1875. In General. — The writ of certiorari is common both to

civil practice and criminal.

It issues from a superior court to an

inferior, commanding the latter to certify up the record of some

cause or proceeding therein.

Its purposes at the common law

are various, and it is more or less and not uniformly modified by

Statutes in our States.

Some leading views are —

§ 1876. Before Judgment or after.— Unlike the writ of error,!
it may in various cases issue and be executed before judgment,

though in others only after.?

§ 1377. Removal for Trial — (After Verdict). — Both in Eng-

land? and in a few of our States,‘ it is extensively in use to
remove a cause, after indictment found, for trial in the higher
court. So, after verdict and before sentence, the court has the
power,® not often exercised,® to remove the cause by this writ.
After sentence, in common-law proceedings, the reversal can be
only on writ of error.’

§ 1378. Same Functions as Writ of Error — (After Judgment). —
As already seen,’ where the proceeding is summary, or otherwise
not after the course of the common law, or in a court not of

1 Ante, § 1366.

2 Ante, § 1364; post, § 1877, 1878;
Long’s Case, Cro. Eliz. 489.

3 Archb. Crim. Pl. & Ev. 13th Lond.
ed. 80; Reg. v. Probert, Dears. 30, 18
Eng. L. & Eq. 111; Lampriere’s Case, 1
Mod. 41; Cumberland v. Rex, 3 B. & P.
854; Rex v. Thomas, 4 M. & S. 442.

4 The State v. Jones, 6 Halst. 289;
Case v. Shepherd, 2 Johns. Cas. 27, 28;
People ». Baker, 3 Parker C. C. 181;
The State v. Morris Canal and Banking
Co. 1 Green, N. J. 192; Kendrick v.
The State, Cooke, 474; People v. Jew-
ett, 3 Wend. 314; The State v. Gibbons,
1 Southard, 40; Nicholls v. The State, 2
Southard, 539; The State v. Dayton, 1

Southard, 57; People v. Runkel, 6 Johns.
834; The State v. Jacobs, Busbee, 218;
Bob v. The State, 2 Yerg.173; The State
v. Stone, 3 Har. & McH. 115.

5 Reg. v. Potter, 2 Ld. Raym. 937, 938.
And see People v. Peabody, 26 Barb.
437; Mackaboy v. Commonwealth, 2 Va.
Cas. 268.

‘ 6 Rex v. Jackson, 6 T. R. 145; Reg.
v. Unwin, 7 Dowl. P. C. 578; Rex v. Ox-
ford, 13 East, 411.

7 Ante, § 1866; Rex v. Pennegoes, 1
B. & C. 142; Rex v. Seton, 7 T. R. 873;
Rex v. West Riding of Yorkshire Justices,
7T.R. 467. Butsee Reg. v. Bethell, 6 Mod.
17; 8. c. nom. Rex v. Bothel, Holt, 157.

8 Ante, § 1364.

803
§ 1880 PROUEEDINGS "AFTER VERDICT. [Book x.

record, the certiorari, after judgment, performs substantially the
functions of a writ of error. Error does not lie, but certiorari
does.}

§ 1879. In Aid of Writ of Error — Or other Proceedings. — If, on
the return of a writ of error, or on.any other proceeding whereby
the record of the inferior court is brought up, there is either a
manifest defect in the record or a suggestion of its diminution,
the court may by certiorari require the inferior judge to send up’
the omitted part. And in still other ways this writ may be in-
voked in aid of other processes.”

§ 1880. Questions of Practice. — There are some diversities of
practice in our States.? The writ should be directed to one hav-
ing control over the records, and a return by any other person is
a nullity. The court commanded cannot refuse obedience.? It
does not send up the record bodily, but a transcript of it.6 In
general, the granting or refusing of the writ is discretionary with
the tribunal applied to; yet, in proper circumstances, it will

allow it almost as of right.’

1 Cross v. Smith, 1 Salk, 148; Rex v.
Plowright, 3 Mod. 94; Groenvelt v. Bur-
well, 1 Ld. Raym. 454, 469; Reg. v.

Bethell, 6 Mod. 17; People v. Turner, 1

Cal. 152; Handlin v. The State, 1 Har-
rison, 96; St. Paul v. Marvin, 16 Minn.
102; People v. County Judge, 40 Cal.
479; Ex parte George, T. U. P. Charl.
80; The State v. District Medical Society,
6 Vroom, 200; The State v. Dowling, 50
Misso. 184; People v. Hester, 6 Cal. 679;
Hummell’s Case, 9 Watts, 416; Owens
v. The State, 27 Wis. 456; The State v.
Washington, 2 Murph. 100; Jolin v. The
State, 1 Ala. 95; Rex v. Standard Hill,
4M. & S. 878; Rex v. Moreley, 2 Bur.
1040, 1042 ; Rex v. Berkley, 1 Keny. 80;
The State v. Steuart, 5 Strob. 29; Over-
seers v. Smith, 2S. & R. 863; Clark v.
Commonwealth, 4 Pick. 125.

2 Commonwealth v. Roby, 12 Pick.
496, 498; The State v. Collins, 8 Dev.
117; The State v. Reid, 1 Dev. & Bat.
877; Brackett v. The State, 2 Tyler,
152; Meredith v. Davies, 1 Salk. 270;
Cancemi v. People, 18 N. Y. 128; The
State v. Jefferson, 66 N. C. 309; The
State v. Jones, 4 Halst. 2; Rex v. Thomas,
4M. & S. 442; Trice v. Yarborough, 4
Ire. 11; Parsons v. Davis, 8 Cal. 421;

804

In England, a certiorari to remove a

Gregory v. Slaughter, 19 Ind. 342;
Chinn’s Petition, 2 T. B. Monr. 871;
Blanton v. Breckenridge, Litt. Sel. Cas.
25; The State v. Shelton, 3 Stew. 348;
The State v. Sue, Conference, 54; Web-
ster v. Commonwealth, 5 Cush. 386; Gra-
ham v. People, 63 Barb. 468, 6 Lans. 149.
See United States v. Young, 94 U. S. 258;
Bennac v. People, 4 Barb. 164.

8 Forms. — For forms of the writ, see
People v. McCormack, 4 Parker C. C. 9;
Stephens v. People, 4 Parker C. C. 396;
The State v. Gustin, 2 Southard, 744;
O’Leary v. People, 4 Parker C. C. 187.
Various Questions. — And see, for vari-
ous questions, The State v. Griffin, 71
N.C. 304; The State v. Morris Canal and
Banking Co. 1 Green, N. J. 192; Anony-
mous, 4 Halst. 2; John v. The State, 1
Ala. 95; People v. Bush, 40 Cal. 344.

4 The State v. Howell, 4 Zab. 519;
Commonwealth v. Franklin, 4 Dall. 316.

5 The State v. Hunt, Coxe, 287.

6 Nicholls v. The State, 2 Southard,
539; Graham v. People, 63 Barb. 468, 6
Lans. 149.

T™ Keys v. Marin, 42 Cal. 252; Peo-
ple v. Andrews, 52 N. Y. 445; People v.
Utica, 65 Barb. 9, 45 How. Pr. 289; Peo-
ple v. Hill, 65 Barb. 4865; Ruff v. Phillips,
CHAP. XCI.]

WRIT .OF CERTIORARI.

§ 1381

cause for trial is of right when the application is from the officer
of the crown,! but of discretion in the court when it is from the

defendant.?

§ 1881. What Errors.— Not every error can be corrected by
the certiorari. But on this sort of question the usages in the

States are not quite uniform.‘

60 Ga. 130; Pennsylvania v. Kirkpatrick,
Addison, 198, 197, note; Commonwealth
v. McGinnis, 2 Whart. 118, 117 ; Common-
wealth v. Profit, 4 Binn. 424, 428; Com-
monwealth v. Lyon, 4 Dall. 302; Scrog-
gins v. The State, 55 Ga. 380.

1 Rex v. Eaton, 2 T. R. 89; Rex v.
Stannard, 4 T. R. 161; Rex v Pasman, 2
Dowl. P. C. 629.

2 Rex v. Harrison, 1 Chit. 571; Reg.
v. Josephs, 8 Dowl. P. C. 128; Rex v.
Wartnaby, 2 A. & E. 435.

8 People v. Van Alstyne, 82 Barb.
181; Whitney v. Board of Delegates, 14
Cal. 479; The State v. Steuart, 5 Strob.
29

4 People v. First Judge of Columbia,
2 Hill, N.Y. 398; People v. Smith, 45
N. Y. 772; Chittenden v. The State, 41
Wis. 285 (doubting Hauser v. The State,
83 Wis. 678; and Martin v. The State, 85
Wis. 294).

‘ 805
§ 1883 MISCELLANEOUS PROCEEDINGS. [BOOK XI.

BOOK XI.

SOME MISCELLANEOUS PROCEEDINGS.

CHAPTER XCII.

THE PRISONER ESCAPED OR OTHERWISE UNLAWFULLY AT
LARGE.

§ 1882. Rearrest.— One who has escaped from a lawful im-
prisonment, whether before or after sentence, is liable to be re-
arrested. And it is the same with a prisoner not technically
escaped, but set free on a condition which he has broken.? In
like manner, one discharged on habeas corpus from imprisonment
on an invalid process may he rearrested on process in due form.

§ 13883. How ?— We have seen that an arresting officer may
pursue and recapture an escaped prisoner without a fresh war-
rant. And it is the same with the keeper of one imprisoned on
sentence, who escapes.25 He may take again his prisoner, says
Lord Hale, speaking of felony, even “seven years after, though
he were out of his view.”® And it is reasonably plain that the
doctrine is not different in misdemeanor.? Or, if the act of
escaping was felony,® or the sentence was for felony, any private

1 Ante, § 168 and note, 208; Schwam-
ble v. The Sheriff, 10 Harris, Pa. 18, 19;
Calfielde v. , 1 Rol. 189; The State
v. McClure, Phillips, 491; Commonwealth
v. The Sheriff, 1 Grant, Pa. 187.

2 Crim. Law, I. § 915; Rex v. Madan,
1 Leach, 4th ed. 228; Cantellow v. True-
man, 2 Dowl. P. C.2; Puckford v. Max-
well, 6 T. R. 62; Penfold v. Maxwell, 1
Chit. 275, note; Commonwealth v. Hast-
ings, 9 Met. 259, 268. And see Reg. v.
Ryan, 7 Cox C. C. 109.

3 Ex parte Milburn, 9 Pet. 704. And
see Ex parte Crandall, 2 Cal. 144; Bul-

806

 

son v. People, 31 Il. 409; Doyle v. Rus-
sell, 30 Barb. 300.

4 Ante, § 163, 203; Commonwealth v.
McGahey, 11 Gray, 194; Cooper v, Ad-
ams, 2 Blackf. 294; Clark v. Cleveland,
6 Hill, N. Y. 844.

5 1 Hale P. C. 602; 2 Hawk. P. C.c.
19, § 12.

6 Hale P. C. ut sup.

7 Ante, § 161, 168, 196, 208, 1805,
1310; Haggerty v. People, 53 N. Y. 476;
Cleek v. Commonwealth, 21 Grat. 777.

8 Ante, § 168.
CHAP. XCII.] ESCAPED PRISONERS.

§ 1884
person may arrest the prisoner and deliver him to his keeper.!
Or the court that sentenced him may issue its warrant for the
rearrest.? If one who has been discharged after sentence on a
conditional pardon violates the condition, so that he becomes
again liable under the sentence, it seems that the same rules as
to his rearrest apply ;4 certainly, in reason, they do.

§ 1884. Disposition of Rearrested Prisoner.— There are two
methods of disposing of the prisoner on his rearrest. One is for
the keeper simply to confine him during the remaining period of
his sentence, deducting the time of his absence. In a case in-
volving no question of fact not concluded by the record, — such
as the identity of the person, or the violation in pais of the con-
dition of a pardon, — this method is ample, practically as well as
legally. The other method is to conduct the prisoner before the
court that sentenced him, or another of superior criminal juris-
diction ;® and this court, on the facts appearing, will order the
execution of the former judgment.’ By some opinions, if the
right to execute such judgment depends on a question of fact, —
as, for example, whether the condition of a pardon has been vio-
lated,—this method is exclusive of the other. On the other
hand, the New York Court of Appeals,® reversing a decision of
the Supreme Court, held that the other method is exclusive of
this, where there has been an escape from prison on a sentence
to imprisonment, and a rearrest; expressing the opinion that the
ordering of the execution of the former sentence is, at the com-
mon law, practised only in capital cases, where the original
time for the execution has gone by. The court was mistaken

1 The State v. Holmes, 48 N. H. 377,
379.

2 The State v. McClure, Phillips, 491 ;
The State v. Chancellor, 1 Strob. 347.

3 Crim. Law, I. § 915.

The State v. Chancellor, 1 Strob. 347;
The State v. McClure, Phillips, 491, 492 ;
The State v. Wamire, 16 Ind. 357 ; Luckey
v. The State, 14 Texas, 400; Rex »v.
Rogers, 83 Bur. 1809; Rex v. Okey, 1

* People v. Potter, 1 Parker C C. 47;
Rex v. Madan, 1 Leach, 4th ed. 223; The
State v. Chancellor, supra. '

5 Ante, § 1310; Dolan’s Case, 101
Mass. 219; Haggerty v. People, 53 N. Y.
476; Cleek v. Commonwealth, 21 Grat.
T77.

6 People v. Potter, 1 Parker C. C. 47.

1 The State v. Addington, 2 Bailey,
616; The State v. Smith, 1 Bailey, 283;
Commonwealth v. Haggerty, 4 Brews.
826; The State v. Cockerham, 2 Ire. 204;

Lev. 61; Rex v. Ratcliffe, 18 Howell St.
Tr. 429; Bland v. The State, 2 Ind. 608.
And see other cases cited Crim. Law, I.
§ 915; The State v. Fuller, 1 McCord,
178.

8 People v. Potter, supra, at p. 62 et
seq. See The State v. Chancellor, supra.

2 Haggerty v. People, supra.

10 Haggerty v. People, 6 Lans. 382.

1 Jt was said, that, in capital cases,
this method has been superseded in New
York by statute.

807
§ 1885 MISCELLANEOUS PROCEEDINGS. [Book x1L

in supposing, that, only in capital cases, has this method been
heretofore employed; as the reader will see by examining the
cases cited to this section.1 The future adoption of the doc-
trine of this case in other States is, at least, problematical. If,
when an escaped prisoner is rearrested and denies his identity,
and the keeper is doubtful how the fact may be, or is uncertain
whether the former sentence has expired or not, or whether the
condition of a pardon has been broken or not, he must take the
responsibility with no protection from the courts, or opportunity
for a judicial inquiry into the facts, subjecting himself to indict-
ment if he lets go the man he should keep, or to a civil suit. if he
keeps the man he should let go; or, if, in violation of funda-
mental principles of the criminal law, a person wrongly arrested
under a mistake of identity can have only the prison keeper for
his judge, nor be. permitted to examine witnesses on oath to the
fact ; all might wish that the law were truly what it has hereto-
fore been supposed to be.

§ 1385. Denying Identity. — “If,” says Chitty,? ‘‘ the prisoner
was attainted in another court, or has since his sentence been out
of custody, it is open to him to allege that he is not the party
against whom the sentence was given; or, if the. prisoner
escapes and is retaken, the same question may arise.t In these
cases, the court must ask the party in custody whether he has any
thing to say why execution should not be awarded against him.’
On this he may, ore tenus, and without holding up his hand, aver
that he is not the person mentioned in the record ; to which the
Attorney-General may, in the same way, reply that he is the

1 Tt- will be interesting to compare, opinion of the court. Also, The State v.

 

with this case of Haggerty, the facts, the
reasoning, and the authorities cited, in-
cluding the opinion of Bronson while
attorney-general, in People v. Potter, su-
pra. Compare, also, The State v. Cocker-
ham, 2 Ire. 204, which was, like People
v. Potter, a case of imprisonment; that
exceptionably able criminal-law judge,
Gaston, observing: “It being admitted
that the sentence of the court had not
been executed, it was-proper to make the
necessary order for carrying the sentence
into execution.” Likewise compare,
among the other cases cited to this sec-
tion, Commonwealth v. Haggerty, 4
Brews. 826, and the cases cited in the

808

McClure, Phillips, 491. The sentence in
The State v. Chancellor, 1 Strob. 847,
was to whipping. See also People wv.
James, 2 Caines, 57.

21 Chit. Crim. Law, 777, 778. And
see 2 Hale P. C. 407; 2 Hawk. P. C.c.
61,§3 ©

3 Rex v. Ratcliffe, Foster, 40, 41, 1
Wils. 150, 18 Howell St. Tr. 429; 8. .
nom. Rex v. Radcliffe, 1 W. BI.3; 4 BL
Com. 396.

.4 Rex v. Rogers, 8 Bur. 1809, 1810.

5 1 Hale P. C. 368; Rex v. Rogers,
supra; Rex v. Radcliffe, 1 W. Bl. 8, 4;
8. 0. nom. Rex v. Ratcliffe, Foster, 40.
CHAP. XCII.] | ESCAPED PRISONERS. §. 1386

same, and that he is ready to verify it; and a venire will be
awarded to try the issue thus joined, returnable instanter.1_ The
prisoner may be allowed counsel to assist him, but the court will
not put off the trial unless strong grounds are shown to presume
that the party has been mistaken.2 Nor will time be allowed
him to produce witnesses, unless he will positively swear that he
is not the party attainted.? Nor, though his life is in question,
can he be allowed to make any peremptory challenges. ....
If the jury find them to be the same persons, no proclamation
ought to be made before the award of execution ; but execution
will immediately be awarded according to the original sentence.” ®
When the prisoner has been constantly in. custody, this plea is
improper and null.®

. § 1886. Insufficient Bail.— Mere insufficiency of bail, without
fraud,’ does not constitute an escape justifying a rearrest.$

11W. BL 4; Foster, 40, 41; Rex v. cliffe, Foster, 40, 42; 1 W. Bl. 6; 4 BI.

Rogers, 3 Bur. 1809. Com. 396.
2 Rex v. Rogers, supra;. Foster, 41. 5 Rex v. Rogers, 3 Bur. 1809, 1811.
1W. BI. 4; 4 BI. Com. 396. 6 Thomas v. The State, 5 How. Missis.
3 Foster,'42; 4 Bl. Com. 896; 4W. 20,81. And see 2 Hale P. C. 407.
Bi. 4, 6. : 7 Ante, § 268 a.

4 Rex v. Okey, 1 Lev. 61; Rex v. Rat- 8 Ingram v. The State, 27 Ala. 17.
809
§ 1888 MISCELLANEOUS PROCEEDINGS. [BOOK XI.

CHAPTER XCIII.
THE NOLLE PROSEQUI.

§ 1387. How defined. — The nolle prosequi is common to civil
practice and criminal. In criminal cases, it is a declaration of
record, from the legal representative of the government, that he
will no further prosecute the particular indictment or some
designated part thereof.

§ 1888. By what Officer — (The Court).— In England, the
power of nolle prosequi is exclusively with the attorney-general,
who exercises it without interference from the court.2— The clerk
of the crown does not possess it,? nor does the attorney appearing
for a private prosecutor, nor does any other person, except as
authorized by the attorney-general.5 With us, the functions of
the English attorney-general are performed by prosecuting officers,
known, in their respective States, by the official names of attorney-
general, district attorney, and the like,® and to them, the power
of nolle prosequi, therefore, pertains, to be exercised as in England
free from judicial control.7? Nor, by the better practice, will the
court even advise the governmental prosecutor whether to em-

ploy it in a case or not.8

1 “ Trial”? — “ Acquittal.”?” — Nega-
tively, a nolle prosequi is neither a “ trial,”
The State v. Branum, 23 Ark. 540, nor
an “acquittal,” United States v. Switzer,
Morris, 302. But in Indiana it is deemed
an acquittal within the statute giving
costs. Miami v. Blake, 21 Ind. 82.

2 Rex v. Stratton, 1 Doug. 239; Reg.
v. Allen, 1 B. & S. 850; Reg. vu. Camp-
bell, 3 Crawf. & Dix C. C. 88. :

3 Rex v. Cranmer, 1 Ld. Raym. 721,
12 Mod. 647. é

* Reg. v. Dunn, 1 Car.& K.730. And
see Rex v. Webb, 3 Bur. 1468, 1 W. BI.
460. The same in this country, Com-
monwealth v. Dulany, 1 Cranch C. C. 82.

810

Still, —

5 O’Connell v. Reg. 11 Cl. & F. 155.

6 Ante, § 287 et seq.

7 Commonwealth v. Smith, 98 Mass.
10; Commonwealth v. Kimball, 7 Gray,
828; United States v. Watson, 7 Blatch.
60; Reynolds v. The State, 8 Kelly, 53
(as to which see Statham v. The State,
41 Ga. 507); The State v. Smith, 49 N. H.
155; The State v. Tufts, 56 N. H. 187;
The State v. Smith, 67 Maine, 828; The
State v. McLane, 81 Texas, 260; The
State v. McKee, 1 Bailey, 651. See
United States v. Schumann, 2 Abb. U.S.
623.

3 Commonwealth v. Wheeler, 2 Mass.
172; Agnew v. Cumberland, 12S. & R. 94.
CHAP. XcIII.]

NOLLE PROSEQUI. § 1392

§ 1889. Exceptional Practice. — A statute in New York requires
the consent of the court to a nolle prosegjut by the district attor-
ney ;1 not, it seems, by the attorney-general.2 And in some of
the other States, either by statute or by judicial construction, the
court must consent; while, in yet others, the State’s attorney by
custom consults the court; in others, he acts practically on his
own responsibility, the court claiming the right to control him if
it chooses, and in some it is not plain what the course is. Prob-
ably nowhere has the court the power to command this entry to
‘be made,! though there are cases in which the existence of this

power seems to have been assumed.®
§ 1390. Consent of Prisoner.— The prisoner’s consent is not

essential.é

§ 1891. Part or All.— While the simple form of the nolle
prosequi is to the entire indictment, it may be equally well to a
part of the counts,’ or even to a separable part of any one count.®

‘Thus, —

To Intent. — On an indictment for assault with intent to mur-
der, there may be a nolle prosequi as to the aggravated intent,

and a conviction for simple assault.°

But, —

§ 1392. Limit as to Part.— If the entire count as found by the

1 People v. McLeod, 1 Hill, N. Y. 377,
‘405; People v. Bennett, 49 N. Y. 187,
141; Linsday v. People, 63 N. Y. 143.

2 People v. Bennett, supra.

8 Anonymous, 1 Va. Cas. 189; The
State v. Moody, 69 N. C. 529; The State
v. Thompson, 3 Hawks, 613 ; Ex parte
Donaldson, 44 Misso. 149; The State v.
McComb, 18 Iowa, 43; Statham v. The
State, 41 Ga. 507; United States v. Wat-
son, 7 Blatch. 60; United States v. Stow-
ell, 2 Curt. C. C. 158; Mount v. The
State, 14 Ohio, 295; Baker v. The State,
12 Ohio State, 214; Agnew v. Cum-
berland, 12 S. & R. 94; Willingham
v. The State, 14 Ala. 539; The State v.

. Garvey, 42 Conn. 232; The State v. Dun-
ham, 9 Ala. 76; Williams v. The State,
57 Ga. 478.

4 People v. Bennett, supra. And see
People v. Porter, 4 Parker C. C. 524, and
other cases supra.

5 People v. Gaige, 23 Mich. 98; The
State v. Frost, 1 Brev. 386.

8 The State v. Smith, 67 Maine, 328;
Commonwealth v. Tuck, 20 Pick. 3856.

7 Rex v. Thanet, 27 Howell St. Tr.
822, 951; Commonwealth v. Cohen, 120
Mass. 198; Wills v. The State, 8 Misso.
62; The State v. Marvin, 35 N. H. 22;
Ruck v. Atturney-General, 83 H. & N.
208. For one of the limits to this, see
Commonwealth v. Fitchburg Railroad,
120 Mass. 3872.

8 The State v. Merrill, 44’ N. H. 624;
The State v. Burke, 38 Maine, 574; The
State v. Whittier, 21 Maine, 341; The
State v. Bruce, 24 Maine, 71; Aaron v.
The State, 89 Ala. 75; Jennings v. Com-
monwealth, 105 Mass. 586; Common-
wealth v. Dean, 109 Mass. 349; Baker v
The State, 12 Ohio State, 214; Common.
wealth v. Colton, 11 Gray, 1; Common-
wealth v. Tuck, 20 Pick. 356 (a sort of
leading case); United States v. Peterson,
1 Woodb. & M. 305; Rex v. Butterworth,
Russ. & Ry. 520. But see People v. Por-
ter, 4 Parker C. C. 524. P

9 Baker v. The State, 12 Ohio State,
214. To the like effect see Common-
wealth v. Dean, 109 Mass. 349; Jennings
v. Commonwealth, 105 Mass. 586.

811
§ 1394 MISCELLANEOUS PROCEEDINGS. ~— [BOOK XI.
grand jury is beyond the jurisdiction of the court, —as, if it is
for assault with intent to commit rape, while the jurisdiction
extends only to assault. and battery,!—a nolle prosequi to the
aggravating matter cannot make valid proceedings which were
null in their inception.2 It is reasonable also to hold, that, in a
State wherein there can be no conviction of misdemeanor on an
indictment for felony, if a nolle prosequi is. entered to so much of
a count as makes the crime felony, leaving still:a good charge of
misdemeanor, the whole fails. Again, —
- § 1398. Part of Defendants. — The nolle prosequi may be to a
part of the defendants ;* unless the dismissal of the part: leaves
the indictment bad as to the rest,° which in various circumstances
it will.

§ 1394. at what Stage of Cause — (Its Effect). — The nolle
prosequt can be entered at any stage of the cause between the
finding of the indictment and the sentence ;® yet not after 'sen-
tence,’ or before, to the prejudice of any right of the defendant.$
- While the trial is progressing, after the jury are sworn, its entry
will, we have seen,® operate, if the indictment is good, as an ac-
quittal,” and bar to any future proceedings, and entitle the
defendant to his immediate discharge. Therefore it is com-
monly said that, at this stage, it cannot be entered either with or
‘without consent. of the court, unless the defendant consents ;
because he is entitled to demand a verdict.% Still it is believed
that if the entry is now made it will be effectual, and there are

1 Nelson v. The State, 2 Ind: 249;
Smith v. The State, 2 Ind. 251.

2 People v. Porter, 4 Parker C. C. 524.

8 Brittain v. The State, 7 Humph. 159;
Grant v. The State, 2 Coldw. 216.

2 Ante, § 1020; The State v. Clump,
16 Misso. 385; The State v. McComb, 18
Towa, 48; The State v. Woulfe, 58 Ind.
17; The State 'v. Phipps, 76 N. C. 208.

5 The State v. Daubert, 42 Misso,
242.
8 Post, § 1895, 1896.

7 Weinzorpfiin v. The State, 7 Blackf.
186.

8 Commonwealth v. Tuck, 20 Pick.
856, 865, 366.

9 Crim. Law, I. § 1014-1017.

19 Mount v. The State, 14 Ohio, 295;
The State v. McKee, 1 Bailey, 661;
United States v. Farring, 4 Cranch C. C.

812

465; United States ». Shoemaker, 2 Me-
Lean, 114; Reynolds v. The State, 3
Kelly, 58; Commonwealth v. Wade, 17
Pick. 395. Barnett v. The State, 54 Ala.
579.. ‘The consent of the defendant will
prevent this. Crim. Law, I. § 998; The
State v. Garvey, 42 Conn. 232.

Ml Jones v. The State, 55 Ga. 625.

12 Grogan v. The State, 44 Ala. 9.

13 The State v. Roe, 12 Vt. 98, 109;
United States v. Shoemaker, 2 McLean,
114; The State v. Kreps, 8 Ala. 951; .
Commonwealth v. Goodenough, Thacher
Crim. Cas. 182; Commonwealth v. Tuck,
20 Pick. 856; Commonwealth ‘v. Kimball,
7 Gray, 328; The State v. Smith, 49 N.

-H. 155; Durham »v. The State, 9 Ga. 806;

Newsom v. The State, 2 Kelly, 60 (but
in Georgia this is so by statute); Com-
monwealth v. Scott, 121 Mass. 83.
CHAP. XCIII.] NOLLE PROSEQUI. - ' § 1895

circumstances in which the court will and should permit it.!
For example, if the indictment is bad, the prosecuting officer
may nol. pros. it during the trial, and afterward pursue the
defendant on a new and sufficient one.2 Or, if the jury cannot
agree on one of several counts, but can on the rest, he may dis-
pose of the one by his nolle prosequt, and take a verdict on those
upon which they can agree.?.

§ 1895. Its Efect.— We see, therefore, that a nolle prosequi
during trial bars a subsequent prosecution for the same offence,
whether on the same or any other indictment. A fortiori it does,
when entered between the verdict and the sentence.* Entered
before trial, it, and the proceeding it discontinues, are no impedi-
ment to a subsequent prosecution for the same offence. It sim-
ply puts an end to the particular indictment, count, or part of a
count to which it is applied, without prejudice to new proceed-
ings;® but the part or whole of the present proceeding which
has been reached by it cannot be revived. In the language of
an old case, “the king cannot afterwards proceed in the same

suit, but. he may begin anew.’

1 The State v. Roe, supra; The State
v. I. §. 8. 1 Tyler, 178; Commonwealth
v. Kimball, 7 Gray, 828; Commonwealth
v. Seymour, 2 Brews. 567.

2 Crim. Law, I. § 1021; Walton v. The
State, 3 Sneed, 687. See also Joy v. The
State, 14 Ind. 189; The State v. Cason,
28 La. An. 40.

8 Commonwealth c. Stedman, 12 Met.
444,
4 Crim. Law, I. § 1017; The State v.
Smith, 67 Maine, 328.

5 United States v. Shoemaker, 2 Mc-
Lean, 114; Wortham v. Commonwealth,
5 Rand, 669; Lindsay v. Commonwealth,
2 Va. Cas. 345; Ex parte Donaldson, 44
Misso. 149; The State v. Tindal, 5 Har-
ring. Del. 488; The State v. Main, 31
Conn. 572; The State v. Blackwell, 9
Ala. 79; The State v. Ingram, 16 Kan.
14,

8 Rex v. Pickering, stated Hardres, 88;
Bowden v. The State, 1 Texas Ap. 187,
145; The State v. Main, 31 Conn. 572;
The State v. Shilling, 10 Iowa, 106;
Commonwealth v. Dowdican, 115 Mass.
188. There are some loose dicta in the
English books to the effect that, after a

nol. pros. to the entire indictment, the de-
fendant may be rearrested, and the cause
proceeded with. 1 Chit. Crim. Law, 480;
Goddard v. Smith, 6 Mod. 262, 1 Salk. 21.
And, relying on these dicta, the courts of
perhaps two of our States seem to have
so laid down the law. The State v. Has-
kett, Riley, 97, 3 Hill, S. C. 95; The
State v. Howard, 15 Rich. 274; The State
v. Thompson, 8 Hawks, 613; The State
v. Thornton, 13 Ire. 256. And see The
State v. McNeill, 3 Hawks, 183. But
both the practice and decisions of the
English courts have, from the early times,
been in accord with the doctrine of my
text. See, besides Rex v. Pickering,
supra, Reg. v. Allen, 1 B. & S. 850; and
Reg. v. Mitchel, 8 Cox C. C.98. And it
is the same, so far as adjudication has
spoken, in all our American States, ex-
cept as above stated. See, in addition to
the foregoing cases, The State v. Flem-
ing, 7 Humph. 152; Flanagan v. The
State, 19 Ala. 546; Drinkard v. The
State, 20 Ala. 9; The State v. Primm, 61
Misso. 166; Brittain v. The State, 7
Humph. 159; Grant v. The State, 2
Coldw. 216. This matter is more fully

818
§ 1896 || MISCELLANEOUS PROCEEDINGS. [Book XI.

§ 1896. Practical Uses. —In this country, where the proper
governmental officer is always present at the trial and subsequent
proceedings, the-nolle prosequi, employed with discretion, is a
highly valuable instrument of justice. This has appeared at
various places in the present volume and in ‘Criminal Law.”
It can cure duplicity and misjoinder of counts,! enable the court
to pass a lighter sentence than the law would otherwise permit,”
and perform various other beneficial offices of the like sort.?
But, as we have seen,‘ it cannot give the court a jurisdiction over

a case not before possessed.

explained in an article by me in 2 South-
ern Law Rev. n. 8s. 846, on ‘‘Nolle
Prosequi,” reprinted in a pamphlet. For
the very conclusive case of Rex v. Pick-
ering, not then before me, I am indebted
to an able brief, by Roger A. Pryor, in
the malicious prosecution case of Moul-
ton v. Beecher, reported, without the ar-
guments or authorities, 8 Hun, 100. Of
course, a nolle prosequi, like any other
docket entry, may, with leave of court,
be withdrawn during the term, unless in-
tervening rights would be impaired. The
State v. Nutting, 39 Maine, 359; Parry
v. The State, 21 Texas, 746. See ante,
§ 1298.

1 Ante, § 448; The State v. Merrill, 44

814

N. H. 624; Commonwealth v. Colton, 11.
Gray, 1; Commonwealth v. Cain, 102
Mass. 487; The State v. Wood, 18 Minn.
121; United States v. Scott, 4 Bis. 29.

2 The State v. Burke, 38 Maine, 574.

3 Commonwealth v. Jenks, 1 Gray,
490; Commonwealth v. Tuck, 20 Pick.
856; United States v. Peterson, 1 Woodb.
& M. 305; Commonwealth v. Briggs, 7
Pick. 177; The State v. Bruce, 24 Maine,
71; The State v. Whittier, 21 Maine,
841; Jennings v. Commonwealth, 105
Mass. 586; Commonwealth v. Wallace,
108 Mass. 12; Reid v. The State, 50 Ga.
656; Commonwealth v. Cohen, 120 Mass.
198.

4 Ante, § 1892.
CHAP. XCIv.]

REMAINING PROCEEDINGS.

§ 1399

CHAPTER XCIV.

a

SOME FURTHER PROCEEDINGS BRIEFLY STATED.

§ 1897. Introduction.
1398-1400. Records Mutilated or Lost.
1401. Petition of Review.
1402, 1408. Mandamus.
1404, 1405. Prohibition.
1406-1411. Habeas Corpus.
1412-1417. Equity Jurisdiction.

§ 1897. What for this Chapter — How divided. —In addition to

the proceedings already described in this chapter, the following
require notice, but less extended: I. Records Mutilated or Lost;
II. Petition of Review; III. Mandamus; IV. Prohibition ;
V. Habeas Corpus; VI. Equity Jurisdiction in Criminal Affairs.

I. Records Mutilated or Lost.

§ 1398. Effect of Loss — Proof. — The loss of a record does not
undo what it established, but it may be proved by extrinsic evi-
dence, or its existence presumed.!_ Within this rule is the record
of a conviction for crime.2. So, —

§ 1399. Supplying Papers lost from Files. — When papers are
lost from the files of the court, they may be supplied by copies.
Some of the cases proceed on the idea of the continued exist-
ence of the originals, the proven copies being evidence of their

contents.?

1 1 Greenl. Ev. § 509; Farmers’ Bank
v. Gilson, 6 Barr, 51; Alston v. Alston, 4
S. C. 116; Rochell v. Holmes, 2 Bay, 487;
Weidman »v. Kohr, 4S. & R. 174; Silver
v. The State, 17 Ohio, 365.

2 Butler v. Craig, 2 Har. & McH. 214;
Hilts v. Colvin, 14 Johns. 182; Smith v.
The State, 4 Greene, Iowa, 189; Com-
monwealth v. Roark, 8 Cush. 210.

81 Chit. Crim. Law, 722; Eakin v.
Vance, 10 Sm. & M. 549; Schwartz v.
Osthimer, 4 Ind. 109; Ravenscroft v.

Giboney, 2 Misso. 1; Dayrell v. Bridge,
2 Stra. 1264; Evans v. Thomas, 2 Stra.
833; Douglass v. Yallop, 2 Bur. 722;
Robinson v. Davis, 1 Stra. 526; Rash v.
Whitney, 4 Mich. 495; Coman v. The
State, 4 Blackf. 241; Wilkerson v. Bran-
ham, 5 Ala. 608; Rex v. Bolton, 1 Stra.
141; Boswell v. Stewart, 11 Ala. 629;
McElwee v. The State, 77 Ill. 498; Reg.
v. Shellard, 9 Car. & P.277; Allen v. The
State, 21 Ga. 217.

815
§ 1402 MISCELLANEOUS PROCEEDINGS. [BOOK Xt.

§ 1400. Lost Indictment. -—If the indictment is lost before
trial, plainly, as a practical question, the prosecuting officer will
apply to the grand jury for a new one, where this can be done
without inconvenience ; and meanwhile the prosecution does not
abate.! But not always can this be done. Then, in legal doc-
trine, there seems to be no absolutely unanswerable objection
to trying the defendant on a substituted copy, if exact, and
the proof of it conclusive ; and there is authority for permitting
this.2, Moreover, in some of the States, this is allowed by stat-
utes. But, in the absence of statutory permission, the courts
in some other of our States decline to proceed on a substituted
copy. If the copy is a mere imperfect one, depending on the
memory of witnesses and oral testimony, there are special objec-
tions, which probably ought to be conclusive, to receiving it in
place of the original.6 When the loss is after conviction, it. may
be supplied by copy. An indictment accidentally cut into three
pieces was held not to be thereby destroyed, but adequate at the
trial.7

II. Petition of Review. :

§ 1401. In General. —In some of our States, there are statutes
authorizing a petition or writ of review, after judgment. The
Maine statute was held to extend only to civil cases, not to crimi-
nal.8 And this proceeding is seldom heard of in any criminal
case.

III. Mandamus.

§ 1402. Im Criminal Cases. — The writ of mandamus is avail-
able equally in criminal cases as in civil.

1 Commonwealth v. Keger, 1 Duv. 240.

2 Millar v. The State, 2 Kan. 174;
Buckner v. The State, 56 Ind. 208; Brad-
ford v. The State, 54 Ala. 280.

8 The State v. Elliott, 14 Texas, 423;
The State v. Adams, 17 Texas, 232, 237;
Clampitt v. The State, 3 Texas Ap. 638;
Beardall v. The State, 4 Texas Ap. 681;
Graham v. The State, 43 Texas, 550;
Boyd v. The State, 6 Coldw. 1. See
Thompson v. The State, 54 Missis. 740.

* Boyd v. The State, supra; Brad-
shaw v. Commonwealth, 16 Grat. 607;
Ganaway v. The State, 22 Ala. 772, 774.

816

But see Bradford v. The State, supra.
See also Reinhart v. The State, 29 Ga. 622.

5 Bradshaw v. Commonwealth, supra ;
Buckner v. The State, supra:

§ Mount v. The State, 14 Ohio, 295;
Smith v. The State, 4 Greene, Iowa, 189.

7 Commonwealth -v, Roland, 97 Mass.
698. .

8 Wells’s Case, 2 Greenl. 822. See
People v. Carnal, 2 Seld. 468; People »v.
Clark, 3 Seld. 385.

9 Rex v. Middlesex Justices, 2 Q. B.
D. 616; Reg. v. Brown, 7 Ellis & B. 757;
Ex parte Mahone, 80 Ala. 49; Rex v.
CHAP. XCIV.]

REMAINING PROCEEDINGS.

§ 1406

§ 1403. Its Functions. —It is employed only where there is a

specific right, and no other specific remedy.!

It compels the in-

ferior court to do its duty,?—to act in the case, but does not
determine what the action shall be.3

IV. Prohibition.

'

§ 1404. Distinguished from Mandamus. — Inferior courts, said
Kent, J., “can be compelled to duty by a mandamus; they can
be restrained from usurpation by prohibition.” 4

§ 1405. In Criminal Cases. — Prohibition, like mandamus, may
be employed as well in criminal cases as in eivil.é

V. Habeas Corpus.

§ 1406. In General. — This is a common-law writ, as to which
the procedure was early modified in some degree by English
statutes,® and in this country is variously so by national and

Broderip, 7 D. & R. 861, 5 B. & C. 289;
Reg. v. Adamson, 1 Q. B. D. 201; People
v. Genet, 69 N. Y. 80; Rex v. Robinson,
2 Smith, 274; Reg. v. Mainwaring, Ellis,
B. & E. 474; Hale v. People, 73 Ill. 203.
But see The State v. Gracey, 11 Nev.
223. See The State v. Judges of the
Ninth and Seventeenth Judicial Dis-
tricts, 29 La. An. 785.

1 Hale v. People, 78 Ill. 203; Rex v.
Barker, 3 Bur. 1265; Rex v. Canterbury,
8 East, 218, 219; Spraggins v. Humphries,
Cooke, 160; People v. Brooklyn, 1 Wend.
818; Rex v. Windham, Cowp. 377, 378;
Rex v. Chester, 1 T. R. 896; The State v.
Moore Justices, 2. Ire. 480; Etheridge
v. Hall, 7 Port. 47; King William Justices
v. Munday, 2 Leigh, 165; The State v.
Dunn, Minor, 46; The State v. Holliday,

8 Halst. 205; Commissioners v. Lynah, 2°

McCord, 170; In re Morris v. Mechanics’
Bank, 10 Johns. 484; Ex parte Nelson,
1 Cow. 417.

2 Commonwealth v. Hampden, 2 Pick.
414; Chase v. Blackstone Canal, 10 Pick.
244; Springfield v. Hampden, 4 Pick. 68;
Johnson ». Randall, 7 Mass. 840 ; Strong,
Petitioner, 20 Pick. 484 ; Carpenter v
Bristol, 21 Pick. 258; The State v. Rich-

VOL. I. 62

mond Justices, Dudley, Ga. 87; Gillespie
v. Wood, 4 Humph. 487 ; Ex parte Bost-
wick, 1 Cow. 143; Reg. v. Adamson, 1 Q.
B. D. 201; Reg. v. Middlesex Justices, 2
Q. B. D. 516; In re Turner, 5 Ohio, 542.

3 Commonwealth v. Judges of Com-
mon Pleas, 3 Binn. 273; Roberts v. Hols-
worth, 5 Halst. 57; Squier v. Gale, 1
Halst. 157; Gunn v. Pulaski, 3 Pike, 427 ;
The State v. Tippecanoe, 45 Ind. 501;
Life and Fire Ins. Co. v. Adams, 9 Pet. 573 ;
Chase v. Blackstone Canal, 10 Pick. 244;
Morse, Petitioner, 18 Pick. 448; Ex parte
Hoyt, 18 Pet. 279; People v. Steele, 2
Barb. 897; Ex parte Flippin, 94 U.S, 348;
Reg. v. Mainwaring, Ellis, B. & E. 474.

4 People v. Chenango Sessions, 2
Caines Cas. 819; The State v. Hopkins,
Dudley, S. C. 101; Ex parte Keeling, 50
Ala. 474,

5 Reg. v. Herford, 8 Ellis & E, 115;
Mayo v. James, 12 Grat. 17; People v.
Whitney, 47 Cal. 584. See further, as
to when the writ will lie, The Stato v.
Nathan, 4 Rich. 513; Ex parte Smith, 23
Ala. 94; The State v. Simons, 2 Speers, -
761; The State v. Leonard, 8 Rich. 111.

6 8 Bl. Com. 129-188; Bac. Abr. Ha-
beas Corpus.

817
MISCELLANEOUS PROCEEDINGS.

§ 1410 [BOOK XI.

State legislation! It is employed equally in civil and criminal
causes, and to set free persons wrongfully restrained of liberty.

In criminal practice, its principal uses are —
§ 1407. First, Bail. — To bring up prisoners for release on

bail.?

§ 1408. Secondly, Prisoners before and at Trial.— To transfer
prisoners from one court to another, from the jail to the court,
and the like, before and during the trial.®

§ 1409., Thirdly, witness. — To bring an imprisoned witness

into court.

§ 1410. Fourthly, To set free from Imprisonment. — There are
circumstances in which release from imprisonment in a criminal
cause may be had under the great writ of habeas corpus ad subjici-

endum.#

Where the restraint proceeds from a judgment erro-
neous but not void, it will not lie.§
impeach a judgment as contrary to the facts.’

Nor, under it, can the party
And, in general,

this is not the remedy where the imprisonment is on a judicial

sentence.’

But where the sentence is void, not merely voidable,

or the term of imprisonment under it has expired, relief may be

had by habeas corpus.®

1 Ex parte Bridges, 2 Woods, 428;
The State v. Guest, 6 Ala. 778; People
v. Liscomb, 60 N. Y. 559; Ex parte Ran-
dolph, 2 Brock. 447.

2 Ante, § 251; Rex v. Mickal, 11 Mod.
261; Ex parte McKinney, 5 Texas Ap.
600; Ex parte Foster, 5 Texas Ap. 625;
Hernandez v. The State, 4 Texas Ap.
425; Williamson v. Lewis, 3 Wright,
Pa. 9.

81 Tidd Pr. 8th ed. 850, 351; The
State v. Wilson, 88 Conn. 126; Rex v.
Spragg, 2 Bur. 980; Ex parte Griffiths, 5
B. & Ald. 780; Donnelly v. The State, 2
Dutcher, 463.

4 Archb. Crim. Pl. & Ev. 19th ed. 820;
Rex v. Burbage, 3 Bur. 1440; Wattles v.
Marsh, 5 Cow. 176.

5 3 Bl. Com. 181.

6 In re Greenough, 81 Vt. 279; Beth-
ell’s Case, 1 Salk. 848; Ex parte Parks,
1 Hughes, 604; Riley’s Case, 2 Pick. 172;
Cooke, Petitioner, 15 Pick. 284; Ex
parte Shaw, 7 Ohio State, 81; Emanuel
v. The State, 36 Missis. 627; Ex parte
Kellogg, 6 Vt. 509.

7 In re Newton, 16 C. B. 97, 80 Eng.

818

L. & Eq. 482; Griffin v. The State, 5
Texas Ap. 457; The State v. Fenderson,
28 La. An. 82.

8 Ex parte Lees, Ellis, B. & E. 828;
People v. Shea, 8 Parker C. C. 562; In re
Eaton, 27 Mich. 1; Ex parte Winston, 9
Nev. 71; Ex parte Hartman, 44 Cal. 32;
Ex parte Max, 44 Cal. 579; Common-
wealth v. Deacon, 8 S. & R. 72; Semler’s
Petition, 41 Wis. 517; O’Malia v. Went-
worth, 65 Maine, 129; Ex parte Jilz, 64
Misso. 205; In re Toney, 11 Misso. 661;
Ex parte Van Hagan, 25 Ohio State, 426;
Ex parte Shaw, 7 Ohio State, 81; Lark
v. The State, 55 Ga. 435; Parker v. The
State, 5 Texas Ap. 579; Commonwealth
v. Whitney, 10 Pick. 484; Emanuel v.
The State, 36 Missis. 627; In re O’Con-
nor, 6 Wis. 288; Ex parte Fisher, 6 Neb.
809 ; Ex parte Oliver, 8 Texas Ap. 845;
Phillips v. Welch, 12 Nev. 158.

® Ex parte Lange, 18 Wal. 168; Crop-
per v. Commonwealth, 2 Rob. Va. 842;
Ex parte Edwards, 11 Fla. 174; Miller v.
Snyder, 6 Ind. 1; Perry v. The State, 41
Texas, 488; Holman v. Austin, 84 Texas,
668; People v. Liscomb, 60 N. Y. 659;
CHAP. XCIV.]

REMAINING PROCEEDINGS. § 1414

§ 1411. Other Questions. — Various other questions may arise
under this writ,! but the proceeding is not so distinctively crimi-
nal as to require their discussion here.

VI. Equity Jurisdiction in Criminal Affairs.

§ 1412. I General. —“ This court,” said Lord Eldon, sitting
in an equity tribunal, “ has no jurisdiction in matters of crime.’ ?
And the doctrine is believed to be without exception, that the
department of our jurisprudence known as equity pertains to
civil affairs alone, having no connection with criminal.? Still, —

§ 1418. Same Facts.— As the same facts on which an indict-
ment proceeds may be the subject of a common-law action,! so
also they may be of a suit in equity.© To illustrate, —

§ 1414. Enjoining Criminal Proceedings. — Equity will not enjoin
criminal proceedings.é Even if it had jurisdiction over crime, it
could not do this; because the State, that cannot be sued, is the
plaintiff in them.’ Nor, in like manner, can it, to accomplish the
same object, issue its injunction against the attorney for the

State.®

And an injunction never runs against the court itself.®

In England, under the rule that a party in equity will not be

Ex parte Parks, 98 U. S. 18; The State
v. Gray, 8 Vroom, 868; Feeley’s Case, 12
Cush. 598; Ex parte Scwartz, 2 Texas
Ap. 74; Geyger v. Stoy, 1 Dall. 185;
Herrick v. Smith, 1 Gray, 1.

1 United States and States. — As be-
tween the State and United States tribu-
nals, see Ex parte Bridges, 2 Woods, 428;
Tarble’s Case, 18 Wal. 397; Ex parte Le
Bur, 49 Cal. 159; Ex parte Robinson, 6
McLean, 355; In re Carlton, 7 Cow. 471;
Nauer v. Thomas, 18 Allen, 572; In re
Bull, 4 Dil. 823; In re Alsberg, 16 Bankr.
Reg. 116. United States. — As between
the United States tribunals, see Ex parte
Lange, 18 Wal. 163; In re Callicot, 8
Blatch. 89; Ex parte Yerger, 8 Wal. 85.
Other Points. — See Pitner v. The State,
44 Texas, 678; Ex parte Maxwell, 11
Nev. 428; The State v. Stalnaker, 2
Brev. 44; Sims’s Case, 7 Cush. 285; In
re Hughes, Phillips, 57; Ex parte Bowen,
46 Cal. 112; Fleming v. Clark, 12 Allen,
191; People v. Brady, 66 N. Y. 182; Ex
parte Page, 49 Misso. 291.

2 Lawrence v. Smith, Jacob, 471, 473.

8 Attorney-General v. Utica Ins. Co. 2
Johns. Ch. 871; Hudson v. Thorne, 7
Paige, 261; Bryant v. Ballance, 66 IIL.
188. Lord Hale mentions the statute of
2 Hen. 5, c. 9, giving a jurisdiction to
chancery to assist in compelling the ap-
pearance, before the criminal courts, of a
felon or rioter who had fled; but, even
at the time when he wrote, it was obso-
lete. 2 Hale P. C. 197.

41Crim. Law, I. § 264 et seq.

5 The State v. Maury, 2 Del. Ch. 141.

6 Kerr v. Preston, 6 Ch. D. 463;
Holderstaffe v. Saunders, 6 Mod. 16;
Perault v, Rand, 10 Hun, 222.

7 United States v. McLemore, 4 How.
U.S. 286; Hill v. United States, 9 How.
U.S. 886. \

8 York v. Pilkinton, 9 Mod. 278, 274,
2 Atk. 802. And see McElrath v. McIn-
tosh, 11 Bost. Law Rep. 899; Mississippi
v. Johnson, 4 Wal. 475; Osborn v. United
States Bank, 9 Wheat. 788.

9 2 Story, Eq. Jur. § 875,

819
§ 1417 MISCELLANEOUS PROCEEDINGS. ~ [BOOK XI.
permitted to proceed at law at the same time for the same
matter,! a plaintiff in.equity was restrained from going into a
criminal court and acting as private prosecutor to try, by an in;
dictment civil in its nature,? the same right.2 But even this case
has latterly been questioned. Admitting it to be sound, it in-
terferes only with the act of a single private prosecutor, and
does not prevent another or the attorney-general from pursuing
the offender. to conviction. And as, with us, all criminal prose-
cutions are controlled by the attorney for the State, this decision

has no relevancy. In like manner, —
§ 1415. Enjoining Commission of Crime.— Equity will not, by

injunction, restrain one from committing crime.’

But, if an

injunction is proper on other grounds, the mere fact that the act
enjoined is. criminal will not prevent its issuing. Thus, —

§ 1416. Libel. — In general, equity will not enjoin the publica-
tion of a libel ;® even, the English courts hold, though it is inju-

rious to property.’

But it has also been held in England, though

by a tribunal not of the last resort, that an injunction may issue
after the rights of the parties have been settled at law.® Still, if
80, it is not because the libel is a crime.

§ 1417. Nuisance.— Neither will equity restrain a nuisance,

on any idea that it is a crime.®

But as an injunction will lie for

a private nuisance at the suit of the party injured,” it is not other-
wise where the nuisance is public, if the applicant suffers a dam-

1 Rogers v. Vosburgh, 4 Johns. Ch.
84. And see Soule v. Corning, 11 Paige,
412.

2 Crim. Law, I. § 265, and the places
there referred to.

8 York v. Pilkinton, supra. And see
Attorney-General v. Cleaver, 18 Ves. 211,
220; Pilkington v. York, Dick. 84.

4 Kerr v. Preston, 6 Ch. D. 463, 467;
Saull v. Browne, Law Rep. 10 Ch. Ap.
64, 66.

5 Gee v. Pritchard; 2 Swanst. 402,
413; Babcock v. New Jersey Stock Yard,
6 C. E. Green, 296; Sir R. Malins in
Springhead Spinning Co. v. Riley, Law
Rep. 6 Eq. 551, 558,

® Brandreth v. Lance, 8 Paige, 24;
Singer Manuf. Co. v. Domestic Sewing
Machine Co. 49 Ga. 70; Life Associa-
tion v. Boogher, 4 Cent. L. J. 40; Clark
v. Freeman, 11 Beav. 112. See Celluloid

820

Manuf. Co. v, Goodyear Dental Vulcanite
Co. 18 Blatch. 375.

7 Prudential Assurance Co. v. Knott, .
Law Rep. 10 Ch. Ap. 142 (overruling
Dixon v. Holden, Law Rep. 7 Eq. 488;
and Springhead Spinning Co. v. Riley,
Law Rep. 6 Eq. 551); Mulkern v. Ward,
Law Rep. 18 Eq. 619. And see Thor-
ley’s Cattle Food Co. v. Massam, 6 Ch. D.
582.

8 Saxby v. Easterbrook, 3 C. P. D. 339.
And see Carlile v. Cooper, 6 C. E. Green,
676; Irwin v. Dixion, 9 How. U.S. 10;
Crenshaw v. Slate River Co.6 Rand. 245.

9 Attorney-General v. New Jersey
Railroad and Transportation Co. 2 Green
Eq. 186.

10 Broadbent v. Imperial Gas Co. 7 De
G.M. & G. 486; Tarborough v. Blount, 4
Hawks, 884; Wall v. Cloud, 3 Humph.
181; Adams v. Michael, 88 Md. 128,
CHAP. XCIVv.]

REMAINING PROCEEDINGS.

§ 1417

age special to himself.! So also, if the public is injured or
threatened by a nuisance in the nature of a purpresture, the attor-
ney-general, acting for the State,? or in some circumstances
the State itself,? may proceed by injunction to abate it, though
its erection and maintenance are also indictable.

1 Crim. Law, I. § 265; Original Hartle-
pool Collieries Co. v. Gibb, 5 Ch. D. 718;
Oglesby Coal Co. v. Pasco, 79 Ill. 164;
Attorney-General v. New Jersey Railroad
and Transportation Co. supra; Bigelow v.
Hartford Bridge, 14 Conn. 565; Rosser v.
Randolph, 7 Port. 288; Green v. Oakes, 17
Til. 249; Ewell v. Greenwood, 26 Iowa,
877; Williamson v. Carnan, 1 Gill & J.
184; Attorney-General v. Hunter, 1 Dev.
Eq. 12; Biddle v. Ash, 2 Ashm. 211;
Georgetown v. Alexandria Canal, 12 Pet.
91, 98; Crenshaw v. Slate River Co. 6
Rand. 245; Irwin v. Dixion, 9 How. U.S.
10; Pettibone v. Hamilton, 40 Wis. 402;
Cotton v. Mississippi, &c. Boom Co. 19
Minn. 497; Weir’s Appeal, 24 Smith,
Pa. 230; Shed v. Hawthorne, 3 Neb. 179;
Savannah, &c. Railroad v. Shiels, 83 Ga.

601; Morris and Essex Railroad v. Prud-
den, 5 C. E. Green, 580 ; Seaman v. Lee,
10 Hun, 607 ; Corning v. Lowerre, 6 Johns.
Ch. 489; Allen v. Monmouth, 2 Beasley,
68; Zabriskie v. New Jersey City and
Bergen Railroad, 2 Beasley, 314; Milhau
v. Sharp, 27 N. Y. 611; Parrish vu. Ste-
phens, 1 Oregon, 73; Walker v. Shep-
hardson, 2 Wis. 384; Bechtel v. Cars-
lake, 8 Stock. 500; Higbee v. Camden
and Amboy Railroad, 4 C. E. Green, 276.

2 2 Story Eq. Jur. § 921-924; Com-
monwealth v. Rush, 2 Harris, Pa. 186;
Attorney-General v. Brown, 9 C. E. Green,
89; Allen v. Monmouth, 2 Beasley, 68, 74.

8 Pennsylvania v. Wheeling Bridge, 13
How. U. 8. 518. And see The State v.
Maury, 2 Del. Ch. 141; The State v.
Eddy, 2 Del. Ch. 269.

821

END OF VOL. I.

 

University Press, Cambridge: John Wilson & Son.
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