\ hae eH, PUN Meh REAL < Tap eRe eon toed Gornell Law School Library 1] ENG too or At, Teatig, Ci fe on law TREATISE ON THE CRIMINAL LAW OF THE STATE OF NEW-YORK; AND UPON THE JURISDICTION, DUTY AND AUTHORITY OF ote of the Peace, AND, iio OF THE POWER AND DUTY OF SHERIFFS, CONSTABLES, &c. IN CRIMINAL CASES. BY OLIVER LORENZO BARBOUR, Counsellor at Law. SECOND EDITION. ALBANY : GOULD, BANKS & Co., 475 BROADWAY. NEW-YORK: BANKS, GOULD & Co., 144 NASSAU-STREET. 1852. tered according to act of Congress, in the year one thousand eight hundred and fifty-two, By GOULD, BANKS & Co. in the clerk’s office of the district court of the northern district of New-York. G. M. DAVISON’S STEAM PRESS, SARATOGA SPRINGS. iv PREFACE TO THE provisions, in order that they may not do injustice to the public, and bring disgrace upon themselves and their office. “To do justice, and execute the law, They should know it, v Nor is it less requisite that they should know how to administer the criminal law. A mere theoretical knowledge of its prohibitions and re- quirements will not suffice to qualify a person for the energetic and faith- ful discharge of his duties as a magistrate. He must, in addition to the theory, understand the practice in criminal proceedings before him. Public peace and private security depend, in no inconsiderable de- gree, upon the intelligence and promptness of magistrates. Whether acting ministerially as conservators of the peace, or judicially in taking the examination of offenders—as members of courts of special sessions, or in summary proceedings, their powers are very extensive and im- portant. And considering the danger of injury to the public, on the one hand, by their allowing the guilty to escape—or to the party, on the other, by putting his liberty, reputation, or even life in jeopardy for want of knowledge or accuracy, the necessity of a guide, both as to,the law and practice in criminal cases, must be apparent. And this necessity will be still more obvious, when we reflect that by far the greater propor- tion of the magistrates in this state do not come from the legal profes- sion, but from the farm—the store—the workshop. They are men of great intelligence, as well as integrity, generally speaking ; but without having pursued a course of legal study, how are they to obtain a com- petent knowledge of the criminal law, or of their duties under it, from such writers as Burns, Blackstone, Hawkins, Hale, and Chitty ? It is certainly surprising, that among all the works upon the different branches of jurisprudence which have been written and published in this state there has been none upon criminal law; and that among the many excellent treatises intended to aid justices of the peace in the per- formance of their duties, there is none which is, exclusively, or to any considerable extent, devoted to the criminal branch of their jurisdiction. While Cowen, Edwards, Waterman, Dunlap, and others, have most ably, learnedly, and thoroughly examined and elucidated the civil jurisdiction of justices of the peace, they have cither wholly disregarded the criminal jurisdiction of those officers, or made it a secondary feature in the plan of their respective works. ‘T'o supply these omissions, in some degree, this work was undertaken; with a resolute determination on the part of the author to make it accurate, at least, if it should possess no other merit. As the usefulness of such a work as the present depends, in a great measure, upon its accuracy and authority, the author has derived his principles directly either from the statute, or from works on criminal law of standard reputation ; and has uniformly referred to the sources whence FIRST EDITION. ae % those principles have been deduced; thus enabling the reader to bring the accuracy of each statement to the test, at once. It has been a task of no slight difficulty, to give a comprehensive view of the criminal law of this: state, as modified by statute, and of the vari- ous criminal proceedings before justices of the peace, in a clear and intelligible manner, and at the same time to compress the work within such a compass that it might be accessible to those who are disposed to look upon “a great book as a great evil.” In endeavoring to accomplish both these objects, it is to be hoped that obscurity has not been produced, on the one hand, nor any thing absolutely indispensable omitted, on the other. Ina subject so vast as that of criminal law, retrenchment has been found exceedingly difficult. “As the subject of Evipencr is one of great importance as well as of difficulty, particular attention has been paid to that head, and no pains have been spared to make it"accurate and useful. The book being intended mainly for the use of a class who are not very familiar with law books, or legal phraseology, it has been the aim of the author to avoid all unnecessary technicalities and Latin or law French phrases, except those in such common use as to be generally un- derstood. A collection of forms, most commonly in use in criminal proceedings before justices of the peace, will be found in the Appendix; to which appendix there is a separate index. For many of these forms, with some alterations, the author is indebted to a late excellent edition of Edwards’ Treatise, by Mr. McMaster. The appendix will be found particularly full _ader the head of warrants; a form being given, it is believed, for every offense mentioned in the text, and ag respects some of the higher offenses, and those which are divided into several degrees, a variety of .forms are given, and adapted to each degree of the offense. No forms of indictments or other proceedings in the higher criminal courts have been given. To have included them in the Appendix would have swelled this book beyond all reasonable compass, and they would have been an inconvenience to the justice. Besides, their importance demands that they should have a place by themselves in some work ex- clusively confined to criminal law. A list of the abbreviations used in referring to the authorities is pre- fixed. Wherever the revised statutes are referred to, the first edition is intended, unless otherwise mentioned. The author can not close this preface without expressing his gratitude to the Hon. Esex Cowen, one of the judges of the supreme court, and the Hon. Joun Witxarp, circuit judge of the fourth circuit, for the in- terest they have taken in this work, and for many important suggestions relative to its plan and arrangement; and to Nicuonas Hint, jun., Esq., i oe PREFACE—SEOOND EDITION. one of the learned editors of Phillipps’ Evidence, for much valuable au- vice, and the use of a few manuscript heads of a work somewhat similar to the present, projected by him some years since. The author has used his best endeavors to discharge a portion of that debt, which, according to Lord Coke, every lawyer owes to his profession ; and he now submits the results of those endeavors to the candor of a generous profession, and an enlightened magistracy. a Saratoga Sprinas, January 28th, 1841. _ Oo PREFACE TO THE SECOND EDITION. Tue first edition of this Treatise having been exhausted, several years since, a republication of the work has been called for. And the new consti- tution, and the legislation consequent thereon, having made important changes in the organization of the courts, and in the method of adminis- tering the criminal law, a thorough remodelling of the book has become necessary. This has, accordingly, been done, with as much care and attention as the author has been able to bestow upon it, amid other press- ing engagements. He has examined every page, corrected such errors and omissions as were discovered, and added new matter, to the extent of one entire book, and several chapters ; besides referring throughout the work, to the recent English and American cases and text-books. While aiming to give the work a modern air, and to cause it to reflect the pres- | ent state of the criminal law, as far as its plan extends, it was the aim of the author to diminish rather than increase its size. But besides the many alterations and additions made necessary by an entire change in the organic law, and the enactment of a great number of statutes, the cease- less current of decisions has been rolling on, since the publication of the first edition; causing some changes in the law, and affording many im- portant and valuable illustrations of the text. These reasons have pre- vented as great a reduction in the quantity of matter, as was hoped for. The appendix of Forms, and the Index, have been carefully revised. On the whole, it is hoped the book may continue to be useful. The author has no higher expectation. Fepruary 23d, 1852. TABLE OF CONTENTS. BOOK I. Or Ortmes In GENERAL; AND OF FELONIES. Ohap. I. Of crimes in general, Il. Of felonies punishable with death, Treason, ‘i : é . Homicide, 7 - 3 3 ‘ ; . Murder, Justifiable homicide, Excusable homicide, . Arson in the first degree, . . Ill. Offenses against the person, punishable by tioprtcemmend in @ sheds # prison, ‘ ‘ = Manslaughter, In the first degree, In the second degree, 3 - In the third degree, In the fourth degree, Rape, : On women iii the as of Sa years, On children within the age of ten years, Abduction of females, . ‘ Mayhem, Kidnapping, and eallinigy persons kidnspped, Child-stealing, Abandoning children, . 7 Assaults with deadly weapons, ; Administering poison, . ei ‘ 3 Poisoning food, springs, &c. . s Assaults with intent to commit felonies, IV. Offenses against property, punishable by imprisonment in a slats prison, é . Arson in the second Geant ‘ . In the third degree, é : ‘i In the fourth degree, . . Burglary, 3 Forgery and coun tartan, In the first degree, . Tn the second degree, Page. 17 22 22 25 25 34 48 57 61 61 61, 63 62, 64 62, 65 62, 68 69 69, 70 15 78 81 83 85 85 92 93 94 95 95 96 96 97 104 105 105 vill ae TABLE OF CONTENTS. Chap. In the third degree, In the fourth degree, j False personating another, and cheats, Robbery, Embezzlement, Larceny, V. Offenses affecting the scdeioietetion of asbloa Perjury and subornation of perjury, . ‘ @ ‘ Bribery and corruption, F 3 : Escapes from prison; assisting hare aint rescue, . - + VI. Offenses against the public peace and public morals, and other mis- cellaneous offenses punishable by imprisonment in a state prison, ‘ z Dueling and ctiallaiies to fight, a é Unlawful marriages or bigamy, and incest, Offenses against public decency, Malicious mischief, Compounding or concealing ons é Crime against nature, . . é BOOK II. Or MispEMEANORS. I. Misdemeanors at common lano, Il. Misdemeanors by statute, BOOK III. Or THE Persons CapaBLe or Commirtine CRIMES. I. Exemption from punishment arising from infancy, Tl. Exemption from punishment arising from insanity, ‘ TI. Zzemption from punishment arising from ai to the Poe of others, F . . IV. Exemption from punlitiment arlsingg Jrom ignorance or stale BOOK IV. PRINCIPALS AND ACOESSARIES. I. Principals, In the first degree, : In the second degree, II. Accessaries, Before the fact, : 7 After the fact, , ‘ . ‘ BOOK V. Tue sEVERAL Orminat Courts oF THE STATE. IL. Oyer and terminer, . 5 ‘i ‘ i Tl. Cireutét courts, ‘ 3 ; a f x . Til. Courts of sessions, j 3 ‘ ‘ ; , r Page, ie 13S 142 149 154 190 190 208 204 209 209 211 214 215 ~ 216 217 219 244 262 264 274. 279 281 282 285 289 295 298 299 TABLE OF CONTENTS. ix Page. General sessions of the city and county eens York, ‘ : 301 | Recorders’ courts, ‘ . 3 802 vi. Mayor's court of the city of Dian , é A . 2 307 VII. The city court of Brooklyn, : : é ‘ 309 VIII. Special sessions, police courts, and pila courts in cities, . ‘ 310 BOOK VI. InpictMENT. I. What is an indictment, and when it lies, . : 5 : 811 ‘IL. Preferring, finding, and presentment, . i . . 314 III. General requisites of an indictment, 7 2 i , 318 IV. Of the form and several parts of an indictment, 5 822 ‘V. Of the joinder of defendants and offenses in the same Sitiotinen’, - 338 VI. Granting copy of indictment, arraignment of defendant, alii 841 VIL. In what cases indictment will be quashed, . A . 348 VII. Removal of indictment before trial or lenin a . 350 IX. Trial of indictment, . j - e 852 In what court to be tien. 2 . . a 352 In what county to be tried, . E < “ A 352 Jury and challenges, ; a A ‘i < 353 Defendant to be present, ‘ . . 5 3 358 Right to counsel, . . ‘ . 358 Witnesses, F . ‘ . § 3 a 358 Separate trials, - F r A 5 : 858 Entering a nolle prosequi, ‘ » ‘ ‘ ‘ 859 Commissions to examine witnesses abroad, 3 ‘ 359 Examining witnesses conditionally, . a . . 359 Compromising offenses, . r 3 . 7 361 Letting accused to bail, z . 3 é . 361 Exceptions by defendants, . 7 . - ‘ 361 Putting off trial, ‘ . e 7 i 361 New trial, . a is ‘ 7 a . 362 X. Verdict and judgment, Z ‘ s 5 . ‘ 865 Verdict, . ! . ‘ . . : 365 Judgment, fj . ? s 5 : ; 370 BOOK VII. Werrs or Error, AND CERTIORARIS. I. Writs of error, . . : 7 . . : 379 Il. Certiorari, ‘ ; ‘ ‘i 888 To remove proceedings on idtvimenta, before trial, . . 385 To remove proceedings on indictments after trial, and before judgment, . . mi é . . c 386 To courts of special sessions, _ ‘ 388 To remove summary convictions, had Bedore single uations 891 2 x TABLE OF CONTENTS. BOOK VIII. Evipence. Chap. I. General rules of evidence, and what allegations must be proved, Il. Written evidence, Public documents and records, Private documents, Ill. Parol evidence, In what cases admissible, Competency of witnesses, Credibility of, Examination of, Compelling attendance of, Fees and expenses of, Their privilege from arrest, IV. Secondary evidence, V. Presumptive evidence, VI. Hearsay evidence, VIL. Confessions, . BOOK IX. Pag 394 401 411 419 420 430 433 447 449 454 456 459 OF THE OFFICE OF JUSTICE OF THE PEACE; AND or THE JuRIspIoTION, Dury, AND AUTHORITY OF JUSTICES OF THE PEACE, IN CriminaL Cases. I. Of the office of justice of the peace, . 5 Its nature, . 3 : ‘ Of the qualifications for the votilies Justices, how chosen—their number, : ‘ ; Police justices, . ; fs A 5 < Oath of office, : : ; : : ; Justices to give security, Tenure of the office, When it becomes vacant, Liability of justices, to prosecution, Fees of justices, in criminal cases, 6 ‘ Il. Of the jurisdiction of justices of the peace, in criminal cases, Local limits thereof, in reference to the residence of the justice, With respéct to the nature of the offense, and to the place where committed, Priority of jurisdiction, 5 7 3 : Limitation of jurisdiction, as to time, Number of Justices required to act, Particular description of justices, " " Exercise of authority, whether discr sBcitine or imperative, Ill. Of the duty and authority of justices of the peace in criminal cases, Justices act either ministerially or Wine Not to act in their own case, Duty and authority as conservators of the pence, Authority under laws of the United States, 465 465 466 466 468 477 47S 478 479 480 481 484 484 485 489 490 491 491 492 494. 494 494: 476 497 Chap. TABLE OF CONTENTS. Duty as to stolen property, ‘ ‘ Duty and authority in respect to search retnnty Criminal contempts, : Taking dying declarations, Right to search prisoners, Duty under the act more effectually to canonete 3 canibling, BOOK X. PROCEEDINGS BEFORE JUSTICES OF THE PEACE IN OrtMINAL CASES. i. Of proceedings to prevent the commission of crimes, 1 Of the arrest and examination of offenders ; committing them Be trial ; and letting them to bail, Complaints, Warrants, . Arrests; and the deeation atid state of prodies Examination of offenders, Committing offenders for trial, . ~ Letting offenders to bail, 1. Of simmary convictions hafre justices of the peace, Of beggars and vagrants, Disorderly persons, : Jugglers, and the exhibition of aus Disorderly practices on public occasions and holidays and in taverns, vessels, &c. 3 . . Betting and gaming, Raffling, . Racing of animals, . Profane cursing and swearing, . Disturbing religious meetings, Disregarding the Sabbath, Bastardy, . Lunatics, . Parents and husbands snecninbine from ‘their families Hawkers and peddlers, . Violations of excise law, Remarks respecting summary eonvistions soiietally. IV. Of trials for offenses before courts of special sessions, Courts of special sessions held in the several towns of the dates Courts of special sessions in the city and county of New-York, Courts of special sessions in cities and village other than New-York, iy General provisions respecting courts of special sessions, APPENDIX OF FORMS, xi Page. 499 499 502 504 506 506 508 514 514 523 529 552 567 575 586 587 591 594 594 596 596 596 597 598 599 602 609 611 612 613 614 634 684 641 643 646 651 ABBREVIATIONS USED IN THIS WORK. Addis. Rep..... Adol. & Ellis, .... Am. Jurist..... And. .... seins sists Andr. news sistste ait Anthon’s N. P. .... woe Arch. Cr. Pl. .. shies enGe Arch. Mag. Pock. Book. .... A aoe weiase DF ne, cal. ones eee Balds. 2a anox suey eidiete Barby «aax en re Barn. & Adol. . & Ald... & Cresw. Barnard. .. ‘ Beck’s Med. Jurisp. .... Binn. Bing. ae Black. Com. Bice Blackf. saa a : Bosc. on Pen. Stat. been Bos. & Pul.¢... Brod. & Bing. .... Broom’s Leg, Max. .... Bulst. .... ee au Bull. N. P. .... se Burn’s Just. one Burr. . ; Burr’s Tr. .. Cald. . i Camp. Car.C.L. .. Car. & K. Car,& M. .... eareis Car. & P.(or Payne) .... Car. L. Repos. a Carth. .... ate Cas, K. B. .... Chit. Cr. L. —— Ca. Temp. Mans. ...- —— on Plead. City Hall Rec, .... Clark & Fin. ai eiate siete Con ees apis soars Coke Litt. or Co. Litt. see Com. .... siskei eisai Comb. Com. Dig. Comst, parte Conkling’s Pr. .... sates eee eoee ene ooee seee eee 4 geee eee eeee (or Cres.) ...e : eeee L ares Addison’s Reports. Adolphus & Ellis’ Reports. American Jurist. Anderson’s Reports. Andrews’ Anthon’s Nisi Prius. Archbold’s Criminal Pleading. Magistrate’s Pocket Book. . Ashmead’s Reports, . Baldwin’s ; Campbell's Atkyn’s “c . Bacon’s Abridgment. Bailey’s Reports. ircuit Court Reports. Barbour’s Supreme Court “ Barnwell & Adolphus’ ——— & Alderson’s & Creswell’s Barnardiston’s Beck’s Medical Jurisprudence. Binney’s Reports, Bingham’s “ Blackstone’s Commentaries. Blackford’s Reports. Boscawen on Penal Statutes, Bosanquet & Puller’s Reports. Broderip & Bingham’s “ “ “ iT3 “ - Broom’s Legal Maxims. Bulstrode’s Reports. . Buller’s Nisi Prius, Burn’s Justice. - Burrow’s Reports. Burr’s Trial. Caldecott’s Reports. oe Carrington’s Criminal Law. Carrington & Kirwan’s Reports. ———— & Marshman’s “ ———. & Payne’s a Carolina Law Repository, Carthew’s Reports. Cases Temp. Wm. III. (12 Mod.) Chitty’s Criminal Law. ———- edition of Burn’s Justice. Cases Temp. Mansfield. on Pleading. , City Hall Recorder. . Clark & Finnelly’s Reports. Coke’s Reports. . Coke upon Littleton, Comyn’s Reports. Comberback’s Reports. Comyn’s Digest. Comstock’s Reports. Conkling’s Practice. X1V Conn. Rep... Const. Rep. or Const. Court Rep. . Cowp. . Craw, & Dix. Cro, Car. — Eliz. Jac. Cromp. aaa aah “Jer. ee eee Mee. & Ros. ¥ Crown Cir. Comp. or Cro. C. Cc. Curry’s Lou. Bap ao Cush. a Dalle wee cee Dalt. Just. .... wets seit wiahe Dane’s Abr. sae sa Ba oer Davis’ Just. saa’ sien disse Dav. & M. aoe Seles iets D. Chip. Deacon's Dig, Cr. L. or Deae. Cr. . Digs Den. us Dev. L. Rep. awa) ye si deine Dev. or Dever. ao Dick. Just. Doug. iatare a Sieve Dowl. & Ry yl. aac Eagle’s Mag. Pocis. Comp. East's P. C. ernie fae Eng. Com. L. Rep. ... Esp. Rep., orkeh 'N. P. Ca. nS ee Ev. Poth. Fitzgib. eau emits or Fortes, aden Seibie iabyata Fost..... avesie eas reves Gale &D. .... evi sees, Gall. xs Ka os sis Gilb. ag ior Gilb. piuans GieAcliass oy Greenl. Rep. .... ails swears Gresley’s Eq. Ev. .... einer ABBREVIATIONS, . Connecticut Reports. Constitutional Court Reports. - Cowper's Reports. Crawford & Dix’s Reports. . Croke’s Reports i in the time of Charles. “ Elizabeth. James. ts “ Crompton on Courts. —————. & Jervis’ Reports. ‘veeson, & Roscoe’s Reports. « Crown Circuit Companion. Curry’s Louisiana Reports. : Cushing's Reports. - Dalton’s Justice. 6 Dallas’ Dane’s Abridgment. + Davis’ Justice. Davison & Merivale’s Reports. . D. Chipman’s Reports. . Fortescue’s Deacon’s Criminal Digest. . Denison’s Crown Cases Reserved. Devereux’s Law Reports. ————._ Reports. Dickinson’s Justice. - Douglas’ Reports. Dowling & Ryland’ s Reports. . Eagle’ 's Magistrate’s Pocket companier East’s Pleas of the Crown, | «mia - English Common Law Reports. Espinasse’ s Reports of Nisi Prius Cases. . Evans’ Pothier. Fitzgibbon’ s Reports. Foster’s Criminal Law. .. Gale & Davison’s Reports. - Gilbert’s Gallison’s Reports. “ Evidence. - Gill & Johnson’s Reports. Greenleaf’s Gresley’s Equity Evidence. Hale. .... apes asies siaie's Hale’s Pleas of the Crown. Halst. ‘ sieievs piaieye ...- Halstead s Reports. Ham. Ohio Rep, a sess weiss Hammond’s Ohio Reports. Hard. Nive Beis ..+. Hardres’ Hardw. .. saveia asad windy Hardwick’s " Harg. St. Tr. .. scores ores ee sie Hargrave’ s State Trials. Harr. Dig. ate ete wees Harrison’s Digest. & John. sae kaise ... Harris & Johnson’s Reports. & McHen. esas ates & McHenry’s “ Hawk P.C. .. sey sage eee Hawkins’ Pleas of the Crown. Flayw. .... . Beis Hay wood’s Reports. Hen. Black.... ae afr, Hen. & Munf. .... ae) gto, «© Hob. reots Holt’s N. P. Ca. a Honse of L. Cas. How. St. Tr. Hulton on Sum. Conv. Humph. se Ing. Abr. Inst, .... ee areuacs . Hobart’s . Henry Blackstone’s Reports. 6 Hening & Munford’s ty Holt’s Nisi Prius Cases. - House of Lords Cases. Howell’ State Trials. - Hulton on Summary Convictions. Humphreys’ Tenn. Reports. - Ingersoll’s Abridgment. teh ea Se a aay John, Cas. Rep. Jur. Keb, atiehe sistas Keilw. .. aia eae Kel. ie Be Kent’s Com. Lamb. Li TS. anes Coke’s Institutes. Jebb & Syme’ 's Reports. Johnson’s Cases. ———_ Reports. London Jurist, . Keble’s Reports, Keilway’s “ : Kelyng’ 's Reports. Kent’s Commentaries, . Lambard’s Justice. Law Journal. ABBREVIATIONS. xV Law J. N.S. sees oe . Law Journal, New Series. Leach. mae Leach’s Crown Law. Ld. Raym. .... eee - Lord Raymond’s Reports. Leon. sees Leonard’s Lev. . sre « Levinz’s Lewin C, i — white Lewin’s Crown Cases. Lutw. ose - Lutwych’s Reports. Man. & Ryl. Mag. Ong sie eae Mann. Dig. ... . aa J.J, Marsh... C. Marsh. Rep. c.P. Mart. or Mart. Lou. Bee Mass. Rep. .. Matt. Dig. od ant o. Maule & Selw. or M. &S. aed Mee. & Wels. .... ro Se Manning & Ryland’s Mauistrate’s Cases. see Manning's Digest. J.J. Marshalls Reports. - C, Marshall’s Reports Common Pleas, Martin’s Louisiana Reports. . Massachusetts Reports. Matthew’s Digest. - Maule & Selwin’s Reports, Meeson & Welsby’s “ Mis. Rep. .... nears ee - Mississippi a Mod. .... wees Riss Modern = Moo. & Mal. aia ee «ee» Moody & Malkin’s =“ & Rob. .... sive aos: & Robinson’s “ Moody’s C. C. ac oe wie ate Crown Cases. Moore & P. avis as anes Moore & Payne’s Reports. N. Hamp. Rep. oud Babs Se Nev. & Per. .... saaie rast Paley on Conv. eats Saat ne ne Palm, .... é Peer Wms. or P? Wms. Peake’s N. P. .... mite kaee - Ev. .. errors is ae savas Penning. R. tees iis ote aes Phil, Ev. ise cae ee mh Phillim. Ecc. R. Pick. Loe oe ee sy Sea Plowd. Com. awe eee ees Poph. sees sees sees Rand. pate Sy5o seas wales Raym. .. wieis aoea Sale Ld. Raym. .... cits Sains aa Raym. Sir T. .... wacis wer Rep. sistas sie Rep. Temp. ‘Hardw. sistas sees Rev, Notes. aie eats ee Rob. Prac. : Sbaees Rogers’ Rec. .... sate eset Roll. or Ro. Hey sais aie Res Ro. Abr. . we siatets Roscoe’s Cr. Ev. ‘or Ros. Cr. Ev. Russ. on Cr... er wide & Myl..... aisle Seals Ry. & Moo. C.C. .... eels ae ———-N.P. Rep. .... Sas Salk. sate Sand& .. ec. cae , Saund. a seam Say. or Say. Rep. Selw. (or Sel.) N.P. 2 eee eae - & Ry. Cr. Ca, se sacs eva . New-Hampshire Ke Neville & Perrys’ “ Paley on Convictions. , Palmer’s Reports. - Peer Williams’ Reports. Peake’s Nisi Prius. Evidence. Pennington’s Reports, é Phillipps’ Evidence, Phillimore’s Ecclesiastical Reports. Pickering’s Reports. Plowden’s Commentaries. . Popham’s Reports. Adolphus & Ellis’ Reports, New Series. Randolph’s Reports. Raymond. - Lord Raymond’s Reports. Sir Thomas Raymond’s Reports. - Coke’s Beports. Reports in time of Hardwick. Revised Statutes. Revisers’ Notes. . Robinson’s Practice. Rogers’ Recorder. - Rolle’s Reports. Abridgement. “4s . Roscoe’s Criminal Evidence. Russell on Crimes. & Ryan’s Crown Cases. & Myine’ s Reports. . Ryan & Moody’ s Crown Cases & Moody’s Nisi Prius Reports. Salkeld’s Reports. Sandford’s Reports Superior Court. . Saunders’ “ Sayer’s ee Selwyn’s Nisi Prius. Serg. a Ser.) & Rawls, Sergeant & Rawle’s Reports. Sess, Salers Sas 24 ea .... Session Cases. Show. .. sas aeiye ae Shower’s Reports. Sid. . ) 1 Russ. on Cr. 486, oHapP, I1.] OF FELONIES. 51 of alleviation to the satisfaction of the court and jury, unless they arise out of the evidence produced against him; as the presumption of law is, that all homicides are malicious, until the contrary is proved.(w) As the indulgence which is shown by the law in some cases to the first transport of passion is a condescension to the frailty of the haman frame, to the brief madness which, while the frenzy lasts, renders a man deaf to the voice of reason; so the provocation which is allowed to extenuate in the case of homicide, must be something which a man is conscious of, which he feels and resents at the instant the homicide is committed.(¢) All the circumstances of the case ust lead to the con- clusion that the act done, though intentional of death or great bodily harm, was not the result of a cool, deliberate judgment and previous malignity of heart, but solely imputable to human infirmity.(y) For there are many trivial, and some considerable provocations, which are not permiited to extenuate an act of homicide, or rebut the conclusion of malice, to which the other circumstances-ef the case may lead. The most grievous words of provocation, contemptuous and insulting actions or gestures, or trespasses against lands or goods, will not free the party killing from the guilt of murder, if upon such provocation a deadly Weapon was made use of, or an intention to kill, or do some great bodily harm was otherwise manifested.(z) But if no such weapon be used, or intention manifested, and the party so provoked give the other a box on the ear, or strike him with a stick or other weapon not likely to kill, and kill him unluckily and against his intention, it will be excusable homi- cide.(a) It is, indeed, said to have been held in one case, that words of menace of bodily harm, are a sufficient provocation ;(b) but it has been considered that such words ought at least to be accompanied by some act denoting an immediate intention of following them up by an actual assault.(c) Where an assault is made with violence, or circumstances of indignity upon a man’s person, as by pulling him by the nose, and the party so as-_ saulted kills the aggressor, it will be excusable homicide, in case it ap- pears that the assault was resented immediately, and the aggressor killed in the heat of blood—the brief madness occasioned by the provocation.(d) The statute, it will be recollected, requires the provocation not only to be sufficient, but sudden. This word was doubtless used to exclude the idea of malice. If there has been time for passion to subside, and for reason to interpose, the homicide will be murder.(e) But it seems that it is not every trivial provocation which in point of law amounts to an (w) 1 Russ. on Cr. 422. (0) 1 Hale, 455. (x) Fost. 315. 1 Russ. 483. (c) 1 East, 233, (y) 1 East’s P. C. 282. (d) Kel. 185. 4 Black. Com, 191. 1 (2) 1 Russ. on Cr. 434, East, 233, § 20. (a) Fost. 291. 1 East, 283. (2 Fost. 296. Roscoe’s Or, Ev. 557. 62 OF FELONIES. [Boox 1. assault that will excuse the party in killing the aggressor. Even a blow will not be considered as sufficient provocation to extenuate in cases where the revenge is disproportioned to the injury, and outrageous and barbarous in its nature.(f) Where a man has been improperly restrained of his liberty, the provocation has been considered sufficient to excuse. So where a man finds another in the act of adultery with his wife, and kills him in the first transport of passion, he is excusable.(¢) In conclusion of this branch of the present subdivision, it should be observed that the plea of provocation will not avail where there is evi- dence of express malice. In such cases not even previous blows or struggling will excuse homicide.(h) Death in the course of a sudden combat, though in some cases it amounted to murder, at common law, was generally considered as amounting to manslaughter only; there being most frequently an ab- sence of that malice requisite to a conviction for murder, and a sufficient degree of provocation to show such absence(i) If therefore, upon a sudden quarrel, the parties fight upon the spot, or if they presently fetch their weapons and go into a field and fight, and one of them is killed, it will not be murder, because it may be presumed the blood never cooled.(/) But at common law, as well as under the section of the statute we are now considering, in order to save the party killing from the crime of murder, it is necessary that the combat should be sudder,(Z) without any undue advantage being taken,(m) without any dangerous weapon being used,(i) and not done in a eruel or unusual manner.(o) And it matters not who gave the first blow, if the quarrel was sudden and the combat equal.( p) The lapse of time between the origin and the quarrel is, in these cases, worth an inquiry; as it may tend to prove malice.(g) But it is not in every case where there has been an old grudge that malice will be presumed. Thus, where two persons who have previously fought on malice, are afterwards, to all appearance, reconciled, and fight again, on a fresh quarrel, it shall not be presumed that they were moved by the old grudge, unless it shall appear by the whole circumstances of the case.(7) If the combat be equal at the onset, the use of a deadly weapon afterwards, it is said, will not make the offense murder, provided it was not used in pursuance of a previous intention.(s) Itis, perhaps, doubtful (f) 1 Russ. on Cr, 487. n) 1 Russ. on Cr. 447. Roscoe’s Cr. g) Sty. 467. 1 Russ. on Cr, 487. ne bs, aor (A) 1 Russ. on Cr. 440. (0) Lewin’s C. C. 171. (i) Roscoe’s Cr. Ey. 558. (p) 1 Russ. 496. (k) 1 Russ. 495. (g) 5 Car. & P. 824. (2) 1 East’s P. C. 241. 1 Hale, 456. (r) 1 Russ. on Cr. 496. 1 Hawk. P. Fost. 295. C. c. 81, 8. 80. (m) Fost. 295. 1 East, 242. Lewin’s (s) 1 Russ. 497, 446. ©. O. 178. oHAP. 11] . OF FELONIES. 53 however, whether this rule would apply under the positive provision of our statute, “ without any dangerous weapon being used.” The case of deliberate duelling, is an exception to the general rule, that a killing in the course of a mutual combat is excusable homicide only.(¢) Formerly, in cases of justifiable or excusable homicide, it was the practice for the jury to find the facts specially and upon certifying the record into chancery, a pardon issued of course, in England, and in this state the prisoner was acquitted and discharged.(m) But by the revised statutes, it is provided that in cases of justifiable or excusable homicide, the jury shall render a general verdict of not guilty.(v) Indictment.| In an indictment for homicide, the means by which death was effected must be stated. A mere statement that the defendant killed, &c. will not suffice ;(w) unless the whole tenor of the charge furnish an intelligible description of the manner of committing the offense.(x) The kind of death must not be essentially different from that alledged. Thus, on a charge of murder by stabbing, if it prove to be by drowning or poisoning, the prisoner must be acquitted.(y) But an indictment for murder by one description of poison, will be supported by proof of murder by another description of poison.(z) When the cause of death is knocking a person down with the fist, upon any substance, the charge should be accordingly ; and not that the prisoner with a stone that he held in his hand gave and struck, &c.(a) If the act of the prisoner and the means of death be proved in substance as alledged, the violence and death being of the same kind as alledged, a mere variance in the name or kind of instrument used will not be material ;(b) if the instrument was capable of producing the same kind of death.(c) So, under an indictment for murder, containing a count charging the crime to have been committed by striking and cutting the deceased with a hatchet, and another count charging it to have been committed by striking and cutting him with an instrument to the jurors &c. unknown, it is competent for the public prosecutor to prove that the killing was by the discharge of a pistol.(d) Where the death blow is from some instrument, it seems necessary to state that the defendant held it in his right or left hand, or in both hands(e) The value of the instrument is immaterial.(f ) Where the death is occasioned by actual violence, the term “ struck” (t) Fost. 297. (2) 3 Camp. 75. 1 East’s P. C. 841. (u) Roscoe’s Cr. Ev. 464. 1R.Loof (a) Ry. & Moo. C. C. 118. 1813, p. 68, § 5. (b) Bulst. 87. (o) 2B. S. 661, § 8. (c) 9 Co. 67, a. Gilb. Ev. 281. (w) 2 Hawk. ch. 23, s. 84. (ad) The People v. Colt, 3 Hill 432. (2) 18 Price, 172. (e) 2 Hale, 185. (y) 2 Hale, 185. (f) Id. ib. 54 OF FELONIES. [Book 1. should always be inserted.(g) And the striking must be proved. The word “feloniously ” and the words “with malice aforethought,” must be inserted.(z) If either of them are omitted, the defendant can only be convicted of manslaughter.(¢) An indictment for murder, found since the passage of the revised statutes, may be in the common law form, charging the offense to have been committed “ feloniously, wilfully, and of malice aforethought,” instead of charging it to have been from a “ premeditated design,” (in the words of the slatute,) to effect the death of the person killed. But the accused can not be convicted on such an indictment of a felonious homicide with malice aforethought; unless the evidence be such as to bring the case within the statutory definition of murder.{/) In the conclusion, that so the prisoner the deceased did kill and murder, the last word must not be omitted.(/) The words “feloniously and of malice aforethought,” need not be repeated to every allegation. If after alledging the assault to have been so made, the indictment proceed to state that the defendant then and there struck, &c. it will be good without repeating them, because the acts are sufficiently-connected.(m) Where it was alledged that the prisoner did willfully, feloniously, and of his mal- ice aforethought, mix poison with other ingredients, in order that they might be eaten by the deceased, it was held unnecessary to add_ these words to the delivering of the poison.(7) Where the death is by a wound, it should be stated to have been mor- tal.(o) ‘The indictment must state a wound sufficient to cause death; for this reason, unless a sufficiency otherwise appear, its length, depth and breadth must be stated ;() but it is unnecessary where the indictment states the deceased to have been shot with a bullet, or run through the body with a sword ;(g) or to have had a limb cut off, or where the wound is contused merely ; nor is it even necessary to prove the wound as laid (r) Where the death was by a wound or stroke, the indictment must show with certainty to what part of the body the violence was ap- plied. Therefore, merely stating the wound to be near or about the breast, would be defective ;(s) or if on the arm, hand, or side, without saying whether the right or left, it is bad.(¢) Where an infant died in consequence of violence by a rape, the indictment was holden bad for (g) Cro. Jac, 635. Bulst. 184. 2 Hawk. (0) 1Leach, 96. Kel. 125. 2 Hale, 186. 8, ch. 2s. 82. (p) Ry. & Moo. C. C. 97, (A) 8 Hale, 187. (g) 5 Co. 121. 2 Hawk. ch. 23, s. 81. (4) 1 East’s P. 0. 845. But see 1 Ld. Raym. 145. Ry. & Moo. (k) 138 Wend. 159. C. 0.5. (1) Dyer, 261, a. (7) 2 Hale, 186. (m) Matt. Dig. 253. (s) 4 Co. 406. 1 East’s P. O. 842. (n) 1 East’s P. O, 846. (t) 2 Hale’s P. O. 185, OHAP. II] OF FELONIES. 55 not stating that a mortal wound was given.(w) It must be stated that the deceased died of the injury received.(v) The ¢ime, both of thestroke and of the death, should be stated, that the death may appear to have taken place within a year and a day af- ter the mortal injury.(w) And this must be proved, or the law will pre- sume some other cause of death.(x) Where the mortal wound is given in one county and the death hap- pens in another, the indictment may be found in the latter county; and the same proceedings are to be had thereon in all respects as if the wound was given in the county where the death took place.(y) Evidence.| It will be seen from what has been already stated, what under different circumstances, will be necessary to support the allegations of the indictment, and what allegations are necessary to be proved. The death of the person charged to have been killed may be collected from the circumstances, if incapable of being proved by other evidence. As where the deceased was thrown overboard into the sea, and was never heard of afterwards.(a) A count which charges exposure as the cause of death is not supported by proof of acceleration only.(6) Where a charge of murder depends upon circumstantial evidence, it ought not only to be consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.(c) The dying declarations of the deceased arereceivable in evidence if the court be satisfied that he was conscious of being in a dying state at the time he made them ;(d) and was sensible of his awful situation ;(e) even though he did not actually express any apprehension of danger;(f) and his death did not ensue until a considerable time (in this case eleven days) after the declaration was made.(g¢) But these declarations are ad- missible only when made after all hope of recovery is lost, and under an impression of almost immediate dissolution ;(A) and where the death of the deceased is the subject of the charge and the causes of the death are the subject of the declaration.(7) It is not enough that the deceased should have thought that he should ultimately never recover.(/:}) They are restricted to the trial for the identical homicide which occasioned the death of the person who made the declarations.(2) Therefore, upon an indictment for perjury, a dying declaration is not (u) 1 Leach, 96. Car. & P. 629. 1 Phil. Ev. 284. 1 (v) 1 Roll. Rep. 187. Russ. & Ry. C. Cow. & Hills Notes, 8d ed. 251 to 254. C. 345. (e) 3 Car. & P. 589. (w) 2 Hale, 179. Oro. Eliz. 7389. 2 (f) 1 East’s P. C. 858. 2 Leach, 561. Tust. 318. (g) Ry. & Moo. C. CO. 97. () 1 Hawk. P. ©. ch. 23. 90. (A) 1 Cow. & Hill’s Notes, p. 255. 8 (y) 2B. 8. 727 § 47, Car. & P. 629. (a) 2 Leach’s OC. C. 569. (4) 2 Barn. & Cress. 608. (6) 2 Lewin’s O. ©. 220. (k) 3 Car. & Payne, 629, (c) Hodge’s case, Id. 227. (2) 1 Cow. & Hill’s Notes, 255. (@) Matt. Dig. 254. 1Leach, 502, 3 56 OF FELONIES. [Boox 1. admissible to disprove a fact upon which the perjury is assigned.(s) So, upon an indictment for administering savine to a woman not quick with child, her dying declarations are not admissible, even though they relate to the cause of her death; for her death was not the subject of the charge;(”) nor ona trial for a robbery, though the party robbed died of the violence exerted against him in its commission.(o) And though, what the murdered person says in articulo mortis, as to facts, is admissible, what he says as matter of opinion is not.p) Nor is the dying declaration of a criminal, at the scaffold; for after his blood is corrupted, his oath would not be received in a court of justice.(q) The person making the declaration is to be treated, not only in respect to competency, but credibility, the same as a witness proposed to be sworn upon the stand;(r) and to render such declarations adimissible, they should come from a witness who would be competent if on the stand. Thus, where the declarations weré made by a child only four years old, to her mother, they were held inadmissible, because so young a person could not have had that idea of a future state which would render her compe- tent.(s) On the other hand, upon the principle that the wife may testify in respect to violence by her husband, committed against her person, if homicide be imputed as the result of such violence, her dying declara- tions are receivable.(¢) It is not a ground for excluding dying declara- tions that they were made in answer to leading questions.(2) Whether or not dying declarations were made under an apprehension of danger, must be determined by the judge, in order to receive or reject the evidence, and not by the jury after the evidence is received.(v) The apprehension of danger may appear either from the express declaration of the deceased, at the time, or may be inferred from the state of the wound, or illness, or other circumstances indicating the same.(w) It is not necessary to prove expressions of the deceased, that he was in apprehension of alinost immediate death, but the judge will consider, from all the circumstances, whether the deceased had or had not any hope of recovery ;(x) and whether the conduct of the deceased was that of a dying person, such as whether he gave directions respecting his funeral, his will, &c. and not merely the expressions he used, as to whether he thought he should or should not recover.(y) Nothing will be (m) 2 Barn. & Cress, 608. 4 Dow. & — (s) Id. 256. Rexv. Pike, 3 Car. & P. Ry. 120. 598. (n) Id. ib, note. 1 Cow. & Hill’s (¢) Id. ib. Notes, 255. (wv) 1 Phil. Ev. 290, 8 Leigh, 786. (0) 4 Car. & P. 283 1Phil. Ev.282. — (v) 1 East’s P. ©. 857. Id) 858, 1 (p) Car, 0. L, 283. Matt. Dig. 254. Stark. 523. 1 Leach, 503,n. 8 Car & 1 Phil. Ev. 291. 1 Cow. & Hill’s Notes, P. 629. 251. (0) Id. ib. (q) Matt. Dig. 254. (x) 6 Car. & P. 386, (r) 1 Cow. & Hill’s Notes, 254. (y) 7 Id. 187. OHAP, m] OF FELONIES. 57 evidence in a dying declaration which would not be so if the party were’ examined.(z) The dying declaration of an accomplice is also evidence ;(a) provided he were at the time such a person as would be a competent witness.(b) But it seems that the dying declaration of an accomplice can be received only when the defendant is charged with assisting the deceased to destroy himself.(c) Where two such declarations were made, and the second only was reduced into writing, in the presence of a magistrate, this written declaration not being forthcoming at the trial, the judges held, that in the absence of it the first declaration was admissible in evidence.(d) The dying declarations of the deceased person, in favor of a prisoner charged with his death, seem to be as admissible for him, as they would be against him, if unfavorable.(e) Under an indictment for murder, the prisoner may be convicted of manslaughter.( f ) Manslaughter will be noticed in another place. 3. ARSON. Arson, at common law, is defined to be the willful and malicious burning of the dwelling house or out house of another man.(¢) By the revised statutes, the crime of arson is divided into four degrees ; the first of which, only, being a capital offense, will be considered in this connection. Arson in the first degree is declared by the revised statutes to consist in willfully setting fire to, or burning in the night time, a dwelling house in which there shall be, at the time, some buman being. And every house, prison, jail, or other edifice, which shall have been usually occu- pied by persons lodging therein at night, is to be deemed a dwelling house of any person so lodging therein.(z) But no warehouse, barn, shed, or other outhouse, shall be deemed a dwelling house within the meaning of the last section, unless the same be joined to, immediately connected with, and part of a dwelling house.(2) Arson is a crime of very great malignity, not only as against the right of habitation, but as being, in the first degree especially, imminently dangerous to human life. To constitute this crime, in the first degree, there must be, 1. A set- (2) Rex v. Sellers, Car. Cr. L. 233. (e) 1 Phil. Ev. 288. 1Moo. & Rob, 551. (@) 1 East’s P. C. 854, 6. (jf) The People v. Jackson, 8 Hill, 92. Bs Id. 853. 1 Leach, 378. (g) 4 Black. Com. 220. ce) Arch. Cr. Pl. 115. (h) 2B. 8. 657, § 9. (d) 1 Str. 499. (2) Id. ib. § 10. 8 58 OF FELONIES. [Booz L a ting fire to, or burning ; 2. It must be willful, and dictated by malice ; 3. The place set fire to or consumed must be the dwelling house of an- other person, in which there shall be, at the time, some human being ; and 4. The selting fire to or burning must be in the night time. Ist. There must be an actual setting fire to, or burning. But it is not necessary that the entire building should be set on fire, or that any part of it should be entirely consumed ; for if once a part of it is on fire, though it should go out without any effort to extinguish it, the crime will be complete.(/) 2d. It must be willful and malicious. The accidental burning, therefore, of a dwelling house, though it occur in doing an unlawful act, is not arson in the first degree.(?) But if a man intending to commit a felony, by accident sets fire to another man’s house, this, as it seems, is arson at common law.(m) But malice, in this case, does not merely im- ply a design to injure the party who is ultimately the sufferer, but an evil and mischievous intention, however general. For if a man has a design to burn one house, and by accident the flames destroy another, in which there shall be, at the time, some human being, he will be guilty of a malicious burning of the latter.(z) In general, if the act be proved to have been done willfully, it may be inferred that it was done maliciously, unless the contrary be proved.(o) 3d. The place set fire to or consumed must be the dwelling house of another person, in which there shall be, at the time, some human being. “House of another person.” These words refer, not only to the entire interest and legal title, but to the possession. The lawful possession con- fers a property, while it exists. The offense may be committed by a landlord’s willfully setting fire to his own house, of which another is in possession under a lease from himself or from those whose estate he hath; for during the lease the house is the property of the tenant.(p) It has been decided in this state, that under the section of the revised statutes above referred to, the indictment must describe the house or building set fire to or burned, as the house or building of the person in possession. And it was accordingly held, that where the building burned was alledged in the indictment to be the building of the owner, and the proof was that at the time of the committing of the offense it was in the possession of a tenant, the accused could not be convicted.(g) In this case Chief Justice Savage observes, in relation to the section of the revised statutes defining arson in the first degree: “It seems to have been intended to obviate all difficulty as to laying the ownership in the (zk) 3 Inst. 66. 2 Chit. Or. L. 1104. (0) Russ. & Ry. ©. C. 207. (2) 1 Hale, 569. 4 Black. Com, 222, (p) 4 Black. Com. 222. Fost. 115. (m) Foster, 258. (7) 15 Wend. 159. See also 2 John (n) 1 Hale, 569, Rep. 105 onar. m.] OF FELONIES. 59 indictment, and of proving the title on the trial. It may be laid as the dwelling house of any person usually lodging therein at night. The statute does not say, in terms, that the house, the burning of which in the night time constitutes arson in the first degree, shall be the bouse of another ; but such must necessarily be the construction. In defining arson in the third degree, the language is this: ‘Every person who shall willfully set fire to, or burn, in the night time, the house of another, &c. (2 R. S. 667, § 4.) The legislature did not intend to require greater particularity in the third degree than in the first and second. According to the literal construction of the section defining the offense of arson in the first degree, a man might be punished with death for burning his own house, in his own possession. I apprehend such was not the intention of the legislature, but that the common law may be called in aid of the definition of the offense, particularly when taken in connection with the section above referred to, defining arson in the third degree. If this qualification should be annexed to the offense of arson in the first degree, it must be equally applicable to the same offense in the second degree.(7) The revised statutes have made an important change in the law re- specting this crime, by making it necessary, in order to the commission of arson in the first degree, that there should be in the house, at the time of the setting fire to or burning it, some human being. At common law it was immaterial whether there was any person in the house at the time, or not. Z 4th. The setting fire to or burning must be in the night time. If there be day light enough begun in the morning or left in the evening, so as that the features of a man’s face may be thereby discerned, the crime is not complete. But this does not extend to moonlight; for the malig- nity of the offense does not so much arise from its being done in the dark, as at the dead of the night; “ when all the creation except beasts of prey are at rest, and when sleep has disarmed the owner, and rendered his castle defenseless.”(s) If the evidence is not sufficient to warrant a conviction for having committed this crime, the prisoner may be convicted of an attempt to commit it, if it be proved that he has done any act towards the perpetra- tion thereof.(¢) In an indictment under this section of the statute, for attempting to commit arson, the particular manner in which the attempt was made is immaterial, and need not be alledged. Thus, where it was shown, upon the trial of such an indictment, that the prisoner solicited one K. to set (r) Idem, 162. (0) 2 B.S. 698, § 3. (s) 4 Black. Com. 224, 8 Inst. 63. 1 ‘ Hale, 547. 1 Hawk. ch, 38. 60 OF FELONIES. [Boox. 1 fire to a barn, and gave him materials for the purpose, it was held suffi- cient to warrant a conviction, although the prisoner did not mean to be present at the commission of the offense, and K. never intended to com- mit it.(z) : Indictment.] It is sufficient if the indictment describe the building in the language of the act on which the indictment is founded.(v} “House” merely, without saying “dwelling house,” will suffice.(w) It is no vari- ance to call a building within the curtilage, an “outhouse” in general terins.(v) But if the indictment describes the tenement as being situated in the sixth ward of a city, and the evidence shows it to have been in the fifth, this will be a fatal variance.(y) The name of the owner must be stated, as in burglary.(z) We have before observed, that an indictment under our statute must describe the building set fire to as the building ofthe person in possession.(a) If the indictment state the possession to be in A., proof that the house is in the possession of his tenants will support it.(b) If one intending to burn A.’s house happen to burn B.’s, he may be indicted as having maliciously burned B.’s house.(e) In laying the intent, the word “thereby” must not be omitted.(d) It is not necessary to aver that the property was burnt, but only that it was “set fire to.”(e) The day need not be proved as laid, and proof that the crime was committed in the night is no va- riance.(f) Eividence.| Prove the kind of property “set fire to” to be the same as stated in the indictment, and that it was set fire to by the defendant. The intent must also be proved. The act of the defendant, and the guilty intent, must in general be proved by circumstantial evidence.(s) Where a house was robbed and burnt, evidence that the stolen goods were found in the possession of the defendant was admitted against him on a charge for arson.(2) An indictment under our revised statutes must aver that at the time the house was set fire to there was in it some hu- man being; and this averment must. be proved. (u) The People v. Bush, 4 Hill, 133. (0) Ry. & Moo. ©. ©. 80. (v) 2 East’s P. C. 1083. (c) 1 Hawk. ch. 18, § 18. (0) 1 all, 567. (d) 1 Chit. Burn, 542, (%) Matt. Dig. Cr. L. 55. (e) Matt. Dig. 56. (y) 2 East’s P. C. 1084. (7) 2 East’s P. C. 1021. (z) The People v. Slater, 5 Hill, 401. (g) Matt. Dig. 56, (a) See ante, p. 58. (A) 2 East, 1088, OHAP, U1] OF FELONIES, 61 CHAPTER III. Ofienses against the Person, punishable by Imprisonment in a State Prison. The offenses under this head specified by the revised statutes are the following: . MansLauGHrTer. Rape. . ABDUCTION OF FEMALES. . Mayuem. . KIDNAPPING; AND SELLING PERSONS KIDNAPPED. . CHILD STEALING. ABANDONING CHILDREN. . ASSAULTS WITH DEADLY WEAPONS. . ADMINISTEING POISON. . PoIsONING FOOD, SPRINGS, &0. . ASSAULTS WITH INTENT TO COMMIT FELONIES.(a@) HOOONT AoA ROD a 1. MansLauGHTER. Manslaughter is distinguished from murder in this, that it arises from the sudden heat of the passions; murder, from the wickedness of the heart. Manslaughter is thus defined by the ancient writers: The un- lawful killing of another without malice, either express or implied, which may be voluntary upon a sudden heat, or involuntary, but in the com- mission of some unlawful act. And hence it follows, that in manslaugh- ter there can be no accessaries before the fact, because it must be done without premeditation.(d) The revised statutes divide this crime into four degrees, as follows: Manslaughter in the first degree is the killing of a human being, with- out a design to effect death, by the act, procurement, or culpable negli- gence of any other, while such other is engaged 1. In the perpetration of any crime or misdemeanor not amounting to felony ; or 2. In an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at common law; 3. Deliberately assisting another to commit suicide. 4. Willfully killing an unborn quick child, by any in- (a) 2R. 8. 661, et seq. Id. 3ded.750. (0) 1 Hale’s P. OC. 466. 4 Black. Com. 190, 191. 62 OF FELONIES. [Boox 1. jury to the mother, which would be murder if it resulted in the death of the mother.(e) Manslaughter in the second degree is: 1. The administering to any woman pregnant with a quick child, or prescribing for any such woman, or advising or procuring her to take any medicine, drug or substance, or using or employing any instrument or other means, with intent thereby to destroy such child, unless the same was necessary to preserve the life of the mother; in case the death of such child, or of the mother, be thereby produced.(d) 2. The killing of a human being without a design to effect death, in a heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusa- ble or justifiable homicide. 3. The unnecessary killing of another, while resisting an attempt by such other to commit any felony or to do any other unlawful act, or after such attempt shall have failed.(e) Manslaughter in the third degree, is: 1. The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon; except in cases where the statute(f/) has made such killing justifiable or excusable. 2. The involuntary killing of a human being, by the act, procurement, or culpable negligence of another, while such other person is committing or attempting to commit any trespass or other injury to private rights or property. 3. Where the owner of a mischievous ani- mal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care ; and the animal, while so at large or unconfined, kills any one who has taken all the precaution that circumstances may permit, to avoid the animal. 4. Where any one navigating any boat or vessel for gain, willfully or negligently receives so many passengers, or so much lading, as to sink or overset the vessel, and thereby any one is drowned or otherwise killed. 5. Where any one having charge of a steamboat for passengers, or having charge of its boiler or other appara- tus for the generation of steam, from ignorance or gross neglect, or to excel in speed any other boat, allows to be created such an undue quan- tity of steam as to burst or break the boiler, or other such apparatus, or any machinery connected with it, and any one is killed by such bursting or breaking. 6. Where a physician, while intoxicated, does any act that causes the death of his patient, without intending to cause death.(g) Manslaughter in the fourth degree is: 1. The involuntary killing of another by any weapon, or by means neither cruel nor unusual, in the heat of passion in cases not declared by statute to be excusable homicide. 2. Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not declared to be (c) 2B. 8. 661, §§ 6, 7, 8. (c) 2B. S. 661, §§ 10, 11. en (d) Laws of 1846, ch. 22,§1. 2B.S. (/) Id. 260, 889, 8, 4 1 8d ed. 750, § 9. (g) Id. 261.’ §§ 13 to 17, cwaP. m1] OF FELONIES. 63 justifiable or excusable homicide, or murder, or manslaughter in a higher degree.(h) In our observations upon this crime it will be more convenient and tend to prevent confusion, if we follow the general classification or arrangement adopted by the revisers; and take up each degree of manslaughter, and the several secondary divisions thereof, separately, in the order above laid down. And Ist. Of manslaughter in the First degree when committed by the act, procurement, or culpable negligence of a person perpetrating or altempting to perpetrate any crime or misdemeanor not amounting to a felony, in cases where such killing would be murder at common law.] At the common law the unintentional killing of a person by an offender who was engaged in an unlawful act, even if it was only a riot or other offense which was but a mere misdemeanor and not a felony, was held to be murder. The revised statutes, as we have seen,(7) have altered this rule, by requiring that the offense which the slayer was engaged in committing or attempting to commit should be of the degree of felony, in order to make such killing amount to murder. The principal object of these provisions of the revised statutes was to restore the common law of murder, as it anciently existed, by discriminating between a felo- nious killing with malice aforethought, and a felonious killing without such malice, and thus restrict certain cases to the grade of manslaughter which were previously held to be murder. All homicides, therefore, committed in perpetrating or attempting to perpetrate any crime not amounting to a felony, are now placed in the class of homicides, com- mitted without malice aforethought, or manslaughter; except where the killing is perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life; which circum- stances now, as at the common law, are sufficient to authorize the jury to find the prisoner guilty of killing with malice aforethought.(£) Manslaughter in the-virst degree, by assisting another to commit suicide.]| At common law this offense was murder.(/) The object of the legislature in altering the character of the offense, was to make the punishment more appropriate to the relative guilt of the offense and the humane spirit of our criminal code, and to increase the probability of the crime being punished. Manslaughter in the First degree by willfully killing an unborn quick child, by an injury to the mother which would be murder if it resulted in the death of the mother.| At common law, previous to the revis- (h) 2 B.S. 662, §§ 18, 19. (2) Dyson’s case, Russ. & Ry. Cr. Ca. (i) Ante, p. 29. 523. (k) People v. Enoch, 13 Wend. 159. 2B. 8. 657, § 5, sub. 2. 64 OF FELONIES. [Boox 1. ed statutes, the killing of an unborn quick child, by striking the mother, was only a misdemeanor.(m) The words “unborn quick child” are to be construed according to the common understanding; in which they signify a child that the mother has felt move within her.(v) Manslaughter in the first degree is punishable by. imprisonment in a state prison not less than seven years. Manslaughter in the seconp degree, when committed 1. By admin- istering to any woman pregnant with a quick child, or prescribing for any such woman, or advising or procuring her to take any medicine, drug, or substance, or using or employing any instrument or other means, with intent thereby to destroy such child, where the same was not necessary to preserve the life of the mother, in case the death of such child, or of the mother, be thereby produced.| At common law a child not born is considered as not in being, and therefore not the subject of murder; so that the killing of such a child was neither murder nor manslaughter previous to the statute.(0) By arecent statute in England it is declared a felony.(p) It is to be observed that our statute makes the killing of the mother, as well as of the child, manslaughter, although there was nointent to kill the mother, but enly “to destroy the child.” This is, by the operation of the rule respecting homicides committed in the prosecution of a felonious purpose. By the act of 1845 to prevent the procurement of abortion, the administering or prescribing to, or for, a pregnant woman, or advising or procuring her to take any medicine é&c. or using or employing any instruments or other means, with intent thereby to procure her miscarriage, is declared a misdemeanor, punisha- ble by imprisonment in a county jail.(q) ‘This embraces cases where the child or fetus is not quick. It has been decided that under an indictment for producing an abortion of a quick child, the prisoner may be convicted, though it turns out that the child was not quick, and the offense was therefore a mere misdemeanor.(r) In another case, where the indictment charged all the facts necessary to constitute the crime of manslaughter, except the intent with which the acts were done, and in its conclusion it characterized the crime as manslaughter; but the only intent charged was an intent to produce a miscarriage, it was held that the indictment was fatally defective for the felony, but good for the mis- demeanor, and that the accused was properly convicted of the latter offense.(s) A conviction for a misdemeanor, under such an indictment, would, it seems, be a bar to a subsequent indictment for the felony.(¢) Manslaughter in the seconp degree by, 2. The killing of a human (m) 1 Russ. on Or, 424, 1 Hale, 433, (r) People v. Jackson, 8 Hill, 92. (n) Idem, 558, s) Lohman v. The People, 1 Comst. (0) 1 Russ. on Or. 424. ar Peay (~) 48 Geo. 3, ch. 58. (2) Ibid. (Q 2B. 8S. 8d ed. 779, § 20. ORAP. I1.] OF FELONIES. 65 being without a design to effect death, in a heat of passion, but in a cruel and unusual manner, where it is not committed under such circum- stances as to constitute excusable or justifiable homicide.| With respect to homicides of this kind the revisers remark, in thet notes to this section, that they present greater difficulty than any others. The weapon used or the manner of killing may indicate a barbarous and ferocious mind, but yet not that design to kill which should mark every case of murder. Courts and juries have fluctuated in classing it as mur- der or manslaughter ; on the one hand unwilling to suffer such an offen- der to escape with the slight punishment inflicted at the common law on manslaughter, and on the other, reluctant to subject him to the punish- ment of death. As the punishment of this grade of the offense is, by the statute, to some extent discretionary, it affords a medium between the two extremes. By confining it to cases where the killing is not declared excusable, the important feature of its being done without sufficient legal provocation, is preserved. Such a killing as defined in this section, but with a dangerous weapon, being a still lower grade, is declared, man- slaughter in the third degree; and if committed with a weapon not dan- gerous, it is within the fourth degree. Manslaughter in the seconp degree, by—3. The unnecessary kill- ing of another, while resisting an attempt by such other to commit any felony, or to de any other unlawful act, or after such attempt shall have failed.| The distinction between this offense and justifiable homicide is, that in the latter case it is necessary, and in the former unnecessary. As the unnecessary killing of another person, even though he is attempt- ing to do some unlawful act, and more especially if the killing takes place after the attempt has failed, certainly involves some guilt, it is but reasonable that punishment of some kind should be provided for it. AL- though an involuntary act, the killing in such a case is still an offense. And at common law, if the killing was voluntary, in such cases, or done with premeditated design, it would be murder.(z) Manslaughter in the second degree is punishable by imprisonment in a state prison not less.than four nor more than seven years.(v) 3d. Manslaughter in the tu1rp degree, by—1. The killing of an- other in the heat of passion, without a design to effect death, by a dan- gerous weapon, in any case, except where the statute has made such killing justifiable or excusable.| Although the law, out of tenderness to the frailty of human nature, prescribes only a mitigated punishment, for offenses committed in the heat of passion, and without previous malice, yet it will not allow the use of dangerous weapons in every case in which a man’s passions become excited.. The statute, by excepting cases of (w) 1 East’s P. O. ch. 5, $48, 1 Russ. (v) 2 R. 8. 663, § 21. on Or. 458, P 66 OF FELONIES. [poox 1. excusable and justifiable homicide, has retained the important feature of the killing being done without sufficient legal provocation. Manslaughter in the ruirp degree, by—2. The involuntary killing of a human being, by the act, procurement, or culpable negligence of an- other, while such other person is committing or attempting to commit any trespass of other injury to private rights or property.) Under another section of the revised statutes, this would amount to murder, if committed in the perpetration of a-felony : if, in doing any other criminal act, to manslaughter in the first degree. At common law, the killing of another by a person committing a trespass is manslaughter.(w) And if a man be doing an unlawful act, though not intending bodily harm to any one; as, if he be throwing stones at another’s horse, and hit a per- son and kill him, it is manslaughter.(7) So if a person, in sport, throw stones down a coal-pit, whereby a man is killed, it is manslaughter. It is not necessary in order to render. the homicide manslaughter, that the act in the performance of which death is caused, should be a felony, or even a misdemeanor. It is enough if it be an act contrary to law.(y) Manslaughter in the to1rp degree: 3. Where the owner of a mis- chievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care ; and the animal, while so at large or not confined, kills any one who has taken all the precautions that circumstances permit, to avoid the animal.| ‘The rule at common law, previous to the revised statutes, was, that if a man has a beast that is used to do mischief, and he knowing it, suffers it to go abroad, and it kills a man, it is manslaughter in the owner.(z) And if a man purposely turn such an animal loose, knowing its nature, though barely to frighten people and make what is called sport, if death ensues, it is as much mur- der as if he had incited a dog or bear to worry the party.(@) The mere suffering of a fierce and dangerous animal, as a fierce bull dog, which is used to bite people, to go at large, is an indictable offense, at common law, even though no injury ensues.(6) Manslaughter in the THirp degree: 4. Where any one navigating any boat or vessel for gain, willfully or negligently receives so many passengers, or so much lading as to sink or overset the vessel, and there- by any one is drowned or otherwise killed.| 'Vhis is a species of crimi- nal negligence, which was not properly provided for in this state previous to the adoption of the revised statutes. The above provision is similar to that contained in the English statute, 10 Geo. 2, ch. 31, § 8.(c) (w) 4 Black. Com. 192. Fost. 258. (z) 4 Black. Com. 167. Palmer, 545. Lewin’s O. 0. 179. 1 Hale’s P. CO, 481. (w) 1 Hale, 39. (a) Id. ib. (y) Fenton’s case, Lew. C. C. 179. (0) Burn’s Just. 578. (c) See East's P. O. 264. OHAP. u1.] OF FELONIES. 67 Manslaughter in the tH1Rv degree : 5. Where any one having charge of a steamboat for passengers, or having charge of its boilers, §*c. from ignorance or gross neglect, or to excel in speed any other boat, allows to be created such an undue quantity of steam as to burst or break the boiler, Sc. whereby any one is kiiled.] This also is an offense for which no punishment was provided by the common law or any previous stat- ute, in this state. : Manslaughier in the tTHirp degree: 6. Where a physician, while intoxicated, does any act that causes the death of his patient, without a design to effect death.| At common law, if a person bona fide and hon- estly exercising his best skill to cure a patient, performs an operation which causes the patient’s death, he is not guilty of manslaughter. And it makes no difference whether such person be a regular surgeon or not, nor whether he has had a regular medical education or not.(d) Thus, where a person in the habit of acting as a man-midwife, tore away part of the prolapsed uterus of one of his patients, supposing it to be a part of the placenta, by means of which the patient died, it was held that such person was not indictable for manslaughter, unless he was guilty of crim- inal misconduct arising either from the grossest ignorance, or the most criminal inattention.(e) But whether the party be licensed or unlicensed, if he displays gross ignorance, or criminal inattention, or culpable rash- ness, in the treatment of his patient, he is criminally responsible.(/) Indeed, there may be cases where, from the manner of the operation, even malice may be inferred.(¢) In Long’s case,(h) a case was cited by counsel as having occurred on the northern circuit, where a man who was drunk went and delivered a woman, who by his mismanagement died, and he was sentenced to six months’ imprisonment. And where a person grossly ignorant undertook to deliver a woman, and killed the child in the course of the delivery, it was held that he was rightly con- victed of manslaughter.(2) In short any person, whether a licensed medical practitioner or not, who deals with the life or the health of others, is bound to have compe- tent skill; and is bound to treat his or her patients with care, attention, and assiduity, and if a patient dies for the want of either, such person is guilty of manslaughter. (4) Manslaughter in the third degree is punishable by imprisonment in a state prison, not less than two nor more than four years.(Z) (d) Rex v. Van Butchell, 3 Car. & P. (A) 4 Car. & P. 404. 629. Roscoe’s Cr. Ey. 588. (® Senior’s case, 1 Moo. C. C. 346. 1 (e) Rex v. Williamson, 3 Car. & P. 635. Moo. & Rob. 405. Lewin’s C. OC. 181. ) Roscoe’s Cr. Ev. 588. 8 Car. & (k) Rex v. Spiller, 5 Car. & P. 388, P. 638. 41d. 407, 428. 1 Moo. & Rob. Rex v. Simpson, 1 Lewin’s O. O. 172. 405. 2 Lewin’s 0. C. 196. 2 Moo. & Rex v. Ferguson Id. 181. Rob. 107. (2) 2B. 8. 662, § 20, sub. 3 (g) Ibid. 68 OF FELONIES. [Boox 1. 4th. Manslaughter in the rourtH degree, by—l. The involuntary killing of another by any weapon, or by means neither cruel nor unus- ual, in the heat of passion, in cases not declared to be excusable homi- cide.] It will be recollected the statute has recognized three distinct grades of manslaughter committed “in the heat of passion.” viz. 1. When done ina cruel and unusual manner; 2. When efiected by a dangerous weapon ; 3. When effected by any weapon. The reader is referred to the remarks made in a former part of this work, under the section relative to offences of the first description.(m) Manslaughter in the rourtH degree: 2. Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not justifiable or excusable, or is not declared by the statute to be murder or manslaughter ina higher degree.| Respect- ing this section, the revisers remark, that it was intended to guard against all danger of omission of any case, and to include some that are anomalous. It is proper, in this place, to call the reader’s attention to a confusion or indistinctness of expression in the statutory definitions of murder and of manslaughter in the fourth degree. An essential part ofthe definition of murder is, that it is the commis- sion of certain acts in cases in which they would not be manslaughter.(n) And an equally essential part of the definition of manslaughter in the fourth degree is, that it be a homicide, that is not declared to be mur- der.(o) So that to know what murder, the greatest of these offenses, is, we must first learn what is manslaughter: and when we turn to the definition of manslaughter in the fourth degree, the least of these of- fenses, we cannot discover its meaning till we learn the meaning of mur- der. ‘Thus the revisers have here been defining ina circle. The inten- tion is, however, sufficiently plain, that manslaughter in the fourth de- gree is any unjustifiable or inexcusable homicide less culpable than the other degrees of manslaughter: and then the definition of murder also is freed from confusion.(p) Manslaughter in the fourth degrce is punishable by imprisonment in a state prison not more than two years, in a county jail not more than one year, or by a fine of not more than $1000.(q) A person may be convicted of an atéempét to commit manslaughter, where it appears that he did any act towards the commission of the offense, but failed, or was prevented or intercepted in perpetrating his design.(r) (m) Ante, p. 60 (p) See 4 Black. Com. 191, n. 18, ed. (n) 2B. 8. 657, § 5. 1832. (0) Id. 668, § 19. (q) 2B. S. 668, § 21, (r) Id. 698, § 3. omar. m1] OF FELONIES. 69 Indictment.| 'The indictment for manslaughter is the same as for murder, omitting the words “of his malice aforethought” wherever they occur, and substituting the word “slay,” for the word “murder,” in the latter part of the indictment.(s) Where an indictment for administering drugs, &c. to a pregnant female, charged all the facts necessary to constitute the crime of man- slaughter, except the intent with which the acts were done, and in its conclusion it characterized the crime as manslaugliter, but the only in- tent charged was an intent to produce a miscarriage, it was held that the indictment was fatally defective for the felony, but good for the misdemeanor, and that the accused was properly convicted of the latter offense.(¢) A conviction for a misdemeanor, under such an indictment, would, it seems, be a bar to a subsequent indictment for the felony. The record would be conclusive evidence that the acts were done with the intent alledged in the indictment; and therefore the people could not alledge a different intent, so as to constitute a different offense.(z) Evvidence.| From what has been already stated, it will beseen what, under different circumstances, will be necessary to support the allegations of the indictment, and what allegations are required to be proved. 2. Rare. Rape is defined to be the carnal knowledge of any woman above the age of ten years, against her will; and of a woman child under the age of ten years, either with or against her will.(v) This detestable crime has been, in most countries, punished with death. It was so punished by the Jewish law, in case the damsel was betrothed to another.(w) By the civil law, it is punished with death and the confiscation of goods.(z) It is still a capital offense by the laws of England and of many of our sister states. By our revised statutes it is provided that every person who shall be convicted of rape, either, 1. By carnally and unlawfully knowing any female child under the age of ten years; or, 2. By forcibly ravishing any woman of the age of ten years or upwards, shall be punished by im- prisonment in a state prison not less than ten years.(y) And every per- son who shall have carnal knowledge of any woman above the age of ten years, without her consent, by administering to her any substance or liquid which shall produce such stupor, or such imbecility of mind or weakness of body as to prevent effectual resistance, may be imprisoned not more than five years.(z) (s) Matt. Dig. 508. w) Deut. xxii, 25. (t) iahenane The People, 1 Comst.379, (x) 4 Black. Com. 210. (uw) Ibid. (y) 2.8. 663, § 22. (x) 1_Hale’s P. ©. 628. 8 Inst. 60 (2) Id. § 238. Hawk. P. 0. b. 1, ¢. 41, 8. 12. 70 OF FELONIES. ‘[Boox 1. Ist. Of Rape on women above the age of ten years.| Respecting rape, Lord Hale observes, that it is an accusation easily to be made, hard to be proved, and harder to be defended by the party accused, though innocent ; “the heinousness of the offence many times transport- ing the judge and jury with so much indignation that they are over hastily carried to the conviction of the person accused thereof, by the confident testimony, sometimes, of malicious and false witnesses.” And he adduces two instances within his own knowledge, where the evidence was most positive against the prisoners ; in one of which it was impossi- ble that he could be guilty.(a) In the People v. Hulse,(b) Bronson, J. observes, “In cases of this character courts and juries can not be too cau- tious in scrutinizing the testimony of the complaining witness, and in guarding themselves against the influence of those indignant feelings which are so naturally excited by the enormity of the alledged offense. There is much greater danger that injustice may be done to the offender, - iu cases of this kind, than there is in prosecutions of any other char- acter.” The learned judge further observes, “There is much less dan- ger of an unjust conviction in cases where the testimony of the principal witness is wholly fabricated, than there is in cases like the one before us, where there can be no doubt that the accuser and the accused were im- properly together, and the only controverted question is, whether the con- nection was brought about by mere force. In such cases, although the woman never said “ yes”—nay more, although she constantly said “no,” and kept up a decent show of resistance to the last, it may still be that she more than half consented to the ravishment. Her negative may have been so irresolute and undecided, and she may have made such feeble fight as was calculated to encourage, rather than repel the attack, and yet a sense of shame, arising either from an apprehension of the consequences which may follow the illicit connection, or from the fact that the matter has already become known to others, may stimulate the woman to call that a rape, which was in truth a sin of a much less odi- ous character. And when once she has given the transaction a name, she has no alternative but to confess herself false, as well as guilty, or to go into court and arraign the supposed offender. And then, as there was no express consent, she is enabled to swear to the force, without any such great stretch of conscience as would be necessary where the whole story was a tissuc of falsehood from beginning to end.” ‘These remarks of the learned judge are worthy of the attention of all who are concerned in the administration of criminal law. It is the essential feature of the crime of rape, that it must be against the will of the female on whom it is committed ; and its atrocity is not (a) 1 Hale, 685, 6. . () 8 Hill, 318. OHAP, r1.J OF FELONIES. 71 mitigated by showing that she at last yielded to the violence, if such her consent was forced by duress, or threats of murder.(c) And it will not be any excuse that she was first taken with her own consent, if she were afterwards forced against her will; nor will it be any excuse that she consented after the fact, or that she was a common strumpet, or the concubine of the ravisher; for she is still under the protection of the law, and may not be forced.(d) Circumstances of this kind, however, though they do not necessarily prevent the offense from amounting to a rape, yet are material to be left to the jury, in favor of the accused, espe- cially in doubtful cases.(e) If the jury are satisfied that non-resistance on the part of the prosecutrix proceeded merely from her being overpow- ered by actual force; or from her not being able, from want of strength to resist any longer ; or that, from the number of persons attacking her, she considered resistance dangerous, and absolutely useless, the jury ought to convict the prisoner of the capital charge. But if they think, from the whole of the circumstances, that although when the prosecutrix was first laid hold of, it was against her will, yet that she did not resist afterwards, because she in some degree consented to what was after- wards done to her, they ought to acquit the prisoners of the capital charge, and convict them of an assault only.(f) The notion that if the woman conceived, it could not be a rape, because she must, in that case, have consented, appears to be quite exploded.(¢) A man can not be guilty of a rape upon his own wife; for the matri- monial consent can not be retracted ; but he may be guilty as a principal * by assisting another person to commit a rape upon his wife.(h) With respect to the carnal knowledge necessary to constitute this of- fense, it is well settled at common law, that there must be a penetration, or resin re. Buta very slight penetration is sufficient ; even though it may not be attended with the deprivation of the marks of virginity.(z) It was formerly doubted whether proof of emission, as well as of pen- etration was not necessary. But it is provided by a recent statute(/) in England, that it is not necessary to prove emission, in cases of this kind.(d) And our revised statutes contain a provision that proof of actual penetra- tion into the body shall be sufficient to sustain an indictment for rape or for the crime against nature.(m) And this seems to be a very reasona- ble rule ; for the essence of this crime is the violence done to the person (c) 1 Hawk. P. C. c, 41,8. 6. Dalt.Ca. 1 Hale, 629. Lord Castlehaven’s case, 12 105, 607. Mod. 340, 454. 1 Stra. 633. (d) 1 Hawk. P. C.c.41,5.7. 1 East’s (a) 1 Russ. on Cr. 560, notes, n, o. P.C. 444. 4 Black, Com? 213. Comst. Rep. 354. 9 Car. & P. 753. (e) 1 East, 445, (k) 9 Geo. 4, ch. 81, s. 18. (f) 9 Car. & P. 748. (2) See 1 M. O. OC. 342, to the same ef- (g) 1 Hale 631. 1 Hawk, ch. 41,5. 48. fect. (4) Lord Audley’s case, 1 State Tr.887. (m) 2 BR, S. 785, § 18, 72, OF FELONIES, [soox 1, and feelings of the woman, which is completed hy penetration without emission.(7) Having carnal knowledge ofa woman under circumstances which in- duce her to suppose it is her husband, has been held by a majority of the judges in England not to amount to a rape; but several of the majority intimated that, should the point occur again, they would direct the jury | to find a special verdict.(0) In two subsequent cases, where the defend- ants were indicted for rapes under similar circumstances, the court di- rected an acquittal for the rape, but held that the defendants might be convicted of the assault under the statute, (7 Wm. 4, and 1 Vict. ch. 85, § 11,) and the judges afterwards held that hard labor might be added to the sentence of imprisonment.(p) In this country it seems to have been considered that it is as much a rape, when effected thus by stratagem, as if done by force.(qg) And the above mentioned section of the revised statutes, providing for the punish- ment of a person who shall have carnal knowledge of a woman above the age of ten years, without her consent, by means of administering to her any substance or liquid, is in analogy with this principle. Where a medical practitioner had sexual connexion with a female pa- tient.of the age of fourteen years, who had for some time been receiving medical treatment from him; the jury having found that she was igno- rant of the nature of the defendant’s act, and made no resistance, solely * from a bona fide belief that the defendant was (as he represented,) treat- ing her medically, with a view to her cure, it was held that the prisoner was guilty of an assault. And the court intimated that he might have been indicted for rape.(r) There are some general rules respecting this crime which it will always be safe to observe. If the prosecutrix be of good fame; if she presently discover thé offense, and make search for the offender; if the party ac- cused flee; these and the like circumstances give greater probability to her evidence; but on the contrary, if she be of evil fame, and stand, un- supported by others; if she conceal the injury for any considerable time after she has had opportunity to complain; if the place, where the fact was alledged to be committed, be where it was possible she might have been heard, and she made no outcry; to which ought to be added another circumstance, equally strong, if the prosecutrix voluntarily continue her acquaintance and familiar or friendly intercourse with the accused, after the fact, without instituting a prosecution against him—these and the (n) Addis. Rep, 143. 878. People v. Barton, Id. 881,n. And (0) Russ. & Ry. Rep. 487. 8 Car.&P. see 4 Black. Com. 214, note (16), Chit. 286. Id. 265. ed. Queen v. Case, 1 Eng. Law & Eq. (p) Queen v. Saunders, 8 Car. & P. Rep. 546. 265, and Queen v, Williams, Id. 286. (r) Queen v. Oase, 1 Eng. Law & Eq. (g) People v. Metcalf, 1 Whee. Or. Ca. Rep. 544. ® omar. m1] OF FELONIES. 73 like circumstances carry a strong but not a conclusive presumption that her story is fictitious.(s) Principal and accessaries.| All who are present, of either sex, aiding in the perpetration of a rape, are principals, and liable to the same pun- ishment.(¢) And though a male infant under the age of fourteen years is, at common law, presumed to be incapable of committing a rape, yet he may be guilty as an abettor, or principal in the second degtee, if shown to possess a mischievous disposition.(w) And it has been decided in Massachusetts, that he may be indicted for an assault with intent to commit a rape.(v) But in England a contrary rule prevails. It has there been decided that a boy, who, at the time of the offense, was under fourteen, can not in point of law, be guilty of an assault with intent to commit a rape; and that if he is under that age no evidence is admissi- ble to show that, in point of fact, he could commit the offense of rape.(w) And though it is proved that he had arrived at the full state of puberty, he can not be convicted of rape.(z) There may be accessaries before and after the fact in this offense ; for though it be made felony by a statute which speaks only of those who commit the offense, yet accessaries be- fore and after are consequentially included.(y) An indictment charging the prisoner both as principal in the first degree and as aiding and abet- ting other men in committing a rape, was held, after conviction, to be valid, upon the count charging the prisoner as principal. Upon such an indictment, it was held that evidence might be given of several rapes on the same woman, at the same time, by the prisoner and other men, each assisting the other in turn, without putting the prosecutor to elect on which count to proceed.(z) Indictment.] As we have before remarked, force is necessary to con- stitute this crime. It is therefore necessary to state in the indictment that the offender did “forcibly ravish” the female; and the omission of these words will not be supplied by an averment that the offender did “carnally know,” &c.(a) The words “forcibly ravished,’ which are used in the statute, imply force and violence in the man and want of consent in the woman. The indictment need not aver, therefore, that the rape was committed against the will of the woman.(b) It does not seem clear whether the averment that the offender “carnally knew” is necessary to be added. It is urged that the word “ravished” includes the charge of carnal knowledge (c) and this was undoubtedly the opin- @) 1 Hale’s P. 0.6638. 4Black.Com. — (2) Reg. v. Phillips, 8 Car. & P. 736, 213 Reg. v. Jordan, 9 Id. 118. iC 1 Hawk. ch. 41,§10. 2R. 8. 698, (y) 1 Russ. on Cr. 557. (2) 1 Moody’s C. C. 354, Go) Hale’s P. C. 630. (a) 1 Russ. on Cr. 561. 1 Hale, 682. (v) 2 Pick. 880, (6) 12 Serg. & R. 69. 2 Virg. Ca. 235. (#0) 8 Car. & Payne, A (c) 8 Chit. Cr. Law, 812. 74 OF FELONIES. [Boox 1. ion of the revisers when they used merely the words “ forcibly ravish,” in defining the crime of rape. But as Lord Hale and Lord Coke say that both charges ought to be inserted, it would be very unsafe, in an indict- ment at common law, to omit either.(d) An indictment is good which charges that A. committed a rape, and that B. was present, aiding and assisting him in his commission of the felony.(e) In such a case the party aiding may be charged either as he was, in law, a principal in the first degree, or, as he was in fact, a principal in the second degree.(f) A count charging A. with a rape as a principal in the first degree, and B. as a principal in the second degree, may be joined with another count charging B. as principal in the first degree and A. as principal in the second degree.(g) A general conviction of a prisoner charged both as principal in the first degree, and as an aider and abettor of other men in a rape, is valid on the count charging him as principal.(h) The indict- ment usually concludes “against the form of the statute ;” but as the offense was a felony at common law, such a conclusion is probably un- necessary.(i) The customary conclusion, “against the peace,” will doubtless be sufficient.(x) Evidence.| It is clear that the party ravished is a competent witness ; and indeed she is so much considered a witness of necessity that where a husband was charged with having assisted another man in ravishing his own wife, she was admitted as a witness against her husband.(/) But the credibility of the witness is to be left to the jury, upon the concurring circumstances. And the character of the prosecutrix as to general chastity may be impeached by general evidence.(m) Thus, the prisoner may give evidence that the woman bore a notoriously bad character, for want of chastity and common decency, or that she had before been criminally connected with the prisoner.(m) But it has been held, in England, that the prisoner can not show that the pros- ecutor had a criminal connection with other persons ; and that the woman is not obliged to answer as to the latter fact.(o) In this state, however, it has been decided that an inquiry may be made of the prosecutrix whether she had had previous connection with other men ;(p) and that she may be shown to be in fact a common prostitute. So also a previous voluntary connection between her and the prisoner may be proved ;(q) and evidence may be given of particular acts and associations, indicating (@ 2 Chit. Cr. Law, 812. (m) 1 Russ. 563. 19 Wend. 192. Rex (e) Reg. v. Crisham, 1 Car. & N. 187. v. Clarke, 2 Stark. Rep. 241. 2 Stark. (f) Ibid. Ev. 368. (g) Rex v. Gray, 7 Car. & P. 164. (n) Rex v. Hodgson, 1 Phil. Ev. 165. (A) Rex v. Folkes, 1 M. O. C. 354. Russ. & Ry. O. ©. 211. (4) 1 Russ. on Or. 561. 13 Wend. 159. (0) Ibid. (%) Idem. (p) The People v. Abbot, 19 Wend. 192. (2) 1 St. Tr. 887. 1 Hale, 629. 1 Str. (g) Id. Stark. on Ev. part IV. 1270. 633, 6 Car. & P. 562. OHAP, m1] OF FELONIES. 15 on her part a want of chastity. Accordingly, the prosecutrix may be asked, on cross-examination, whether she had not allowed another man than the prisoner to take liberties with her, in the interval between the commission of the alledged offense and the first complaint of itr) But although the prosecutrix may have testified, upon her direct examina- tion, that she had not had any previous criminal intercourse with other men, it is not competent for the defense to introduce evidence to contra- dict this statement.(s) The same rules of evidence are applicable to a trial for a simple assault and battery on a female, followed with a carnal knowledge.(t) In such cases the magistrate before whom the complaint was made can not be called to state what the prosecutrix testified before him as to her having had previous connection with other men, if the in- quiry is not made for the purpose of showing a discrepancy in her testi- mony.(z) In all cases, what she herself said so recently after the fact as to preclude the possibility of her being practised on, has been holden to be admissible in evidence as a part of the transaction ; but the particu- lars of her complaint are not evidence of the truth of her statement.(v) Where it appeared that the person alledged to have been ravished, but who was since dead, had come home evidently suffering from recent vio- lence; and that on her return home she made a statement as to the in- jury she had received, and named the persons who had committed it, it was held that the particulars of this statement could not be given in evi- dence as independent evidence to show who were the persons that com- mitted the offense; and that statements of this kind were only admissible to confirm the evidence of the prosecutrix, by showing that she made an early complaint of the injury she had received.(w) Presumptive evidence is admissible to prove the offense of rape.(z) 2d. Rape on children within the age of ten years.| A rape upon children under the age of ten years was made a capital offense in Eng- land, as early as the reign of Queen Elizabeth; and the section of our revised statutes providing for the punishment of persons convicted of rape in “carnally and unlawfully knowing” any female child under the age of ten years,(y) is nearly in the words of the statute of 18 Eliz. ch. 7, § 4. These statutory provisions have made an innovation upon the common law. Formerly, force was, in all cases, necessary to the commission of arape. Now, by statute, the unlawful carnal knowledge of an infant under ten years of age is a felony, whether she consented or not. In- deed, it is almost} impossible to suppose consent from an infant at this (r) Reg. v. Mercer, 6 Jur. N. P. C.248. Rex. v. Clarke, 2 Stark. 241. People v. (s) Commonwealth vy. Bichell, 83 Law Crouch, 2 Whee. Cr. Ca. 42. Reporter, N. 8. 448. (w) Reg. v. Megson, 9 Car. & P. 420. (4) 19 Wend, 192. (x) Russ. & Ry. C. ©. 619, (u) Ibid. (y) 2B. 8. 663, § 22. (c) Rex v. Brazier, 1 East’s P. O, 444. 76 OF FELONIES. [BooK 1. tender age. The presumption of law, that it was against her will, is so strong as to amount to proof of force.(z) On an indictment for attempting to carnally know and abuse a girl under ten years of age, with a count for a common assault, the attempt was proved, but it could not be shown that the child was under ten years of age, and it also appeared that no violence was used by the prisoner, and no actual resistance made by the girl, it was held that although consent on the part of the girl would put an end to the charge of assault, yet that there was a great difference between consent and submission ; and that although in the case of an adult, submitting quietly to an out- rage of this kind would go far to show consent, yet that in the case of a. child, the jury should consider whether the submission of the child was voluntary, on her part, or was the result of fear under the circumstances in which she was placed.(a) In England, it has been held that a boy ve fourteen years of age can not be convicted of feloniously and carnally knowing and abusing a girl under ten years of age, even though it was proved that he was ar- rived at the full state of puberty.(b) Indictment.] In drawing the complaint or indictment under the sub- division of the section of the statute respecting a rape upon a child under ten years of age, it is necessary to pursue the words of the act, and charge that the defendant “carnally and unlawfully knew” the party injured, she being under the age of ten years; omitting the word “ravished,” which implies violence.(c) And such complaint or indictment ought to conclude, “against the form of the statute,” because the crime, as well as the punishment, is created by that statute.(d) Evvidence.| As to the testimony of the party aggrieved, the rule adopted as to the admissibility of children in other cases, is applicable to this, viz. that the admissibility of children is regulated, not by their age, but by their apparent sense and understanding. Children of any age may be examined upon oath, if capable of distinguishing between good and evil; but they can not be examined in any case without oath.(e) The infant must be sworn, though under seven years of age, if apprised of the nature of an oath.(f) It has been held, in England, that a pris- oner may be convicted of rape, upon the unsupported evidence of an in- fant under years of discretion, if the jury are satisfied that the evidence is such as to leave no reasonable doubt of the prisoner’s guilt.(¢) In (2) People v. Stamford, 2 Wheel. Cr. —_(e) Roscoe’s Cr. Ev. 94, 710. Ca. 152. 1 East’s P. O. 436. (7) Rex v. Brasier, 1 Leach’s ©. C. (a) Reg. v. Day, 9 Car. & P. 722. 199, 1 East's P. C. 443. And see Rex (0) Reg. v. Jordan, 9 Car. & P. 118. y. Dunnell, 1 East’s P. C. 442, (c) Davis’ Just. 371. (g) Anon. 1 Russ. C. & M. 566. (2d) 1 Russ. on Cr. 565. People v. Enoch, 13 Wend. 159. OFAP 1II.] OF FELONIES. 77 South Carolina it has been decided that the testimony of an infant, cor- roborated by circumstances, is sufficient to justify a conviction for a rape.(h) The declarations of the child are inadmissible; though the fact of her having complained of the injury recently after its having heen received, is evidence in corroboration.(i) By a capability of distinguish- ing between good and evil must be understood a belief in God, or ina future state of rewards and punishments; from which the court may be satisfied that the witness entertains a proper sense of the danger and im- piety of falsehood.(k) Where the child has appeared not sufficiently to understand the nature and obligation of an oath, judges have often put off the trial of a prisoner, directing that the child should, in the mean- time, be properly instructed as to the nature and obligation of an oath.(Z) Assault, with intent to ravish.| The punishment for an assault, with intent to commit a rape, is imprisonment in a state prison for a term not exceeding five years, or by a fine not exceeding $500, or by both such fine and imprisonment.(m) If the assault was made with any deadly weapon, the punishment is increased to imprisonment in a state prison not more than ten years.(m) But no person can be convicted for an assault, with intent to commit a rape, when it shall appear that the crime was actually committed; nor where he shall have been acquitted upon a former trial for the principal offense. (o) Where there is no reason to expect that the facts and circumstances of the case, when given in evidence, will establish that the crime of rape has been completed, the proper course will be to prefer a complaint be- fore a justice, or an indictment before the grand jury, for an assault with intent to ravish. But this course should not be adopted, where there is a probability that the higher offense will be proved; as upon an indict- ment for an assault, the prisoner can not be convicted if a rape is proved to have been committed.(p) If the offender, however, is indicted for a rape, he may be convicted of an assault, in a case where the facts proved are not sufficient to estab- lish a rape.(qg) It has been decided in Massachusetts, that an infant under the age of fourteen years may be indicted for an assault, with intent to commit a rape(r) Acontrary decision, however, has taken place in England.(s) But it seems to us that the decision in the Massa- (A) State v. Le Blane, 1 Const. R. 354. (0) ae 702, §§ 26,28. 1 Russ. on (2) Roscoe’s Cr. Ev. 94, 710. Cr. 5 (xk) 1 Russ. on Cr. 565. (p) “dem, 1 East’s P. C. 411,440. Rex (2) 1 Buss. on Cr. 566. 21d.590. The v. Harmwood, 1 Russ. ©. & M. 560, 564, rule, however, is not cited toanadult But see State v. Shepherd, 7 Conn. R. 54, witness. 1 Moody’s 0.0. 86, 2 Rogers’ (g) 2 BR. 8. 702, § 27. Commonwealth Rec. 147. v. Cooper, 15 Mass. R. 187. (m) 2 BR. 8. 666, § 89. (r) Comm. v. Green, 2 Pick. R. 380. () Idem, 665, § 36. (s) Rex v. Eldershaw, 3 Car. & Payne, 396, 78 OF FELONIES. [Boox 1. chusetts case is by far the most reasonable. The maxim, that an infant under fourteen is presumed unable to commit a rape, originated in ancient times, when rape was punishable with death; and the law was established in favor of life. It ought not to be applied, by analogy, to an inferior offense which is not punishable with death. It is said that the essence of the crime of rape is the violence done to the person and feel- ings of the woman.(¢) An injury to the feelings, (and, in some cases, to the person,) may be inflicted by a boy under fourteen years, as much as by one over that age; and where there is a guilty intention in the per- petrator_ of the injury, there seems to be no good reason for exonerating him from punishment on account of his physical incapacity. Eividence.| Prove an assault, with such circumstances as show that it was an attempt to commit a rape, the offense being incomplete for want of evidence of penetration. If upon this indictment an actual rape be proved, the defendant must be acquitted.(w) 3. ABDUCTION oF FEMALES. By the revised statutes, any person who shall take any woman unlaw- fully, against her will, and by force, menace or duress, compel her to marry him or another, or to be defiled, or shall take her with that intent, though frustrated, may, on conviction, be punished by imprisonment in the state prison not less than ten years.(v) And every person who shall take away any female under the age of fourteen years from her father, mother, guardian, or other person having the legal charge of her person, without their consent, either for the purpose of prostitution, concubinage, or marriage, may be imprisoned not more than three Feats and fined not more than $1000.(w) The 24th and 25th sections, it will be seen, contemplate a taking against the will of the female, whatever her age may be; and the 26th section refers to the taking of a female under the age of fourteen, without the consent of her parents, guardians, &c. whether it was against her own will or not. The 24th and 25th sections were doubtless intended to reach the case of a forcible taking of a female above the age of four- teen, or of one within that age who has no parents, guardians, &c. As regards females within the age of fourteen, who have parents, guardians, &c. the offense may be completed without making use of any force ; and notwithstanding the infant herself may have consented ; provided the taking was without the consent of such parents, guardians, &c. This wise provision was intended for the protection of infants of a tender age () Addis. R. 148. v) 2.8. oe (o) 1 East's PC. 411, 440. Matt. Dig. (a) ae 59, 1 Russ. O. & M, 560, 564, OHAP, 111.] OF FELONIES. 79 who have not sufficient capacity to act or judge for themselves, or to resist the allurements and promises of older and more artful persons. An illegitimate child is within the protection of the statute.(z) It is no legal excuse for this offense that the defendant, being related to the girl’s father, and frequently invited to the house, made use of no other seduc- tion than the common blandishments of a lover, to induce the girl secretly to elope with and marry him, if it appear that it was against the consent of the father.(y) Upon a complaint or trial of an indictment for this offense, it will be necessary to prove that the child was within the age of fourteen years, and the want of consent of the father or mother, guardian or other per- son having the legal charge of her person ;(z) and that such taking was for the purpose of concubinage, prostitution or marriage. Upon the death of the father, the mother retains her lawful authority over the child, notwithstanding a second marriage ; and the consent of the second husband is immaterial.(a) There must be a continuous want of consent on the part of the parent, &c.; for if the consent be once given, it can not, it is said, be revoked ; but this point wants further confirmation.(b) Under the 25th and 26th sections of the statule above referred to, it is not necessary to prove either a marriage or defiling, but only an intent to marry or defile; which will, in general, appear from the whole cir- cumstances of the case.(c) It is not clear whether it would be an offense in England, under a statute similar to ours, to take away a girl against the consent of her parent, but by consent of one who, has the temporary care of her.(d) In this state, the question depends upon who has the “legal charge of her person” at the time, within the meaning of the statute. E'vidence.| It seems to be well settled, that where a woman is taken away and matried by farce, she is a competent witness against her hus- band, on an indictment for that offense, though he is her husband in fact—contrary to the general rule of law; because he is no husband in law, in case the actual marriage was also against her will.(e) And, for the same reason, she is a competent witness for him, ona prosecution for this offense, though she has cohabited with him from the day of the mar- riage.(f) In analogy with this rule respecting marriages by force, it is presumed that a female under fourteen, taken and married without the (x) 2 Strange, 1162. Hawk. P, C.b.1, (e) 4 Black. Com. 209, n. (8), Chit. ed. ch, 41, s. 14, Arch. Or, Pl. 869. 1 Phil. Ev. 70. Rex (y) Roscoe's Or, Ev. 196. 1 Russ. 579. v, Wakefield, 2 Russ. C. & M. 605. 2 (2) Idem. Lewin’s C. C. 279. (a) Ratcliff’s case, 3 Coke’s Rep. 89. (f) 1 Hawk. ch. 41, §13. 1 Russ. on (6) 1 Russ. on Cr. 578. Cr. 828. 1 East’s P. 0. 454, 1 Russ. C. (c) Roscoe’s Or. Ev. 195. & M, 677, (d) 1 East’s P. O, 457. Hicks v, Gore, 3 Mod. 84. 80 OF FELONIES. [Boor 1. consent of her parents or guardian, might, under our statute, be a witness for or against her husband. Accessaries.]| All persons aiding and assisting in the commission of these offenses, as accessaries before the fact, are to be punished in the same manner as principals in the first degree.(g) Accessaries after the fact are to be punished by imprisonment in a state prison not more than five years, or in a county jail not more than one year, or by a fine of $500.(h) Accessaries after the fact are those who conceal or give other aid to the offender after the commission of the offense, with knowledge of his having committed it, and with the intent that he may escape pun- ishment.(?) Where the female, therefore, is under no restraint at the time of the marriage, those who are present, but who are ignorant of the previous circumstances, can not be convicted as accessaries after the fact.(k) By the “act to punish abduction as a crime,” passed March 20, 1848, it is enacted that “any person who shall inveigle, entice or take away any unmarried female of previous chaste character, under the age of twenty-five years, from her father’s house, or wherever else she may be, for the purpose of prostitution at a house of ill fame, assignation or else- where, and every person who shall aid or assist in such abduction for such purpose, shall be guilty of a misdemeanor, and shall upon convic- tion thereof be punished by imprisonment in a state prison, not exceed- ing two years, or by imprisonment in a county jail not exceeding one year. Provided that no conviction shall be had under the provisions of this act on the testimony of the female so inveigled or enticed away, unsupported by other evidence, nor unless an indictment shall be found within two years after the commission of the offense.”(2) It has been decided that, in order to constitute the offense created by this act the abduction of the female must be for the purpose of her indis- criminate meretricious commerce with men. That such must be the case, to make her a prostitute, or her conduct prostitution, within the act.(m) Accordingly, where it was proved that the female, when she left her home, went voluntarily, and not at the instance of the defendant, and that she had since lived and cohabited with him, and with no one else, it was held that an indictment would not lie for abduction.(x) In the same case it was decided that the words “ previous chaste character,” as used in the act, mean actual personal virtue in the female; and that to’sustain an indictment it is necessary that she should have been chaste and pure in conduct and principle, up to the time of the commission of the (g) 2 B.S. 638, § 6. (2) Laws of 1848, p. 118. (h) Id. ib. § 7. (m) Carpenter v. The People, 8 Barb. (4) Idem. 8. O. Rep. 608. (%) Cro, Car, 489, 498. (n) Ibid, OHAP. 111] OF FELONIES. 81 offense, or the commencement of the acts on the part of the accused which resulted in the abduction of the female.(o0) The word “ previous” in this connection, must be understood to mean immediately previous, or to refer to a period terminating immediately previous, to the commence- ment of the guilty conduct of the defendant. Therefore, although the female has previously fallen from virtue, yet if she has subsequently re- formed and become chaste, she may be the subject of the offense declared in the statute.(p) The prostitution intended by the statute is that of the female to the lustful appetites of men at any place where prostitu- tion, of the character common at houses of ill fame or assignation, is prac- ticed.(qg) On the trial of an indictment for abduction, it is erroneous to charge the jury that they are to judge in regard to the meaning of the term “prostitution” as used in the statute.(r) 4, Mayyuem. Mayhem, or maiming, at common law is the violently depriving an- other of the use of such of his members as may render him less able in fighting, either to attack his adversary or to defend himself.(s) But if the injury be such as to disfigure him only, without diminishing his cor- poral ability, it does not, at common law, fall within the crime of may- hem. Upon this distinction the cutting off, disabling, or weakening a man’s hand or finger, or striking out an eye or fore tooth, or castrating him, or, as Lord Coke adds, breaking his skull, are said to be maims; but the cutting off his nose or ears is not so, at common law.(¢) By the ancient common law the punishment of this offense was member for member, on the principle of the law of Moses; but this practice has been long since exploded. The revised statutes, which clearly define this crime and provide for its punishment, have introduced some new rules in relation to it, differing from the doctrine of the common law. The section of the statute relating to mayhem is as follows: Every person who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner; or with intention to kill or com- mit felony, shall cut out or disable the tongue, put out an eye, slit the lip, or slit or destroy the nose, or cut off or disable any limb or member of another, on purpose, is punishable by imprisonment in a state prison not less than seven years.(u) The essential requisites to constitute this offense are malice, (or pre- meditated design, as the act expresses it,) evinced by lying in wait, or in (0) Carpenter v. The People, 8 Barb. (s) 4 Black. Com. 205. 8. C. Rep. 603. (t) Roscoe’s Cr. Ev. 654. 1 East’s P. ) Ibid. C. 8938. 1 Coxe, 453. 7 Mass. Rep. 245, (q) Ibid. (vu) 2B. S. 664, § 27. (r) Ibid. 11 82 OF FELONIES. [Book 1. any other manner ; ox that the injury should result from an atiempt to kill or commit felony. With respect to the malice or premeditated design, it does not seem necessary that it should be directed against any particular person. If it be conceived against all persons who may happen to fall within the scope of the perpetrator’s design, the particular mischief done to any one will be connected with the general malignant intent, so as to allow the “statute to attach upon the offenders. So if a blow be intended to maim one person, and by accident maim another, the party is equally liable to be indicted for such maiming.(v) Provided the act is done from premedi- tated design, it matters not how sudden the occasion.(w) Though in general, where the injury arises out of a sudden attack made by the de- fendant, but unconnected with any premeditated design upon the person, it is not within the statute. As to lying in wait, it has been held that it is not necessary the prisoner should lurk in any particular place, and effect the mischief by suddenly rushing from it. It will suffice, if having formed an intention to maim, he takes a convenient opportunity of effect- ing his purpose.(z) And where the prisoner was in concert with pick- pockets to cut or stab those who should oppose them, and in prosecution of this intention, he ran to a person who had apprehended one of his as- sociates, and maimed him with a knife, this was holden to be a lying in wait.(y) Where, however, the injury arises out of a sudden attack, though the prisoner is engaged in an unlawful purpose, if such purpose is less than felony, it will not amount tomayhem. This was held where the defendant was stealing turnips, and on being accosted by a servant of the owner, struck him with an instrument.(z) The lying in wait is not necessary to the completion of this erime. It is only mentioned in the statute as an evidence, among others, of malice. With regard to proof of malice, or of an intention to kill or commit a felony, in the ab- sence of direct proof, resort may be had to presumptive evidence.(a) And in cases of this kind it is obviously of importance, in estimating the prisoner’s real intentions, to consider the ¢ime at which the offense was committed, the nature of the instrument used, the part of the body on which the wound was inflicted, previous provocation, threats, &c. accord- ing to the plain and fundamental rule that a man’s motives and inten- tions are to be inferred from the means which he uses and the acts which he does.(b) As to the word “disable” in the statute, it has been decided to mean, (v) 2 Hawk, ch. 23, §16. 2East’sP. (2) 3 Chit. Or. L. 785. C. 396. (a) Leach’s C. 0. 187. 1 Yeates, 415. (9 3 Russ, on Cr, 586, lh yghveh. Or. PL. 854, Roscoe’s Cr. (y) Idem, 57, n. (a). 1 East’s P.C.397, OHAP. TL] OF FELONIES. 83 to do something which creates a permanent disability, and not merely a temporary injury ; therefore where an intent to disable was charged, and it appeared that the prisoner only intended to disable the party till he could effect his own escape, it was held not to be within that part of the statute.(c) There must be a maiming ; and for this purpose a wound in the throat or on the neck will not suffice to bring the offender within the statute.(d) But to constitute a slitting of the nose, it is not necessary that the nostrils should be penetrated ; for a wound across the upper part of the nose, on a level with the eyes, if it cuts the flesh, and divides the frontal vessels of the forehead, will constitute mayhem.(e) It is a good defense to charges of this kind, that the act was done in self defense. Yet it is not every trifling assault that will justify a griev- ous and immediate mayhem, such as cutting off a hand or leg, or biting off a joint of a man’s finger, unless it happened accidentally, without any cruel or malignant intention, or after the blood was heated in the scuffle ; but it must appear that the assault was, in some degree, proportionate tothe mayhem. ‘Yet a man can not justify maiming another in defense of his possession, but only in defense of his person. This restriction, however, can not be intended to extend to cases where a man defends himself against a known felony threatened to be committed with vio- lence against even his property.(f) Attempts to commit this crime, where the prisoner has done any act towards its completion, but has failed or been frustrated in the attempt, may be punished as in other cases of attempts to commit crimes. (g) Assaults with deadly weapons with intent to maim, will be considered hereafter.(/) 5. KIDNAPPING ; AND SELLING PERSONS KIDNAPPED. The provisions of our statute on this subject are as follows : Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other, with intent either to cause such other person to be secretly confined or imprisoned in this state against his will; or to cause him to be sent out of this state against his will; or to cause him to be sold as a slave, or in any way held to service against his will, shall be imprisoned in a state prison not to exceed ten years.(i) And offenses of this description may be tried either in the county in (c) Boyce’s case, 1 Moody’s ©. C. 29. (g) 2B. 8. 698, § 3. (d) 3 Chit. Or. L. 785. (A) Post, p. 85. (6) Id. ib. (i) 2B. 8. 664, $28. (/) 1 East’s P. C. 402. 2 Hawk. ch. 23, § 238. 1Ld.Raym.177. 11 Mod. 48. 84 OF FELONIES. [Book 1. which they were committed, or in any county through which the person kidnapped or confined was taken while under such confinement.(/) Upon the trial of such offenses the consent thereto of the person kid- napped or confined, will not be a defense, unless it appears that it was not extorted by threats or duress.(Z) Accessaries after the fact to this offense, are punishable by imprison- ment in a state prison not more than six years, or in a county jail not more than one year, or by a fine not exceeding $500.(#) The selling of persons of color forcibly taken, inveigled or kidnapped, from this state to any other place, is punishable by imprisonment in a state prison not more than ten years, or in a county jail not more than one year, or by a fine not exceeding $1000.(7) And this offense may be tried in any county in which the person kidnapped was taken, kidnapped or inveigled, or through which he was carried or brought.(o) 6. CHILD STEALING. This offense is provided against by the revised statutes; by which it is enacted that every person who shall maliciously, forcibly, or fraudu- lently, lead, take, or carry away, or decoy or entice away, any child un- der the age of twelve years, with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, may be punished by imprisonment in a state prison not more than ten years, or by imprisonment in a county jail, and by a fine not exceeding $500.(p) : To support a complaint or indictment under this statute, the prosecu- tor must prove: 1. The leading, taking, or carrying away, or decoying or enticing away of the child, either by force or fraud, as mentioned in the statute. Where the child is not produced as a witness, or is of such tender years as to be unable to give evidence, the taking or decoying, é&c. must be proved by the other circumstances of the case. 2. The age of the child. It must be proved that the child is not more than twelve years of age; but the precise age mentioned in the complaint or indict- ment is immaterial. 3. The malicious intent to detain and conceal the child must be proved as laid, and will, in general, be gathered from all the circumstances of the case. This intent may be inferred from the secret manner in which the child was taken away.(q) As to the mean- ing of the words “ other person having the lawful charge,” &c. vide ante, “The abduction of females,” &c. page 78. (hk) 2B. S. 664, § 29, (0) Id. ib. § 33. (Z) Id. ib. § 80. (p) Id. ib. § 34, (m) Id. ib. § 31. (gq) Roscoe’s Cr. Ev. 80. (n) Id. ib. § 82. OHAP. 111.] OF FELONIES. 85 7. ABANDONING CHILDREN. If the father or mother of any child under the age of six years, or any other person to whom it shall have been confided, shall expose such child in any highway, street, field, house, or outhouse, with intent wholly to abandon it, he or she may be imprisoned in a state prison, not exceeding seven years, or in a county jail not more than one year.(r) The intent wholly to abandon the child, is what constitutes this crime. This intent must, therefore, be proved, either by direct evidence, or by circumstances; in the same manner as a criminal intent is to be proved in other cases. 8. ASSAULTS WITH DEADLY WEAPONS. Every person who shall be convicted of shooting at another, or of at- tempting to discharge any kind of fire arms, or any air gun at another, or of any assault and battery upon another by means of any deadly weapon, or by such other means or force as was likely to produce death ; with the intent to kill, maim, ravish or rob, such other person, or in the attempt to commit any burglary, larceny, or other felony, or in resisting the execution of any legal process; may be punished by imprisonment in a state prison for a term not more than ten years.(s) Assaults with deadly weapons, or with the intent to commit any felony, are of a much more aggravated character than common assaults, and the legislature has attached to them additional penalties. A compre- hensive view will be taken of the subject, in this place; and the reader will also find some remarks respecting assaults of this kind in other parts of this work, in connection with the several offenses, with the intent to commit either of which the assault is charged to have been made. Assaults and batteries of an inferior grade to those mentioned in the above section of the statute, will be reserved for consideration in another place.(¢) An assault is defined, by Hawkins, to be an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at him with or without a weapon ; or presenting a gun at him, at a distance to which the gun will carry; or pointing a pitchfork at him, standing within the reach of it; or by holding up the fist at him, or by any other similar act done in an angry, threatening manner.(w) In Hayes v. The People,(v) it is declared to be an attempt with force or violence to doa corporal injury to another; and it may consist of any act tending to such injury, accompanied with circumstances denoting an intent, coupled with (r) 2 B.S. 665, § 85, (u) Hawk. b. 1, ch. 62, § 1. (s) Id. ib. § 36, (v) 1 Hill, 351. (t) See post, Book II, “‘ Misdemeanors.” 86 OF FELONIES. [Book 1. a present ability, to use violence against the person. It is not necessary to constitute an assault, that there should be a direct attempt at vio- lence.(w) A person charged with an assault and battery may be found guilty of the former and acquitted of the latter. Every battery includes an assault ; but no words whatever can amount to an assault.(z) A battery is more than an attempt to do a corporal hurt to another. Any injury whatever, be it ever so small, being actually done to the person of a man, in an angry or revengeful, or rude or insolent. manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery.(y) For the law can not draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred and no other having a right to meddle with it in any the slightest manner.(z) If a man strike at another with a cane or fist, or throw a bottle at him, or the like, if he miss him it is an assault; if he hit him it is a battery.(a) Under the section of the statute above referred to, we are to consider 1. The shooting, or attempting to shoot at another; 2. Assaults and batteries with any deadly weapons, or by such other means or force as was likely to produce death; 3. The intent to kill, maim, ravish, or rob; 4. The attempt to commit any burglary, larceny, or other felony ; 5. Resisting the execution of any legal process. Ist. The shooting or attempting to shoot at another.]| In an indict- ment under this clause of the section, it is necessary to alledge the shoot- ing, and that the gun was loaded in such a manner as to produce the effect intended ; and these allegations must be proved.(b) It is true the statute does not in express terms make it necessary that the gun, &c. should be loaded with bullets, &c.; but that it should contain something besides gunpowder is a necessary implication. It would be absurd to class the discharging of a gun loaded with powder only as among the “ means likely to produce death ;” or to attach to such an act an “intent to kill or maim.” The English statute on this subject(c) uses the words “loaded arms.” It has been decided under this statute that it is not necessary to alledge or prove that the gun contained any ball or shot; but that if it was loaded with powder and wadding only, or if the prisoner fired it so near the person of the prosecutor, and in such a direction, that it would probably kill him, &c., the case was within the (w) 1 Till, 351. (a) Arch. Cr. Pl. 346, (w) Hawk. b. 1, ¢. 62, s. 1. e Idem, 349, (y) 1 Russ. on Cr. 604, c) 9 Geo. 4, ch. 31.8, 12. (2) 4 Black. Com. 120. OHAP, I11.] OF FELONIES. 87 statute(d) In this case, however, the jury found that the gun was loaded with some other destructive material. It has been decided under the same statute, that a prisoner could not be convicted of an attempt to shoot, by drawing the trigger of a gun which was not primed, at the time.(e) So if the touch-hole is plugged.(f') These cases were decided upon the principle that guns so circu mstanced ought not to be considered loaded guns, within the meaning of the act. If it be alledged that the gun was loaded with powder and a bullet, it must be proved to have been loaded with powder and a bullet.(¢) Where the prisoner, by snapping a percussion cap, discharged a gun barrel detached from the stock, this was held “a shooting at” with “loaded arms” within the statute 9 Geo. 4, c.31.(4) But to constitute the offense of attempting to discharge loaded fire arms, they must be so loaded as to be capable of doing the nefschief intended. So that if part of the loading has fallen out, though without the prisonev’s knowledge, and that which remains is inadequate to effect the mischief, the case is not within the act.(é) 2d. Assaults and batteries with any deadly weapons, or by such other means or force as was likely to produce death.] ‘This part of the section is so clear that it needs no commentary or illustration. The only questions which can arise under it are, whether an “assault and battery” was committed ; whether the weapons used were “deadly ;” and whether the “means or force” was of a nature likely to “produce death.” We pass on to— 3d. The intent to kill, maim, ravish or rob.| The intention is not, in general, capable of positive proof. It can only be implied from overt acts; and every man is supposed to intend the necessary consequence of his own acts. Therefore, if it can not be inferred from the facts and circumstances which, together with it, constitute the offense, other acts of the defendant, from which it can be implied, to the satisfaction of the jury, must be proved at the trial.) 'The intent must be proved as laid. Hence the necessity of several counts in the indictment, charging the offense to have been committed with different intents.(2) Thus, where the prisoner was charged with cutting, &c. with intent to murder, maim, and disable, and the jury found that the intent was to commit a robbery, and that the prisoner cut and maimed the watchman, with intent to disable him till he could effect his own escape, it was held that the prisoner ought not to be convicted.(7) The intent to kill.| An assault, with intent to kill, unless it be with (@) Kitchen’s case, Russ, & Ry, 95. (4) 1 Russ. on Cr. 596. (e) Carr’s case, id. 3877. (%) Arch. Or. Pl. 104. (f) Harris’ case, 5 Car. & P, 159, (1) Idem, 858. (g) Idem, 126. (m) 1 Moody’s ©. C. 29. 1 Russ. on (h) Cate’s case, 6 Car. & P. 894. Cr, 585. 88 OF FELONIES. [Boox 1. some deadly weapon, or by some other means or force likely to produce death, is not a felony.(~) Where the prisoner is charged with doing some act, with intent to murder, and from the circumstances it appears that if death ensued it would have been manslaughter only, he must he acquitted, on the ground that the intent must be proved as laid.(o) The word “kill,” in our statute, must have the same meaning as the word “murder” would have had. The words “intent to kill” certainly exclude the idea of manslaughter; which is a killing “ without a design to effect death.”(p) “In estimating the prisoner’s real intentions,” says Mr. Starkie, “it is obviously of importance to consider the nature of the instrument used, and the part of the body on which the wound was inflicted, according to the plain and fundamental rule, that a man’s motives and intentions are to be inferred from the means which he uses, and the acts Wich he does. If with a deadly weapon he deliberately inflicts a wound upon a vital part, where such a wound would be likely to prove fatal, a strong inference results that his mind and intention were to destroy.”(qg) It may be stated, however, as a general rule, that a man is answerable for his acts; and therefore, if intending to stab A. he stab B., he may be indicted for stabbing B., with intent, &c. and the facts will sustain the indictment. But if it be doubtful whether the act was done by accident or design, other circumstances may be given in evidence to prove the intent.(r) Where the question is, whether the shooting at another was by accident or design, evidence that the prisoner at another time maliciously shot at the prosecutor is admissible.(s) Where the prisoner is charged with making an assault, with intent to murder, he may, in case the intent is not proved, be convicted of the common assault.(é) Intent to maim.| The statutory definition of maiming, or mayhem, has heretofore been given.w) Though the primary intent of the offender be of a higher or more atrocious nature, viz. to murder, and in that attempt he does not kill, but only maims the party, it is an offense within the statute; for it is a known rule of law, that if a man intend to commit one kind of felony, and, in the prosecution of that, commit another, the law will connect his felonious intention with the felony actually committed, though different in species from that he originally intended.(v) In the case of Coke and Woodburn,(w) where the defendants had the effrontery to set up, as a defense, that the assault (n) 4 Mass. Rep. 439. 4 Black, Com, (s) Voke’s case, Russ. & Ry. 531. 207, n. (k.) (t) 2 Stark. Ev. 500, (0) 1 East’s P. O. 411. (w) Ante. p. 81. (p) 2B. S. 661, § 6. (v) 1 East's P. O. 400. (g) 2 Stark. Ev. 500, 2d ed. (w) 6 St. Tr. 212. (r) Arch, Gr. Pl. 354. oHAP m1.] OF FELONIES. 89 was committed by them with intent not to maim or disfigure, but to murder—the court held, that if a man attack another with intent to murder him, with an instrument which can not but endanger the maiming of him, and in such attack happen not to kill, but only to disfigure or maim him, it is within the statute which made it a felony to commit any of the offenses therein mentioned, with intent to maim or disfigure. The defendants were accordingly convicted and executed.(z) The fourth subdivision of the section of the statute defining mayhem contains the words, “cut off or disable any limb or member.”(y) The word disable has been decided to signify the infliction of a permanent injury. Therefore, where the indictment charged an intent to disable, and it appeared that the prisoner only intended to disable the party till he could effect his own escape, it was held not within that part of the statute.(z) Intent to ravish.| Assaults with intent to ravish have been already treated upon under the head of “Rape;” to which title the reader is referred.(@) Intent to rob.]| To support an indictment for an assault with deadly weapons, &c. with intent to rob, the prosecutor must prove the assault ; that it was made with some deadly weapon, by shooting at, or by some other means or force likely to produce death; and the intent to rob. In proof of the assault it is not necessary to show that the prisoner commit- ted actual violence upon the prosecutor; for an assault is an attempt to commit a forcible crime upon another; and therefore if the prisoner, intending to rob the prosecutor, did any thing in his presence, with reference to him, in furtherance of that intent, it will be sufficient. The evidence upon this sort of indictment at common law usually proves a robbery, with the exception of the taking and carrying away of prop- erty.(b) The assault must be made upon the person intended to be robbed.(c) Therefore, an assault on a post-boy, with intent to rob a traveler, is not sufficient.(d) But no actual demand of money or prop- erty is necessary upon the charge of assaulting with deadly weapons, &c. with intent to rob.(e) The intent to rob is a material part of the offense, and should be properly alledged in the indictment. It must, of course, be proved from circumstances. It is a question for the jury to determine, and which they will, in general, have to presume from the circumstances attending the assault, the time and place in which it was committed, (2) 4 Black. Com. 207, n. (k). See also _ (¢) Roscoe’s Cr. Ev. 754. 8 Chit. Cr. Russ. & Ry. 362. L. 807, n. 1 Russ. on Cr. 616. Rex v. (y) 2 B.S. 664, § 27. Thomas, 1 Leach’s C. 0. 380, 1 East's P. (2) Boyce’s case, 1 Moody’s O. O. 29. C. 417, 418. (a) Ante, p. 69 et seq. (a) 1 Leach’s 0. 0. 330. (0) Arch, Cr. Pl. 229, 230. on 1 Russ. on Cr. 617. Arch. Cr. Pl. 0. 12 90 OF FELONIES. [poor 1. and the general conduct of the prisoner at the time. Menaces, threats, violence, and in short whatever conduct which, if it had been followed by a taking of property, would have constituted robbery, will in this case be evidence of an attempt to rob.(f) If the assault with intent to rob is not made with deadly weapons, &c. the punishment is imprisonment in a state prison not more than five years, or in a county jail not over one year, or a fine not exceeding $500.(¢) Ath. The attempt to commit any burglary, larceny or other felony.| A felony, as we have seen,(h) is any offense for which the offender may be punished by death or by imprisonment in a state prison. To deter- mine, therefore, whether the offense with an attempt to commit which the prisoner is charged be a felony, it will only be necessary to refer to the revised statutes to see whether it is subject to the punishment at- tached to felonies. Every attempt to commit a felony against the person of an individual involves an assault. On an indictment under this clause of the statute it is necessary to prove an attempt to commit the felony; that an assault with deadly weapons, &c. was made in such attempt; and that the attempt was made under such circumstances, that had it succeeded, the prisoner might have been convicted of the felony. If the prosecutor fails in proving the intent, but proves the assault, the defendant may be convicted of the common assault.(i) The crimes of burglary and larceny will be defined hereafter. 5th. Resisting the execution of any legal process.} The statute only makes it an offense to assault another with deadly weapons when the injury is done in resisting the execution of any legal process; and therefore the prosecutor must show that the process was legal.(k) And in order to render a party guilty of assaulting with deadly weapons, &c. in resisting the execution of legal process, it must appear that he had notice of the authority of the officer.(Z) First, as to the legality of the process. The statute applies as well to civil as to criminal process. By the term legal process, is to be understood only that the writ or warrant must not be deficient in the frame of it, and must issue in the ordinary course of justice from a court or magistrate having jurisdiction of the case.(m) Therefore, though there may have been error or irregularity in the proceeding previous to the issuing of the process, it will be an offense within the statute if the officer be assaulted in the execution of it; for the officer to whom it is directed must, at his peril, pay obedience to it.(n) And, for this reason, (f) Arch. Cr, Pl. 230. Roscoe’s Ev. —_ (k) Russ. & Ry. 865. 1 Stark. N. P. 754, 1 East’s P. O, 418. Ca, 246, (9) 2 R. 8. 666, § 39. (2) Roscoe's Or. Ev. 656, 625. 1 Russ. (A) Ante, p. 18. on Cr, 518. (4) Archb. Or. Pl. 357. (m) 1 Russ. on Cr, 511. (x) Idem. Fost, 811. 1 Hale, 457. oHAP, m1] OF FELONIES. 91 if a writ of any kind issue directed to the sheriff, and he or any of his officers be assaulted in the execution of it, it is sufficient, upon an indict- ment for this assault, to produce the writ, without showing the judgment or decree.(o) But it seems that the writ must be produced.(p) So though the warrant of a justice of the peace be not in strictness lawful, as if it do not express the cause with sufficient particularity; yet if the matter be within his jurisdiction, the assaulting of the officer executing the warrant will be within the statute; for it is not in the power of the officer to dispute the validity of the warrant, if it be under the hand of the justice.(qg) It may be observed also that in all kinds of process, both civil and criminal, the falsity of the charge contained in such process will afford no excuse for assaulting the officer; for every man is bound to submit himself to the regular course of justice ;{7) and, therefore, in the case of an escape warrant, the person executing it was held to be under the special protection of the law, though the warrant had been obtained by gross imposition on the magistrate, and by false information as to the matters suggested in it{s) But if the process be defective in the frame of it, as if there be a mistake in the name or addition of the person on whom it is to be executed; or if the name of the officer or the party be inserted without authority, and after the issuing of the process; and the officer is assaulted in endeavoring to execute it, these circum- stances will be a good defense on an indictment for the assault.(¢) So if the process was issued with a blank in it, and the blank was after- wards filled up.) Or issued with an insufficient description of the defendant ; as for instance, if it were to take the son of J. S. L., or was attempted to be executed against C. instead of B.(v) And so if the officer was attempting to execute the process out of the district in which alone it could be legally executed,(w) or upon a Sunday.(z) Secondly, as to notice of the authority of the officer. The party whose liberty or property is interfered with, must have due notice of the officer’s business, or an assault upon such officer will not come within this statute. As where a bailiff rushes into a gentleman’s bed chamber early in the morning, without giving the slightest intimation of his business, and the gentleman, not knowing him, in the impulse of the moment, assaults the bailiff, it is not a case within the statute.(y) But where the officer shows (0) 1 Russ. 511. Fost. 311, 312. s. 64. Fost. 812. 1 East’s P. ©. 810. (p) Rex v. Mead, 2 Stark. O. 205. Cro. Car. 371. (q) Hale, 459, 460. It is said, how- (wu) Stockley’s case, 1 East’s P, C. 810. ever, that this must be understood of a Honsin v. Barrow, 6 T. R.122. 8 Id. 454, warrant containing all the essential requi- Moody’s C. C. 281. sites of one. 1 East’s P. OC. ch. 5, s. 78, (v) Id. ib. p. 310. : (w) Archb. 832. 1 Russ, on Cr, 510, (r) 1 East’s P. C, 310. (a) Archb, Cr. Pl. 838, (s) Fost. 185, 312. (y) See 1 Hale, 470. (é) 1 Hale, 457. 1 Hawk. P.O, ch. 81, 92 OF FELONIES. [Boox 1, his process,(z) or where it appears that he is known by the defendant to be an officer; as for instance, when the prisoner says “ stand off; I know you well enough ; come at your peril ;”(@) an assault upon the officer will be within the statute. Ifa constable command the peace, or show his staff of office, this, it seems, is a sufficient intimation of his authori- ty.(6) And in such a case it is not necessary to prove his appointment as constable. Proof that he was accustomed to act as such, is suffi- cient.(c) If the officer be within his proper district, and known, or gen- erally acknowledged to bear the office he assumes, the law will pre- sume that the party assaulting had notice of his intent; especially if it be in the day time.(d) In the night, some further notification is necessary ; and commanding the peace, or using words of the like import, notifying his business, will be sufficient.(e) But private persons when executing process under a special deputation, or otherwise, must expressly intimate their authority and intention.(f) Where the outer door of a dwelling house may be broken open, in order to execute process, (as, for instance, in the case of a capias upon an indictment; a warrant to search for stolen goods; a warrant of a magistrate for levying a penalty ; a magis- trate’s warrant to arrest for any crime; or where a person lawfully arrested escapes into a house; where one knowr to have committed treason or felony, or to have dangerously wounded another, escapes into a house ; where there is an aflray in a house, and the constable wants to suppress it, or to take the offenders ; and in the case of forcible entry or detainer ; but not in the execution of writs in civil cases, excepting writs of seizin, or of possession,) in all these cases before the outer door is broken open, there must be a demand of admittance, or something equivalent thereto, and a refusal; otherwise an assault upon the officer with deadly weapons, &c. will not be within the act.(g) 9. ADMINISTERING Porson. Every person who shall be convicted of having administered, or hav- ing caused and procured to be administered, any poison to any other human being, with intent to kill such being, and which shall have been actually taken by such being, whereof death shall not ensue, shall be punished by imprisonment in a state prison for a term not less than ten years.(h) This being an offense which exhibits more deliberate malignity than any involuntary manslaughter, a discretion is given to the court to punish (2) 1 Hale, 461. (e) 1 Hale, 461. Fost. 811. (a) Cro. Car. 188. (f) See Fost. 310, 311. (2) 1 Hale, 461. Fost. 811. (g) Arch. Cr. Pl. 333. (c) 1 East’s P. O. 815.. (fh) 2R.S. 665, § 87. (d) 1Buss.on Cr. 515,616, 1 East, 816. omar, 11] OF FELONIES. 93 it by imprisonment for life or a shorter period.(i) Under the English statute, which is similar to the above, it has been decided that to consti- tute the offence of administering poison, some of the poison must be taken by or applied to the person to whom it is administered, and that merely giving it, if no part was taken or applied, is not sufficient.(/) It has also been decided, in England, that to constitute an administering, it is not necessary that the poison should be delivered by the hand of the prisoner. Therefore, where a servant put poison into a coffee pot, and when her mistress came down to breakfast, told her that she had put the coffee pot there for her, and the mistress drank of the poisoned coffee ; this was held “causing the poison to be taken,” within the statute.(/) Where A. sent poison intending it for B., with intent to kill B., and it came into the possession of C., who took it, but did not die, this was held to be acase within the statute.(7) Under our statute it is clearly neces- sary that the poison should be taken by the person to whom it is admin- istered; though it has been doubted in England whether this is necessary under their statute.(z) It is necessary to prove also on an indictment under our statute, that the drug or substance administered was a poison ; and that it was administered with the intent to kill. It is not necessary to prove the administering of the particular kind of poison mentioned in the indictment. If it be proved that poison of a similar kind was admin- istered, it will support the indictment.(o) With regard to the intent to kill, this must be expressly alledged in the indictment, and must be proved. In most cases, however, it can, of course, only be made out by circumstances. Evidence of administering poison at different times, may be given, to show the intent.(y) It will be observed this section of the statute only applies to cases where death shall not ensue from the administering of the poison. If the person taking the poison dies, of course it is murder. : 10. Porsonine Foon, Sprines, &c. Every person who shall mingle any poison with any food, drink, or medicine, with intent to kill or injure any human being; or who shall willfully poison any spring, well, or reservoir of water, may be punished by imprisonment in a state prison not more than ten years, or in a coun- ty jail not more than one year, or by a fine not over $500.(q) This is a new provision in the revised statutes. At common law this offense was a mere misdemeanor. Under this section it is not necessary, (2) Rev. Notes, pt. 4, p. 22. (n) 1 Moody’s O. CO. 114. ae Cadman’s case, 1 Moody’s ©. C. 4 (0) Arch, Cr. Pl. 341, 316. 1 Russ. on ¥ r. 654, (2) Harley’s case, 4 Car. & Payne, 369, (p) 4 Car. & Payne, 364, (m) 6 Car. & Payne, 161. (— 2B. S. 666, § 38. 94 OF FELONIES. [Boox 1. to constitute the offense, that the food, drink, or medicine poisoned should have been taken or drank by the person for whom it was intend- ed; and in this respect, the offense mentioned in this section differs from that embraced in the preceding section. Another difference is, that the intent, in the one case, must be to Kill, and in the other to kill or injure. The offenses mentioned in the 37th and 38th sections of the statute, are both attempts to kill by means of poison. The 37th section provides for the case of an attempt which is partially successful, inasmuch as the poison is actually taken ; while to bring a case within the 38th section, nothing more is necessary than the mingling of the poison. 11. AssaULTS WITH INTENT TO comMmIT FELONIES. By the revised statutes it is provided that every person who shall be convicted of an assault, with an intent to commit any robbery, burglary, rape, manslaughter, or any other felony, the punishment for which as- sault is not therein before prescribed, may be punished by imprisonment in a state prison not more than five years, or in a county jail not exceed- ing one year, or by-a fine not over $500.(r) This section was intended to embrace all assaults with intent to com- mit felonies, which assaults are not made with deadly weapons or by any other means or force likely to produce death. Assaults of that description had been provided for in the former part of that title(s) As most of the remarks which have been made under that section of the statute are applicable in this place, it will only be necessary to refer to them here.(¢) . (r) Id. 666 - (t) Ante, p. 85. (s) 2B. 8. 665, § 86. Ante, p. 85. oma. ry,] OF FELONIES. 95 CHAPTER IV. Offenses against Property, punishable by Imprisonment in a State Prison. The offenses arranged under this title by the revised statutes, are the following : 1. ARson, IN THE SECOND, THIRD AND FOURTH DEGREES. 2. Burewary. 3. ForRGERY AND COUNTERFEITING. 4, Faisr PERSONATING ANOTHER, AND OHEATS. 5. RogBBery. 6. EmBrzzLEMENT. 7. Larceny. 1. ARSON IN THE SECOND, THIRD AND FOURTH DEGREES. First. Of arson in the second degree. Arson in the second degree is the willfully setting fire to, or burning, 1. Any inhabited dwelling house in the day-time, which, if committed in the night, would be arson in the first degree. 2. Any building in the night, not being the subject of arson in the first degree, but adjoining fo, or within the curtilage of, any inhabited dwelling house, so that such house shall be endangered by such firing.(a) By the common law and the statutes of this state, pre “ous to the revision of 1830, there was no difference made in the punisliment of the crime of arson, whether it was committed in the day or in the night, “although there is an obvious distinction as well in the character of the offense as in the danger to the public. The object of the first section of the statute above referred to, was to establish this distinction.(b) The second section relates to buildings not included-in the section of the statute defining arson in the first degree. Arson in the first degree, as we have already seen,(c) consisting only of burning a dwelling house, or other edifice usually occupied by lodgers at night; and warehouses, barns, sheds, and other out houses, are expressly excluded, unless joined to, immediately connected with, and a part of a dwelling house. Whereas the second section, now under consideration, relates to the burning of shops, warehouses, or other buildings not the subject of arson in the first degree, but adjoining to a dwelling house. And to constitute (a) 2B. 8. 666, § 1, 2. (c) Ante, p. 57. (b) See Rev. Notes. 96 OF FELONIES, [Boox 1. arson in the second degree, it is necessary that an inhabited dwelling house should be endangered by the firing. The distinction, in point of atrocity in the offender, and danger to human life, between this offense and arson in the first degree, seems to be rather shadowy. Indeed the revisers remark, in their note to this section, that nothing but an invincible reluctance to increase the number of capital offenses prevented them from putting it in the first class. This section includes the case of a man setting fire to his own house. Arson in the second degree is punishable by imprisonment not less than ten years.(d) Secondly. Of arson in the third degree. This consists in the willfully setting fire to or burning, 1. In the day time any building which, if committed in the night time, would be arson in the second degree; or 2. In the nighé time, the house of another, not the subject, of arson in the first or second degrees; or any house of public worship or school house; or any public building belonging to the state, or to any county, city, town, or village, or any building in which may be deposited the papers of any public officer; or any barn, or grist mill; or any manufactory of cotton or woolen goods, or both; or paper, iron, or any other fabric; or any fulling mill, ship or vessel; or 3. The willful burning of any building, ship, or vessel, or any goods, wares, merchandise, or other chattel which shall be at the time insured against lose or damage by fire, with intent to prejudice the insurer, whether the same be the property of the incendiary or not.(e) Arson in the third degree is punishable by imprisonment not less than seven nor more than ten years.(f) Thirdly. Of arson inthe fourth degree. ~ Arson in the fourth degree is the willfully setting fire to or burning, 1. In the day time, any building, ship, or vessel, which, if committed ine the night, would be arson in the third degree; or 2. Either in the day or night willfully setting fire to or burning any saw mill, carding machine, or building containing the same ; any crop of grain in the field, or any nursery or orchard of fruit trees belonging to another; or any fence around any cultivated field belonging to another; or the woods in any town, not belonging to the incendiary, or any grass or herbage growing, not belonging to him.(g)' Arson in the fowrth degree is punishable by imprisonment in a state prison not less than two nor more than seven years; or in a county jail not exceeding one year.(h) (d) 2 R. S. 667, § 9, sub. 1, (g) 2 B.S. 667, § 6, 7, 8. (e) Id. ib. § 3, 4, 5. (A) Id. 668, § 9, sub. 3. (f) Id. ib. § 9, sub. 2. ouap, tv.] OF FELONIES. 97 2. BurGuary. By the common law, burglary is the breaking and entering the dwelling house of another, in the night time, with intent to commit a crime.(2). In New-York, burglary is divided by the revised statutes into three degrees. The first degree consists in breaking into and entering in the night time, the dwelling house of another, in which there shall at the time be some human being, with intent to commit some crime therein, either 1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; 2. By breaking in in any other manner, being armed with some dangerous weapon; or with the assistance of one or more confederates, then actually present and assisting ; 3. By unlocking an outer door by means of false keys or by picking the lock thereof.(/) In this definition of burglary in the first degree there are four things to be considered ; the manner—the time—the place—and the intent. A$ to the manner of committing this offense, there must be both a breaking and entry, to complete it. And this is also the rule at common law.(1) And the breaking must be such as will afford the burglar an opportunity of entering so as to commit the intended felony.(m) But they need not both be done at the same time. For if a breach be made on one night and the same breakers enter the next night through the same breach they are burglars.(x) Thus where the prisoner broke the glass of the prosecutor’s side door on Friday night, with intent to enter the house at a future time, and actually entered on the ensuing Sunday, it was held that this was a burglary, although a day had intervened ; the breaking and entering being both by night, and the breaking being with intent afterwards to enter.(o) There must be an actual breaking. But this may be done in any of the methods particularly mentioned in the statute; or, in case the burglar is armed with some dangerous weapon, it may be done in any other manner not specified in the statute. It may be effected by the aid and assistance of one or more confederates actually present; and this would extend to the case of a servant belonging to the house assisting the burglar.(p) And where the family within the house were forced by threats and intimidations to let in the g (7) 4 Black. Com. 224. 8 Inst. 63. (n) 1 Hale’s P. C. 551. (k) 2B. 8. 668, § 10. (o) Rex v. Hughes. 1 Leach, O. C. (2) 4 Black. Com. 226. 1Leach,C.C. 406. 2 East’s P. C. 491. 406. (p) 2 Buss. on Cr. 9. (m) Rex v. Hughes. 1 Leach, ©. C. 406, 2 East’s P. O. 491. 13 98 OF FELONIES, [Boor x. offenders, by one of them opening the door, it was held that this was as much a breaking by those who made use of such intimidations without, to prevail upon them so to open il, as if they had actually burst the door open.(qg) There are many cases of constructive breaking, which do not seem to come under the statutory definition of burglary in the first degree ; to constitute which offense actual force is necessary. These cases will be glanced at hereafter. An entry is requisite, as well as a breaking. To constitute this, how- ever, it is not necessary that the whole body should be introduced. Any, the least entry, either with the whole or any part of the body, hand or foot, or with any instrument or weapon introduced for the purpose of committing a felony, will be sufficient.(r)} Thus, where the prisoner, in the night time, cut a hole in the window of the prosecutor’s shop, which was part of the dwelling house, and putting his hand through the hole, took out watches, &c. which hung in the shop within his reach, it was holden to be burglary.(s) So if a thief break the window of a house in the night time, with an intent to steal, and puts in a hook or other en- gine to reach out goods; or puts a pistol in at the window with intent to kill; this is burglary, though his hand be not within the window.(¢)* And in a ease where thieves came in the night to rob A., who perceiving it, opened his door, issued out, and struck one of the thieves with a staff, when another of them perceiving persons in the entry ready to interrupt them, put his pistol within the door, over the threshold, and shot, in such a manner that his hand was over the threshold, but neither his foot nor any part of his body, it was adjudged burglary.(w) It appears, however, that the mere introduction of an instrument, in the act of breaking the house, will not make a sufficient entry ; but that the instrument by which the entry is effected must be introduced for the purpose of committing a felony. So that where a thief broke a bole in a house intending to rob the owner, but had not otherwise entered, when the owner, for fear, threw out his money to him, and he went off with it, the better opinion seems to have been that it was not burglary.(v) Introducing the hand between the glass of an outer window and an inner shutter, has been held to be a sufficient entry to constitute burglary.(w) And where, in breaking a window in order to steal something in the house, the prisoner’s finger went within the house, it was held that there was a sufficient entry to constitute burglary.(7) The ¢ime must be by night. The law has settled what is to be reck- oned night and what day, for this purpose. If there be daylight enough (gq) Rex v. Swallow. 2 Russ. C.& M. 8. (u) 2 Russ. on Cr. 10, (r) Id. 10. 4 Black. Com. 227. (v) 1 Hale’s P. 0. 555. (8) Fost. 207. (w) 2 Russ. on Or, 11. (t) 8 Inst, 64. 1 Hale’s P. C. 555. (2) Russ. & Ry. 499. OHAP. IV.) OF FELONIES, 99 either begun in the morning, or left in the evening, so as that the features of a man’s face may be thereby discerned, it will not come within the first degree of burglary. But this does not extend to moonlight; for the malignity of the offense does not so properly arise from its being done in the dark as at the dead of the night; “when all the creation, except beasts of prey, are at rest; and when sleep has disarmed the owner, and rendered his castle defenseless.’(y) Both the breaking and the entry must be by night; for if the breaking were in the night, and the entry in the day, or vice versa, the offense would net be complete.(z) The place must be the dwelling house of another, in which there shall be, at the time, some human being. And the statute has clearly defined the meaning of the word dwelling house, not only by providing that it shall be a building inhabited, but by declaring in a subsequent section that no building shall be deemed a dwelling house, or any part of a dwelling house, unless it be joined to, immediately connected with, and part of a dwelling house.(a) It is said that every house for the dwelling and habitation of man, is taken to be a mansion, or dweliing house, in which burglary may be committed.(b) And a portion only of a building may come under this description. Thus, sets of chambers in a college, or an inn of court, are to all purposes considered as distinct dwelling houses; being often held under distinct titles, and in their nature and manner of occupation as unconnected with each other as if they were under separate roofs.(c) And a loft, situated over a coach house and stables, and converted into lodging rooms, has also been holden to be a dwelling house.(d) Burglary, however, can not be committed by break- a ing into any inclosed ground, or any booth, or tent, erected in a market or fair, though the owner may lodge therein; for the law regards thus highly nothing but permanent edifices.(e) In some cases a part of a house may be so severed from the rest, by being let to a tenant, as to be no longer a place in which burglary can be committed. As where the owner of a dwelling house lets a shop which is a parcel of it, te a tenant who occupies it by means of a different entrance from that belonging to the dwelling house, and carries on his business in it, but never sleeps there, it is not a place in which burglary can be committed, if there be no in- ternal communication with the other part of the house.( /) It is a well established rule that, where the owner of a house lets out apartments in it to lodgers, but continues to inhabit some part of the house himself, and has but one outer door, common to him and his lodg- (y) 4 Black. Com. 224. 7 : (d) Idem. 1 Leach, 805. 2 East’s P. (2) 1 Hale’s P.C. 551. 1Leach, 185. ©, 499. (a) 2B. 8. 669, § 16. (e) 1 Hale, 557. 4 Black. Com. 226. (6) 3 Inst. 64. (7) 1 Hale, 557. Kel. 838. 4 Black. (c) 2 Russ. on Cr, 12. Com, 225. 100 OF FELONIES. [Boox. t ers, such apartments are to be considered a part of his dwelling house.(g) It follows as a necessary consequence of this rule, that if he should break open the apartments of his lodgers in the night, and steal their goods, the offense will not be burglary; on the ground that a man can not commit burglary by breaking open his own house.(h) But if the whole of a house is let out in lodgings, and has only one outer door, common to all its inmates, it is the mansion-house- of its several inhabitants ;(2) and the separate part of each may be described as the dwelling house of each.(k) The remaining ingredient in this crime is the intent. The breaking and entry must be with an intent to commit some crime therein; other- wise it will only be a trespass.(?) The term crime, imports what was understood at common law, previous to the revised statutes, by the word felony, as used in the description of this offense.(m) And it is the same whether such intention be actually carried into execution or not. And, therefore, when a house is burglariously broken and entered, with intent to commit a robbery, a murder, a rape, or any other felony, it is burglary, whether the thing be actually perpetrated or not.(m) Evidence that a felony was actually committed, is evidence that the house was broken and entered with intent to commit that offense.(o) And it makes no difference whether the offense intended be felony at common law or by statute; because, whenever a statute makes an offense felony, it inci- dentally"gives it all the properties of a felony at common law.(p) The intent must be proved as laid. Thus, if it be laid with intent to commit one sort of felony, and it be proved that it was with intent to commit another, it is a fatal variance.(q) It seems sufficient in all cases where a felony has been actually committed, to alledge the commission without any intent;(r) and in such case no evidence except that of the committing of the offense will be required, to show the intention. It is a general rule that a man who commits one sort of felony, in attempting to commit_another, can not excuse himself on the ground that he did not intend the commission of that particular offense. Yet this, it seems, must be confined to cases where the offense intended is in itself a felony.(s) The terms of art usually expressed by the words “ feloniously and bur- glariously did break and enter,” are essentially necessary to the indict- (g) 2 Russ. on Or. 28. 1 Leach, 90. (m) See Rey. Note to this section. (A) 2 East’s P. C. 506. (n) 4 Black. Com. 227. (i) Rex v. Trapshaw, 1 Leach’s C. O. (0) 1 Hale’s P. 0. 560. 2 East, 514. 427. 2 East’s P. O. 506, 780. (p) Roscoe’s Cr. Ev. 278. (k) Rex v. Bailey, 1 R. & M. O. ©. 28, (q) 2 East’s P. C. 514. 2 Russ. C. & M. 80. 2 East’s P. O, 506. (r) 1 Hale, 560. 1 Leach, 89. (s) 2 East, 514, 515. (2) 4 Black. Com. 227. i OHAP. Iv.] OF FELONIES. 101 ment. The word burglariously can not be expressed by any other word or circumlocution ; and the ayerment that the prisoner broke and entered, is necessary, because a breaking without an entering, or an entering without a breaking, will not make burglary.(¢) Where several come to commit a burglary, and some stand to watch in adjacent places, and others enter and rob, the act of one is, in judg- ment of law, the act of all, and all are equally guilty of the burglary.() Burglary in the first degree is punishable by imprisonment not less than ten years.(v) Burglary in the second degree, is, 1. The breaking into a dwelling © house in the day time, under such circumstances as would have consti- tuted burglary in the first degree, if committed in the night; 2. The breaking into a dwelling house in the night time, with intent to commit a crime, but under such circumstances as not to be burglary in the first degree ; 3 The entering into the dwelling house of another by day or by night, in such a manner as not to constitute any burglary before spe- cified, with an intent to commit a crime; or the commission of a crime while in the dwelling house of another ; and breaking, in the night time, any outer door, window, or shutter of a window, or any other part of the house, to get out ; 4. The entering the dwelling house of another, in the nighi time, through an open outer door or window, or other aperture not made by the burglar, and then breaking any inner door of the house, with intent to commit a crime; 5. The being admitted into a dwelling house with the consent of the occupant, or being lawfully in the house, and then in the night time breaking any inner door with intent to com- mit a crime.(w) The first branch of the above definition of burglary in the second de- gree extends the prohibition of the law to offenses committed in the day time, which, previous to the statute, did not amount to burglaries. At common law, a burglary could only be committed in the night. The second branch embraces all burglaries committed in the night time, which, for any reason, do not come within the first degree. Thus, breaking and entering a dwelling house in the night, with intent to com- mit a crime, at a time when there did not happen to be any person in the house, would doubtless come within this clause. The second branch of the definition of burglary in the second degree would also include a constructive breaking ; which is, where the offend- er, with intent to commit a felony, obtains an admission by some artifice or trick, for the purpose of effecting it. As, for instance, if a man knock at a door, and upon its being epened rush in, with a felonious intent; or (t) 1 Hale, 550. 2 East, 512. (v) 2B. 8. 669, § 21. {u) 3 Inst. 63. 2 East's P.C. 486, 1 (w) 2 B.S, 668, §§ 11 to 15. Hale, 439. : 102 OF FELONIES. [Boox 1. upon pretense of taking lodgings, fall upon the landlord and rob him; or procure a constable to gain admittance, ip order to search for traitors and then bind the constable and rob the house. So, where the defend- ant obtained admission by promising a boy who was in the care of the house some ale, and while the boy was gone for the ale, robbed the house. All these entries have been adjudged to be burglaries.(7)} And if aservant conspire with a robber, and let him into the house by night, this is burglary in both.(y) The third subdivision of this grade of burglary relates to the breaking out of a dwelling house of another, after it shall have been entered with an intent to commit a crime; or after the commission of a crime in such dwelling house in whatever manner the offender may have entered such house. And the statute declares that no breaking of a house shall amount to burglary, except in the cases mentioned therein.(z) This provision is founded upon the English statute of 12 Ann, ch. 7, and is in accordance with it.(a) As tothe manner of entry, it is to be observed that it must be in such a way as not to constitute any burglary previously specified in the statute. This part of the section, therefore, does not em- brace a forcible entry. But it would extend to an entry without force either actual or constructive, into a house not occupied at the time; to an entry by fraud, or false pretenses, by conspiracy, or by menaces, &c.(b) It has been decided in England that if a lodgerin a house has com- mitted a larceny there, and in the night time even lifts a latch to get out of the house with the stolen property, this is a burglarious breaking out of the house.(c) The fourth part of this definition relates to the enter- ing the dwelling house of another, through an open outer door or window, or other aperture not made by the burglar, and then breaking any inner door with intent to commit a crime. This offense would have been bur- ‘glary in the first degree had it not been for this section; although the crime is very different from breaking an outer door. Entering through a chimney, would come within this branch of the section. This, at common law, was considered a sufficient breaking to constitute bur- glary.(d) But an entering through an open door or window, does not amount to burglary at common law.(e) Yet, if the offender enters a house in the night time through an open door or window, and, when within the house, turns the key of, or unlatches, a chamber door, with intent to commit a felony, it amounts to burglary.( f ) (z) Arch. Cr. Pl. 258, a. 4 Black. (6) Roscoe's Cr. Ev. 258, Com. 226. 2 East's P. O. 485. (c) Reg. v. Wheeldon, 8 Car. & P. 747. (y) 1 Hale, 5538. 1 Hawk. P. O. c. 38, (d) Roscoe’s Cr. Ev. 255. 2 East, 485... 8.14. 2 Str. 881. Russ. & Ry. ©. ©. 450. (2) 2B. 8. 669, § 19. (e) Roscoe’s Cr. Ev, 254. (a) Rev. Notes. Roscoe’s 0. Ev. 288. — (f) Id. 1 Hale’s P. C. 553. 1Coxe’s 2 Russ. on Cr. 7. 6 Rogers’ Rec. 1. Rep. 489. Arch. Cr. P1258, a, omap, rv.] OF FELONIES. | 103 5th. The being admitted into a dwelling house with the consent of the occupant, or being lawfully in the house, and then, in the night time, breaking any inner door with intent to commit a crime. This branch of the definition of burglary in the second degree was intended to reach the case of servants, lodgers and others who are lawfully in the house. A similar rule exists at common law.(g) But breaking open cupboards, chests, &c. is not burglary.(h) The breaking must be of the house itself. The words of the statute are, “any inner door of the same house.” But the breaking of the inner door of a house by a person therein, is declared by the statute not to be such a breaking as to constitute burglary in any other cases than those particularly mentioned.(2) Burglary in the second degree is punishable by imprisonment not less than five nor more than ten years.(/), Burglary in the third degree is breaking and entering, in the day or night time, 1. Any building within the curtilage of a dwelling house but not forming a part thereof; 2. Any shop, store, booth, tent, ware- house, or other building in which any goods, merchandise, or valuable thing shall be kept for use, sale or deposit, with intent to steal therein, or to commit any felony; 3. Breaking and entering into the dwelling house of another, by day, under such circumstances as would have constituted the offense of burglary in the second degree if committed in the night.(Z) The first and second subdivisions of the above definition were intended to provide for a class of offenses which had not been declared burglaries in any other degree, and for which there was previously no punishment prescribed. The word curtilage, as used in the statute, means a court yard, or piece of ground lying near and belonging to a dwelling house.(m) It is not necessary that any of the buildings, &c. mentioned in this section should be occupied at the time of the breaking and entering. Burglary in the third degree is punishable by imprisonment for a term not exceeding five years.(7) Indictment.] The words broke and entered must both be inserted.(o) The word burglariously is necessary ;(p) so is the word feloniously.(q) It must be ,stated that the offense was committed in a mansion or dwelling house ; “house” merely will be defective.(r) An adjoining outhouse must be laid to be either the dwelling house generally, or part of the dwelling house.(s) The situation of the house must be truly (g) 1 Hale, 553. (n) 2B. S. 669, § 21. (A) Id. Fost. 109. (0) 1 Hale, 550. (é) 2B. S. 669, § 20. (p) 4 Co. 39, 40. (k) Td. ib. § 21. (q) 1 Hawk. ch. 38, s, 88. (2) 2B. 8. 669, §§ 17, 18. (r) 1 Hale, 550. (m) Toml. Law. Diet., Curtilage. (8) 1 Leach, 144. 2 East’s P, C. 512, 104 OF FELONIES. [Boor 1. described : a variance would be fatal. If the situation be not expressly stated it will be taken to be at the place named by way of special venue.(q) An error in not stating the name of the owner, with certainty to a common intent, would be fatal.(r) If there be any doubt whether the house broken, &c. belongs to A., B. or C., counts alledging it to be the house of A., B. and C. respectively, may and should be inserted.(s) Tn an indictment at common law, both breaking and entering must be stated to have been done in the night ;(¢) and the hour must be stated,(w) and if after midnight, it must still be laid as in the night of the preceding ‘day ; but neither the day nor the hour, need be proved as laid.(v) The felonious intent, and the species of felony intended must be correctly stated and proved.(w) If it be doubted what specific felony was intended, it may and should be laid differently in separate counts.(x) If an actual larceny be alledged and the theft be not proved to have been completed, the defendant must be acquitted.(y) Nor can a previous stealing in the same house be connected with a subsequent breaking, to support this charge.(z) But if a felony has been actually committed,.an averment of the intent to commit it will suffice.(a) If the indictment be properly laid, the defendant may be convicted either of burglary, or of stealing in the dwelling house, or of a simple larceny only, according as the evidence may be sufficient to support the one or the other.(6) Upon an indictment against two, one may be found guilty of burglary and larceny and the other of larceny only.(c) If the indictment contain a separate count for such offense and there be evidence to support it, the defendant may be convicted of breaking, entering, and stealing, in a building within the curtilage.(d) An indictment for burglary in the third degree need not state that the offense was committed in the day time.(e) 3. ForGeRY AND CoUNTERFEITING. Forgery, at common law, has been defined to be the fraudulent making or alteration of a writing, to the prejudice of another man’s right ;(f) or, as the false making or alteration of a written instrument with intent to deceive and defraud.(g¢) It is an offense punishable as a misdemeanor at common law.(h) In England a more severe punishment is inflicted (q) Ry. & Moo. C. C, 44. (2) 2 Leach, 708. Russ. & Ry. 445. (vr) 2 Leach, 774. 2 Hast’s P. O, 514. (a) 1 Hale, 560. (s) Matt. Dig. 49. (0) 1 Leach, 88. 2 East’s P. C. 517. (t) Id. 48, 49. 1 Hale, 551. (c) Russ. & Ry. ©. 0. 520. (uv) 2 East’s P. O. 518. (d) Matt. Dig. Cr. L. 49. (v) 1 Hale, 549. (e) Butler v. The People, 4 Denio, 68. (w) Matt. Dig. 48, 49. (f) 4 Black. Com. 247. (a) 2 East’s P. 0. 515. (g) Davis’s Just. 238. (y) 2 Leach, 708. Russ. & Ry. 445. (A) 2 East’s P.O, 853. ona, rv,] OF FELONIES. 105 on the offender, by a variety, or rather a multitude of statutes; by some of which the offense is made capital. In this state forgery or counterfeiting of writings or of coin is divided into four degrees, and the punishment of each provided for; besides which the revised statutes contain various provisions as to altering or counterfeiting certain inspection bills, receipts for duties, brands upon flour, salt, and oil barrels, &c. We shall first consider those kinds of forgery of writings, coin, é&c. which are arranged in four classes by themselves, in the article of the revised statutes concerning forgery, after which various other species of forgery will be glanced at. Forgery in the first degree is defined by the revised statutes to consist in forging, counterfeiting, or falsely altering; 1. Any will of real or personal property, or any deed or other instrument, being or purporting to be the act cf another, by which any right or interest in real property shall be or purport to be transferred, conveyed, or in any way charged or affected; 2. Any certificate of acknowledgment or proof of any instrument which may be recorded, with intent to defraud; 3. Any certificate purporting to be issued by the state for the payment of money, or to acknowledge the receipt of property, or any certificate of any interest in a public stock created by any law of the state, or any other evidence of any liability of the state purporting to be issued by a public officer; or, 4, Any indorsement or other instrument purporting to transfer the right of any holder of such certificate; with intent to defraud the people of this state, or any public officer thereof, or any other person.(i) Although the 22d section of the above mentioned statute does not, in terms, prohibit the forgery of mortgages, yet it has been held that they are embraced by it; and that in charging the forgery or felonious alteration of a mortgage, with the intent to defraud the mortgagor, it must be averred that there are in fact such lands as are described in the instrument, and that the mortgagor had an interest or right in them.(£) It has been decided that it is forgery to fabricate a will by counterfeiting the name of a pretended testator who is still living.(2) And signing a wrong christian name of the person whose will a false instrument purports to be, is a forgery.(m) But if it appear that the will purports to be a will of land, and is attested by two witnesses only, three being necessary to the validity of a will of real estate, it is not a forgery.(n) Forgery in the first degree is punishable by imprisonment in a state prison for not less than ten years.(o) Forgery in the second degree is, 1. The forging or counterfeiting of (4) 2B. 8. 670, §§ 22, 28. (m) 1 Leach’s OC. OC. 20. (“) 9 Wend. 193. (n) ae 958. See also 1 Bay’s Rep. (2) Leach’s ©. O, 855, OCogan’s case. 207, 209 2 Hast’s P. O. 948, (0) 2R.8. 675, § 42. 14 106 OF FELONIES. [Boox 1. the great or privy seal, or the seal of any public office authorized by law, or any court of record, or of any company incorporated by this state, or the impression of any such seal; 2. The altering, destroying, corrupting or falsifying any record of any will, conveyance, or other instrument, the record of which shall by law be evidence; or any record of any judgment in a court of record, or the enrollment of a decree in equity, or the return of any officer, court or tribunal, to any process of any court; 3. The falsely making, forging or altering any entry in any book of records, or any instrument purporting to be any record or return above specified ; 4. Willfully and falsely certifying by an officer authorized to take the proof or acknowledgment of any instrument that may be recorded, that the same has been acknowledged or proved; 5. Counter- feiting any gold or silver coins current by custom or usage within this state; 6. Making or engraving or causing to be made or engraved any plate in the form or similitude of any evidence of debt, &c. issued by any bank incorporated by any state of this or any other country, without the authority of such bank; 7. Having or keeping any such plate, or an impression from it, without the authority of such bank, with the intent of having any impression made and passed, sold or uttered, or of having the impression filled up to be passed, sold or uttered; 8. Making or causing to be made, or having, any plate upon which are engraved any figures or words which may be used to falsely alter any evidence of debt issued by any such bank, with intent to use the same; 9. Selling, exchanging, delivering, offering, or receiving, for any consideration, any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, knowing the same to be forged or counterfeited, and with intent to have the same passed or uttered; 10. Having any forged, altered or counterfeit evidence of debt of any such bank or corporation as above specified, knowingly, with intent to utter or cause to be uttered the same as true or false, and to defraud or injure.(p) With respect to the 5th subdivision of the above definition of forgery in the second degree, viz: counterfeiting any of the gold or silver coins current by custom or usage within this state, it is proper to remark in the first place, that the state and federal courts have concurrent jurisdiction of offenses against the coin.(g) And in order to prove that the prisoner was guilty of counterfeiting, it is not necessary to show that.he was detected in the act; but presumptive evidence, as in other cases, will be sufficient, viz.: that false coin was found in his possession, and that there were coining tools discovered in his house, é&c. But the evidence must be such as to lead to a plain implication of guilt.(r) It must be proved (p) 2B. 8. 671, §$ 24 to 28; 30, 82, 36, (r) Roscoe’s Or. Ev. 296, (7) See 2 Wheel. Or, O. 508. 1 Blackf, 198, 2 Bailey, 44. ‘onAP, 1v.] OF FELONIES. 107 both that the coin is counterfeit, and that it resembles or is apparently intended to resemble the legal coin. ‘The fact that the coin counterfeited or resembled is such as is current by custom or usage within this state, may be proved by evidence of common usage or reputation.(s) In proving the coin to be counterfeit two questions may arise; first, whether it is in such a state of completeness, as to be properly described as false and counterfeit coin ; and secondly, whether it does resemble or is apparently intended to resemble the current coin. With regard to the first question, it is said there must be a substantial making or counter- feiting proved; that it will not be sufficient merely to show that steps have been taken towards a counterfeiting.(¢) Though the coin be un- skillfully executed, still the offense is complete, if such coin be so far finished, and in such a state, that it is calculated to deceive ; and wheth- er it is so or not, is a question of fact for the jury.() The sixth, seventh and eighth branches of the above definition of the offense in the second degree, are explained by a subsequent section of the statute declaring that every plate specified in such previous section, shall be deemed to be in the form and similitude of the genuine instru- ment imitated, when the engraving on such plate resembles and con- forms to such parts of the genuine instrument as are engraved; or when such plate shall be partly finished, and the part so finished resembles and conforms to similar parts of the genuine instrument.(v) Of the eighth branch, the revisers remark, that the provision was intended to reach a case which not unfrequently occurs, that of having plates with figures or words to fill up the sums in a bill, after the original sums have been ex- tracted.(w) The ninth branch relates to the selling, exchanging, or offering, for any consideration, any forged or counterfeited notes, bills, &c. knowing- ly, with intention to have the same uttered or passed ; or receiving them with such knowledge and intention, for any consideration. This provis- ion is similar to the English statute 45 Geo. 3, ch. 8, 9, §§ 2,6; under which it has been decided, that giving a forged note to another person, whether an accomplice or not, in order that he may pass it, is within the statute.(z) It is to be observed, however, that the English statute does not contain the words “for any consideration.” These words in our statute seem to restrict its application to cases of purchase or exchange of forged or counterfeited notes, &c. and to prevent its provisions from extending to cases of mere gift. The tenth and last branch of the definition of forgery in the second (s) Roscoe’s Cr. Ev. 296. 1 Hale, 218, . (w) See Rev. Notes. (t) Roscoe’s Cr. Ev. 297. (z) Ry. & Moo. O. 0. 166. See also (u) 6 Rogers’ Cr. Rec. 63, 11 Mass, Rep. 136. (ve) 2B. 8. 672, § 31. : 108 OF FELONIES. BOOK 1,] degree, refers to the having in one’s possession any forged, altered, or conterfeit negotiable note, bill, draft, &c. of any corporation or company the forgery of which is before declared to be punishable; knowing the same to be forged, altered, or counterfeited, with intent to utter or cause the same to be uttered as true or false, with intention to injure or defraud. Upon this section the revisers remark that the laws in force previous to the revised statutes, against having in possession counterfeit bank notes, (which laws were substantially the same as the.present section,) have been found most effectual in reaching the principals, who generally act by subordinate agents. In a case under the 6th section of the statute 45, Geo. 3, ch. 89, (which section, as before remarked, is very much like the section of the revised statutes now under consideration,) in which case the circumstances necessary to constitute “the having in possession” of forged notes came before the judges, they held that every uttering in- cluded having in possession and custody within the statute. And some of them thought that without actual possession, if the notes had been put in any place within the prisonet’s control, and by his direction, the result would have been the same.(y) It has been decided in Connecti- cut, under their statute, which is also similar to ours, that the having in one’s possession several forged bank notes of different banks, at one time, with intent to pass them, &c. constitutes but one offense.(z) Forgery in the second degree is punishable by imprisonment in a state prison for not less than five nor more than ten years.(a@) Forgery ia the third degree is, 1. Counterfeiting the gold or silver coin of a foreign government or country, with intent to export it and defraud the foreign government or its subjects; 2. Falsely making, altering, forg- ing or counterfeiting, with intent to injure or defraud: any instrument purporting to be any process, or any certificate, order or allowance, of any competent court or officer; or to be any pleading or proceeding filed or entered in any court; or to be any license or authority authorized by any statute; or, 3. Any instrument purporting to be the act of another, by which any pecuniary demand or obligation shall be, or purport to be, created, increased, discharged, &c. or any rights or property may be, or purport to be, transferred, conveyed, discharged, diminished or affected, and for which a punishment is not before provided, by which false mak- ing, &c. any person may be affected, bound or in any way injured in his person or property; 4. Making a false entry, or falsely altering an entry, with intent to defraud, in any book of accounts kept in the office of the comptroller, or of the treasurer, or surveyor general of the state, or of any county treasurer, by which any demand, right or claim may be affected ; (y) Russ. & Ry. C. 0. 110, a) 2K. 8. 675, § 42. (@) 7 Conn. Rep. 414. me 3 OHAP. Iv.] OF FELONIES. 109 or, 5. Making any false entry or alteration in any book of accounts kept by any moneyed corporation within the state, or kept by such corpora- tion or its officers, and delivered, or intended to be delivered, to any one dealing with such corporation, and by which any pecuniary claim may be affected.(b) The statute to prevent forgery, which was in force previous to the adoption of the revised statutes, contained an enumeration of a great va- riety of instruments, as the subject of forgery. As the revisers remark, it gave rise to many questions and decisions upon cases falling within the spirit and meaning of the act, but not within its terms. The same practice of enumerating particular instruments has prevailed in England, where, from the fact that new statutes have been enacted from time to time to meet new cases as they arose, the number of statutes relating to forgery amounts to upwards of four hundred. In their note to the above sections, the revisers further remark, that in principle there can be no difference, in the injury to society, or to an individual, or in the degree of moral turpitude, between the forgery of one instrument or another, by which the property, rights, or interests of any one are affected. ' Their object, therefore, in introducing the sweeping and general provisions of the 33d section, was to avoid cavil, to reach every case of forgery that had ever been committed, or that ever could be committed, and to afford a definite and distinct rule on the subject, which, though general, should have the same force in each particular case as a special statute. Under the third branch of the above definition of the crime in the third degree, it has been decided that where a party is charged with forging or counterfeiting a check on a bank, it is sufficient in the indict- ment to alledge that he falsely made, forged, and counterfeited a certain check, with intention to defraud; &c. setting forth the check im hee ver- ba, with the name of the drawer as appearing upon it. And that it is not necessary to alledge, in the words of the statute, that it was an in- strument or writing, being, or purporting to be, the act of another, by which a pecuniary demand or obligation is created, &c.; or by which rights or property are, or purport to be, transferred, &c. or affected. Nor is it necessary to aver that by such forgery any person was affected, bound, or in any way injured in his person or property.(c) Insuch a case, it would be well, in point of form, to charge in the indictment that the ac- cused forged a certain instrument in writing, purporting to be the act of the party whose name is subscribed to it, by which a pecuniary demand is, or purports to be, created, and then to set forth the instrument in hec verba(d) And an indictment under the above section of the revised (B) 2 B.S. 672, 88 29, 38, 84, 35, Id. ib, (c) 12 Wend. 425, 7° | ne 110 OF FELONIES. [Boox 1. statutes is not vitiated by pursuing the forms under the old statute, in charging that the prisoner made, forged, and counterfeited, and caused or procured to be falsely made, &c. and willingly acted and assisted in the false making, &c.; the latter charges being mere surplusage.(e) Forging lottery tickets, &c. comes within this 33d section of the statute.( f) The entries specified in the 35th section of the statute, (fifth branch of the above definition,) are not instruments of another, as they have no signatures; and these offenses, therefore, rest upon the common law. The provisions of this section were introduced, as the revisers remark, as well to guard the public, as those institutions which are compelled to intrust so much to their subordinate officers. Forgery in the third degree is punishable by imprisonment in a state prison for a term not exceeding five years.(g) Forgery in the fourth degree is—l. Having in one’s possession any forged or counterfeited instrument, the forgery of which is previously (i. e. in 2 R. 8. 670, &c.) declared to be punishable, (except such as are enumerated in the 36th section ;) or having any counterfeit of any gold or silver coin current in this state, knowing such instruments to be forged, counterfeited or falsely altered, or such coin to be counterfeited; with intention to injure or defraud, by uttering, or causing the same to be ut- * tered, as true or false.(h) The uttering as true a forged or counterfeited instrument, or a counterfeit coin, the forgery or counterfeiting of which is previously made an offense, is punishable in the same manuer as such forgery or counterfeiting is, unless, 2. The utterer received the forged or counterfeited instrument or coin in good faith and for a valuable con- sideration, without circumstances to justify a suspicion of its being forged or counterfeited ; and then it is forgery in the fourth degree.(7) The 37th section applies to the having in one’s possession other forged instruments than bank notes. In relation to this, the revisers observe that it was at least a questionable offense previous to the revised stat- utes. And it was so liable to abuse, at common law, that they thought proper to prescribe a definite punishment for it by placing it in the fourth grade of forgery. The “receiving” of such instruments was omitted be- cause it is included in the expression “ have in possession.” On an indictment under the 38th section for having counterfeit coins in one’s possession, the prosecutor must prove, 1. The possession of the false coin; 2. The knowledge that it was counterfeit; and 3. The in- tent to utter or put off the same. They will be deemed to be in the prisoner’s possession if he have them (e) 12 Vfend. 425. (A) Idem, 674, §§ 37, 88, (7) 1B. 8. 671, § 53. (i) 1 id. 674, §§ 89, 40. () 2 id. 675, § 42. OHAP, IV.] OF FELONIES. 111 in his personal custody and possession, or knowingly have them in any dwelling house or other building, lodging, apartment, field or other place, open or inclosed, either for his own use or benefit or for that of an- other.(/) The guilty knowledge and the intent to utter can, in general, only be proved by circumstances ; among the most cogent of which will be the fact, that upon other occasions the prisoner had uttered false coin.(d) In their note to the 39th and 40th sections of the statute, the revisers remark-that the offense of passing counterfeit bills is perhaps the most frequent of any presented to our criminal courts. That it usually in- cludes two very distinct classes of offenders ; one, consisting of the actu- al bold forger or his associate; the other, consisting of the duped and ignorant citizen, who, although suspicious of a bill that he has received, yet gets rid of it, on the first opportunity. The latter, though highly criminal, is not of the same deep depravity of the former. This is proved by the reluctance of juries to convict in the latter case, and thus expose such persons to the very severe penalties of the law. The object of these sections, therefore, was to make a discrimination between the two classes of offenders, and to provide a punishment for each proportioned to the actual guilt. Forgery in the fourth degree is punishable by imprisonment in a state prison for not more than two years, or by imprisonment in a county jail for not more than one year.(m) Making an instrument in one’s own name, intended to create, increase, discharge, &c., any pecuniary obligation, right, or interest, or to transfer or affect any property, and uttering or passing it as the act of another person of the same name, with intent to injure or defraud, is the same offense as forging the name of a person of a different name.(n) This is in accordance with the English decisions,(0) and with a decis- ion of our own supreme court, previous to the revised statutes.(p) Forgery may also be committed by the total erasure or obliteration of any instrument or writing, with intent to defraud, by which any pecu- niary obligation, or any right, interest, or claim to property shall be, or shall be intended to be, created, increased discharged, diminished, or af- fected. And such erasure or ablitevation is declared to be the same offense, as the false alteration of any part of such instrument or writing.(q) This section was introduced by the revisers as declaratory of a rule upon which some doubt previously existed, whether such an offense came within any statutory provisions. Chemistry has developed many (%) Arch, Cr, Pl. 396. 855. 2 Leach’s 0. C. 775. Roscoe’s Cr. (2) Idem. Roscoe’s Cr. Ey. 808. Ev. 382. (m) 2B. S. 675, § 42. (p) 6 Cowen’s Rep. 72. (n) 2 B.S. 675, "$41, @ 2. B.S. 675, § 43. (0) 4 Term Rep. 28. 2 East's P. C. 112 OF FELONIES, [Boor 1. agents by which writing may be extracted ; and a forgery may often be committed by obliterating an account, indorsement, or other matter on the back of an instrument and relating to it, without impairing such in- strument.(r) And where different parts of several genuine instruments shall be so placed or connected together as to produce one instrument, with intent to defraud, it is to be deemed forgery in the same manner and degree, as if the parts so put together were falsely made or forged.(s) This section was intended to reach the case of cutting off parts of gen- uine bills, and pasting them together, so as to make another of the same, or of a higher denomination. It is said that one bill can be made out of five.(¢) This had been held not to be forgery within the statutes in force previous to the revision.(z) And every instrument partly written and partly printed, or wholly printed, with a written signature; and every signature of an individual, firm, or corporate body, or of any officer of such body, and every writing purporting to be such signature, is to be deemed a writing and written instrument, within the meaning of the statute.(v) Forgery may also be committed by falsely making, forging or counter- feiting any evidence of debt purporting to be issued by any corporation having authority for that purpose, and affixing a pretended signature of any person as an agent or officer of such corporation, though such person was not such officer, or was not in existence.(w) Having thus glanced, though in a brief and imperfect manner, at the four degrees of forgery according to the order of arrangement in the statute respecting forgery, we shall now proceed to consider the various other offenses which are, in different parts of the revised statutes, declared to be forgeries. And although many of those offenses are not of the de- gree of felony and therefore not punishable by imprisonment in a state prison, yet for the sake of convenience, and to avoid returning to the subject again, we shall notice them all here. Falsely altering or counterfeiting the inspection bill or receipt for duties of an inspector of salt, with intent to defraud the state; or falsely altering or counterfeiting his brand, or aiding in such crime, is felony, punishable by imprisonment in a state prison for not less than three nor more than six years.(z) Forging the name of a manufacturer, on any barrel or cask of salt, subjects the offender to a fine of $25 and damages to the party aggrieved.(y) Altering or counterfeiting brands on a flour barrel causes a forfeiture of $100 for every cask so branded;(z) branding (7) See Rev. Notes. (w) 2 B.S. $75, § 47. (8) 2B. S. 675, § 44. (w) 1 id. 271, § 115. (t) Rev. Notes. (y) Id. 278, § 128, (uw) See 10 Mass. Rep. 84, (2) Id, 589, § 21. See 1 Wend. 231, (v) 2B. 8. 575, § 45. oHAP. Iv.] OF FELONIES. 113 casks of beef or pork without authority, is punishable by a fine of $15 per cask.(a) Counterfeiting the brand of an inspector of pot and pearl ashes is punishable by a fine of $500.(b) Counterfeiting the brand of an inspector of fish oil is punishable by a fine of $25.(c) Forging, alter- ing, or counterfeiting any marks or numbers, or weigh-note of an inspec- tor of tobacco, is a misdemeanor.(d) Counterfeiting, or fraudulently altering or defacing the brands or other marks of any inspector is also punishable by fine not exceeding $2000 and imprisonment not exceeding three years.(e) Counterfeiting, or fraudulently altering or defacing the marks put by the owner on a hogshead, barrel or half-barrel of flour, meal, beef, pork, pot or pearl ashes, fish, fish oil, liver oil, or distilled spirits, is punishable by fine not exceeding $500 or imprisonment not exceeding one year. f) Falsely making, altering, forging or counter- feiting any lottery-ticket, or aiding therein, or selling, exchanging, offer- ing or uttering the same with intent to defraud, knowingly, subjects the offender to imprisonment as prescribed by law.(g) ‘This offense, although not expressly declared to be so, is undoubtedly forgery in the third degree, and is subject to the punishment prescribed for offenses of that grade.(h) Having gone through with the various statutory enactments respecting the crime of forgery, we shall now attempt to illustrate those enactments by a general review of the doctrine of forgery at common law as explained by elementary writers and by adjudged cases; so far as such doctrine is consistent with the provisions of the revised slatutes. And this is the more necessary, as, in many cases, it may be desirable to proceed at common law, where the case does not come within any statutory provis- ion. As we have before remarked,(i) forgery is a misdemeanor at com- mon law. If there is an omission, therefore, in the statute, of any case which would amount to forgery, there can be no doubt that an indict- ment would lie at common law for the offense. We shall consider the subject under the following heads: 1. What false making or alteration of a written instrument amounts to forgery ; 2. In respect to what writings, &c. forgery may be committed ; 3. The in- tent to defraud or injure; 4. Validity in law of the thing forged if it were genuine ; 5. The degree of similarity between the counterfeit and the true instrument; 6. Uttering or publishing; 7. Using a fictitious name, or personating the true man, or fictitious character assumed, the party forg- ing having the same name as that forged; 8. Principals and accessaries ; 9. Indictment; 10. Evidence. (a) 1B. S. 546, § 57. (f) Id. ib. § 194. @) i es ; iG ) 4 R. oO § 53. ty Td (4) See 2B. S. 673, § 88, 42, sub. 8. (d) Id. 569. § 181, oe 1§ , sub. & (e) Id. 572, § 198, 114 OF FELONIES, [Boox 1, ‘Ist; What false making or alteration of a written instrument amounts to forgery.| The forging, counterfeiting or falsely altering, with suffi- cient fraudulent intent, of any instrument which is the subject of forgery is a completion of the offense, before uttering or publication ; for though publication be the medium by which the intent is usually manifested, yet it may be proved by other evidence.(/) And we have seen that the statute makes the uttering or publication, with knowledge of the forgery, a substantive offense.(/) Not only the fabrication and false making of the whole of a written instrument, but a fraudulent insertion, alteration or erasure, even of a . letter, in any material part of a true instrument, whereby a new opera- tion-is given to it, will amount to forgery ; and this although the instru- ment be afterwards executed by another person ignorant of the deceit.(am) And the fraudulent application of a true signature to a false instrument, for which it was not intended, or vice versa, will also be forgery.(n) Thus it is forgery in a man who is ordered to draw a will for a sick person, to insert legacies in it without being directed to do so.(o) Or, if finding another’s name at the bottom of a letter, at a considerable distance from the other writing, he cause the letter to be cut off and a general release to be written above the name, and then take off the seal and fix it under the release.(p) So the alteration of a date of a bill of exchange, after acceptance, by which its payment may be aceelerated—altering a bill from a lower to-a higher sum—altering the place of payment—expung- ing an indorsement on a bank note with a liquor—are forgeries.(¢) But it seems that a man can not be guilty of forgery by a bare non-feasance ; as if, in. drawing a will, he should omit a legacy which he was directed to insert: but it appears to have been holden that if the omission of a bequest to one man causes a material alteration in the limitation of a bequest to another, as where the omission of a devise of an estate for life to one man causes a devise of the same lands to another to pass a present estate, which otherwise would have passed a remainder only, the person making such an omission is guilty of forgery.(r) The above are some of the instances of false making or alteration which are stated in the books as amounting to forgery. Some additional cases will he stated under other heads. 2d. In respect to what writings, §c. forgery may be committed.| For- gery at common law seems only to have been a species of fraud, and is, therefore, often intermingled with false personating and other means of de- frauding. Like them, it was a mere misdemeanor, punishable as other (A) 2 East's P. O. 855. (0) 2 Russ. 318. (2) Ante, p. 110. (p) Id ib. (m) 2 Bask, 855. 2 Russ. on Or. 818. (g) 8 Chit. Cr. L. 1087, 8. (n) 2 East's P. O. 855. (7) 2 Russ. on Cr. 820, OHAP, IVv.] OF FELONIES. 115 offenses of that degree, at the discretion of the court. This circumstance, it has been observed by a recent writer, may account for the doubts en- tertained by Hawkins, whether, at common law, forgery could be com- mitted of any documents but such as were of a public kind, or under seal. These doubts were, however, entirely removed by the decision in a late case, in England, followed by two cases in this country, to the effect that forgery at common law may be committed in respect to any writing whatever by which another may be defrauded.(s) A distinction was at the same time marked out between forgery and fraud; that the last must actually take effect, while the first was complete, though no-one was act- ually injured, if the tendency and intent to defraud were manifest.(¢) And it is not now held to be essential to the offense of forgery, in any case, that any one should have been injured. It is sufficient if the imstru- ment forged, supposing it to be genuine, might have been prejudicial.(z) _ It will be seen, therefore, that broad as are the terms of the statute, with respect to the writings upon which forgery may be committed, the rule of the common Jaw is equally comprehensive. The main distinction, however, between the offense at common law and by statute, viz. that in the former case it is only a misdemeanor, and in the latter a felony, should not be forgotten. With respect to what is @ bill of exchange, with reference to the ques- tion of forgery, it should be observed that it must be apparently a gen- uine bill. There must be a payee to the bill; therefore, forging an instrument payable to blank, or order, is not sufficient(v) A check on a bank is not a bill of exchange; but is an order for the payment of money.(w) 3d. The intent to.defraud or injure.| 'The essence of this offense is, the fraudulent intent; and, therefore, the mere imitation of another’s writing, the assumption of a name, or the alteration of a written instru- ment, where no person can be injured, does not come within the defini- tion of the offense(z) Most of the English statutes, as well as our own, expressly make an_ intent to‘defraud, a necessary ingredient in the crime. Whether it existed or not, is a question for the jury to determine. But it is in no case necessary that any actual injury should result from the offense.(y) The intent to defraud must be stated in the indictment.(z) The intent is mostly evidenced by the act itself, which from its nature, leaves, in general, no room for doubt upon the point. The inference is (8) 8 Chit. Cr. L. 1022. Ward’s case, ©. Rep. 726. 2 Binn. 332. 5 Ham. O 2 Ld. Raym. 1461. 2 Greenl. Rep. 365. Rep. 12. Addis. Rep. 33. (x) Russ. & Ry. O. CO. 195. (é) Id. ib. 1 Wend. 198. 15 Mass. R. (w) 4 John. 296. 526. (x) 8 Chit. Or. L. 1039, a. (uw) 8 Gill & John. 220. 4 Wash. ©. (y) Id. ib. 2 Strange, 747. (2) 2 East’s P. C, 988. 116 OF FELONIES, [BOOK 1. frequently confirmed by the conduct and behavior of the guilty party, in the artifices and falsehoods which he employs for the purpose of effecting his object, or of avoiding detection. The subsequent uttering of the forged instrument is admissible and strong evidence to prove the original design of forging the instrument.(a) And the averment of the intent to defraud, must be pointed at the par- ticular person or persons against whom it is meditated ; and the proof must agree with such averment.(b) It is sufficient to aver a general in- tent to defraud a certain person.(c) In order to find the intent to de- fraud a particular person, it is not necessary there should be evidence to show that the prisoner had that particular person in contemplation at the time of the forgery. It is sufficient if the forgery would have the effect of defrauding him; for the prisoner, in contemplation of law, in- tends that which is the natural consequence of his acts. Thus, uttering a forged stock receipt, to a person who employed the prisoner to buy stock to that amount, and advanced the money, is sufficient evidence of an intent to defraud that person.(d) If the indictment lay the intent to defraud'A., proof of an intent to defraud A. and B., will sustain the indictment.(e) Where the intent is laid to be to defraud a corporation, it must be proved that it was.to defraud them in their corporate capacity. If it is stated as an intént to defraud them in their individual capacities, and it should appear in evidence that it was to defraud them in their corporate capacity, the variance would, as it seems, be fatal.(f) With respect to the persons to defraud whom an intent may be laid, the revised statutes contain a provision that it shall be sufficient if the intent appear to be to defraud the United States, any state or territory, any body corporate, county, city, town, or village, any public officer in his official capacity, any copartnership, or any one of such partners, or any real person whatever.(g) Ath. Validity in law of the thing forged, if it were genuine.] It is said by Hawkins to be in no way material whether a forged instrument be made in such a way as, were it true, it would be valid, or not.(h) But this, it is observed by Mr. East, must be understood where the false instrument carries on the face of it the semblance of that which is counterfeited and is not illegal in its very frame.(é) Upon this ground it has been adjudged that the forgery of a protection in the name of one as being a member of parliament, who in truth was no member at the (a) Roscoe’s Or. Ev, 400. (e) 7 Greenl. Rep. 181. (0) 2 East, 988. (7) Roscoe’s Cr. Ev. 401, (c) 1 Leach, 77. (g) 2B. S. 675, § 46. (@) Russ. & Ry. O. 0.169. 4 Wash. (4) Hawk. P. C. b. 1, ch. 70, § 7. C. C. Rep. 726. (2) 2 East’s P. 0.948, onAP. Iv] OF FELONIES. 117 time, is as much an offense at common law as if he were so.(k) And it may be collected from a number of cases that forgery in the name of a person who has no real existence, is as much criminal as if there was an intent to defraud an individual whose name is counterfeited. Thus, the making of a bill of exchange is within the rule, although all the names to it are fictitious.(2) Mr. Chitty states the rule to be, that it is of n0 consequence whether the counterfeited instrument be such as, if real, would be effectual to the purpose it intends, so long as there is a sufficient resemblance to impose on those to whom it is uttered.(m) Thus, it has been decided in England, that the making of a false instrument is forgery, though it may be directed by statute that instruments of that nature shall be in a certain form, which, in the forged instrument may not have been complied with; the statute not making the informal instrument absolutely void, but it being available for some purposes.(x) Upon the same principle a man may be convicted for forging an unstamped instrument, though such instrument can have no operation in law.(o) But it has been decided in this state, that forging an instrument which on the face of the indictment appears to be void, if it were genuine, is not an indictable offense.(p) As, for instance, a writing purporting to contain a mere naked promise to pay a sum in labor, expressing no consideration, and being connected with no consideration, by averment in the indictment.q) So an indictment will not lie for forging a certificate of acknowledgment of a deed, which certificate did not state that the grantor acknowledged the execution of the conveyance.(r) 5th. The degree of similarity between the counterfeit and the true instrument.| ‘The instrument counterfeited must bear a resemblance to that for which it is put forth, but need not be perfect or complete. It is sufficient if it is calculated to impose on mankind in general, though an individual skilled in writings of that kind should detect its falsity.(s) The same rule holds in cases of counterfeiting the seals, and coining.(¢) And it has been holden that a bank note may be counterfeited, though the paper contains no water mark, and though the word pounds is omitted ; that word being supplied by figures in the margin ; for it was (k) 2 Hast’s P. C. 948 People v. Harrison, 8 Barb. Sup. C. Rep. (2)-8 Chit. Cr. L. 1035. 1 Leach’s C. 560. See also 12 Serg. & Rawle, 237; O. 83, 172, 257 and note (a). 7 Peters’ Addis. Rep. 33. Rep. 132. 2 Mass. Rep. 77. , (g) 9 Cowen, 778. (m) 3 Chit. ‘Cr. L. 1035. (r) 8 Barb. 8. C. Rep. 560 (n) Roscoe’s Cr. Ev. 291. Russ. & Ry. (s) 8 Chit. Cr. L. 1088. 2 East’s P. ©. C. 255. O. 858. (0) Id. ib. 1 Leach’s O. C. 257. (2) Id. ib. (p) People v. Shall, 9 Cowen, 778. i 118 OF FELONIES. . [BOOK 1 said that in-forgery there need not be an exact resemblance, but it is sufficient if the counterfeit be prima facie fitted to pass for the writing which it represents.(w) Neither will a mistake in the christian name of the party, in making the false signature to the instrument, prevent the case from amounting to forgery ; as where the prisoner was indicted-for forging the will of Peter Perry, and the will began, “1 Peter Perry” and was signed “John Perry."(v) Nor will it make any difference that the name forged is not rightly spelled ;(w) or that, the hand-writing does not resemble his whose name is forged.(z) -- 6th. Uttering or publishing.] As to- vwhat amounts to an uttering or publishing of forged or counterfeited instruments, it has-been decided that the iastrument should be parted with or tendered, or offered, or used in some way to get money or credit upon it. Therefore delivering .a box containing, among other things, forged -stamps, to the party’s own servant, to be forwarded by a carrier to a customer in the country, is an uttering.(y) But pledging a counterfeit note which was to be redeemed at a future day, is not a passing or uttering.(z) os fiving a forged note to another person, however, whether an .accomplice or not, in order that he may pass it, is an uttering and publishing.(a) The mere fact of uttering a counterfeit note as a genuine note is tantamount to a representation that it is so.(b) The mere showing a man an instrument the uttering of which would be criminal, though with an intent of raising a false idea in him of the party’s substance, is not an uttering. Nor will the leaving it afterwards sealed up, with the™ person to whom it was shown, under cover, that he may take- charge of | it as being too valuable'to be carried about, be an uttering or publishing.(c) It is not essential that the indictment should state the persons to whom the forged instrument is uttered, where the statute upon which the indigtment.is grounded makes the uttering generally, (without specifying ‘to whom,) an offense. And though the person to whom the instrument was uttered was an agent for the bank to detect utterers, and applied to the prisoner to purchase forged notes for the purpose of disposing of them, and therefore was not deceived, the offense is still completed) Our supreme court has decided that the uttering and publish- ing a promissory note with forged indorsements upon it, is an # (uw) 1 Lanch's ©. C. 175, 6. (a) Ry. & Moo. ©. C. 166. 11 Mass. (v) 2 East, 953. ep. 136 (w) 8 Rogers’ Crim. Rec. 142. (0). Pea & Ry. ©. ©. 127, (a) 6-Idem, 61. ‘3 Idem, 200. (y) 8 Chit, Cr. L. 1088, 9. ° Russ, & @ 8 Chit. Or. L. 1089. Roscoe’s Cr. Ry. ©. ©. 212, 4 Taunt. 300. Evy. 400. (2) 3 Yerger’s Rep. 451. : owar. ty.) OF FELONIES. ' 119 offense within the statute, although the passing of the note is accompanied with communiéations which would exonerate the indorsers if the indorsements were genuine. If. by possibility the indorsers may be injured, the crime is complete.(e) The crime of uttering and publishing is not complete, however, until the paper is transferred and comes to the hands or possession of some person other than the felon, his agent or servant.. 4 Thus, ewhere a note with forged indorsements is sent by the felon by mail from one county to an individual in another county for the purpose of obtaining credit upon it, the crime is not consummated until the note is received by'the person to whom it was sent.(/) .- 7th. Using-a fictitious name; or personating the true man or fictitious character assumed ; Marty forging having same name as that’ forged.] It is a clear proposition that the making of any false instrument which is the subject of forgery, with, a fraudulent intent, although j in the name of a non-existing person, vis” as much a forgery as if it had béén made i in the name of one who was known to exist, and to whom credit was due.(g) Thus, the making or indorsing of a bill of exchange, all the 4 ‘games to whiclvare fictitious, is a forgery.(h) Nor is it necessary that any : ‘additional credit. should be obtained by using the fictitious name. For where the prisoner indorsed a bill he had found, in a feigned name, ‘to conceal that it had passed through his hands, he was holden guilty of forgery, though he might have procured the money, on discounting it, by a true indorsement of his own.(2) 4 So to put a fictitious name on a bill. indorsed in blank, in order to circulate it with secrecy, is a similar offense.(/) . ar ‘But to support a charge of forgery” by subscribing a fictitious siete, iets must be satisfactory evidénce on the part of thetprosecutor that it is not the’ party’s real name, and that it was assumed” for ‘the: ‘purpose of fraud in that instance.(2) Assuming and using “a fittitiouS | name, however, though for purposes of fraud and concealment, will not amount to forgery, if it were not done for that very fraud, or spstém of fraud, ‘of which the forgery forms a part.(m) If there is proof of what is the prisoner’s real'name, it is for him to prove that he used the assumed name before ihe time he had the fraud in view, even in the absence of all proof as to what name he had. used for several years before the fraud in question.(7) . (e) 21 Wend. 509. : (1 Leach, 172. Ruse. & Ry. C. 0. (f) Idem. 75, 90, 209, 278. (9) 2 East's P. C. 957. 2 Russ. on Cr. () Tdem, 215. 328. Roscoe’s Cr. Ev. 884.’ 5 Rogers’ (2) Russ. & Ry. C. C. 260. Cr. Rec. 87. 6id.27. 7 Peters, 132. (m) Id. ib. 3 Maule & Selw. 538, (2) 2-East’s P.O. 957. 1 Leach, 172, — (m) Russ. & Ry. 278. » 957, note’(a), 8 Chit. Or, L. "1035, note (B) s 120 OF FELONIES. [Boor §. It is forgery for a person to assume the name and character of a person actually in existence, and by means of the credit attached thereto carry his fraud into effect by drawing a bill in the assumed name.(c) But the adoption of a false description and addition, where a false name is not assumed, and there is no person answering the description, has been held not to be a forgery.(p) The circumstance that the party making the forged instrument has assumed and been known by the fictitious name in which it is executed, for some time before the making, will not prevent its being a forgery ; there being no distinction whether the credit was given to the person of the prisoner, or to the name assumed by him.(q) It is well settled that a man may be guiltp of forgery by the fraudulent making of an instrument, though in his own name, if he represents it as the act of another person of the same name.(r) As, ifa bill of exchange payable to A. B. or order come to the hands of a person named A. B., (but not the payee,) who fraudulently indorses it for the purpose of obtaining the money.(s) And where coal consigned to G. P. of New-York, arrived and was claimed by another of the name of G. P. who resided there, and he knowing this obtained an advance of money on indorsing a permit for the delivery of the coal, with his own proper name—this was held forgery.(¢) 8th. Principals and accessaries.] Although, in general, it is necessary in order to render a party guilty as principal in an offense, that he should have been present at the commission of the complete act, yet it is otherwise in a forgery, where a person may incur the guilt of a principa offender by bearing a part only in the committing of the act, and in the absence of the other parties. Thus, where the prisoner impressed the water marks, the date, line, and number, on forged bank notes; and the other requisites were added at different times, and by different parties, not in the presence of the prisoner, it was held that each was a principal in the forgery, and that, though the prisoner was not present when the note was completed by the signature, he was equally guilty with the others.(w) Nor does it make any difference in the case, that the prisoner was ignorant of those who were to effect the other parts of the forgery. It is sufficient that he knows it is to be effected by somebody.(v) It is said by Mr. Chitty, that the principal statutes respecting forgery, make the aiders and procurers equally guilty with the actual offender. And the rule that when a statute creates a felony it includes accessaries © 2 Russ. on Or. 827, (8) 4 T.R. 28. p) Russ. & Ry. 405. (t) 6 Cowen, 72. (g) 2 East’s P. O. 967. (u) Russ. & Ry. 0. 0, 446, (r) Hawk. P. 0. b. 1, ch. 70, 3, 2. 2 (v) 1 Moody’s O, O, 804, 807. Ros- East, 968, 2R.S, 674, $41, coe’s Or, Ey, 408, oHAP. Iv.] OF FELONIES. 121 before and after, as at common law, seems to apply to this as to other offenses.(w) But where the procurers are not present at the forging or the uttering, they must be indicted specifically as accessaries and not as principals.(x) But with regard to the offense of uttering forged instruments, it is necessary, in order to render a party guilty as principal, that he should have been present.(y) Where a wife, with her husband’s knowledge, and by his procurement, but in his absence, uttered a forged paper, it was held that the presumption of coercion on the part of the husband did not arise; that she might be indicted as principal and her husband as accessary before the fact.(z) So an assent afterwards, does not render the party guilty as a principal.(a) But in forgery at common law, which is a misdemeanor, as in other cases of misdemeanor, those who, in felony, would be accessaries, are principals.(b) If several plan the uttering of a forged order for the payment of money, and it is uttered accordingly by one in the absence of others, the actual utterer is alone the principal.(c) And persons privy to the uttering of a forged note by previous concert with the utterer, but who were not present at the uttering, or so near as to be able to afford any aid or-assistance, are not principals, but accessaries before the fact.(d) By the revised statutes, principals in the second degree and accessaries before the fact, in cases of felony, are punishable’in the same manner as the principals in the first degree; and accessaries after the fact, by imprisonment not exceeding five years.(e) 9th. Indictment.] It is essentially necessary that every indictment or complaint for forgery should set forth the instrument charged as fictitious in words and figures, if in the possession of the magistrate or prosecutor, in order that the court or magistrate may be able to judge from the record whether it is a document in respect of which forgery can be committed.(f) Or the omission must be excused by proper averments.(g’) - And though, in general, figures must not be used in an indictment, yet it is so necessary to set forth a fac simile of the instrument forged, that this rule is dispensed with, and the recital should, in all respects, correspond with the writing charged as a forgery.(h) And if by addition, (w) 8 Chitty’s Cr. L. 1039, a. 2East’s (d) Id. 250. P. 0. 973. (e) 2 B.S. 698, 8 6, 7. (a) Id. ib. (/) 2 Leach, 808. 1 East’s Rep. 180. (y) 2 East, 974. Roscoe’s Cr. Ev. 408. 8 Chit. Or. L. 1039, note B. (2) Russ. & Ry. ©. C. 270. 2 Leach’s (g) 4 Halst. Rep. 26. 8 Mass, Rep. C.C. 1096. 110. 3 Car. & Payne, 591. (a) 1 Hale’s P. O. 684, 2 East, 978. (A) 2 Black. Rep. 787. 8 Chit. Or. L, (b) 2 East, 978. 1039, B. ce) Russ, & Ry, 0. C. 249. ©) ie 122 OF FELONIES, [Boox 1, omission, or alteration, a word is changed so as to become another word, the variance will be fatal.(z) But a mere literal variance which does not change one word for another, or create any ambiguity in the sense, as “valued recievd” for “ value received,” will not be material.(k) A check on a bank, charged in an indictment to be addressed to the cashier thereof, is correctly described where the check is in the form of a letter addressed on the back thereof to the cashier, although in the in- side there be no direction.(?) It is not necessary to set out the marks and ciphers, ornaments, devices or mottoes on bank notes.(m) If the instrument has been lost, secreted, detained or destroyed, it is sufficient to set forth the substance thereof, in general terms, alledging the loss, &c. of the instrument as a reason why it can not be more par- ticularly described. And in such a case, although in the indictment the note is described as made on the day of May, and the proof is that the forged note was dated on a particular day, the variance is im- material for the reason before given.() Dates, sums and times of pay- ment may be omitted.(o) If any part of the true instrument be altered, the indictment or com- plaint may lay it to be a forgery of the whole instrument.(p) The in- strument must be called by the name used in the statute, and set forth in the indictment or complaint, that it may appear whether it properly comes within the denomination ascribed to it. (q) A bank post bill can not be described as a bill of exchange, but it may be described as a bank bill of exchange.(r) In an indictment for uttering a counterfeit bank bill, it may be set forth as a forged promissory note.(s) And where a design to defraud an individual is set forth, it is not necessary to alledge the existence of the bank of which it purports to be a bill.(é) Though it is sufficient to aver that the defendant forged.a certain writ- ing, describing it truly and setting forth its tenor, it seems more proper to lay it as a certain paper writing purporting to be the instrument which -the statute on which the indictment is framed describes; since the es- sence of the charge is that it is a fiction.(w} The word purport in an indictment for forgery, signifies the substance of an instrument as it ap- pears on the face of it: enor means an exact copy of it.(v) By a decision of the supreme court of this state made since the passage of the revised statutes, it is settled that in an indictment for forging a (i) 2 Russ. on Cr. 1482, 1 Vir. Cas. (p) 2 East’s P. ©. 978. 189. 5 Pick. 297. 1 Dever. 519. (7) Davis’s Cr. Just. 241. Russ. & Ry. (k) 8 Chit. Or. L. 1089, B. ©. GC. 50. (1) 9 Wend. 272. (r) Russ. & Ry. C. C. 251. (m) 3 John. 299, 2 Binn. 822. 1 Mass. (s) 2 Pick. 47. 8 Mass. Rep. 64. 2 Rep. 62, 208. 5 Ohio Rep. 8 Const. Rep. 495. (n) 16 Wend. 53, 8 Mass, Rep. 110. (t) 6 Serg. & Rawle, 568. 2 Pick. 47. 2 Cowen, 522. (w) 3 Chit. Or. L. 1040. (0) 2 Cowen, 522. (v) 1 East’s P. 0. 180. Leach, 753, OHAP, Iv.] OF FELONIES. 123 check on a bank, it is sufficient to alledge that the prisoner falsely made, forged and counterfeited a certain check, with intention to defraud, &c. setting forth the check in hec verba, with the name of the drawer as appearing upon it. And it is not necessary to alledge, in the words of the statute, that it was an instrument or writing, being or purporting to be the act of another, by which a pecuniary demand or obligation is or purports to be created, &c. or by which rights or property are or purport to be transferred, &c. or in any manner affected. Nor is it necessary to aver that by such forgery any person is bound, or in any way injured in his person or property.(w) It would be as well in point of form, in such a case, to charge in the indictment that the accused forged a certain paper writing purporting to be an instrument in writing and the act of the party whose name is subscribed to it, by which a pecuniary demand is or purports to be created, and then to set forth the instrument or writ- ing in hee verba.(x) This case also establishes the point that an indictment under the re- vised statutes is not vitiated by pursuing the forms under the old statute, in charging that the prisoner made, forged and counterfeited, and caused or procured to be falsely made, forged and counterfeited, and willingly assisted in the false making, &c.; the latter charges being mere sur- plusage.(y) An indictment is good if in it be set forth the instrument or writing alledged to have been forged, averring it to have been falsely made with the intent to injure or defraud some person or body corporate; provided the instrument be such as, on its face, to show that the rights or property of such person or body may thereby be affected. It is not necessary that the facts and circumstances of the case showing the intent should be - specially set forth in the indictment. It is enough that they be given in evidence on the trial.(z) It can never be necessary to state both the purport and tenor ; that is to say, that the instrument purports to be drawn so and so, and is of the tenor following; and if in this superfluity of statement a mistake should arise, the indictment will be vicious. For instance; where a person was indicted for forging an acceptance on a certain bill of exchange purport- ing to be directed to one J. K. by the name and description of J. R. Esq. after which the tenor of the bill was set forth, from which it appeared that it was really directed to J. R. and the forged acceptance was made in the name of J. K.; the indictment was holden bad, on the ground that the name of one person or thing can not purport to be another.(a) If the instrument forged does not itself appear to be such an one as (w) People v. Rynders, 12 Wend. 425. (2) 21 Wend. 409. (2) Id. ib. (a) 2 Leach, 590. (y) Id. ib. 124 OF FELONIES. [Boox 1. * the act respecting the offense recognizes, though in effect it amounts to the same, an averment of the fact must be introduced; and it must thus be shown on the record that the case is within the statute on which it is framed, or it will not suffice to prove it, however clearly, in evidence.(b) But extrinsic facts are not necessary to be stated, except when the op- eration of the instrument upon the rights or property of another is not manifest or probable from the face of the writing.(c) The intent to defraud is essential to the offense, and must therefore be charged in the indictment, and proved.(d) And the averment of an intent to defraud must be pointed at the particular person or persons against whom it is meditated.(e) Where the intent mentioned in the statute is to defraud any particular corporation, &c. it must of course be so laid in the indictment. But where the intent is described generally, to defraud any person or persons, it is said by Mr. Archbold to be pru- dent, in the indictment, to charge the offense, in different counts, to have been committed with intent to defraud each of the persons, partnerships, or corporations that might have been defrauded by it if the forgery had succeeded.(f) In a late case where the defendant was indicted for forg- ing a request from the cashier of a bank in Kentucky to the cashier of a bank in New-York, to deliver to engravers the plates of the bank, it was held that it was not necessary to aver in the indictment that the Bank of Kentucky was a corporation duly created; but that it was enough to alledge that the instrument set forth was falsely made, with the intent to injure and defraud the bank; and that under such allegation an ex- emplification of the act of incorportion was admissible in evidence.(g) It seems that the uttering here of a counterfeit foreign bank bill, the circulation of which is made illegal by statute, would be deemed an of- fense within our statute if laid to have been done with the intent to de- fraud the bank ; though the indictment would be bad if the bill was laid to have been passed with the intent to defraud the receiver of the bill.(h) In the statement of the names of the parties defrauded, the same rules apply which govern other offenses. Certainty to a common intent is sufficient.(i) If the instrument forged be in a foreign language, there must be an English translation of it, in the indictment.(/) The state courts have jurisdiction to punish the uttering and publish- ing counterfeit bills of the Bank of the United States, as well as of other counterfeits of the currency of the states.(2) (6) 8 Chit. Cr. L. 1041. “Arch. Cr. Pl. (g) 21 Wend. 409. 288. (h) Id. 509. (c) 21 Wend. 409. (i) 8 Chit. Or. L. 1042, iz CR gets a Cr. Ev. 400. 3 Chit. Cr. (&) 2 Russ. on Cr. 360. i note B. 2) 2 Bailey’ . 44, Sr Pi ben) ioe ) ailey’s Rep. 44. 1 Black, Rep. (f) Arch. Or, Pl. 288. owaP Iv.] OF FELONIES. 125 In indictments for forgery it is usual and prudent to add a second count for knowingly uttering the forged instruments, lest the prosecutor should fail in proof of the actual forgery.(a) The conclusion of the indictment should be against the peace, &c., and contrary to.the form of the statute.(z) The venue in indictments for forgery must be laid in the county where the offense is committed; as the indictment can only be preferred and trial had in that county. Thus, where a note with forged indorsements is sent by the defendant per mail from one county to an individual in another county, for the purpose of obtaining credit upon it, the proper place of trial is the county to which the note was sent ; the offense not being consummated until the note is received by the person to whom the note was transmitted.(0) The fact of forging a note within a particular county cannot be inferred from its having been uttered there.( p) By the revised statutes it is provided that the indictment may contain counts for the different degrees of forgery or for any of them.(q) 10th. Evidence.| The evidence in forgery must support the material facts stated in the indictment; and, as we have before remarked, it is essentially necessary that the proof should tally with the averment of the intent to defraud. As to who may be witnesses in cases of forgery, the rule is established in this state, that the person whose name has been forged is a compe- tent witness, on the trial of an indictment, to prove the forgery.(r) And he is considered the best, but not the only competent witness, to prove the offense.(s) Thus, in cases of forgery of bank notes, where the offi- cers of the bank, whose names are forged, are not within the process of the court, the testimony of other witnesses who have a general knowledge of the signatures of such officers, is admissible.(¢) Proof of the act of forgery.| It is seldom that direct evidence can be given of the act of forgery. In the case of negotiable securities, the ev- idence is usually applied to the uttering rather than to the forging ; al- though both are generally charged. Where the instrument is not of a negotiable nature, as in the case of a bond or will, after proof that it has been forged by some one, a strong presumption necessarily arises against the party in whose favor the forgery is made, or who has the possession of it, and seeks to derive benefit from it. Evidence that the forged instrument is in the hand-writing of the prisoner, must, if unexplained, be necessarily strong evidence of his guilt.(z) (m) Arch. Cr. Pl, 289. (s) 2 Russ. on Cr. 878. (n) 8 Chit. Cr. L, 1042, a. (t) 2 Pick. 50. 6 Serg. & Rawle, 568, (0) 21 Wend. 509. 2N. Hamp. R, 480. 2 Stark. Ev. 585, (p) 5 Pick. 279, n. (b). 8 Chit. Cr. L. 1044, n. A. (q) 2B. S. 728, § 51. (u) Roscoe’s Cr, Ev, 896. 2 Stark. Ey, (7) People v. Dean, 6 Oowen, 27. 4 881, 2ded. John. 802. 126 OF FELONIES, [Boor 1 In the description of the act of forging, it will not, in general, be a material variance, if words are added which are not in the statute. Thus, an indictment on the 11 Geo. 4, and 1 W. 4, c. 66, which statute only uses the word forge, was held good, though the words “ forged and coun- terfeited” were employed in the indictment, and that the word “ counter- feited” might be rejected.(v) Proof of the altering of a part of a genuine instrument will support an indictment charging the defendant with having forged the instrument itself. As where the indictment charged the defendant with having forged and counterfeited a bill of exchange, it was held that evidence of his having altered the bill from ten pounds to fifty, supported the indict- ment; even although the statute on which the indictment was framed contained tlie word “alter” as well as the word “forge.”(w) It is more usual, however, and perhaps more prudent, at least in one set of counts, tocharge it as an alteration merely, and to alledge the alteration spe- cially. But there is no doubt that the slightest alteration of a genuine instrument, in a material part, whereby a new operation is given to it, is a forgery.(x) But where the forgery is of a mere addition to the instrument, and which has not the effect of altering it, but is merely collateral to it; as for instance, a forged acceptance or indorsement to a genuine bill of exchange; proof of the forgery of the addition will not support an in- dictment charging the forgery of the entire instrument. The forgery of: | such addition must be specially alledged, and must be proved as laid.(y) Forging the signature of the drawer to a bill of exchange, is the same precisely as forging the entire bill, and may be laid as such.(z) On acharge of uttering and publishing a promissory note with the names of several persons upon it as indorsers, all which indorsements are alledged to be forged, it is not necessary, for the purpose of sustain- ing the indictment, to prove all the indorsements to be forgeries. It is enough that one or more are shown to be such.(a) Proof of the uttering.] By our statute a distinction is made between uttering and offering forged instruments. ‘The section which relates to uttering, uses only the words “uttering and publishing as true ;” and undoubtedly contemplates a completion of the act, or the carrying into full effect the fraudulent intention. Whereas, the “offering for sale, ex- change or delivery,” any forged instrument, is provided for in another section, and punished in a different manner.(b) The indictment, there- fore, should contain separate counts for “offering” and for “ uttering.” (v) Roscoe’s Cr. Ey. 896. 6 Carr. G (y) Russ. & Ry. ©, C, 251. Payne, 363. (2) 1 Leach, 57. . (w) 2 East’s P. O. 979. (a) 21 Wend. 509. (2) Arch. O. Pl. 289. (b) 2B. S. 674, $$ 89, 40; 672, § 32, sub. 2. OHAP. 1v.] OF FELONIES. 127 Under the first mentioned count, the prosecutor may give in evidence that the defendant offered to sell, exchange or deliver the counterfeit in- strument for any consideration whatever; and under the second, that he actually passed it, or uttered and published it as true. And whenever there is any reason to doubt whether the uttering can be proved, it will be safer to add a count for the “offering” merely. Thus, where the prisoner was indicted for wélering counterfeit coin, and the proof was that he took the coin to the house of a certain woman, who had agreed to take it at a certain rate, and, while engaged in counting the coin they were interrupted by the officers, before she could pay for those she had selected, it was held that it was not a case of uttering, and the prisoner was acquitted.(c) Upon an indictment for uttering, the prosecutor must prove the act of uttering, &c. as charged; that the money or instrument was counterfeit, and that the prisoner knew it to be such.(d) And the intent to defraud must also be proved. “It seems that the mere showing of a false instrument, with intent there- by to gain credit, is not an offense within the statutes against forgery.(e) Proof of uttering a forged acceptance will not support an indictment charging the prisoner with uttering a forged bill.( f) Where the prisoner presented a bill for payment, with a forged indorse- ment upon it, of a receipt by the payee, and on the person to whom it was presented objecting to a variance between the spelling of the payee’s name in the bill and in the indorsement, altered the indorsement into a receipt by himself for the drawer, it was ruled that the presenting of the bill before the objection, was a sufficient uttering of the forged in- dorsement.(g’) Where several persons are charged with an uttering, it must appear either that they were all present, or so near to the party actually utter- ing, as to be able to afford him aid and assistance.(h) Proof of the intent to defraud.| The proof of the fraudulent intent ‘ must tally with the averments in the indictment, otherwise the prisoner will be entitled to an acquittal.(c) The intent is mostly evidenced by the act itself, which from its nature leaves, in general, no room for doubt upon the point. The inference is frequently confirmed by the conduct. and behavior of the guilty party, in the artifices and falsehoods which he employs for the purpose of effecting his object, or of avoiding detection. The subsequent uttering or publication of the forged instrument is admis- sible, and strong evidence to prove the original design of forging the in- (c) 1 Leach, 307. (g) Arscott’s case, 6 Car. & P. 408. (a) Roscoe’s Cr. Ey. 800. (A) Roscoe, 3801. Russ. & Ry. ©. C, (e) Idem, 398. 25,113. 2 East’s P. C. 974. (/) 6 Car. & P. 148. (i) 2 East's P. C. 988, 128 OF FELONIES. [Boox 1. strument, and whether the making or uttering of a forged instrument be done with an intent to injure a particular person, as alledged, is matter of evidence for a jury.(é) As to the person intended to be defrauded.] It is sufficient in the in- dictment to aver a general intent to defraud a certain person.(Z) In or- der to find the intent to defraud a particular person, it is not necessary that there should be evidence to show that the prisoner had that partic- ular person in contemplation at the time of the forgery. It is sufficient if the forgery would have the effect of defrauding him ; for the prisoner, in presumption of law, intends that which is the natural consequence of his acts.(m) So where the prosecutor swore that he did not believe the prisoner had forged the instrument with intent to defraud him, (as cbarged,) yet the prisoner being convicted, the court were of opinion the conviction were right; the immediate effect of the act being the defrauding of the prosecutor.(7) Where the intent is laid to be to defraud a@ corporation, it must be proved that it was to defraud them in their corporate capacity. If it is stated as an intent to defraud them in their individual capacities, and it should appear in evidence that it was to defraud them in their corporate capacity, the variance would, as it seems, be fatal.(o) And this distinction between incorporated and unincorporated companies should be observed in drawing the indictment, viz.: that in the case of a corporation the corporate property belongs to the whole corporation, as a body; but where thé parties are not incorporated it is the property of the several individuals, and it must be so alledged.(p) On an indictment here against a person for having in his possession with intent to pass, forged bank notes purporting to have been issued by a banking corporation of another state, it is not necessary to show that there is in fact such a corporation in existence; at all events, proof of the most general character, of its existence, issufficient.(g) Itis enough that the notes purport to have been issued by a corporation or company duly authorized to issue notes.(r) Where, however, the intent is charged to have been to defraud the bank purporting to have issued the notes, the bank must be shown to be a real body, capable of being defrauded. In the case of an association under the general banking law, it is enough for that purpose, to prove the articles of association.(s) Proof of the identity of the party whose name is forged.| It is essential to prove the falsity of the instrument, either by showing that (k) Roscoe’s Cr. Ev. 400. (p) Ibid. 1 Leach, 866, 518. 2 East’s (1) 1 Leach, 77. P.O. 991. : (m) Russ. & Ry. ©. O, 291. (q) 21 Wend. 309, 25 id. 472. (n) Idem, 169. ee The People v. Peabody, 25 Wend. (0) Roscoe’s Cr. Ev, 401. i (s) Ibid. onap, tv.] OF FELONIES. 129 the writing is not that of the person by whom it purports to have been made, or by showing that no such person exists.(f) Or where the instrument is in the name of the party himself, by showing that he put it off fraudulently, as being the act of another person. Where the name forged is that of an exisiting person, it is necessary to disprove the making of the instrument in question by him.(z) In Sponsonby’s case,(v) in order to identify the person whose name was forged as the indorser of a bill, it was thought necessary to call the drawer, for the purpose of showing that the individual in question was the party really connected with the bill. The bill had been sent to * Pearce, the payee and indorser, an intimate friend of Davis the drawer ; but it never came to his hands, and it was proved to have been uttered by the prisoner, with the indorsement “ William Pearce” upon it. Davis was not called, aud the testimony of Pearce was rejected by the court ; for although it might not be his hand-writing, yet it might be the hand- writing of a William Pearce, or as he had not been proved to be the person intended as the payee of the bill, it might be the hand-writing of the William Pearce to whom the bill was made payable. The prisoner was accordingly acquitted. But where the prisoner represented that a note purporting to be signed by William Holland, was drawn by William Holland who kept the Bull’s Head at T., it was held sufficient to call the W. H. of the Bull’s Head to show that the note was not signed by him; although there was another person of the name of William Holland living at T.(7) e The identity of the party whose name is forged may also be established by the admission of the prisoner himself.(z) Where it appears that there are persons in existence residing at the place which the forged instrument refers to, proof must be made that those persons are not in fact the real persons referred to, although in some respects they may be misdescribed.(y) Proof of the forged instrument.| The method of describing the forged instrument.in the indictment has been already stated. It is unnecessary, therefore, to say more under this head than that the proof must correspond with such description. It may be proper to observe, however, that as a general rule, the forged instrument itself should be produced on the trial or examination, if possible, before parol evidence can begiven of itscontents. And this, upon the principle that the best evidence the nature of the case admits must be produced.(z) But where the (t) 2 Stark. Ev. 334, 2d ed. - (a) 2 East’s P. C. 997. 1 Leach, 282. (u) Roscoe’s Cr. Ey. 402. 2 id. 856, n. (v) 1 Leach, 332. 2 EHast’s P. C. 996. (y) Russ. & Ry. ©. OC. 486. 8 Brod. (w) 1 Moody’s O. O. 255. & Bing. 197. é (2) 2 Cowen, 525. 17 130 OF FELONIES. [Boox 7. instrument alledged to be forged, has been lost, destroyed, in the hands of the offender, or secreted to protect him, the person whose name is charged to have been forged, and who had seen and copied the instrument, is a competent witness to prove it forged ; and the production of the instrument itself will be dispensed witha) And the fact that the forged instrument was in the possession of the party at the time he uttered and published it, is prima facie evidence that it continues under his control at the time of the trial.(6) Proof of guilty knowledge.| Where the prisoner is charged with uttering or putting off a forged instrument, knowing it to be forged, evidence of that guilty knowledge must be given on the part of the prosecution ; and for that purpose the uttering or having possession of similar forgeries will be admissible(c) And for the same purpose, evidence that other notes of the same fabrication had been found on the files of the bank with the prisoner’s name on the back of them, is admissible.(d) So evidence of a prisoner's false declarations relating to a forged bank note uttered by him;(e) or of a prisones’s endeavors to engage a person to procure for him counterfeit money, of his declared intention to become acquainted with a counterfeiter, and to remove to a place near to his residence—is proper as going to show a guilty ‘knowledge. f) And on an indictment for counterfeiting money, possession of instruments for coining, is admissible. (g) But evidence of the previous uttering of cefmterfeit money, is subject to obsetvalion as to the weight of it, which will be more or less considerable, according to the number of the ‘notes, the distance of time at which they had been put off, and the prisoner’s situation in life, so as to make it more or less probable that so many notes could pass through his hands in the course of business.(2) But the notes must be produced, or proved to be destroyed, or in the prisoner's possession, and not produced, on notice.(i) If the passing of the other notes be. at a remote period, it is not sufficient.(/) But proof of the scienter, (or guilty knowledge,) is not admissible before the principal charge is established.(/) Not only is evidence of the act of passing other forged notes admissible to prove the prisoner’s guilty knowledge, but proof of his general demeanor on a former occasion will (a) 8 Mass. Rep. 82. 2 Cowen. 522, (7) 5 Rand. Rep. 701. 8 Mass. Rep. 110. 16 Wend. 53. (g) 2 Const. Rep. 776. (6) 2 Cowen, 522. (A) Russ. & Ry. C. C. 132. 1 Bailey, (¢) Roscoe’s Cr. Ev. 409: 800. 9 Leigh, 745. ; (d) Russ, a Ry. ©. ©. 182, 120. 1 @1 Wheel, Cr. Cas. 415. 1 Rogers’ rere 824, 8. O. 3 Chit, Cr. L. 1039, Cr. Rec. 46. note B. (k) 3 Rogers’ Or. Ree. 148. (2) 5 Day’s Rep. 17. (2) 6 Idem, 86, Jones’ case, OHAP. Iv.] OF FELONIES. 131 be received for the same purpose(m) Yet what was said at another time, by the prisoner, respecting other utterings, is inadmissible.(7) The possession also of other forged notes by the prisoner, is evidence of his guilty knowledge.(o) In order, however, to render such evidence admissible,.it must be proved in the regular manner that the other notes were forged.(p) On indictments for uttering counterfeit coin, knowing it be counterfeit, it is the practice, as in cases of forgery, to receive proof of more than one uttering committed by the party about the same time, though only one uttering be charged in the indictment.(q) Proof with regard io principals and accessories.| Although in general it is necessary, in order to render’a party guilty as principal ia an offense that he should have been present at the commission of the complete act, yet it is otherwise in a forgery, where a person may incur the guilt of a principal by bearing a part only in the committing of the act, and in the abseace of the other parties, and without even a knowledge who they are{r) But with regard to uttering forged instruments, it is necessary, in order to render a party guilty as principal, that he should have been present.(s) 4. False PERSONATING ANOTHER, AND CHEATS. The offense of falsely personating another for the purpose of fraud is in its nature nearly allied to forgery, with which it is often accompanied, to give it efficacy. These offenses have therefore been frequently included by the legislature in the same enactments, and made felonies alike subject to a capital punishment.(¢) Falsely personating another is a misdemeanor at common law, and punishable as such.(w) In most cases of this kind, however, at common law, it is said that it is usual, where more than one are concerned in the offense, to proceed as for a conspiracy ; and very few cases are to be found of prosecutions at common law for false personation.(v) Cheats, at common law, are defined to consist in the fraudulent obtaining of the property of another by any deceitful and illegal practice or token (short of felony,) which affects or may affect the public.(w) At common law, cheats relate to some matter of a public concern, or _ (m) 2 Leach, 984. (8) 2 East’s P. 0. 974. (n) Lewin’s C. 0. 105. (2) 2 East’s P. C. 1004. 2 Russ. on (0) Russ. & Ry. C. OC. 121. Cr. 480. ) Idem, 245, Millard’s case. (vu) Id. 1010. 2 Russ. 479. ) 1 Russ. on Cr. 85. 2 id.697. Ros. () Roscoe’s Cr. Ev. 858. coe’s Cr. Ev. 69. (w) 2 East’s P. ©. 818. 3 Chit. Cr. L. (r) Russ. & Ry. 446. 1 Moody’s 0. C. 994, note A. 304, 807. 132 OF FELONIES. [Book 1. in regard to private matters, such as.are effected by conspiracy or false tokens, calculated in their nature to deceive the public in general; as selling by false weights and measures; selling cloth marked with a counterfeit measurer’s seal; or other-known general mark in the trade ; playing with false dice; doing judicial acts in the name of others, &c. Private cheats are also, in some cases, punishable at common law; as the pretending to be, and obtaining credit as a merchant, by means of forged letters and commissions. But this is upon the ground that the public may be affected, or that the cheat is calculated to defraud numbers, and which ordinary care and caution can not guard against. Where the fraud, at common law, is charged to have been effected by means of a false token, the token must be such as indicates a general intent to defraud. A mere privy token, or counterfeit letters in other men’s names, seem not to come within the meaning of the term false token, as used at common law.() From the preceding observations it will be seen that a great number of the frauds which may be committed on the ignorant and unwary are not punishable at common law; as the rule of the common law is confined to those cases merely where the deceit is of a kind calculated to injure the public in general, and does not reach those frauds the operation of which can extend no farther than the individuals affected by them. This defect is, however, amply supplied by the sections of the revised statutes to which we shall presently refer, embracing a class of cases as to which the common law is silent, and extending its provisions to all cheats by false pretenses. . Under the head of cheats every species of defrauding another by means of false pretenses, or false tokens, or as it is sometimes termed, swindling, will be considered. By the article of the revised statutes respecting the false personating of another, and cheats, it is provided that every person who shall falsely represent or, personate another, and in such assumed character shall, 1. Marry another; or 2. Become bail or surety for any party in any pro- ceeding, civil or criminal, before any court or officer authorized to take such bail or surety.; or 3. Confess any judgment; or 4. Acknowledge the execution of any conveyance of real estate, or of any other instru- ment which by law may be recorded; or 5. Do any other act in the course of any suit, proceeding, or prosecution, whereby the person so represented or personated may be made liable in any event, to the pay- ment of any debt, damages, costs, or sum of money, or bis rights or in- terests may in any manner be affected, may be imprisoned in a state prison for a term not exceeding ten years.(y) (a) Davis’ Just. 199. (y) 2R. 8. 676, § 48. . onap. Iv.] OF FELONIES. 133 But no indictment for marrying another in an assumed character shall be found, unless upon complaint of the injured party, and within two years after the commission of the offense.(z) Every person falsely representing or personating another, and in such assumed character receiving any money or valuable property of any de- scription intended to be delivered to the individual so personated, is to be punished in the same manner and to the same extent as for stealing such money or property.(a) By the 5lst section, the fraudulent production of an infant, falsely pre- tending it to have been born of parents whose child would be entitled to a share of any personal estate, or to inherit any real estate, with the in- tent of intercepting the inheritance of any such real estate, or the distri- bution of any such personal property from the person entitled thereto, is punishable by imprisonment in a state prison not exceeding ten years.(b) By the 52d section it is provided, that every person to whom an infant under the age of six years shall be confided, for nursing, education, or any other purpose, who shall, with intent to deceive any parent or guar- dian of such child, substitute and produce to such parent or guardian another child in the place of the one so confided, shall be imprisoned not exceeding seven years.(c) The section respecting false pretenses, or swindling, is as follows: Every person who, with intent to cheat or defraud another, shall de- signedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person, any money, personal property, or valuable thing; shall be punished by imprisonment in a state prison not exceed- ing three years, or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money, property, or thing, so obtained ; or by both such fine and imprisonment.(d) If the false token by which such money or property is obtained, be a promissory note, or other evidence of debt, purporting to have been issued by any bank or moneyed corporation not in existence, the punishment is increased to imprisonment not exceeding seven years.(e) Previous to the revised statutes, the false personating of another in mar- rying, was only a misdemeanor. The other cases of false personation mentioned in the 48th section of the statute are offenses against public justice, and were felonies before the revised statutes were passed. It has been decided, under the English statute, which is similar to ours, (2) Idem, § 49. (c) Idem, § 52. (a) Idem, § 50. d@) Idem, § 53. (b) 2B. 8. 676, § 51. "a Idem, § 54. 134 OF FELONIES. [Boox 1. that the mere personating of bail before a judge at chambers, which is not filed of record, is a misdemeanor only.( f) And if bail be put in un- der feigned names, there being no such persons to be defrauded, it is not a felony.(g°) Upon a prosecution for a false personation, either under the 48th or 50th sections of the statute, there must be some evidence to show that there was some person of the name and character assumed, who was either entitled, or might, prima facie at least, be supposed to be entitled to re- ceive the money or property delivered ; or who was in a situation to be made liable to the payment of any debt, &c. But it has been held that the offense is the same, though the person personated was dead at the time of the offense committed.(h) The 5lst and 52d sections relate to cases which were not felonies previous to the revised statutes, and for which no provision was made in any previous statute ; though such offenses would probably have amount- ed to misdemeanors at common law. It has been decided that the 53d and 54th sections of the statute, which relate to obtaining goods by false pretenses, extend to every case where a party has obtained money or goods by falsely representing him- self to be in a situation in which he is not, or by falsely representing any occurrence that has not happened, and to which representation persons of ordinary caution may give credit.(i) In an indictment for obtaining goods by false pretenses all the false pretenses relied on to sustain the indictment and to convict the accused, must be specially negatived; but to authorize a conviction, it is not necessary to prove all the pretenses laid in the indictment to be false, unless all are material to constitute the offense charged.() The indict- ment need not state all that the defendant acquired by the false pre- tenses. It is enough that by the fraud he acquired some valuable thing, properly described in the indictment. That he obtained more does not constitute a variance. (2) ‘Where one or more of the pretenses are proved to-be false, and those are sufficient, per se, to constitute the offense, the accused will be con- victed, notwithstanding there is no proof that the other pretenses alledged in the indictment are false.(m) Nor is it necessary to a conviction that the pretenses proved to be false should be the sole or only inducement to the credit, or delivery of the property. It is enough if they had so material an effect in procuring the credit or inducing a delivery of the (f) 1 Hale, 696. 2 Sid. 90. (k) Id. ib. (g) 1 Str. 384. (2) People v. Parish, 4 Denio, 153. (A) Russ. & Ry. CO. CO. 824, 327. ye 11 Wend. 557. 9 id. 182. 13 (i) 11 Wend. 557, 3 T.R. 98. id. 87. onap. Iv.] OF FELONIES. 135 property, that without their influence upon the mind of the party defraud- ed, he would not have given the credit, or parted with the property.(7) The prisoner, who was the secretary of alodge of odd fellows, came to the prosecutor, who was a member of the same lodge, and told the latter that he owed a sum of money to the society, and he at the same time produced a paper purporting to be a summons signed by himself, giving notice to the prosecutor that he owed the money to the lodge. The prosecutor, believing the statement, then paid the prisoner the amount. It was held that the prisoner was properly convicted for ob- taining the money by false pretenses, although the paper was not set out in the indictment; and although by the rules of the society the sec- retary had no authority to receive money out of the lodge, and although the fact of what was due was as much within the knowledge of the prosecutor as of the prisoner.(o) In an indictment under the statute, for obtaining, by false pretenses, the signature of a person to a written instrument, it is not necessary to charge loss or prejudice to have been sustained by the prosecutor. The offense is complete when the signature is obtained by false pretenses, with intent to cheat or defraud.(p) But it has heen decided by the su- preme court, in a more recent case, that to bring a case within the stat- ute, the instrument must be of such a character as that it may work a prejudice to the property of the person signing it, or some other per- son. (q) The obtaining of an indorsement to a promissory note by false pre- tenses, and with a fraudulent intent, and which the party obtaining it has actually used for his own benefit, is obtaining money, goods or chat- tels or other effects, by false pretenses, within the spirit of the statute. ‘The words other effects, in our statute, are equivalent to the words or other valuable thing, in the British act. But whether a note or indorsement of which no use has been made can be considered either money, goods, chattels, other effects, or valuable thing, seems somewhat doubtful.(r) By the revised statues, the obtaining, by false pretenses, the signature of another to a written instrument, is classed with the obtaining of money by false pretenses. A writing in the form of a bond, not having, or purporting to have, the signature of any person attached to it, is not a false writing, within the meaning of the statute. 'T’o constitute it such, it must be some in- strument, letter, or other writing false in fact, but purporting to have been signed by some person, and to be his act, and so framed as to have (nm) 11 Wend, 557, 9 id.182, 18id. 87. (p) 11 Wend. 18. (0) The Queen v, Woolley,19 Law Jour- = (g) 17 Wend. 540, nal Rep. 165. (7) 9 Wend. 182. 136 OF FELONIES, [Book 1. more weight and influence in effecting the fraud of obtaining a signature to a written instrument, or obtaining goods, &c. than the mere naked assertion of the party defrauding.(s) As to the time when the false representations are made, it has been decided by the former court of errors, that if the false pretenses are not made until after the goods are actually delivered, and the sale is com- plete, the person can not be convicted of obtaining the goods by false pretenses.(¢) Where a signature to a note has been obtained by false pretenses, and the party defrauded has been obliged to pay the note, the indictment may charge the sum paid to have been obtained by false pretenses; without setting forth the obtaining of the signature.(w) An indictment will not lie for obtaining money by false pretenses, where the money is parted with as a charitable donation, although the pretenses moving to the gift are false and fraudulent.(v) The term “false pretenses” used in the statute, is of great latitude. It includes every extortion of money or goods. with an intent to defraud ; and was used to protect the weaker part of mankind ; because all are not equally prudent. It seems difficult, therefore, to restrict the inter- pretation of it to such false pretenses only against which ordinary pru- dence can not be supposed sufficient to guard.(w) Yet it has been held that a false representation is not within the statute when the exercise of common prudence and caution on the part of the person deceived, would have enabled him to avoid the imposition.(z) The statute was not designed to protect any but innocent persons, nor those who appear to have been in any degree particeps criminis with the offen- der. It isan essential ingredient of the offense that the party alledged to have been defrauded should have believed the false representations to be -true; otherwise he can not claim that he wasinfluenced by them. If, in parting with his property he was himself guilty of a crime, he is not with- in the protection of the statute.(y) It is a well settled and rational rule that the false pretenses, in order to sustain an indictment, must be such that, if true, they would naturally and according to the usual operation of motives upon the minds of persons of ordinary prudence, produce the alledged results; or, in other words, that the act done by the person de- (s) 18 Wend. 311. ing money by false pretenses, under the (¢) 14 id. 546. statute, 7 and 8 Geo. 4, ch. 29, s. 58. The (uw) 18 id. 87. And see 13 id. 811, as Queen v. Jones, 19 Law Journal Rep. 162. to form of indictment for this offense. 8. C. 14 Jur. 538, 1 Eng. Law & Eq. Rep. (x) The People v. Clough, 17 Wend.351. 532. But it has been recently decided in Eng- (w) 2 East’s P, OC, ch. 18,8. 8. 8 T.R. land that if a person by means of a false 103. pretense, as by writing a begging letter (x) The People v. Williams, 4 Hill, 11. - containing a false tale of pretended dis- (y) The Peaple v. Stetson, 4 Barb, Sup. tress, obtains a voluntary charitable gift O. R. 151, - of money, he may be indicted for obtain- omar. 1y.] OF FELONIES. 137 frauded must be such as the apparent exigency of the case would directly induce an honest and ordinarily prudent person to do, if the pretense were true(z) It was accordingly held, on demurrer, that an indictment for obtaining a watch from a person, upon the false representation that the defendant was a constable, aud had a warrant against such person, issued by a justice of the peace, for the crime of rape, and that he would settle the same if the person defrauded would give the defendant the watch,. could not be sustained.(a) Barely asking another for a sum of money, is not sufficient ; but some pretense must be used, and that pretense false; and the intent to defraud is necessary to constitute the crime. If the intent be made out, and the false pretense used in order to effect it, it brings the case within the statute.(b) It is not necessary that the false pretense should be in words. 'Thus, if a person obtain goods from another and gives, in payment, a check , upon a banker with whom he has_no cash and keeps no account, it is a false pretense within the meaning of the act.(c) And so where the prisoner obtained money from the keeper of a post office, by assuming to be the person mentioned in a money order, which he presented for payment ; though he made no false declaration or assertion, in order to obtain the money.(d) This offense, however, would more properly come within the section of the statute respecting false personation. And where the prisoner obtained pay for the carriage of goods, upon the false pretense that he had delivered them and taken a receipt for the same, which he had lost or mislaid, it was held to be within the statute.(e) So of the making a false account of the number of workmen employed in a certain business, by which the prisoner, who was intrusted to pay them, obtained a larger sum than was due to them for their wages.(f) Obtaining goods from another under pretense that the prisoner lived with A., who sent him for them ;(g) obtaining goods and money upon a forged note of hand ;(h) or upon a pretense by defendant that he was intrusted by the Duke of L., to take some horses from Ireland to London for him, and that he had been detained so long by contrary winds that his money was all spent ;(i) all these cases were held to come within the act. But the pretense must be of some existing fact, made for the purpose of inducing the prosecutor to part with his property. Therefore, a pre- tense that the party would do an act he did not mean to do, as a pre- tense to pay for goods on delivering, is not a false pretense within the (z) The People v. Stetson, 4 Barb. 8. (d) Russ. &. Ry. C. C. 81. ©. BR. 151. (e) Airey’s case, 2 East’s Rep. 30. (a) Ibid. (f) 2 East’s P. C. 830, (6) 8 T. R. 98. (g) 12 Jobn. Rep. 292. (c) 8 Camp. Rep. 870. 7 Car. & P. (A) Russ. & Ry. OC. O. 127. 825, 784. 14 Wend. 559. (i) 3 T. RB. 104, 18 « 138 OF FELONIES. [Boox 1. act, but merely a promise for future conduct.(k) The pretense must be for the purpose only of obtaining the property. Therefore, a pretense to a parish officer, as an excuse for not working, that the party has not clothes, when he really has, though it induce the officer to give him clothes, is not a false pretense within the statute; the statement being rather a false excuse for not working, than a false pretense to obtain goods.(/) 2 Nor is a false representation tending merely to induce one to pay a debt previously due from him, within the statute, although payment be thereby obtained.(m) But a party representing himself to be the owner of property, which does not belong to him, and thus inducing a person to sell him goods on credit, is liable to an indictment for obtaining goods by false pretenses.(n) So if a person procuring a tradesman to sell him goods as for ready money, direct him to send them to his lodgings, and then deliver fabricated bills in payment, retaining the goods, he may be convicted of obtaining them by false pretenses ;(0) and a false pretense, knowingly made, to obtain money, is indictable, though the money be obtained by means of a contract which the prosecutor was induced by falsehood, to make.(p) Thus where A. bought a cheese of B., at a fair, and paid for it, but before he bought it, B. who was offering cheese for sale there, bored two of the ‘cheeses with an iron scoop, and produced a piece of cheese called a taster, at the end of the scoop, for A. to taste; and he did so, believing it to have been taken from the cheese, but it had _ not, and was of a superior kind of cheese, fraudulently put by B. into the scoop—the cheese bought by A. being very inferior to it ; it was held that B. was indictable for obtaining the price of the cheese from A. by false ~ pretenses.(¢) The prisoner paid his addresses to the prosecutrix, and obtained a promise of marriage from her, which promise she afterwards refused to ratify. He then threatened her with an action, and by this means ob- tained money from her. During the whole of the transactions the prisoner had awife. On an indictment against him for obtaining money by false pretenses, the pretenses laid were, first, that he was unmarried ; secondly, that he was entitled to bring and maintain his action against her fora breach of promise of marriage. [t was held by Lord Denman, Ch. J. and Maule, J. that the fact of the prisoner paying his addresses was sufficient evidence for the jury on which they might find the first pretense, that the prisoner wasa single man, and in a condition to marry ; and by Maule, J. (k) Russ. & Ry. OC. 0. 81. (p) Queen v. Kendrick, 1 Dav. & M. (1) Idem, 504. 208; 5 Q.B. Rep. 49. Queen v. Abbott, 1 (m) The People v. Thomas, 3 Hill,169. Den. C. C. R. 278. 2 Car. & K. 680. (n) The People v. Kendall, 25 Wend. Queen v. Dark, 1 Den. 0. O. R. 276. 899. (g) Queen v. Abbott, 1 Den. ©. C. R. (0) 2 Leach, 614. 273. OHAP. 1v.] OF FELONIES. 139 that there was sufficient evidence on which to find the falseness of the other pretense, that he was entitled to maintain his action for breach of promise of marriage ; and that such latter pretense was a sufficient false pretense within the statute.(r) The offense of cheating by false pretenses is, in judgment of law, com- mitted where the false pretenses are successfully used, and where the money or property is obtained, although the fraud originated and was contrived elsewhere. Accordingly, where one was indicted in the city of New York, for obtaining money from a firm of commission merchants in that city, by exhibiting to them fictitious receipts signed by a forwarder in Ohio, falsely acknowledging the delivery to him of a quantity of pro- duce for the use of and subject to the order of the firm; and the defend- ant pleaded that he was a natural born citizen of Ohio and had always resided there, and had never been in the state of New-York, that the receipts were drawn and signed in Ohio, and that the offense was com- mitted by their being presented to the firm in New-York by innocent agents employed by the defendant in Ohio, it was held that the plea was bad, and that the defendant was properly indicted in the city of New- York.(s) Some difficulty has arisen as to what shall be considered a false token. It is clearly not a mere affirmation or promise, but must be something real and visible—as a ring, a key or a writing. And even a writing would not suffice, unless it was in the name of another, or so framed as to afford more credit than the mere assertion of the party defrauding.(¢) It does not extend to cases where a man procures goods on his own ac- count, with intent to steal them.(«) So letters declaring a falsehood, with intent to defraud, are not privy tokens, within the statute.(v) Indictment.| Yn an indictment under the section of the statute respect- ing obtaining goods by false pretenses, according to the rules of construc- tion applicable to the English statutes on this subject, which rules seem equally applicable to ours, the false pretenses or tokens made use of, must be set forth, and must be negatived by special averments.(w) But the indictment need not state all that the defendant acquired there- by. It is enough that by the fraud he acquired some valuable thing properly described in the indictment. That he obtained more does not constitute a variance.(z) The indictment need not alledge that the property obtained was of any particular value.(y) (r) Queen v. Copeland, 1 Car. & M.516. (w) 2T. R. 581. 2 Mod. 316. 2 Stra. (s) The People v. Adams, 3 Denio, 190, 1127. 1 Camp. 495. 2 Maule & Selw. (¢) 8 Chit. Cr. L. 996. 2 East’s P.C. 3879. 689. : {a) The People v. Parish, 1 Denio, 153. (u) Id. id. (y) The People vy. Stetson, 4 Barb. S. 0. (v) 2 Burr. 1128. Rep. 151. 140 OF FELONIES. [Boox 1, An indictment stated that the prisoners unlawfully (not saying “ know- ingly”) did falsely pretend that a certain printed paper produced to the. prosecutor was a good and valid promissory note for the payment of £5, and that by means of such pretense they obtained money and goods from the prosecutor, and then alledged that such printed paper was not a good and valid promissory note. It was held that the false pretense was sufficiently alledged, and that it was not necessary to set out the terms of the printed paper, in the indictment, as nothing turned upon the nature or character of the document.(z) In the statement of the means by which the fraud was effected, it will be necessary to observe all possible accuracy ; for where it was alledged that the defendant said he had paid a sum of money into the Bank of England, and it was proved that he merely alledged “the money has been paid to the bank,” the variance was holden fatal(a) But where the pretence alledged was a wager made “with a colonel in the army, then at Bath,” without naming him—the couit held it to be sufficient.(5) So, a basket is sufficiently described in the proceedings, under the gen- eral term ‘“parcel.”(c) And it does not seem necessary to describe the false pretenses with greater minuteness than that with which they were presented to the mind of the party injured at the time the imposition was practiced upon him.(d) In a prosecution for obtaining a mortgage by false pretenses, the de- livery as well as the signing of the instrument must be proved. But it is sufficient if the indictment states merely that the defendant unlawfully obtained the signature; as this imports a delivery.(e) It need not con- tain a. particular description of the premises.( f) An indictment charged that the defendant unlawfully did falsely pre- tend to C. S. that a certain paper-writing which he produced to C. S. was a good £5 Ledbury bank note; by means whereof he unlawfully obtained money from C. S., with intent to cheat and defraud him of the same: whereas in truth and in fact the paper-writing was not a good £5 note of the Ledbury bank. It was held that the indictment was bad, as it did not charge that the defendant knew that it was not a good £5 note of the Ledbury bank; and that this was hot aided by the allegation of the intent to defraud(¢) The indictment must alledge that the defendant knew the falsehood. “Falsely and fraudulently” is not enough.(h) The intent to cheat should be stated in every material part of the in- (2) oe v. Coulson, 19 Law Journal (d) 3 T. R. 102. Rep. 182. (e) Fenton v. The People, 4 Hill, 126. (a) 1 Camp, 494, (7) Ibid. See 9 Wend. 193. (6) 8 T. R. 98. 2 East’s P. O. 828, (g) Queen v. Philpotts, 1 Car. & K. 112. 833. 1 Leach, 505. (h) Queen y. Henderson, 2M.0. 0, R. (c) 1 Camp. "919. 192, x OHAP: Iv.] OF FELONIES. 141 dictment.(i). The property which the defendant obtained should also be stated accurately. In one case an indictment was held bad on the ground that the instrument given in evidence was not, as stated, an ot- der.for the payment of money.(k) The owner of the property obtained by false pretenses, should be stated with accuracy.(/) The money of a benefit society was kept in a box of which E., one of the stewards, and two others, had keys. ‘The prisoner, on the false pretense that his wife was dead, which pretense he made to the clerk of the society, in the hearing of E., obtained from the hands of E., out of the box, £5. Held that in an indictment, the pretense might be laid as made to E. and the money, the property of “EE. and others,” obtained from E.(z2) Where a signature to a note has been obtained by false pretenses, and the party defrauded has been obliged to pay the note, the indictment may charge the sum paid to have been obtained by false pretenses, without setting forth the obtaining of the signature.(m) An indictment for ob- taining the signature of a party to a written instrument by false pre- tenses, &c. must contain all the material facts and circumstances which the public prosecutor will be bound to prove, to produce a conviction. It must show upon its face that the offense charged has been committed : or, in the language of Lord Mansfield, it must be an intelligible story, so explicit as to support itself.(o) In an indictment for false personation, the name of the party person- ated must be stated. Eividence.| As to the intenf, it may be implied sufficiently from the facts of the case. It has been decided, under our statute, that a false representation authorizes the inference of an intent todefraud.(p) For- merly if the evidence proved not only an intent to defraud or cheat, but also a pre-existing animus furandi, and a constructive taking, such as to constitute larceny, the misdemeanor being merged in the felony, the de- fendant was entitled to an acquittal.(q) But now, by a statute in Eng- land, the defendant may be convicted although it appears, at the trial, that the offense amounts to larceny.(7) Although we have no corres- ponding statutory provision on the subject, the rule is presumed to be the same here as it is in England ; inasmuch as both offenses, under our _ statute, amount to felony; and therefore, one can not be merged in the other. As we have before observed, it is not necessary to prove the falsity of (i) 1 Stark. O. N. P. 396. Russ & Ry. © (n) The People v. Herrick, 138 Wend. 87. C. C. 817, 8. C. (0) The People v. Gates, id. 311. (%) Russ. & Ry. 106. (p) 18 id. 87. (2) 3 Chit. Cr. L. 999. (q) 2 East’s P. C. 689. (m) The Queen vy. Dart,.1 Car. &K.289. (7) Arch. Cr. Pl. 248. 142 OF FELONIES. [Boox 1. all the pretenses averred in the indictment; but-a single false pretense, proved as laid, though joined with others, is sufficient to support the in- dictment.(s) The averments as to the nature of the property and the ownership, or the person defrauded, must be also proved.(¢) Proof that a party from whom a note was obtained by false pretenses has been subjected to a suit, or to the payment of the money specified in the note, is inadmissible unless there be a count for obtaining money by false pretenses.(2) Where several persons were indicted for obtaining money by false pre- tenses it was objected that although they were all present when the rep- resentation was made to the prosecutor, yet the words could not be spoken by all, and one of them could not be affected by words spoken by another; but that each was answerable for himself only, the pretense conveyed being like the crime of perjury, a separate act in the person using them. The court of King’s Bench, however, held that as the de- fendants were all present, acting different parts in the same transaction, they were guilty of the imposition jointly.(v) On an indictment for ob- taining a mortgage by false pretenses, the delivery as well as the signing of the instrument, must be proved.(w) 5. RoBBERY. The definition of this offense at common law is, a felonious taking of money or goods, of any value, from the person of another, or in his pres- ence against his will, by force and violence, or putting him in fear.(x) It has been decided in Pennsylvania that to take a man by the cravat, squeeze him against a wall, and, in the meantime, abstract his watch from his fob without his knowledge, is a robbery, though the prosecutor was not alraid, nor aware of the robber’s intention.(y) It has also been held in Massachusetts that an indictment for robbery need not alledge that the party robbed was put in fear.(z) , In this state, robbery is divided into two degrees. The first degree consists of feloniously taking the personal property of another from his person, or in his presence and against his will, by violence to his person or by putting him in fear of some tmmediate injury to his person. Rob- bery in the first degree is punishable by imprisonment not less than ten years.(a) (s) Ante, p.134. Roscoe’s Cr. Ev.867, 2438. 2 Russ. on Cr. 61. U. States v. 11 Wend. 557. Jones, 8 Wash. C. C. Rep. 209. (4) Roscoe’s Cr. Ev. 369, 70. (y) Commonwealth v. Snelling, 4 Binn. (u) 13 Wend. 812. 879. (v) 8 T. RB. 98. (2) Commonwealth v. Humphries, 7 (w) Fenton v. The People, 4 Hill, 126. Mass. Rep. 242. (v) 2 East’s P.C. 707. 4Black.Oom. (a) 2B. 8. 677, §§ 55, 57. oHAP. Iv.] OF FELONIES. 143 Robbery in the second degree consists in feloniously taking such prop- erty of another in bis presence or from his person, which shall have been delivered or suffered to be taken, through fear of some injury to his per- son ot property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been produced by the threats of such robber.(d) This is punishable by imprisonment not more than ten years.(c) Tt will be seen that the statute has not materially altered the law res- pecting this offense, as it previously existed. The principal variation is in the section defining the crime in the second degree. This section extends the offense to threats of injury to the person of a relation or member of the family of the person robbed ; a case not within the terms of the previous law, but within its spirit and meaning.(d) Ist. As to the felonious taking.| ‘The taking may be of money or goods or any kind of personal property. The value of the property taken is immaterial; provided it possess any value whatever, sufficient for the purpose of being called property. A penny as well as a pound, for- cibly extorted, makes a robbery: the gist of the offense being the force and terror.(e) But something must be taken, and it must be of some value;(f) otherwise the offense will be only that of an assault with an intent to rob.(¢) To constitute a taking, the property must have passed into the posses- sion of the offender. So that if a purse were fastened to the girdle of its owner, which the thief cut, and the purse fell to the ground, this is no robbery ; but if the robber once had the property in his hands, though it was immediately relinquished, the offense iscomplete.(z) And therefore to snatch an ear-ring from a lady’s ear, so that the ear is torn in the operation, is robbery, though it is dropped immediately into the hair and is there found by the owner.(¢) And it is not necessary that the prop- erty should continue in the possession of the robber, for any length of time. Thus where a robber took a purse of money from a gentleman, and returned it to him immediately, saying, “If you value your purse, you will please to take it back and give me the contents of it,” but was apprehended before the gentleman had time to give him the contents of the purse, the court held there was a sufficient taking.(/) The taking must be from the person or in the presence of the owner. The thing must be completely removed from the person. Removal from (6) 2 B.S. 677, § 56. (J) 2 Leach, 673.: (¢) Id. § 57. (g) 2 Russ. on Or. 61. (d) See Revisers’ Notes. (A) 3 Chit. Or. L. 802. (e) 2 Russ. on Cr. 62, 4 Black, Com. (i) Id. ib. 1 Leach, 821. 243, (%) 1 Leach, 228. 144. OF FELONIES. [Boox 1. the place where it was, so as to constitute a simple larceny, if it remain throughout with the person, is not sufficient.(/) But if the property be taken in the presence of the party this will suffice. So that to take a horse standing near its owner, or to drive away his sheep or cattle before his face, after putting him in fear, is robbery at common law as well as under the statute.(m) And if aman take a purse which another has thrown away through fear, or his hat which has fallen from his head, or his property from a servant in his presence, he will be considered as hav- ing taken it from the person.() But where thieves struck money out of the owner’s hands, and by inenaces drove him off, so that he could not take it up, and then seized it themselves, it not appearing that it was taken up in the presence of the owner, the prisoners were acquitted.(o) Where the offense of robbery is once actually completed, by taking the property of another into the possession of the thief, it cannot be purged by any subsequent re-delivery.(p) Not only a taking in fact but a taking in law is sufficient to constitute a robbery. It has therefore been holden that if thieves attack a man to rob him and finding little or nothing about him, force him, by menace of death, to swear to fetch them money, which he does accordingly, and delivers it to them, while the fear of the menace still continues upon him, and they receive it, this is a sufficient taking in law.(q) _ The taking must in all cases be accompanied with a felonious intent. But if a man, with such intent, say—“ Give me your money”—“ Lend me your money”—“ Make me a present of your money,” or words of the like import, they are equivalent to the most positive order or demand ; and if any thing be obtained in consequence, such a taking will be within the definition of robbery.(r) The taking must not precede the violence or putting in fear. Thatis, a subsequent violence or putting in fear will not make a precedent taking, effected clandestinely, or without either violence or putting in fear, amount to robbery. Thus where a thief clandestinely stole a purse, and on its being discovered in his possession, denounced vengeance against the party if he should dare to speak of it, it was holden to be larceny only, and not robbery ; as the words of menace were after the taking of the purse.(s) : 2d. As to the taking being AGAINST THE WILL of the party.] It is certain that the goods must be taken against the will of the possessor ; for if three persons agree to rob a fourth, in order to obtain the reward, to be (2) 1 Ry. & Moo. 78. (p) 1 Hawk. P. C. o. 84, 3.2. 1 Hale, (m) 8 Chit. Cr. L. 802. Roscoe’s Or. 532. Ey. 786. 2 Russ. on Cr. 66. (g) 8 Inst. 68. 1 Hale, 582. 2 Hast’s (n) Id. ib. 8 Inst. 39. P. 0. 714. : (0) 2 Stra, 1015. (r) 2 Russ. on Or, 64, (8) Idem, 66. 1 Hale, 584. OHAP, Iv.] OF FELONIES. 145 shared among them all, and the last consents to the scheme, it is impos- sible that any robbery can be committed.(¢) But where a man knowing the road to be infested with highwaymen, puts a little money in his pocket, and goes out for the purpose of detecting and securing them, and on being accosted, delivers his money, and thensucceeds in apprehending the offender, the latter will be guilty of robbery.(7) 3d. As to the violence or putting in fear.] The words of the statute, as well as of the common law definition, are violence or putting in fear—in ‘the alternative ; so that if the property be taken by either of these means, against the will of the party, it will be sufficient to constitute robbery.(v) Where violence is used it is not necessary to prove actual fear. Butif fear were a necessary ingredient the law would presume it where there appears to be a just ground for it.(w) Thus where a man is suddenly knocked down, and his property taken while he is senseless, there can be no room for terror, and yet it is evident that this is a robbery.(z) With respect to the degree of actual violence, where the taking is ef- fected by that means, it appears to be well settled that a sudden taking or snatching from a person unawares is not sufficient, unless some injury be done to the person, or unless there be some previous struggle for the possession of the property. Thus, where a person was carrying a bun- dle along the street in his hand, after dark, when the prisoner ran past him and snatched it away suddenly, it was holden that the act was not done with the degree of force and terror necessary to constitute rob- bery.(y) So, to seize a parcel carried on the head, to carry away a hat and wig without force, and to take an umbrella of a sudden out of an- other’s hand, have been respectively holden to be mere larceny.(z) But where a man snatched at the sword of a gentleman hanging at his side, and the latter, perceiving the design, laid hold on the scabbard, on which a contest ensued, and the thief succeeded in wresting the sword from the owner, his offense was holden to be robbery.(a) So, snatching an article from a man will constitute robbery, if it is attached to his person or clothes so as to afford resistance.(b) Nor will it excuse the violence, that it was done under pretense of law ; for where a bailiff handcuffed a prisoner, and used her with great violence, for the purpose of extorting money from her, he was holden to be guilty; as were also a number of men for seizing a wagon, under pretense that there was no permit, when none was in reality necessary.(c) (t) Fost. 123. 8 Chit. Cr. L. 802. (y) 2 Russ. on Cr. 67. 1 Leach, 287, (u) Fost. 129. 2 Car. L. Repos. 90. Rose. Cr. Ev. 787. (x) 2 Russ. on Cr, 66. 2. East’s P.O. (2) 8 Chit. Or. L, 804, 1 Leach, 290, 708. and in notes. (w) Roscoe’s Cr. Hy. 728. 2 East's P. (a) Id. ib. C. 711. 8 Chit. Or. L. 803, n. A. (0) Russ. & Ry. O. C. 419. 1 Leach, (@) 2 East’a P, C, 711. 835, 320. 2 Car. L. Repos. 94. 4 (c) 1 Leaeh, 280, 1 East’s P.O. 709. 146 OF FELONIES, [Boox 1 To constitute a robbery in the first degree, where no actual violence is used, but a putting in fear is relied on, the prosecutor must show that he was put in fear of some immediate injury to his person. To bring it within the second degree, he must show that the property was delivered or suffered to be taken through fear of some injury to his person or prop- erty, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear was produced by the threats of the robber. Our statute, it will be noticed, extends only to fear of injury to person or property, and does not embrace those cases in which the fear excited has been of injury to the character of the person robbed. At common law, threats of the latter description were sufficient to constitute robbery ; as where the robber obtained the money from the party by threatening to accuse him of an infamous crime.(d) The fear of injury to the person is that which is commonly excited on the commission of this offense ; and where property is obtained by this means, it will amount to robbery, though there be no great degree of ter- ror or affright in the party robbed. It is enough if the fact be attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger, and induce a man to part with his property for the safety of his per- son.(e) It is not necessary that there should be actual danger ; fora robbery may be committed without using any offensive weapon, as by using a tinder-box, or candlestick, instead of a pistol. A reasonable de- gree of danger, caused by the exercise of a constructive violence, is suffi- cient. And where such a terror is impressed upon the mind as does not leave the party a free agent, and, in order to get rid of that terror, he delivers his money, he may clearly be said to part with it against his will. Nor need the degree of constructive violence be such as in its effects necessarily imports a probable injury. For when a villain comes and demands money, no one knows how far he will go.( f) It seems, also, that fear of violence to the person of the child of the party whose property is demanded is regarded, at common law, in the same light as fear of violence to his own person.(g) This would clearly be a sufficient threat to constitute robbery in the second degree under our statute. The fear necessary to constitute the crime may exist, though the property be taken under a color, and on the pretense, of a purchase: as where: the prisoner took a quantity of wheat worth eight shillings, and forced the owner to take thirteen pence halfpenny for it, threatening to d) 3 Chit. Cr. L. 808. (f) 1 Leach, 196, 7. 2 East’s P. C. (e) Fost. 128. 4 Black. Com, 248, 2 718, 727. Russ. on Or, 71. (g) 2 East, 718, 735, oHaP. r1v.] OF FELONIES. 147 kill her if she refused, the offense was held to be a robbery, by all the judges.(h) erga 5 The cases in which the offense of robbery has beer ~atansived by means of a tear of injury to the property of the party, are principally those in which the terror excited was of the probable outrages of a mob. Thus where a mob entered a house, and the prisoner, who was one of them, demanded money, and said that if the prosecutor did not give his men something handsome for them to drink, his house must come down ; for fear of which, the prosecutor gave them money; this was held to be robbery.(2) Principals and accessaries.] The same general rules which prevail in other cases of principals and accessaries, apply also in the case of rob- bery. Thus, if several persons come to rob a man, and they are all pres- ent, and one only actually takes the money, it is robbery in all.(k) So if a number of persons associate together to commit a robbery, and one alone perpetrates the act, all are constructively present, and are guilty.(d) And if A., B. and C. come to commit a robbery, and A. stand sentinel at the hedge corner to watch if any person should come, and B. and C. com- mit the robbery, it will be robbery in A. also, though he was at a distance from them and not within view.(m) Indictment.] The indictment for robbery must state an assault upon the person; and that such assault was made feloniously.(n) And the taking must be charged to have been with violence, and against the will of the party; and the usual statement is, “certain goods, &c. then and there feloniously and violently did steal, take, &c.” But the word violently is not essentially necessary, if it appears, upon the whole, that the act was committed with violence.(o) This is the rule at common law. It may, perhaps, admit of a doubt whether an indictment under our statute should not contain the word violently ; inasmuch as it is used by the statute in describing the offense. It is considered as uncertain whether an indictment at common law should charge that the party was put in fear ; though, as such statement is usual, it is said to be more safe to insert it.(p) Yet it has been held in Massachusetts that an indictment for robbery is good, at common law, which alledges the stealing, d&c. by force and violence, but omits the averment that the party robbed was put in fear.(g) But it seems clear, that in an indictment under our statute, in cases where the putting in (A) 2 Russ. on Cr. 72. 2 East, 712. (m) 2 Russ. on Cr. 87. 1 Hale, 534, (i) Roscoe’s Or. Ev. 744. 2 East, 712, (m) Id. ib. 729, 331. (0) 2 Leach, 563. oe Hale, ‘684. 1 Hawk. P.O. ch. se 2 Russ. on Cr. 90. 2 Hast’s P. C. (D State v. Ha ard, 2 Nott & M 7 . R . Cord, 312. a @ perenne 148 OF FELONIES, [Boox 1. fear is the means by which the taking is effected, such a charge is neces- ary ; especiall ere the indictment is drawn with reference to the -DfTense ofdorgeny | in yhe second degree. In genera], however, no technical description of the ct is necessary, if upon the whole it plainly appear to have been committed with violence, against the will of the party.(7) Eividence.| Prove a larceny by the prisoner from the person of the prosecutor, or in his presence, under the circumstances and with the in- cidents above mentioned as constituting the offense. Prove the goods to have been of some value to the prosecutor. It does not seem necessary to prove that the robbery was perpetrated at the local venue, as Jaid in the body of the indictment.(s) Therefore, where a robbery was alledged to have been in a field near the king’s highway, and it was not proved to be near any highway, it was considered immaterial.(¢) So where the indictment charged that the prisoner robbed A. B. in the house of J. S., and it was not proved'in whose house the robbery was committed, it was holden immaterial.(w) If at the trial any of the circumstances necessary to constitute robbery are wanting, but the taking be proved, the defendant may be acquitted of the robbery and found guilty of simple larceny.(v) Assault with intent to rob.] If the crime of robbery was not com- pleted, the prisoner should be indicted for an attempt to rob. But if it appears, upon the trial of such indictment, that the offense of robbery was perpetrated by the prisoner, he can not be convicted of an assault with intent to commit it.(w) Nor can he be convicted of an attempt to rob after a trial and acquittal or conviction for the robbery.(c) The assault will be proved in the same manner as the assault in robbery, only that the completion of the offense, in taking the prosecutor’s prop- erty from his person or in his presence, will be wanting.(y) The assault must be upon the person intended to be robbed. Therefore where the assault was upon a post-boy driving a carriage, and the intention was to rob a gentleman in the carriage, the court held the indictment could not be sustained.(z) But no actual demand of money, &c. is necessary upon the charge of an assault with intent to rob.(a) The intent to rob is a material part of the offense, and must be alledged in the indictment.(6) This intent will be gathered from the general conduct of the prisoner at the time. Menaces, threats, violence, and in short whatever conduct which, if it had been followed by a (r) 2 East’s P. OC. 708. (w) 2 BR. 8. 702, § 26. (s) Matt. Dig. 276. (a) Id. § 28. (t) Russ. & Ry. C. C. 9, (y) Roscoe’s Cr. Ev. 754. (u) Id. ib. Pye’s case, n (2) 1 Leach, 380. (v) Rep. Temp. Hardw. "118. Com. (a) 2 Russ. on Or. 617, Rep. ime. 2. Stra, 1014, (0) Id. ib, 5 T. R. 169. omar. 1v.] OF FELONIES. 149 taking of property would have constituted robbery, will in this case be evidence of an intent to rob. The prisoners rushed out of the hedge upon the prosecutor, who, was the driver of a return chaise, and one of them presenting a pistol to him, bade him stop, which the prosecutor did, but called out for assistance. On this, one of the prisoners threatened to blow his brains out if he called out any more, which he still continued to do until he obtained assistance and took the men, who had made no demand of money. They were convicted of an assault with intent to rob.(c) Attempts to rob.] By the revised statutes it is provided that every person who shall knowingly send or deliver, or make any letter or writing, threatening therein to accuse any person of any crime, or to do any injury to the person or property of any one, with a view or intent to extort or gain any money or property belonging to another, shall, upon conviction, be adjudged guilty of an attempt to rob, and shall be punished by imprisonment not exceeding five years.(d) 6. EMBEZZLEMENT. Embezzlement is a species of larceny; and the term is applicable to cases of stealing by clerks, servants or carriers of property coming into their possession by virtue of their employment. This offense does not depend solely upon the statute. Our statute is conformable to the English act, which Mr. East observes is merely declaratory of the common law.(e) The provisions of the revised statutes respecting embezzlement are as follows: If any clerk or servant of any private person or of any copart- nership, (except apprentices and persons within the age of eighteen years,) or if any officer, agent, clerk, or servant of any incorporated company, shall embezzle or convert to his own use, or take, make way with, or secrete, with intent to embezzle or to convert to his own "use, without the assent of his master or employers, any money, goods, rights in action, or other valuable security or effects whatever, belonging to any other person, which shall have come into his possession, or under his care, by virtue of such employment or office, he shall, upon convic- tion, be punished in the manner prescribed by law for feloniously stealing property of the value of the articles so embezzled, &c., or of the value of any sum of money payable and due upon any right in action so embezzled.(f) As the punishment for embezzling property of a less value than $25, is the same as that of petit larceny, viz. imprisonment in a county jail, (c) 1 East’s P. C. 418, (6) 2 East’s P. 0. 418; (d) 2B. S. 677, § 58. (f) 2B. 8. 678, § 59. 150 OF FELONIES. [Boox 1. this offense does not properly belong in the chapter respecting offenses punishable by imprisonment in a state prison. But such is the arrange- ment of the revisers, and for greater convenience we have followed it. Under the above section of the statute it has been decided that an indictment for embezzlement lies against a clerk or servant for convert- ing to his own use the money, &c. of any other person, which shall have come into his possession, &c. by virtue of his employment. And that the words any other person in the above section which are italicised, mean any person other than he who is guilty of the embezzlement.(g) It has been decided also that a bar-keeper in an inn, intrusted to carry letters to and from the post office, who fraudulently converts to his own use a letter enclosing money, given to him to carry to the post office, is guilty of embezzlement ; and to convict him it is not necessary to show that he broke open the letter, or fled afterwards, or to show the dissent of hisemployer. It is enough if there be a fraudulent conversion ; and that being shown, a felonious intent is established.(h) And a stage driver intrusted by his employers to carry money from one place to another, is a servant, who has obtained possession of prop- erty by virtue of his employment, within the meaning of the above section.(i) It has also been held that a constable employed to collect debts without suit, if the debtors would pay, and if not, to procure and selve process, is not a servant of the creditor, within the statute con- cerning embezzlement.(k) Every embezzlement of any evidence of debt, negotiable by delivery only, and actually executed by the master or employer of any such clerk, agent, officer or servant, but not delivered or issued as a valid instrument, is an offense within the meaning of the section above quoted.(Z) The object of this section was to provide for the case of bank bills which have never been issued, but are in the hands of the officers of the bank and may therefore be deemed inchoate and not valid rights in aclion within any of the terms employed in the fifty-ninth section.() Receiving property embezzled, with a knowledge of its having been embezzled, is punishable in the same manner and to the same extent as the embezzlement itself.(7) The sixty-second section of the act provides that if any carrier or other person to whom any goods, money, right in action, or any valuable personal property or effects shall have been delivered to be transported (g) People v. Hennessey, 15 Wend.147. (2) 2 B.S. 678, § 60. (A) People v. Dalton. 15 Wend. 581. (m) See Rev. Note. (i) 10 Wend. 298. (n) 2 B.S. 678, § 61. (k) People v. Allen, 5 Denio, 76. OHAP. Iv.] OF FELONIES. 151 or carried, for hire, shall, without the assent of his employer, take, embezzle, or convert to his own use, or make way with, or secrete, with intent to embezzle or convert to his own use, such goods, &c. or any of them, in the mass as they were delivered, without breaking the truok, box, pack, é&c. in which they or any of them shall be contained, and before delivery of guch articles at the place, or to the person entitled to receive them, he ‘shall, upon conviction, be punished in the same manner as if he had taken, &c. such goods after breaking the trunk, &c. containing them, or after separating any of them from the others.(o) The object of this section was to place carriers on precisely the same footing with servants; which is their true legal character. A breach of trust in the one case is neither more nor less than a similar breach in the other.(p) The statutes respecting embezzlement were enacted for the purpose of reaching a class of cases which, though clearly larcenies, could not be punished as such, at common law. And it seems the act does not apply to cases which could be punished, at common law, as larcenies.(q) It is questionable, therefore, whether if a servant receives money from his master to pay C., and does not pay it, he can be indict- ed for embezzlement.(r) But as counts for larceny at common law, and for embezzlement under the statute, may be joined in the same indictment, any difficulty in this respect may be avoided.(s) The rule of the common law was founded upon the technical subtlety, that where the offender had the qualified property and actual possession of the goods at the time they were embezzled, he could not be guilty of larceny. Thus, if a clerk received money of a customer, and, without at all putting it in the till, converted it to his own use, he was guilty only of a breach of trust. Though, had he once deposited it and then taken it again, he would have been guilty of felony.(¢) So a cashier of a bank could not be guilty of a felony in embezzling an India bond which he had received from the court of chancery, and was in his actual as well as constructive possession.(w) The 59th section of our statute extends only to such servants as are employed to receive money, and to instances in which they receive money by virtue of their employment.(v) It has been held that a female servant is within the English statute, which issimilar to ours.(w) A per- son employed upon commission to travel for orders and to collect debts, is a clerk within the act, though he is employed by many different houses (0) 2 B.S. 679, § 62. (s) See 8M. & 8. 549. 38 Chit. Cr. L. (p) See Rev. Notes. 921. (g) 2 Leach’s C. ©. 1088. 8Stark.Ev, (¢) 2 Leach, 881. 842. 3 Chit. Cr. L. 921. (u) 1 Leach, 28. (r) Russ, & Ry. C. C, 267, (v) See 2 Buss. & Ry. 0. 0, 80, (w) Idem, 267. 152 OF FELONIES. - [BooK 1. on each journey, and pays his own expenses, and does not live with any of his employers, nor act in any of their counting houses.(z) So a ser- vant, who is in the employment of A. and B., who are partners, is the servant of each; and if he embezzle the private money of one, may be charged under the act as the servant of that individual partner.(y) A man is sufficiently a servant within the act, although he is only occasion- ally employed when he has nothing else to do; and it is sufficient if he was employed to receive the money he embezzled, though receiving money may not be in his usual employment, although it was the only instance in which he was so employed.(z) A clerk entrusted to receive money at home, from out-door collectors, received it abroad from out-door customer. Held, that such receipt of money may be considered “ by vit- tue of his employment” within the act, though it is beyond the limits to which he is authorized to receive money for his employers.(a) So if aservant, generally employed by his master to receive sums of one de- scription, and at one place only, is employed by him in a particular instance to receive a sum of a different description, and at a different place, this latter sum is to be considered as received by him by virtue of his employment, for he fills the character of servant; as it is by being em- ployed as a servant that he receives the money.() The manner in which the defendant is remunerated for his service is immaterial as regards the question whether or not he is a servant. Thus, where a party who was allowed a proportion of the profits on the goods sold, for his labor, sold them, received the price, and absconded with the money, it was holden that he was a servant, within the meaning of the act.(c) Soa servant who received money for his master for articles made of his master’s ma- terials, which he embezzled, was held within the act, though he made the articles and was to have a given portion of the price for making them.(d) The act is not confined to clerks and servants of persons in trade. It extends to clerks and servants of any private person or of any copart- nership ; and to the officers, agents, clerks, or servants of any incor- porated company. 'Thus where the overseers of a township employed the prisoner as their accountant and treasurer, and as such, he was in the habit of receiving and paying all the money receivable or payable on their account, and he received a sum and embezzled it, he was held a clerk and servant within the act.(e) And an extra collector of poor rates, whose remuneration comes from the parish fund by a per centage on his collections, is a servant or clerk, within the meaning of this stat- (z) See 2 Russ. & Ry. ©. O. 80. (c) Idem, 139, (y) 8 Stark. O. N. P. 70. (a) Idem, 145. (2) Russ. & Ry. C. 0. 199. (e) 2Stark. C, N. P, 849. Russ, & Ry. (a) Idem, 319, O, O, 349, 8. O. (0) Russ & Ry. 0. O, 516. OHAP. 1v.] OF FELONIES. 153 ute.(f) But the person employed to collect the sacrament money from the communicants, is not the servant of the minister; church-wardens, or poor, within the statute.(¢) Although property has been in the possession of the prisoner's masters, and they only entrust the custody of such property to a third person to try the honesty of their servant, if the servant receives it from such third person and embezzles it, it is an embezzlement within the act.(h) A mere omission by a clerk to remit money, according to his duty, is not embezzlement.(¢) Nor is an embezzlement by one who is neither clerk nor servant or in any way under the control of the person by whom he is, in a single instance ouly, requested to receive money, pun- ishable under this act.(/) Where a party is charged with embezzlement, it is said to be the practice, in England, for the judge before whom the indictment is found, to order the “prosecutor to furnish the prisoner with a particular of the charges, upon the prisoner making an affidavit that he is unacquainted with the charges, and that the prosecutor has refused to furnish him with such particular.(Z) Eividence.] Under an indictment upon the 59th section of our statute, it will be necessary to prove that the prisoner was the clerk or servant, officer or agent of the private person, copartnership, or incorporated company who prosecutes; that the defendant received the money, &c. by virtue of his employment or office ; and that he embezzled or con- verted to his own use the money, &c. so received, or some part of it, or that he made way with, took, or secreted the same with intent to em- bezzle or convert it to his own use.(m) And, with a view to the degree of punishment, the value of the goods, &c. must be stated in the indict- ment, and proved. But a variance between the indictment and the evi- dence, as to the amount received, is immaterial.(z) It must appear also that the money, &c. embezzled was never, even constructively, in the possession of the master, for if it were, the offense would amount to lar- ceny, as we have before remarked ; and the defendant would therefore be acquitted upon an indictment on this statute.(o) What evidence will be necessary as to the prisoner’s being the servant, &c. of the prosecutor, and as to the money being received by him by vir- tue of his employment or office, will be sufficiently gathered from the above observations upon those points. As regards the embezzlement, the usual presumptive evidence of this fact is that the defendant never accounted with his master for the money, (f/) Ward’s case, Gow, 168. (k) Ry & Moo. ©. ©. 259. » (g) Ry. & Moo. ©. OC. 287. (2) 5 Car. & P. 300. (A) Russ. & Ry, C. C. 160. 2 Leach, (m) Arch. Or. Pl. 239, 242. 1033, 8. 0. (n) Russ. & Ry. ©. C. 808. () 8 Car. & P. 422. i (0) See Arch. Cr, Pl. 187, 9. 154 OF FELONIES. [Boox 1. &c. so received by him, or denied his having received it, or falsely ac- counts for it(p) And where a servant: immediately on receiving a sum for his master, enters a smaller sum in his master’s books, and ultimately accounts to the latter for the smaller sum, he may be considered as em- bezzling the difference at the time he makes the false entry.{q) Buta mere omission by a clerk to remit or pay money, according to his duty, is not an embezzlement.(r) So where it appeared by the books of a clerk that he had received much more than he had paid away, and from this the prosecutors wished it to be inferred that he must have embez- zled some particular note or piece of money, it was held that this was not enough, and that it was necessary to prove that some distinct act of embezzlement had been committed.(s) , Indictment.) Where the indictment only contains one count for one act of embezzlement, and it appears in evidence that the prisoner received money in different sums on different days, the prosecutor must elect one sum: and one day upon which to proceed.(¢) An indictment under the 62d section of the statute must contain aver- ments that the goods, &c. were delivered to the prisoner to be trans- ported or carried for him; that the goods, &c. or a part of them, were without the assent of his employer, taken, embezzled, or converted to his own use, or made way with or secreted by him, with intent to embezzle or convert them to his own use in the mass as they were deliv- ered, without breaking the trunk, &c. in which they were contained, and before their delivery at the place or to the person entitled to receive them. And these averments must be sustained by the evidence. The punishment for embezzlement, in case the value of the articles embezzled is above twenty-five dollars, is imprisonment not more than five years; if the value is under twenty-five dollars, the offense is pun- ishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding $100.(z) 7. LARCENY. Larceny, or theft, is distinguished by the law into two sorts; the one called simple larceny, or plain theft, unaccompanied with any other atrocious circumstance ; and compound, that is, where it is accompanied by the aggravating circumstance of stealing from the house or the person.(v) (p) Roscoe's Cr. Ev. 846. 8 Bos. & Pul. —(¢): 6 Car. & P. 626. we 2 Leach, 974. Russ. & Ry. C. (u) 2 R. 8. 678, § 59; 679, $$ 62, 63; . 63. 90, § 1. (q) Russ. & Ry, O. C. 463. (x) 4 Black. Com. 229. 8 Chit. Burn. (7) 8 Car. & P. 422. Russ. & Ry. 267. 513, (8) Roscoe’s Or. Ev. 346. cHaP. Iv.] OF FELONIES. 155 And First, of stmpie larceny, which when it is the stealing of goods above the value of twenty-five dollars, is called grand lareeny ; and when of goods to that value or under, is petié larceny ; offenses which are considerably distinguished in their punishment, but not otherwise.{w) In Ward v. The People,x) Nelson, Ch. J. observes “It was doubtless intended by the legislature to reduce the offense of petit larceny to the grade of a misdemeanor ; but I am inclined to think that they did not accomplish their object. The crime is felony at common law; and the only provision in the statute that can go to change the common law character of the offense is that which declares that the term ‘felony’ when used in any statute, shall be construed to mean an offense for which the offender, on conviction, would be punishable by death, or by imprison- ment in a state prison. (2 R.S. 702, §30.) This provision defines statute felonies, but does not interfere with those existing at common law untouched by the statute, of which the offense of petit larceny is one.” But he observed that the question was not material in that case, and it was not directly decided. We shall treat of the entire subject ef larceny, whether grand or petit, in this place. Simple larceny is defined to be the wrongful taking and carrying away of the personal property of any one from his possession, with a felonious intent to convert the same to the use of the offender, without the consent or against the will of the owner.(y) We shall first treat of simple larceny, by stating the statutory provis- ions respecting it, and the rules of the common law which are in accordance with those provisions ; after which, we propose to pursue the same course as regards compound larceny. By the revised statutes, it is provided that every person who shall be convicted of the felonious taking and carrying away of the personal property of another, of the value of more than twenty-five dollars, shall be adjudged guilty of grand larceny, and shall be imprisoned in a state prison for a term net exceeding five years.(z) If the property stolen consist of any bond or other evidence of debt, or of any public security, or of any instrument whereby any demand, right, or obligation shall be created, increased, released, extinguished, or diminished, (except lottery tickets,) the money due thereon, or secured thereby and remaining unsatisfied, or collectable, or the value of the property transferred or affected thereby, shall be deemed the value of the article stolen.(a) (w) 4 Black. Com. 229. (2) 2B. S. 679, § 68. (a) 8 Hill, 398. (a) Id. ib. § 66. (y) 2 East’s P. C. 558, 2 Leach, 888. 156 OF FELONIES. [Boox 1. If the property stolen be a lottery ticket, or a certificate or other legal evidence of a share or interest in such ticket, and shall be stolen before the drawing of the lottery, the price paid for such ticket, certificate, &c. shall be deemed the value thereof; and if stolen after the drawing, the amount due and payable to the holder thereof, shall be deemed the value of the same.(d) If any person shall sever from the soil of another, any produce grow- ing thereon, of the value of more than twenty-five dollars, or shall sever from any building, or from any gate, fence, or other railing or inclosure, any part thereof, or any material of which it is formed, of the like value, and shall take and convert the same to his own use, with the intent to steal the same, he shall be deemed guilty of larceny, in the same manner and of the same degree, as if the articles so taken had been severed at some previous and different time.(c) The rule of the common law on this subject is thus stated by Mr. East: “No larceny can be committed at common law, of things annexed to the freehold. But when once they are severed from the freehold, either by the owner, or even by the thief himself, if there by an interval between his severing and taking them away, so that it can not be consid- ered one continued act, it would then be felony to take them away.”(d) This is a distinction, the reason of which, as the revisers remark, it is difficult to comprehend, and which the above section abolishes. The stealing and carrying away any record, paper, or proceeding of a court of justice, filed or deposited with any clerk or officer thereof, or any paper, document, or record filed or deposited in any public office, or with any judicial officer, is larceny without reference to the value of the record, é&c. stolen; and is punishable by imprisonment in a state prison not more than five years.(e) And stealing or fraudulently taking away or withdrawing or destroying any such document, &c. above mentioned, by the officer having the custody thereof, shall be punished by imprison- ment in a state prison not more than five years.( f) The seventy-first section of the statute relates to the buying or receiv- ng stolen goods. It provides that every person who shall buy or receive in any manner, upon any consideration, any personal property that shall have been feloniously taken away or stolen, from any other, knowing it to have been stolen, may be punished by imprisonment in a state prison not more than five years, &c. And in any indictment for this offense it shall not be necessary to aver, or on the trial prove, that the principal who stole such property has been convicted.(¢) (b) 2 B.S. 679, § 67. (e) 2 R. 8. 680, § 69. (c) Id. ib. § 68. (f) Id. ib. § 70. (d) 2 East’s P. O. ch. 16, § 27. (g) Id. ib. §§ 71, 72. ona. rv.]- OF FELONIES. 157 It has been decided that in an indictment under the seventy-first section, for receiving stolen goods, it is not necessary to alledge that they were received upon any consideration passing between the thief and the receiver.(h) Having thus glanced at the statutory enactments respecting simple larceny, we shall now proceed to give a summary of the common law principles concerning it. And in doing so the subject will be considered as regards—1. The taking; 2. The carrying away; 3. The goods taken; 4. The owner; 5. The felonious intent. Ast. The taking.] To constitute larceny there must be a taking of the goods, either actual or constructive; actual, where the goods are ac- tually taken out of the owner’s possession against his will or without his consent; constructive, where the goods are obtained from the owner by _ fraud, with the intent to. steal them, or where he in fact delivers the goods, but still in law retains possession of them.(i) There must be an actual taking or severance of the thing from the possession of the owner ; for as every larceny includes a trespass, if the party be not guilty of a trespass in taking the goods he can not be guilty of a felony in carrying them away.(s) Yet where one having only the care, charge, or custody of property for the owner, converts it animo furandi, it is larceny; the possession, in judgment of law, remaining in the owner until the conver- | sion.(/) So where the holder of a promissory note, having received a partial payment from the prisoner, who was the maker, banded it to him to indorse the payment, who took it away and refused to give it up, it was held that the possession remained in the owner; the prisoner ac- quiring only a temporary charge or custody, for the special purpose ; and that his subsequent conversion, the jury having found it felonious, was larceny.(m) In such a case it is not essential that a felonious intent should exist when the prisoner received the note. It is enough if he converted it animo furandi.(n) But though there must be a taking from the actual or constructive possession of the owner, it is not necessary that it should be done by the hand of the party accused; for if he procured an innocent agent, as a child or lunatic, to take the property ; or if he obtained it from the sheriff by a replevin without color of title, and with a felonious design, he will himself be the principal offender.(o) In like manner, though the posses- , sion be delivered by the owner, yet, if it be obtained by any fraud, it amounts to a tortious taking or trespass, as much as if the party had a (h) 12 Wend. 76. The People v. Call, 1 Denio, 120. (i) 1 Hale’s P. ©. 514, Crown Cir. eh ig ee Comp. 287. (n) Ibid. (%) 1 Hawk. P.O. ch. 38, $1. 2 East’s 1 Hawk. P. C. ch. P. C. 554. : eee? aw O. ch. 88, § 8, 2 East, 158 OF FELONIES, [Boox 1, taken it without any delivery on the part of the owner.(p) If a wife carry away and convert to her own use the goods of her husband, it is no larceny, for they are one person in law, and consequently there can be no taking so as to constitute larceny.(qg) And the same if others are jointly interested with the husband in the property taken; as if the wife of a member of a friendly society take money of the society deposited in a box in the husband’s custody, this is no larceny.(7) But it is larceny for a man who elopes with another's wife, to take his goods, though with the consent and at the solicitation of the wife.(s) And this is upon the ground that the wife, who has no legal property, can only be allowed to dispose of her husband’s goods by his authority; and that under such. wife could be presumed.(¢) But an adulterer can not be convicted o Siceanstanced no implied consent by the husband to the taking by the stealing the goods of the husband, brought by the wife alone to his lodg- ings, and placed by her in the room in which the adultery is afterwards committed, merely upon evidence of their being found there. It seems it would be otherwise, however, if the goods could be traced in any way to his personal possession.(w) Thus, where the prisoner went away with the prosecutor’s wife, and assisted her in placing wearing apparel and other articles in a box; also in removing the box from her husband’s house ; and afterwards, while the prosecutor’s wife remained in adultery with him, pledging some of the articles, and applying the money to his own purposes, it was held that it was proper to direct the jury, first, that if they were of opinion that the prisoner, going away with the prosecu- tor’s wife for the purpose of adulterous intercourse, was engaged, jointly with her, in taking the goods; or secondly, that if the prisoner, though not a party to the original taking of the goods, or their removal after the arrival of the adulteress and himself at his house, had appropriated any part of the goods to his own use, he was guilty of the felony. And the jury having found the prisoner guilty of the larceny, the court was of the opinion that he was rightly convicted.(v) Under some circumstances a man may be guilty ofa larceny in taking his own goods, where the intent is to charge another with the value of them; as if he steals them from a pawnbroker or any one to whom he has delivered and intrusted them.(w) If one lose goods and another tind them and convert them to his own use, not knowing the owner, this is no larceny, even though he deny (p) 2 East’s P. C. 555. (v) Queen v. Thompson, 1 Den. C. 0. (q) 1 Hale, 514. 549. 14 Jur. 488. 1 Eng. Law & Eq. (r) Moody’s ©. C. 875. Rep. 542. (s) 6 Cowen, 572. (w) 10 “Wend. 165. 1 Russ. & Ry. C. (t) Ry. & Moo. C. C, 248. C. 478. 8 Hill, 194. a Queen v. Rosenberg, 1 Car. & K. oHAP. IV.] OF FELONIES. 159 finding, or secretes them.(x) But this doctrine can only apply where the finder bona fide supposes the goods to have been lost, and not where he colors a felonious taking under that pretense.(y) It is clearly otherwise if he knew, or had the means of knowing, the owner. Therefore where a bureau was given to a carpenter to repair, and he found money secreted in it which he kept and converted to his own use, it was held to be lar- ceny.(z) So if a hackney coachman convert to his own use a parcel left in his coach by mistake by a passenger, it is felony if he know the own- er, or if he took him up or set him down at any particular place where he might have inquired for him.(a) So if a person finds personal prop- erty, knowing, or having the means of knowing, the owner, as if there be a mark upon it, and does not restore it, but converts it to his own use, such conversion will constitute larceny.(6) If a person drop any chattel, and another find it and take it away with the intention of appropriating it to his own use, and only restores it because a reward is offered, he is guilty of larceny.(c) A person was indicted for stealing a watch. The evidence was that he had found it. The verdict of the jury was, ‘we find the prisoner not guilty of stealing the watch, but guilty of keeping possession of it, in the hope of reward, from the first time he had the watch.” The court directed a verdict of “guilty” to be entered. It was held that the finding amounted toa verdict of “not guilty.”(d@) The only cases in which a party finding a chattel of another can be justified in appropriating it to his own use are, where the owner can not be found, or where it may be fairly said that the owner has abandoned it.(e) Where the property of a person is left in the possession of another, through inadvertence, and the latter animo furandi, conceals it, he is guilty of larceny. Knowing it to be the property of another, his posses- sion will not protect him from the charge of felony.(f) Besides the felonious intent, it is necessary that the taking of the goods, should also be without the consent of the owner. This is of the very essence of the crime of larceny.(g) But if the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to en- eourage the design, and to lead them on till the offense is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed, the criminality of the thieves will not be destroyed.(h) Overtures were made by a person to the servant of a pub- t (a) 3 Inst. 108. 1 Hawk. ch. 33, §2. The People v. Cogdell, 1 Hill, 94. 1 Car. 1 Hale, 506. 14John. 294. 2Tyler, 379. & K.417. 2 Russ. on Or. 102. (y) 1 Hale, 506. 2 East’s P. C. 664. (c) Queen v. Peters, 1 Car. & K. 245, _ (8 Ves, 405. 2 Leach, 952. And (d) Queen v. York, 9 Jur. 1078. see 17 Wend. 460. (e) 1 Car. & K. 245, (a) 2 East’s P. C. 664. 1 Leach, 413, (f) 17 Wend. 460, 415, n. (g) Fost. 128. 2 Russ. on Cr. 105. (0 State v. Weston, 9 Conn. Rep. §27, (4) 2 Leach, 918, age 160 OF FELONIES. [Boor 1. lican to induce the servant to join him in robbing his master’s till. The servant communicated the matter to the master, and some weeks after, the servant, by the direction of his master, opened a communication with the person who had made the overtures; in consequence of which he came to the master’s premises. The master having previously marked some money, it was, by his direction, placed upon the counter by the servant,in order that it might be taken up by the person who had come for the purpose. It being so taken up by him, he was held guilty of larceny.(i) So if a man be suspected of an intent to steal, and another, to try him, leaves property in his way, which he takes, he is guilty of larceny.(4) And if, on thieves breaking in to plunder a house, a servant, by desire of his master, shows them where the plate is kept, which they remove, this cir- cumstance will not affect the crime.(2) Constructive taking] With respect to an actual taking of property, as an ingredient in the offense of larceny, no further illustration is proba- bly necessary ; but as the question, what is a constructive taking has given rise to some very nice distinctions, it seems proper to consider that more particularly. The decisions upon this subject will therefore be ar- ranged under four heads. viz.: 1. Where the owner, by a delivery of the goods, gives up both the possession and the right of property ; 2. Where he gives up the possession but retains the right of property in law; 3. Where the possession is,in the first instance, obtained fairly and without a felonious intent; 4. Where it is obtained with a felonious intent, animo Surandi. lst. Where the owner, by a delivery of the goods, gives up both the possession and the right of property.| Where the prisoner bought goods, and desired them to be sent to him with a bill and receipt, and the shop- man who brought them left them, upon being paid for them by two bills, which afterwards turned out to be mere fabrications, it was held this was not a larceny, because the prosecutor had parted with the property, as well as the possession, upon receiving what was deemed by his servant, at the time, to be payment.(m) So where the prisoner bought a horse at a fair, of the prosecutor, to whom he was known, and, having mounted the horse, said to the latter that he would return immediately and pay him; to which the prosecutor answered “very well,” and the prisoner rode the horse away and never returned ; it was held to be no larceny, because the property as well as the possession was parted with.(n) So where the prisoner sent to a hatter, in the name of one of his customers, for a hat, which was accordingly delivered to the messenger upon the credit of the customer ; it was held that this was not larceny, the owner having (i) Queen v. Williams, 1 Car. & K. 195. (m) Id. 614, (k) 2 Leach, 921. (n) 1 id. 467, (2) Id. 922. ouap, Iy.] OF FELONIES. 161 parted with his property in the hat.(m) And for the same reason where a woman obtained from the prosecutor, in the name of one of his neigh- bors, half a guinea’s worth of silver, saying that he would return pres- ently with the half guinea, it was held not to be larceny.(n) So, where the prisoner sent a letter to the prosecutor, in the name of another per- son, requesting a loanof money for a few days, and obtained the money accordingly ; it was held to be no larceny, because it appeared that the property in the money was intended to pass by the delivery.(o) But offenses of this kind, not amounting to larceny, are now punishable under the statute against obtaining money by false pretenses.(p) 2d. Where the owner gives up the possession, but retains the right of property.| Ifa servant, who has merely the care and oversight of his master’s goods, as a butler of plate, a shepherd of sheep, and the like, embezzle them, this is larceny at common law ;(q) because the goods, at the time they are taken, are deemed in law to be in the possession of the master; the possession of the servant, in such a case, being the pos- session of the master. Where the prisoner, who was carter to the pros- ecutor, went away with and disposed of his master’s cart, it was held larceny.(r) Where the servant of a master carman employed to cart goods, by collusion with others, suffered the goods to be taken away, it was held larceny in the servant, and immaterial whether the property was laid in the bailee or in the original owner.(s) A servant who clan- destinely takes his master’s corn, though to give to his master’s horses, is guilty of larceny.(¢) And where the prisoner was porter to the prose- cutor, and was sent by his master to deliver goods to a customer, and in- stead of doing so, sold them, this was held to be a larceny.(u) Where a master gave money to his servant to carry to another, and the servant applied it to his own use; and where a master gave ten guineas to his servant to get silver for them, and instead of doing so, she ran away with the guineas—these ‘were held larcenies.(v) Even where a confi- dential clerk to a merchant, who had authority to get his master’s bills discounted, and had the general management of his cash concerns, took a bill of exchange unindorsed, got it discounted, and absconded with the proceeds, it was held to be felony .(w) If the owner of goods deliver them to another, but be present all the time they are in the other’s possession, and there be no intention on the (m) Russ. & Ry. 0. C. 225. Handley, 1 Car. & M. 547. Queen v. (n) 2 East’s P, ©, 672. Privett, 2 Car. &K. 114. 1 Den. 0. 0. (0) Id. ib. RB. 193. (p) 2R.8. part 4, tit. 8, art. 4. An- (wv) 2 East’s P. CO. 566. te, p. 133. (v) 2 Russ. on Cr. 201. 1 Leach, 802. (q) 1 Hale, 506. (w) 2 Leach, 699. lid. 344. Andsee (7) 2 East’s P. O. 565. 4 Taunt. 304. 2 Leach, 824, 5. 2 East’s (8) Russ. & Ry. C, C, 125. P. C. 568. 2 Russ. on Cr, 197. (t) Russ. & Ry, ©. C, ne Queen v. 1 162 OF FELONIES. [BooKt. part of the owner to relinquish his dominion over them by such delivery, the owner still retains the possession in law, notwithstanding the delive- ry; and if the person to whom he has so delivered them make away with them, and convert them to his own use, he will be guilty of larce- nyc) Thus where the holder of a promissory note delivered it to the maker, for the special purpose of having him indorse a partial payment which bad been made ; and he appeared to be making the indorsement, and then folded it up and took it away with him, and refused to return it, the jury found the conversion to be animo furandi, and therefore a larceny.(y) And if the owner of goods give them to a man to carry, aud accompany him at the same time; if the man run away with them, he is guilty of larceny. So if a man have the bare use of another’s goods, this does not divest the owner of the possession in law; and if such per- son fraudulently convert them, thisis larceny. As ifa guest rob his inn or tavern of plate, it is larceny ; for he has not the possession delivered to him, but merely the use({zy But on the contrary, where goods, of which the master has never been in possession, are delivered to the servant, for the master’s use, and the servant, instead of delivering them to his mas- ter, by depositing them in his house, or the like, converts them to his own use; this is held to be no larceny at common law.(a) And this is, because the master never had possession, except by the hands of his servant. Although stealing by servants and clerks, wnder these circumstances, does not amount to larceny, yet the offense does not go unpunished. It is provided for, in the statute, under the head of EMBEZZLEMENT, for which see ante, p. 149. 3d. Where the possession is in the first instance obtained fairly, and without a felonious intent.} Tf goods are delivered to a man upon trust, er taken by him with the owner’s consent, the subsequent conversion of them is no larceny ;(b) unless he had an intention of stealing the goods when he obtained possession of them.(c) Thus, where the defendant saved some of the prosecutor’s goods from a fire, which happened in his house, and took them home to her own lodgings; but the next morning she concealed them, and denied having them in her possession ; the jury finding that she took them originally merely from a desire of saving them for, and returning them to, the prosecutor, and that she had no evil intention until afterwards, the judges held that it was a mere breach of trust, and not a felony.(d) So, if a man takes a letter, supposing it be- (a) 2 East's P. C. 633, 4. 1 Hawk. ¢, 841, 835. Lidem, 28. Ry. & Moo. ©. 8. 2. 0.129. Russ. & Ry. ©. C. 215. (y) People v. Call, 1 Denio 120. (0) Arch. Or. Pl. 186. (2) 1 Hale, 506. 1 Hawk. ch. 83, s. 6. (©) Queen v. Jones, 1 Car. & M. 611. (a) 2 East’s P. O. 568, 570, 2 Leach, (d) 2 East’s P.O. 694, UHAP. Iv.] OF FELONIES. 163 longs to himself, and on finding it does not, appropriates to himself any property it contains, this does not amount to larceny; there being no animus furandi when be first received the letter.(e) If A. lend B. a horse and he ride away with him; or if I send goods by a carrier and he carry them away; or if any other bailee convert the goods bailed to his ~ own use, it is not larceny; because the original taking was bona fide, and without fraud.(f) In the case of common carriers, however, and others carrying goods for hire, sych conversion is an embezzlement, as we have already seen.(g¢) And if A. in good faith hires a horse for a par- ticular purpose, and after that purpose is accomplished, sells the horse, it is no larceny ; for unless he had originally a felonious intention, the sub- sequent withholding or disposing of the horse, does not constitute a new felonious taking.(h) Yet it has been recently decided, in England, that when a person having merely the custody of a chattel, disposes of it, he is guilty of larceny, although he did not intend to de so at the time when he received it) It is for the jury to say, from the circumstances, what was the original intention of the party.(4) Thus where a person delivered a waistcoat to the prisoner, to take to E.-R, to be washed, and the prisoner delivered it to E. R. as his own, and E. R. having washed it returned it to the prisoner, who converted it te his own use, the judge left it to the jury to say whether the prisoner, at the time he received the waistcoat from A: had an intention of stealing it; for that it was no larceny if at that time he had not an intention of stealing it.(7) The rule above adverted to, can only obtain where the jury find that the possession was obtained in good faith, in the first instance; for if A..obtain goods animo furandi, or receive them, harboring, at the time, an intention wrongfully to con- vert them to his own use, it is larceny.(#) Thus, where the prisoner who was employed to drive sheep to a fair, drove them in a contrary direc- tion, and sold ten of them, the same morning he received them, and the jury found that at the time he received them he intended to convert them to his own use; this was held to be larceny.(x) The rule alse applies only while the contract of bailment continues; for if that isat an end, and a conversion takes place afterwards, it will amount to a lar- ceny :(0), as for instance, if a carrier takes goods. te the place appointed, and afterwards takes them away and converts them, that will amount to (e) Ry. & Moo. C. C. 160. (%) Jackson’s case, Crown Cir. Comp. (f) 1 Hale, 504. 1 Hawk. . 88, §2. 299. (gy Ante, p. 150. 2 R.S. 679, § 62. (2) Queen v. Evans, 1 Car. & M. 632. (A) Russ. & Ry. C. C. 441. 2Russ.on (m) Arch. Or. Pi. 187. Cr, 132. (n) Ry. & Moo. ©. ©. 87. @ 1 Car. & M. 61L (0) 2 Russ, on Cr. 182, Crown Cir. Comp. 292. 164 OF FELONIES. [Boor 1. larceny.(p) And the contract may be determined before its regular completion, by the tortious act of the bailee ; as if a carrier opens a bale or pack of goods, or pierces a vessel of wine and takes away part of the contents, he is guilty of larceny.(qg) So, if a miller having received an article to grind, fraudulently separate a part of it from the rest, for his own use, the bailment is thereby determined, and the conversion to his own use of the part separated is larceny.() Where forty sacks of wheat were sent for safe custody to a warehouse-man, who emptied several of the sacks, sold the wheat, and substituted other wheat of an inferior qual- ity; it was held that the taking of the whole of the wheat out of one sack was as mucha larceny as the taking of a part merely.(s) If one who is employed to carry goods for hire, appropriate them to his own use, without breaking bulk, it is no larceny, even though he is not a common carrier, but is employed in the particular instance only.(¢) This is the rule at common law. It is otherwise under our statute, as we have be- fore seen.(7) | Ath. Where the possession of the goods has been obtained with a felonious intent.| Where a man, with a felonious intention (animus Jurandi) obtains in pursuance thereof the possession of goods by some trick or artifice, such a taking amounts to larceny, although there be a delivery in fact.(v) ‘Thus, where the prisoner offered to give the prose- cutor gold for bank notes, and upon the prosecutor laying down some bank notes for that purpose, the prisoner took them up and went away with them, promising to return immediately with the gold, but in fact never returned, it was held that if the jury should find that the prisoner had the animus furandi at the time he took the notes, the case amounted to larceny.(w) In another case,(x) the prisoner agreed to dis- count a bill for the prosecutor, and the bill was given to him for that purpose. He told the prosecutor that if he would send a person with him to his lodgings, he would give him the amount, deducting discount, &c. A person was sent accordingly, but upon reaching the lodgings, the prisoner left him there and went out on pretense of getting the money, _but never returned. The jury finding that the prisoner obtained possession of the bill with intent to steal it, and that the prosecutor did not mean to part with his property in it before he should have received the money for it; it was held the prisoner was properly convicted. So where the prisoner obtained from a silversmith two cream ewers, that a (p) 8 Inst. 107. (0) Wilson v. State, 1 Porter, 118. (7) Id. ib. 1 Hale, 105. State v. Gorman, 2 Nott & McCord, 90, (r) 1 Pick. 375. 1 Hill, 311. (s) Russ. & Ry. 0. O. 887. (w) 4 Taunt. 274. (t) 4 Car. & P. 545. Id. 92. (a) 2 East’s P. O. 675. 1 Leach, 294. (uv) 2R.S. 679, § 62. Ante, p. 149, title Znbdezelement. oHAP. Iv.] OF €ELONIES. 165 customer of the latter, with whom the prisoner said he lived, might select which he liked best, and absconded with them; but the silversmith did not charge for either of the ewers and did not intend to do so until he had ascertained which would be chosen; this was held to be larceny, because the possession only and not the right of property had been parted with.(y) But if the prisoner had in fact been sent by the cus- tomer to the silversmith, the possession would have been in the prisoner and the subsequent conversion would not have been larceny.(z) Where the prisoner persuaded a tradesman to take goods to a particular place under the pretense that they would there be paid for; and afterwards induced him to leave the goods in the care of a third person, from whom the prisoner got the goods without paying for them; and the tradesman swore that he did not intend to part with the goods until they were paid for; and the jury found that the defendant, from the beginning, intended to get the goods without paying for them—this was held larceny.(a) So ~ where the prisoner, having bargained for goods, which by the custom of trade should have been paid for before they were taken, took them away without the consent of the owner, and at the time he bargained for them did not intend to pay for them, but meant to get them into his own possession and dispose of them for his own benefit; this was held to be larceny.(b) So where the prisoner, intending, from the beginning, to obtain goods by fraud, had them put into his cart upon the express © condition that they should be paid for before they were taken out of the cart, and then took them out of the cart without paying for them, and converted them to his own use; this was held to be larceny.(c) Where a hosier, by the prisoner's desire, took a parcel of silk stockings to his lodgings, out of which the prisoner chose six pairs, which he laid on the back of a chair, and then sent the prosecutor back to his shop for some other articles and during his absence absconded with the stockings ; it was held this amounted to larceny—the prisoner having clearly obtained possession of the goods animo furandi.(d) And where the prisoner hired a horse of the prosecutor, on pretense of going a journey, but instead of doing so, sold the horse the same day in Smithfield market; it was left to the jury to say whether he hired the horse for the purpose of stealing it, or for the purpose of going the journey and after- wards changed his mind. The jury being of the former opinion found him guilty, and seven of the judges afterwards held that the offense was felony.(e) So where the prisoner hired the horse in the name of another Ms & (y) Arch. Cr. Pl. 183. (¢) Idem, 250. : (2) 5 Oar. & P. 148. (d) 1 Leach, 98. 2 East’s P. 0. 675. (a) Ry. & Moo. O. ©. 179. (¢) 1 Leach, 212. 2 East, 685. (b) Id. ib. 185. { 166 OF FELONIBS. [Boox 1 person.(f) So where the prisoner hired a post-chaise with intent to con- vert it to his own use, and never returned it; upon being indicted for it twelve months afterwards, as for a larceny, it was held to amount to that offense, although the chaise was not hired for any definite time.(g) If a man, animo furandi, sue out a replevin, and by means thereof obtain possession of anether man’s horse, and ride away with it; or if by a fraudulent ejectment he get possession of another man’s house, and carry away the goods out of it, he is guilty of larceny.(h) Where the prisoner, animo furandi, obtained goods from the servant of a carrier, by falsely pretending to be the person to whom the goods were directed, it was held to be larceny ; because the servant. had no authority to part with the goods to any but the right person.(¢) Where the prisoner, by “artifice, obtained possession of a request note at the India House, by means of which he obtained a permit for a chest of tea belonging to the prosecutor, to whom he was a perfect stranger, and the chest of tea was thereupon delivered to him, this was held to be larceny, notwithstand- ing the possession had been obtained by means of a regular request note and permit.(&) A hosier having sent his apprentice with a parcel of stockings to a Mr. Heath’s, the prisoner met him and. asked him where he was going. The apprentice answered, to Mr. Heath’s; the prisoner replied that he was the person, desired the apprentice to give him the parcel, and gave him a small parcel in return to take home to his mas- ter. The apprentice accordingly gave the prisoner the parcel, but the parcel he took for his master contained nothing but old rags of no value ; the judges held this to be larceny.(/) Many of the cases, especially the last two given under this head, probably come within the definition of false pretenses also, and might be indicted as such. At least they approach very near the boundary which separates the one class of cases from the other. In such cases it is safer and more prudent to indict. the defendant for obtaining goods, &c. by false pretenses.(77) Obtaining money or goods by the practice of “ring dropping,” as it is termed, has also been held to be larceny. Thus, where the prisoner, in the presence of the prosecutor, picked up a purse in the street containing a receipt for £147 for “a rich brilliant diamond ring,” and also the ring itself; it was then proposed that the ring should be given to the prose- cutor, upon his depositing his watch and some money, as a security that (f) 1 Leach, 409. 2 East, 689. (4) By. & Moo. ©. ©. 187. (g) 2 East, 691. 1 Leach, 420. And (k) Russ. & Ry. O. C. 163. see Arch. Cr. Pl. 182, and Crown Cir. (2) 1 Leach, 520. Comp. 293. (m) See Arch. Cr. Pl. 186. Ante, p. (4) 1 Hale, 507. ,1 Hawk. ch. 83, s, 181, “\Walse personating,” de.. 12. 3 Inst. 108. 2 Leach. 1064, n. s CHAP, 1V.] OF FELONIES. 167 he would return the ring as soon as his proportion of the value should be paid to him by the prisoner; the prosecutor accordingly deposited his watch and money, which were taken away by some of the prisonet’s confederates; but the ring turued out to be of the value of 10s. only, and the watch and money were never returned ; it was left to the jury to say whether this was not an artful and preconcerted scheme to get possession of the prisoner’s watch and money, and the jury being of that opinion, convicted the prisoner.(”) Where the prisoner decoyed the prosecutor into a public house, and there introduced the play of “cutting,” and one of them prevailed on the prosecutor, who did not play on his own account, to cut. the cards for him, and then, under the pretense that the prosecutor had cut the cards for himself and lost, another of them swept his money off the table and went away with it, it was considered a case which should be left to the jury to say whether the money was obtained upon a preconcerted scheme to steal it; if so, it would be larceny.(o) So, where the prosecutor was induced, by a preconcerted plan to deposit money upon a bet, and the stakeholder afterwards, upon a pretense that one of his confederates had won the wager, handed the money over to him, and the jury found that at the time the money was taken there was a plan to keep it, under the false color of winning the bet, this was held a larceny; for the prosecutor parted with the possession only, and not the property, which was to pass eventually only in case he really lost the wager.(p) It is a principle of the common law, that every offender shall be pun- ished in the county wherein the offense is committed ; but in respect to stolen goods, the offender may be indicted and punished in any county where he carries the stolen goods; as he is guilty of stealing them in every place where he has them.(q) So, if a larceny iscommitted abroad and the goods are brought into this state, the offender may be indicted in any county into which the goods are carried, in the same manner as if the larceny had been originally committed here{r) The thief is guilty not only of a carrying away, but of a taking in every county through or into which the goods have been carried by him.(s) It is not an essential ingredient of the offense that the taking should be lucri causa, i. e. for the sake of gain. A fraudulent taking, with in- tent wholly to deprive the owner of his property, or with intent to de- stroy it, is sufficient, if the object be to effect some supposed advantage, either to the party committing the offense, or to a third person.(¢) 2d. The carrying away.] There must be an asportation or carrying (n) 1 Leach, 238, 314. 2 East’s P, C. (r) Id. ib. 2B. S. 598, $4. 1 Mass, 679, 680. 2 Leach, 640, Rep. 116. 2 id. 14. 8 Conn. Rep. 185 (0) 1 Leach, 270. Cald. 295. (8) 1 Hale, 507. 1 Hawk. ¢. 33, 8, 52, eo Russ. & Ry. O, ©, 418, Cousin’s case, 2 Leigh,'708. g) 11 Wend. 129, (©) Russ, & Ry. OU. C. 292, 307, 470, 168 OF FELONIES, [BooK 1. away, as well asa taking of the goods, in order to constitute larceny. A bare removal, however, from the place in which the thief found the goods, though he does not make off with them, is a sufficient carrying away ;(z) as ifa man be leading another’s horse out of a close, and be apprehended in the fact; or if a guest stealing goods out of an inn, have removed them from the chamber down stairs ;(v) or if a thief intending to steal plate, take it out of a chest in which it was, and lay it down upon the floor, but be surprised before he can make his escape with it ;(w) or if intending to steal a cask of wine, he remove it from the head to the tail of the wagon in which it is placed, and be detected before he can ef- fect his purpose of carrying it off.(7) Where the prisoner drew a pocket- book from the inside pocket of the prosecutor's coat, about an inch above the top of the pocket; but while the book was still about the person of the prosecutor, he suddenly raised his hand, upon which the prisoner let the book drop, and it fell into the prosecutor’s pocket; this was consid- ered a sufficient carrying away to constitute simple larceny, though not to support an indictment for stealing from the person.(y) But there must be an entire possession of the goods by the thief, though it be but for an instant.(z) Thus where a prisoner merely set a package on end in the place where it lay, for the purpose of cutting open the side of it to get out the contents, and was detected before he had accomplished his purpose, the judges held that this was not suffi- cient.(2) So where the thief was not able to carry off the goods on ac- count of their being attached by a string to the counter ;(b) or to carry off a purse, on account of some keys attached to the strings of it getting entangled in the owner’s pocket; (c) the court held there was not a suf- ficient carrying away in these cases, to constitute larceny, because there was no severance. But if every part of the thing is removed from the space that part occupied, though the whole thing is not removed from the whole space which the whole thing occupied, the asportation will be sufficient.(d) 3d. The goods taken.| 'To constitute larceny at common law, the property taken must be personal property, and of some intrinsic value.(e) Therefore things real, or which savor of the really, can not be the sub- ject of larceny at common law; and so strict was the rule in this respect + that a larceny could not be committed, even of title deeds, or any other charter or writing concerning the realty ;(f) or even of the box in which (u) 4 Black. Com. 281. 3 Inst. 108. (a) 2 East’s P. OC. 556, 567, 708. 1 2 East’s P. 0. 555. 2 Russ. on Cr. 95. — Leach, 320. (v) Id. ib. (b) 1 Leach, 820. (w) 1 Hawk. ch. 33, § 25. 4 Black. (c) 1 Hale, 508. Com. 231, and n. (9) and (10). d) Ry. & Moo. O. 0. 14. (x) 1 Leach, 256. (e) 3 Chit. Burn, 533. y) Ry. & Moo. 0. 0. 78. (7) 1 Hilé, 510. 1 Hawk. ch. 88, § 85, (2) 2 Russ. on Or, 05. 1 Leach, 12, Ry. & Moo, 0. QO. 158, onap, 1v.] OF FELONIES, 169 they were kept.(g) Lands, tenements and hereditaments, corporeal or incorporeal, can not, from their nature, be taken and carried away. Of things also that adhere to the freehold, as corn, grass, tares and the like, or lead or other thing attached to a house, no larceny can be committed at common law.(z) But it was always held, even at common law, that ifthe owner or a stranger severed chattels from the freehold, and the thief afterwards came and stole them; or if the thief severed them at one time and at another came and stole them, this was larceny.(é) The revised statutes, however, as we have already seen,(/) have abol- ished the above distinction, by making it larceny to sever from the soil produce growing thereon, or from buildings, gates, fences, &c. any part thereof, of the value of $25, and to take and convert, with intent to steal, the same, in the same manner and of the same degree as if such articles had been severed ut some previous time.(Z) Bonds, bills, &c. being mere choses in action, are not the subject of larceny at common law, because they are of no intrinsic value.(m) But stealing rolls of parchment, although they are the records of a court of justice, is larceny according to the value of the parchment, unless they concern the realty.(n) But by the revised statutes the sum due upon any bond, note, or other chose in action is to be deemed its value; and such instruments are declared to be the subjects of larceny.(o) Stealing rec- ords, papers, or proceedings of a court of justice, is also declared to be larceny, without reference to the value of the record or paper stolen.(p) It has been decided that a receipt for the payment of a debt is the sub- ject of larceny{q) But stealing a receipt which has never taken effect by delivery is not larceny. Therefore, where a debtor procured his cred- itor to sign a receipt for the debt, under a pretense that he was about to pay him, and then took it from him with a criminal intent, and without paying the money, it was held that he was not guilty of larceny.(r) Larceny, at common law, can not be committed of things which are not the subject of property, as, of a dead body; though it is a high mis- demeanor to disinter a dead body for the purpose of dissection, or to sell or dispose of it for profit.(s) So of things in which none have any de- terminate property, as treasure trove, waifs, &c. of which, till seized, it has been said larceny can not be committed ;(¢) but it seems that the true owner, though unknown, has still a property in them, before seizure (g) 3 Inst. 109. 1 Hale, 510. (n) Ry. & Moo. C. C. 156. (A). Arch. Cr, Pl. 172. (0) 2B. 8. 679, § 66. Ante, p. 155. (i) 1 Hale, 510. 3 Inst. 109. (p) 2B. 8. 679, §§ 69, 70. Ante, 156. (k) Ante, p. 156. (q) The People v. Loomis, 4 Denio, 880, (1) 2 R. 8. 680, $68. (7) Ibid. (m) 1 Hawk, ch, 38, § 35. 8 Coke’s (s) 2T, R.733. Russ. & Ry. 0.0. 366, Rep. 33. (@® 1 Hale, 510. 22 170 OF FELONIES. [Book 1. by the lord, unless there are circumstances to show an intended derelic- tion of the property.(«) The same has been said of wreck.(v) Taking away a letter from another, which is of no intrinsic value nor importing any property in possession of the person from whom it was taken, is not larceny.(w) So no larceny can be committed, at common law, of ani- mals in which there is no property, absolute or qualified; as of beasts that are wild and unreclaimed, such as deer, hares, and conies in a for- est, chace or warren; fish in afi open river or pond; or wild fowls, (as rooks,(z) or doves,)(y) at their natural liberty.(z) But if they are re- claimed or confined, and may serve for food, it is otherwise; for of deer so inclosed in a park that they may be taken at pleasure, fish in a trunk or net, and pheasants or partridges in a mew, larceny may be commit- ted.(a) So of doves in a dove-cote.(b) Swans, it is said, if lawfully marked, are the subject of larceny at common law, although at large in a public river; or, whether marked or not, if in a private river or pond.(c) So all valuable domestic animals, as horses and all animals of a domes- tic nature, which serve for food, as swine, sheep, poultry, and the like; and the product of any of them, as eggs, milk drawn from the cow ;(d) or wool pulled from the sheep’s back feloniously ;(e) and the flesh of such as are, by nature, wild—may be the subject of larceny.(f) But as to all other animals which do not serve for food, as dogs, and other creatures kept for whim or pleasure, stealing these does not amount to larceny at common law.(g) Nor are wild bees the subject of larceny, so long as they remain in the tree where they have lived, notwithstanding the tree ‘is upon the land of an individual, and he has confined them in it.(h) Ice, put away in an ice-house for domestic use, is prince, property, and, as such, the subject of larceny.(z) Ath. The owner.| It must appear at the trial that the’goods stolen are the absolute or special property of the person named as the owner in the indictment. If he be misnamed, if the name thus stated be not either his real name or the name by which he is usually known, or if it appear that the owner of the goods is another and different person from him thus named as such in the indictment, the variance will be fatal, and the defendant must be acquitted. So if he be described as a cerlain person to the jurors unknown, and it appears in evidence that his name zs known, (uv) 2 East’s P. OC. 606, 7. (0) 9 Pick. 15. (v) Arch. Cr, Pl. 174. (c) Dalt. Just. ch. 156. (w) 6 John. 108. (d) Fost. 99. (x) 4 Dow. & Ry. 518. 2 Barn. & Cress. (e) 1 Leach, 171. 934, (f) 1 Hale, 511. y) 9 Pick. 15. (g) Id. 512. (2) 1 Hale, 511. Fost. 366. (A) 3 Binn. Rep. 546. (a) 1 Hale, 511. 1 Hawk. ch. 33, $39. (2) Ward v. The People, 8 Hill 395. 8 Chit. Burn, 534, 6 Id. 144, OHAP. Iv.] OF FELONIES. 171 the defendant will be acquitted.(é) It is well settled, however, that larce- ny may be committed by stealing goods, the owner of which is not known. But upon prosecutions of this kind, some proof must be given sufficient to raise a reasonable presumption that the taking was felonious, or against the will of the owner. And no person should be convicted of stealing the goods of an unknown person, merely because he could not give an account how he came by them; unless there is due proof that a larceny has been commnitted of those goods.(2) Upon an indictment alledging the goods stolen to be the property of A. and to have been stolen from him, the prisoner may be convicted, though it should turn out that the possession by A. was acquired by theft.(m) Where goods are stolen out of the possession of a bailee, they may be described as the property of the bailor or bailee,) although they were never in the real owner’s possession, but in that of the bailee only ;(0) as, goods left at an inn ;(p) or intrusted to a person for safe keeping ;(q) or to a carrier to carry ;(r) cloth sent to a tailor to make up, or linen to a‘ laundress to wash,(s) goods pawned, andthe like; may either be laid as the property of the person to whom they ate intrusted, or of the real owner.(t) So, cattle may be described as the property of the person with whom they are agisting.() But where a bailor steals his own goods from his bailee, they must be described as the property of the bailee.(v) The person in whom the property is laid must have either the actual or constructive possession of the goods.(w) ‘Therefore, if the person de- scribed as owner proves to be merely a servant of the real owner, the indictment can not he supported ;(7) for a servant has not a special prop- erty in the goods. He is neither owner nor bailee. His possession is the possession of his master.(y) So where a person named as owner appears to be a married woman, ‘the prisoner must be-acquitted; for, in law, the goods are the property of her husband ;(z) and that though she be living apart from him upon an income arising from property vested in trustees for her separate use ; for the property can not belong either to the wife or trusteés. In law she can have no property.(a) But where goods were stolen from an ae Arch. Or. Pl. 176. 2Russ.on Cr. _(¢) 2 Hale, 181, 5138. 2 East’s P. C. 652. Arch. Cr. Pl. 176. 0%) 2 Hale, 290. 2 Russ. on Cr. 162. (u) 2 Fast’s P. C. 658. (m) 6 Hill, 144. (v) Russ. & Ry. C. C. 470, 480. (n) 2 Hale, 181. (w) Idem, 225. (0) Russ. & Ry. C. C. 186. (x) Idem, 412. 2 East, 652. - (p) 2 East’s P. OC. 658. ia Roseve’s Or. Ev. 517. 8 Cowen, , (7) 1 Leach, 356. (7) 2 East’s P. C. 658. a 1 Hale, 513. (s) Id. 1 Leach, 357. (a) Russ, & Ry. C. 0,491, 517. a 172 OF FELONIES. [soox 1. unmarried woman, who married before indictment, the describing her as the owner, by her maiden name, was held sufficient.() So goods let with a ready furnished lodging must be described as the goods of the lodger, and not as the goods of the original owner ; for the real owner neither has, nor is entitled to, the possession; nor can he maintain trespass for them.(c) But if the lodger steal the goods, they may be described as the property of the owner or person letting them to hire.(d) Goods seized by the sheriff under a fi. fa. remain the property of the defendant in the suit until asale; and if stolen by any other person than him, the property should be laid to be in such defendant in the suit.(e) If stolen from the officer by such defendant himself, the property may be laid to be in the officer. For in consequence of the levy, the officer has a special property in the goods.( f) If A. steal the goods of B. from B., and C. steal the same goods from A., they may be described as the property of either; of A., because he had the possession, and of B., because he had the property, notwithstand- ing the tortious taking.(&) If clothes, or other necessaries, supplied by a father to his child, be stolen, they may, it seems, be described as the property of either; espe- cially ifthe child be of tender age ;(/) though it may be safer to alledge them to be the property of the child.(2) In general, a person having a right of property in goods, and also a right to the possession, can not be guilty of larceny with respect to such goods. Tenants in common, therefore, and joint tenants, can not be guilty of stealing their common goods.(t) Where the goods stolen are the property of partners in trade, joint tenants, parceners or tenants in common, or of several owners, the indictment will be sufficient if it alledge such goods to belong to any one or more of such partners or owners, without naming all of them.(2) Where goods are vested in a body of persons not incorporated, they must not be described as the property of the body, but of the individuals composing it, or some of them, as in the case of partners, trustees, and joint stock companies.(m) Where a friendly society had appointed a treasurer and two trustees, one of the trustees was held guilty of larceny in stealing the money of the society; the (6) 1 Leach, 536. (2) 1 Leach, 463. 4, n. 1 Car. & M. (c) Russ. & Ry. O. C. 441, 26. 593, (d) Arch. Cr. Pl. 176, a. (%) Roscoe’s Cr. Ev, 514. 1 Hale, (c) 10 Bing. 182. 2 N. Hamp. 298, 613. 2 East’s P. O. 558. 432. 2 Russ. on Cr. 158. (2) 2R.8.727,§ 46. Arch. Cr. Pl. 177. (J) 10 Wend. 165. (m) 1 Leach, 513. Ry. & Moody's C. (g) 1 Leach, 522, 8. 0. 18. (4) 12 Coke’s Rep. 113. 2 East, 654. 1 Oar, & M. 598, OnAP. Iv.] OF FELONIES. 173 A rer, and having been taken from his hands with the intention of steal- ing.(n) A member of a club was indicted for stealing some of the plate used at the club-house. The house-steward slept in the house, and stated that he had the charge of all the plate, and was responsible for it; but it appeared that the plate was delivered every night to the under- butler, who was appointed by the club, and by him placed in a chest in the pantry. The indictment described the goods as the property of the house-steward, and alledged it to have been stolen in his dwelling-house. It was held that upon the evidence, it was wrong in both respects, inas- much as his sleeping in the house was only as a servant of the club, and his alledged responsibility was not coupled with any custody of the property either by himself or his own servants.(o) Where money was stolen from an ancient poor’s box fixed up in a church, it was held by the judges that in an indictment for stealing it, the property would be properly laid in the vicar and church wardens; and that an indictment in which the property was stated to be that of “J. N. and others,” J. N. being the vicar, was correct, without alledging J. N. to be the vicar, or the others to be the church wardens.( p) But where the goods of a corporation are stolen, they must be des- cribed as the property of the corporation, and not of the individuals com- posing it.(g) And there is a difference in this respect between an ancient corporation and a corporation newly created: the former may, by use, have a special name, differing in substance from that by which they were originally incorporated; and they may plead and be impleaded by that name; but a corporation created within memory, must plead and be impleaded by the name by which they were incorporated.(r) One entitled to receive a share of a crop, for his services, is not a joint tenant, or tenant in common with his employer ; and commits larceny if he steals a part of il.(s) The receiptor of goods taken by the sheriff in execution, who has en- gaged to redeliver them to the sheriff on demand, has not evena special property in the goods; and a larceny can not be laid of the goods as the property of the receiptor.(¢) 5th. The felonious intent.] The taking and carrying away must be done animo furandi, i. e. with a felonious intent.(w) And the intention of the defendant is a question for the jury to determine.(v) The ques- tion whether a particular taking is felonious, is a question of law, arising money being alledged in the indictment to be the property of the en (n) Queen v. Cain, 2M. C.C.R. 204. (s) 1 Hill’s R. 864. (0) Queen v. Ashley, 1 Car. & K. 198, (¢) 8 Cowen, 187. 14 Mass. R. 217. (p) Queen v. Wortley, 2 Car. & K. 288, (u) 4 Black. Com. 282. (g) 2 East’s P. C.1059. 1 Leach, 258. (v) 1 Leach, 413, 415, and in notes. 2 (7) Arch. Or. Pl. 177, Orown Cir. East's P.C. 685. 1 Hale, 504. Comp. 300, 174 OF FELONIES. [Boox 1. principally upon the intention of the prisoner, as found by the jury. The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own use.(w) But to make a taking felonious, it is not necessary that it should be done lucri causa, for the sake of gain. A taking, with intent to destroy, or otherwise deprive the owner of the goods, will be sufficient, if done to serve the offender, or any other person, though not in a pecuniary way.(z) It is the intent which makes the taking either a felony or a trespass only;(y) and to constitute larceny, there must bea felonious intent exist- ing in the mind atthe time when the property is obtained.(z) No subse- quent felonious intention will render the previous taking felonious.(a) If goods are taken ona claim of right of property in them, which the taker honestly, though mistakenly, believes he possesses, it is no felony.(b) But if the claim is set up fraudulently, and as a cloak for obtaining pos- session of the goods, it is larceny.(c) And if there be no pretense or color of title, the offense will be aggravated rather than reduced, by obtaining the possession by act of law; as, a fraudulent abuse of legal process.(d) Where the taking exists, but without fraud, it may amount only toa trespass. Andit is very important to keep in view the distinction be- tween trespass and larceny. For it is not every interference with, or taking away of another’s property that will amount to a felony. Thus, taking a horse from a common and after riding it a considerable distance, returning it there again, is but a trespass. So where a man takes anoth- er’s harrow or plow, and after plowing his own land, returns it to the place whence he took it, or tells the owner of his using it, this may be a trespass, but is not a felony ;(e) because the returning of the thing suffi- ciently evinces that the party, when he took it, had no felonious intention. Returning the goods, however, can be considered merely as evidence of the defendant’s intentions when he took them ; for if it appear that he took them originally with the intent of depriving the owner of them, and of converting them to his own use, his afterwards returning them will not purge the offense.(f) And where the prisoners entered another man’s stable, at night, and took out his horses and rode them thirty-two miles, and left them at an inn, and were afterwards found pursuing their jour- -ney on foot, they were held to have committed only a trespass(g) But in these cases if the party had sold the article taken, this would be de- (va) 8 Chit. Cr. L. 926. 2 Stark, Ev. (6) 3 Car. & Payne, 409. 827 (c) 1 Hale, 507. 1 Hawk. c. 88, s. 8. (2) Russ. & Ry. 0. O, 292, 307, 118. (d) 2 Russ. on Cr. 130, 181. 8 Chit. (y) 1 Hale, 509. Cr. L. 926. (2) 1 Leach, 409. (e) 1 Hale, 509. (a) 2 East’s P. O. 694, 594, ee Russ. (f/) 1 Hawk. ¢, 84,5. 2. 1 Hale, 538. & Ry. 0. C. 441. 8 Chit. 'Cr. L. 926. 2 East's P. 0. 557. 2 Russ. on Cr. 96. Ante, p. (g) 2 East’s P. C. 661, 2. OHAP, Iy.] OF FELONIES. 175 clarative of the first taking being felonious.(h) Soif the sheep of A. stray into the flock of B., and B. not knowing it, drives them home with his own flock and shears them, this is no felony ; though it would be other- wise if he did any act for the purpose of concealing them ; for that would indicate his knowledge of their being the sheep of another.(i) If under color of arrear of rent, though none be actually due, I distrain or seize my tenant’s cattle, this may be trespass, but it is no felony.(4) Even where a person stole certain articles, and also took a horse, not with an intention to steal it, but merely to get off more conveniently with the other property, this was held not to be a felonious stealing of the horse.(Z) It depends also upon circumstances what offense it is to force a man in the possession of goods to sell them. If the defendant takes them and throws down more than their value, it will be evidence that it was only a trespass; if less were offered, it would probably be regarded as felony.(m) And it seems that the taking may be only a trespass while the original assault was felonious. hus ifa man searches the pockets of another for money and finds none, and afterwards throws the saddle from his horse on the ground and scatters bread from his packages, he will not be guilty of robbery.(z) ‘Though he might ceitainly have been indicted for feloniously assaulting with intent to steal; for that offense was complete.(o) ‘The openness and notoriety of the taking, where possession has not been obtained. by force or stratagem, is a strong circumstance to rebut the inference of a felonious intention.(y) But this alone will not make it the less afelony.(g) A taking by mere accident, or in joke, or mistaking another’s property for one’s own, is neither legally nor morally a crime.(r) Necessity, however pressing, can never be allowed as an excuse for stealing; but the court,in apportioning the punishment, will have regard to cases of real necessity.(s) In all cases of larceny, the questions whether the prisoner took the goods knowingly or by mistake; whether he took them in good faith, un- der a claim of right, or otherwise; and whether he took them with an intent to restore them to the owner or to deprive the owner of them alto- gether and to convert them to his own use ; are questions entirely for the consideration of the jury, to be determined by themn upon a view of the particular facts of each case.(¢) Onan indictment for larceny by a ser- vant, in stealing his master’s plate, it appeared that after the plate was missed, but before complaint was made to a magistrate, the prisoner re- (A) Id. ib. (p) 1 Hale, 507. 2 East's P. O. 661, 2. (4) 1 Hale, 506. (g) Kel. 82. 2 Raym. 276. 2 Vent. 94, (B) 1d.509. (r) 2 Hale, 507, 509. oD oe 2 y aoe ‘ay &) 2 East’s P. C. 590. 1 Hawk. c. 23, m ast’s Rep. 5 g. 80. (n) 2 East’s P, O. 662 (t) 1 Leach, 418. 2 East’s P. ©, 685. (0) 5 Car. & P, 524, 1 Hale, 504. 176 OF FELONIES. [BOOK 1. deemed the plate from a pawnbroker, to whom he had pledged it, and replaced it. It appearing that the prisoner had on previous occasions pawned the plate and afterwards redeemed it, it was Ieft to the jury to say whether he took the plate with intent to steal it, or merely took it to raise money on it for a time, and then return it; the judge holding that in the latter case it was no larceny.(z) Secondly, of compound larceny.| This offense has all the properties of simple larceny; but is accompanied with the aggravation of taking property from one’s house or person.(v) Under the revised statutes compound larceny consists in stealing in a dwelling house, or a ship or other vessel. If the goods taken are of the value of more than twenty-five dollars, the punishment is an addition of three years’ imprisonment to that provided for simple grand larceny.(w) Stealing in the night-time from the person of another, is also com- pound larceny, and if the goods taken are worth more than twenty-five dollars, is punishable by imprisonment in a state prison not more than ten years.(x) ; Larceny, from a house or ship, é&c. is of two kinds: 1. Privately stealing therein, whether in the day or night-time, without any breaking in or out of such house, ship, &c. And this’is the offense we are now to consider. 2. Where the stealing is accompanied by the breaking of the house ; and then as we have seen, it falls under the description of burglary.(y) The statute has not declared what shall be considered a dwelling house, or ship, or vessel, with reference to this offense. But for the purpose of committing burglary it is provided that no building shall be deemed a dwelling house or any part thereof, unless the same be joined to, immediately connected with and part of, adwelling house.(z) Under the English statute respecting larcenies in houses, which is similar to ours, it has been decided that a dwelling house, within the meaning of the act, must be such an one in which burglary may be committed, and not inhabited casually, as by a person who is placed there to sleep merely for the purpose of taking care of furniture till a tenant can be obtained.(a) Chambers in an inn of court, however, fall within the intention of the act.(6) No man can be guilty under it, by stealing in his own house, nor a woman in that of her husband.(c) But a lodger who invites a man to his room, and then steals his goods, when not about his person, is liable to be found guilty of stealing in a dwelling (u) Crown Cir. Comp. 802. 3 Chit. (y) Ante, p. 97. 4 Black. Com, 239. Burn, 539. (2) 2 BR. 8. 669, § 16. (x) 4 Black. Com. 240. (a) 2 Kast’s P. C. 499, (w) 2 B.S. 679, §§ 68, 64. (v) Cro. Car. 474. (a) Id. ib. § 65. (c) 1 Leach, 838 in notes. oap, tv.] OF FELONIES. 177 house. The goods of such guest are under the protection of the dwelling house.(d) Property left by mistake at a house, and delivered to the occupier under the supposition that. it was for one of the persons in the house, is entitled to the protection of the house, so as to make the stealing of it by a lodger therein, under pretense that it is his, an offense within the act.(e) But the English act being intended to apply to prop- erty deposited in the house and under its protection, does not extend to effects taken from the person, though within it(f) And this principle is equally applicable to cases of stealing from the person, in ships or vessels.(g) The rule is.probably the same under the corresponding sec- tion of our statute, above referred to; inasmuch as the next section pro- vides for cases of stealing from the person, and prescribes a severer punishment than that annexed to stealing in houses, &c. In the construction of the English act it has also been resolved that to constitute the offense the party must steal to the whole amount men- tioned in the act, at one time ; and that a number of acts of larceny can not.be accumulated together in order to make up the sum.(h) Larceny from the person is also of two kinds. 1. Privately stealing. 2. By open and violent assault, which is denominated robbery. We shall only consider, in this connection, the first named class of larcenies ; robbery having been already treated upon.(é) To constitute the crime of stealing from the person, it is necessary, under our statute, that it should be done in the night-time(k) And the thing must be completely removed from the person. A removal from the place where it was, so as to constitute a simple larceny, and the article still remaining attached, by any means, to the person, is not sufficient.(2) If it appear, upon an indictment for stealing from the person, that there was sufficient force used to constitute robbery, the defendant will not, upon that ground, be entitled to an acquittal.(m) And in all cases of larceny, where, by statute, circumstances of aggravation subject the offender to a higher punishment, on failure in the proof of those circumstances the prisoner may be convicted of the simple lar- ceny.(z) So upon an indictment for robbery, if any of the circumstances necessary to constitute that offense are wanting, but the taking is proved, the prisoner may be acquitted of robbery, and convicted of larceny.(o) Indictment.] First, as to the venue. lt isa general rule that larceny must be tried in the same county or jurisdiction in which it was commit- (2) Russ. & Ry. C. 0. 418. (2) Ry. & Moo. C. C. 78. 3 Chit. Cr. (e) Ry. & Moo. C. 0. 89. 8 Chit. Cr. L. 948. L. 9388. (m) Russ. & Ry. C. C. 174, 821. 2 (J) 2 Leach. 564, Leach, 1946. Arch. Or. Pl. 229. (g) 1 Id. 52, 3. 3 Chit. Cr. L. 939. (n) "Roscoe’s Cr. Ev. 74. (A) 1 Leach, 294, (0) Cas. Temp. Hardw. 115. Com. R. (i) Ante, p. 142. 478, 2 Str. 1014, - (%) 2B. 8. 679, § 65. 178 OF FELONIES. [Boox 1. ted.(p) Where an indictment for larceny alledged the offense to have been cornmitted in a vessel in the first ward of the city of New-York, and it appeared on the trial that it was lying in the river, at a wharf of the ¢hird ward, it was held this was not a material variance.(q) As the property in the goods stolen always remains in the true owner, un- altered by the wrongful taking, every carrying away is a new trespass. Hence it follows that the venue may be laid in any county into which they are conveyed ;(r) as the offense of taking and converting is there in itself complete ;(s) and this, though the goods were not carried into the county in which the venue is laid, until long after the original tak- ing.(¢} But this, it is said, will not be the case when it is such a taking of which the common Jaw will not take cognizance; as if goods are taken on the high seas, until the offense is made indictable here by some particular statute.(w) A foreigner committing larceny abroad, coming into this state and bringing the stolen property with him, may be indict- ed and punished in the same manner as if such larceny had been com- mitted in this state. And the indictment may charge such larceny to have been committed in any town or city into or through which the stolen property was brought.(v) The name and addition of the defendant must be stated, as in other indictments.(w) Description of the property stolen.| The property stolen must be stated both in its quantity or number, quality, description, and value ; with certainty to a common intent.(z) By which is to be understood such certainty as will enable the jury to say whether the chattel proved to have been stolen is the same with that upon which the indictment is founded, and as will show judicially to the court that it could have been the sybject matter of the offense charged.(y) The quantity or number of the things stolen, should appear with certainty, as essential to the le- gal description of the offense, and also, because the prosecutor can not claim restitution of any other goods than those stated on the record.(z) An indictment for stealing twenty sheep and ewes, is bad, because the number of each sort is not stated. So it is bad to say that the defend- ant feloniously stole divers sheep or doves, without expressing their number.(a) (p) 2 Russ. on Cr. 178. : (v) 2R.S. 698, § 4. 11 Wend. 129. 3 i? The People v. Honeyman, 3 Denio, Chit. Cr. L, 944, note (c). 1 : ‘ (w) See 3 Chit. Or. L. 946. 1 id. 202, (r) 8 Chit. Cr. L. 948, note (A). 2 &e. Russ. on Cr. 178, 175. Roscoe's Cr. Ey. (x) Id. ib. 1 id. 235. 521, 528. (y) People v. Jackson, 8 Barb. 8. C. (8) 1 Hale, 547. 1 Hawk. ch. 83, $52. Rep. 637. d (t) By. & Moo. O. C. 45. (z) 2 Hale, 182. (u) 1 Hawk. ch. 88, Butsee2 Rogers’ (a) Id. 182, 183. Rec. 45, contra. OHAP, IV.] OF FELONIES. 179 The quality and description of the property itself should be stated with certainty and accuracy. It will not suffice to term it “ goods and chat- tels,” without a more particular description.(b) If a defendant be indict- ed for stealing a sheep, and it appear to be a lamb, it is said he must be acquitted.(c) Soan indictment for stealing a cow, describing it as a heifer, will be bad.(d}_ So for stealing a “pray gelding,” describing it as a “gray horse.”(e) An indictment for stealing a dead animal, should state it was dead; for upon a general statement that a party stole the animal, it will be understood he stole it alive.(f') Au indictment for stealing money, should specify the pieces of which it consisted. Saying 10/. in moneys numbered, is not sufficient.) And if it be for stealing bank notes, it will not suffice to describe them as so many pounds merely, to which the notes amounted in value.(2) In an indictment for stealing bank notes, it will suffice to describe them as “divers, to wit, nine bank notes, for the payment of divers sums of money, amounting in the whole to a cer- tain sum, to wit, the sum of nine pounds, and of the value of nine pounds ;” without even stating the value of any individual note.(i) And they may be described as “promissory notes, called bank notes,” or “ promissory notes, called bank post bills,” according to the fact.(z) It is sufficient to describe them in the same manner as other things which have an intrin- sic value, by any description applicable to them as chattels.(/) Where an indictment for stealing bank notes alledged the taking of ten promis- sory notes, called bank notes, issued by the Chickapee Bank, for the pay- ment of divers sums of money amounting in the whole to the sum of $50 and of the value of $50, ten promissory notes called bank notes, is- sued by the Agawam Bank, &c. of the goods, chattels and property of one B. M., it was held, on motion in arrest of judgment, that the in- dictment was sufficient.) It was also decided, in the same case, that it was of no consequence whether the banks were organized under the laws of this state, or were banks of other states or countries, so far as the allegations in the indictment were concerned; the names of the banks being mentioned by way of description of the property stolen. Where an indictment described the property alledged to be stolen as “thirteen bills against the Hartford Bank, each for the payment and of the value of $10, issued by such bank, being an incorporated bank in the state,” it was held that this description was sufficiently certain.(n) A promis- (b) Id. tb. 8 Chit. Or. L. 947. lid. — (@) Id. 885, 408, 3 Burn’s J. 24th ed, 235. 224. (c) 4 Black. Com. 240. 2 Hale, 182. (i) 2 Leach, 1103. (d) 2 East’s P.C. 16. (E) Id. 253, 518. 18 John. 90. (e) 4 Ohio Rep. 350. (2) The People v. Jackson, 8 Barb. S. (f) Russ. & Ry. C. ©. 497. 1 Car. N. C. Rep. 687. P. Rep. 128. 15 Mass. Rep. (Rand’s ed.) — (m) Ibid. 198, n. (a). (n) 6 Conn. Rep. 101. (g) Russ. & Ry. C. C. 482. 180 OF FELONIES, [Boor 1. sory note may be described generally, as “a promissory note for the pay- ment of five guineas ;” but if its purport be set forth, it will be bad un- less it follows the description of the statute, making it felony to steal it.(0) The value of the notes must be alledged. A description of the notes as being of certain amounts, is not tantamount to an averment of their value.(p) Upon an indictment for stealing printed books it is only ne- cessary to name so many printed books.(7) , Care,must be taken to show, on the record, that the property charged as stolen was the subject of larceny. Thus, if il consist in animals fere nature (of a wild nature,) it should expressly state them to be reclaimed, tamed, or dead, in which state they become the subjects of individual property.(r) : Where the property is of a nature to warrant that description, it should, in addition to the statement of its quality and kind, be termed the “goods and chattels” of the owner; and without these, or equivalent words, the indictment would be defective.(s) But where a statute uses the words “ property,” it is sufficient for the indictment to state that the things stolen were the “goods and chattels” of the owner; the word “chattels” denoting ‘property, or ownership.(¢) On the same principle it should be averred “ of the moneys,” “of the cattle,” &c. when these terms apply ; and certain it is if these words be unnecessary, still they may be rejected as surplusage, and therefore it is both safe and prudent toinsert them.(w) Thusit bas been held, in Virginia, that an indictment which charges a larceny of bank notes, “of the value, &c. of the money, goods and chattels of one G. F., and from the said G. F.” is a sufficient averment of property in the notes in G. F., after verdict; and that the words “ money, goods, and chattels of” may be rejected as surplusage.(v) The value of the property must also be stated, in order that it may appear on the face of the record whether the offense is grand or petit larceny.(w) And when the property is of different kinds, the value of each should be inserted.(x) If the property stolen consist of notes, bonds, covenants, bills, or other securities for money, or of any instrument whereby any demand, right or obligation may be increased or affected in any way, the amount due and collectable thereon, or the value of the property transferred or affected thereby, is to be deemed the value of the article stolen,(y) and such value must be stated in the indictment. But an indictment, under the statute,(z) for stealing records or proceedings of (0) 2 Leach, 11038, 258, 513. (v) Comm. v. Moseley, 2 Virg. Cas. (p) Wilson v. State, 1 Porter, 118. 154. (q) 8 Maule & Selw. 555. ' (w) 2 Hale, 182, 3. Russ. & Ry. C. 0. (r) 8 Chit. Or. L. 947. 9 Pick. 15. 407. 1 Mass. R, 245. (8) Id. . Oro. Eliz. 490, (w) 2 Hale, 182, 3. Russ. & Ry. ©. C. (¢) 18 John. 90. 274. 1 Chit. Cr. L. 238, (u) 1 Leach, 408. (y) 2 BR. 8. 679, § 66. (2) Id. §§ 69, 70. OHAP, Iy.] OF FELONIES. 181 a court of justice, need not aver any value in the article stolen. It is not necessary that the property should be of value to third persons, if valua- ble tothe owner. Therefore, a man may be convicted of stealing bank- ers’ re-issuable notes which have been paid.(a) The precise value as stated need not be proved.(d) Description of the owner.| Wherever the owner of goods is known, the property must be expressly laid in him,(c) and the articles alledged to be stolen must be alledged to be “ of the goods and chattels” of the right owner, if known ; or of the goods and chattels of some person unknown.(@) The property may be described as the real owner’s, though he never had the actual possession; as the general ownership of personal chattels al- ways draws to it the right of possession.(e) And even a special property in them issufficient.(f) Where the name of the owner can not be ascer- tained, an indictment laying the property to belong to a certain person unknown, will be valid.(g¢) But if the owner is known, such an allega- tion will be improper, and on the discovery of his name, upon the trial, the prisoner must be acquitted.(h) If the goods of A. be stolen by B., and afterwards they are stolen from B. by C., an indictment against the latter may alledge the title to be in either A. or B., at the election of the pleader.(?) In indictments for stealing in a dwelling house, or from lodgings, the name of the owner of the premises, if known, should be truly inserted.(/) In stating the name of the owner, it will be sufficient if the name is used by which the party is commonly known.(J) . See further as to the owner, ante, p. 170. The taking and carrying away must both be expressly shown.(m) For this purpose the word took is necessary, to indicate the taking. If there- fore it be merely stated that the property was led away, no larceny will be charged; for the defendant, for any thing which appears on the rec- ord, might lawfully have obtained possession.(m) The prisoner must be charged with the offense in the technical form “feloniously did steal, take, and carry away.;” or as it is said to be most proper when cattle are the subject matter of the larceny, “feloniously did steal, take, and lead away.”(o) (2) Roscoe’s Cr. Ev. 512. Russ. & Ry. (A) 3 Chit. Cr. L. 949. Roscoe’s Cr. C. C. 232. 2 Leach, 1086. Ev. 518. (6) 8 Chit. Or. L. 947. a. 3 Stark. Ev. (4) 8 Hill, 895. 1539. (%) 3 Chit. Cr. L. 949. 2 Leach, 774. “(¢) 1 Hale, 512. 2 Leach, 578. 3 Chit. 2 Hale, 244. Russ. & Ry. ©. ©. 411. Cr. L. 947, and notes. lid. 212. State 434. v. Dwyre, 2 Hill’s 8. Car. Rep. 287. (7) 2 Leach, 861. 1 Overton’s Rep. (d) 14 Mass, Rep. 217. 12 Pick. 178. — (m) 8 Chit. Cr. L. 949, a. (e) Id. ib. Russ. & Ry. 0.C. 136. (n) 1 Hale, 504, 8. 2 id. 184. (Jf) 1 Hale, 512. 2 East’s P. O. 652. (0) 2 Russ. on Cr. 167. 2 Hale, 184. (g) Keilw. 25. 2 Hale, 181. Stark. Or. Pl. 78, 427, 487. 182 OF FELONIES. [Boor 1. There is no difference in the form of an indictment for grand or petit larceny, except in the value of the property.(p) On the trial the defendant may be acquitted of all aggravations, as stealing in a dwelling, robbery, &c., and found guilty of a single felony ; and on an indictment for grand, may be convicted of petit larceny.(q) If the evidence does not prove a felony, no judgment can be given as for a trespass. And upon an indictment for burglary and larceny, against two, one may be found guilty of the burglary and larceny, and the other of the larceny only.(r) T'wo cannot be convicted upon an indict- ment charging a joint larceny, unless there be evidence to show a joint taking.(s) A trial and acquittal for robbery is a bar to an indictment for larceny, where the property alledged to have been taken, is the same.(¢) Evidence.| Upon an indictment for larceny it is in general necessary to prove, 1. A daking and carrying away ; 2. With a felonious intention ; 3. Of the goods and chattels of another, as described in the indictment. And where there has been a bailment-of the goods to the prisoner by the owner, itis further necessary to prove either, 1. A felonious intent on the part of the prisoner, in procuring the delivery to him, which defeats the bailment, or that the delivery was procured by force or duress; or, 2. That before the carrying away the bailment had been determined, by the wrongful act of the bailee ; or, 3. That the bailment had been deter- mined, by performance of the condition.(w) Evidence must also be given that the thing is of some value; as, if it be of no value, it is not a sub- ject in respect of which larceny can be committed.(v) ‘Therefore in larceny of a bank note, it must be proved to be genuine.(w) And in larceny of foreign bank bills, the prosecutor must produce at least prima facie evidence of the existence of such banks and the genuineness of the bills.(z) This must be proved by witnesses who, in the ordinary course of business, have become familiar with the bills.(y) But it is not neces- sary that the property should be valuable to third persons, if valuable to the owner.(z) The identity of the property found upon the prisoner with that stolen must also be established.(@) This may be done by marks, or the witness’ confident general knowledge of the particular goods.(#) A witness may (p) 2 Stra. 1134. 3 Chit. Cr. L. 950, (w) 1 Nott & McCord, 9. (q) Com. Rep.478, Rep. Temp. Hardw. (v) 12 Wend. 547. 115. Cas, K. B.165. (y) 4 Denio 364. (r) 8 Chit. Or. L. 949, a, Russ. & Ry. (2) 2 Leach, 1036, 1090. 2 Car. Law ©. C. 520. Repos. 269. (s) 2 Stark. 840. (a) East’s P. C. 657. 2 Stark. Ev. (¢) 17 Wend. 386. 841. (u) 2 Stark. Ev, 824. (8) Id. 656. 2 Ev. Poth. 249. (v) Roscoe’s Or. Ev. 612. 2 Russ, on Cr. 178. ouap. tv.] OF FELONIES. 183 safely be relied on as to his acquaintance with a specific article of familiar use, (as his own clothes,) though he can give no reason for his means of identity, or give, as he often may, a false or absurd reason.(c) But where, as it often happens, the goods stolen can not be thus identified—as if the charge relate to grain in a barn, sugar in a ship or on wharves, and the like—the identity must then be made out by circumstances. These may be the detection of the prisoner in the very act of leaving the place with the grain or sugar, &c., upon him, which is found to be missing.(d@) Un- less there is some proof of this nature, merely proving that the property found in the prisoner’s possession is of the same kind as that which has been lost will not be sufficient.(e) The evidence, in cases of larceny usually consists (unless the prisoner is detected in the fact) of proof of the felony having been committed and of the goods stolen being found shortly afterwards in the possession of the prisoner.(f) The larceny must be proved by the best evidence the na- ture of the case admits. This should be by the testimony of the owner himself, if the property was taken from his immediate possession, or if from the actual possession of another, though a mere servant or child of the owner, that other must be sworn, so that it may appear that the im- mediate possession was violated, and this too without the consent of the person holding it.(g) Where non-consent is an essential ingredient in the offense, as it is in such a case, direct proof alone from the person whose non-consent is necessary, can satisfy the rule. The party is obliged to prove a negative ; and the very person who can swear directly to the necessary negative must, if possible, always be produced.(h) Other and inferior proof can not be resorted to till it be impossible to procure this best evidence. If one person be dead who can swear directly to the negative, and another be living who can yet swear to the same thing, he must be produced. In such cases mere presumptive, prima facie, or cir- cumstantial evidence, is secondary in degree and can not be used till all sources of direct evidence are exhausted.(i) But it is not absolutely necessary, for the purpose of proving that the goods were stolen, to pro- duce the owner; for cases frequently occur where such proof can not be obtained.(s) Thus where the owner died before the trial, his land-stew- ard’s oath was received, with other circumstances usually attending a larceny, from which the jury inferred the non-consent of the owner.(J) Where several persons are owners or bailees, &c. the rule would not probably be so strict as to require the oath of all. Thus on the trial of © 2 Ey. Poth, 240, 250. " (A) 2 Camp. 654. 8 East, 192. (d) 2 ts P. O, 657. 2 Russ, on (4) Cowen & Hill’s Notes to Phil. Ev. Cr. 178. b Ce 2 ah fowl X4 499, 3,4, 8 City Hall Rec, 187, 8. (¢) 2 Russ. on Cr. 178. x 4Co 293, (K) 8 City Hall Rec, 187. (f) Idem, 177. (2) 2 Carr. & P, 458. (g) 8 City Hall Rec. 188. 6 id. 65, 6. 184 OF FELONIES, [Boox 1. an indictment for obtaining goods on pretense that the prisoner had been sent for them by Titus & Townsend, the owners, Townsend swore that he did not send the prisoner for them; and he thought his partner was absent at the time, but could not say certainly. The goods not having been-delivered to T. & T.. this was held to cast the onus of showing con- sent on the prisoner.(z) ; Where the stolen property is found in the possession of a person it is incumbent on him to prove how he came by it; otherwise the presump- tion is that he obtained it feloniously.(n) Whether the circumstances amounted to a possession, or how far they were such as to rebut the pre- sumption, is for the jury to determine.(o) With reference to this presumption it is important to consider, in these cases, the length of time which elapsed between the loss of the property and the finding it in prisoner’s possession ; the probability of his having been, at the time of the theft, near the place where the property was taken; and more especially the general conduct of the prisoner with respect to the property, &c.(p) If the only evidence against a prisoner charged with a larceny be that stolen property was found in his posses- sion, several months after the loss of it, the court will direct an acquittal without calling on him for his defense.(g) But possession of the goods is always competent evidence, be the time longer or shorter; however insufficient it may be, per se, after a considerable lapse of time. In such a case some circumstances additional to the possession are necessary to raise the presumption, which may be the prisoner’s language and con- duct before or after the larceny, or his proximity to the time and place of the taking.(r) Among these are false or improbable representations, to account for the possession.(s) The force of the presumption against the prisoner arising from his possession of the stolen goods, depends upon the consideration that the prisoner, who can account for his possession of the goods will, if that possession be an honest one, give a satisfactory ac- count of it. Evidence of this nature is by no means conclusive, and it is stronger or weaker as the possession is more or less recent, for the ob- vious reason that the difficulty of accounting for the possession is in- creased by the length of time whiclr has elapsed, during which the goods may have passed through many hands. The rule is that recent posses- sion raises a reasonable presumption against the prisoner.(¢) The mere finding of stolen goods in the house of the prisoner, where there are other (m) 2 Wheel. Cr. Ca. 251. (q) 2 Car. & P. 459. 8 id. 600. (n) 2 Russ. on Cr. 177. 9 Conn. Rep. (r) 2 East’s P. C. 655. 527. Pennsylvania v. Myers, Addis. (s) 1 City Hall Rec. 174. 4 id. 157. Rep. 320. 7 Verm. Rep. 122 1 Hayw. 464. 2Stark. Rep. 137. Cow- (0) State v. Brewster, 7 Verm. Rep. en & Hill’s Notes, 426. 122. (¢) Stark. Ev. pt..4, 889, 40. 2 East's (p) 2 Russ. on Cr, 177, P.O. 657. onAP. Iv.] _ OF FELONIES. 185 inmates of the house capable of stealing the property, is insufficient evi- dence to prove a possession by the prisoner.(7) The presumption arising from the possession of the stolen goods, or other circumstances, may of course be explained away or repelled by opposing circumstances. The better opinion seems to be that the pre- sumption arising from possession alone is completely removed by the good character alone of the prisoner.(v) The possession of the goods may also be accompanied with cizcumstances, (such as unsuspicious con- duct) repelling the presumption.(w) The prisoner may also show that he was an accessary after the fact ; and thus rebut the inference of stealing arising from the possession. But if his statements (on giving an account of the property) be false and inconsistent, this may be relied on to rebut the proof that he was a mere accessary.(z) Proof that part of the goods stolen were found in possession of the prisoner, is prima facie evidence that he is guilty of stealing the whole.(y) If the crime be established in respect to only a single article, though the indictment describes several, the defendant may be convicted.(z) As respects the taking and carrying away, sufficient has been alrea- dy said. As to the felonious intention.] Itis the peculiar province of the jury to decide upon the intention of the prisoner.(2) The question whether @ particular taking was felonious, is a question of law, arising principally upon the intention of the prisoner as found by the jury. The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own use.(b) It is sufficient if the prison- er intended to appropriate the value of the chattel, and not the chattel itself, to his own use; as where the owner of goods steals them from his own servant or bailee, in order to charge him with the amount.(c) The intention must exist at the time of the taking ; and no subsequent felo- nious intention will render the previous taking felonious ; as where goods are removed by a prisoner during a fire, with intent to preserve them for the owner, and he afterwards determines to appropriate themto his own use ;(d@) or where a bailmeut is procured without any felomious in- tent on the part of the bailee, and he afterwards, and before the deter- mination of the bailment, converts the property.(e) The bona Jide finder of lost goods can not. be held guilty of larceny by any subsequent act of his, in concealing or appropriating them to his own use.(f) The usual (wu) Stark. Ev. p. t. 4, 839,40. 2East’s (2) The People v. Wiley. 3 Hill, 194. P. C. 657. (a) 2 East’s P. C. 685. (v) Cowen & Hill’s Notes, 42’. (0) Stark. Ev. pt. 4. 824, 6. (w) Id. 428. 5 City Hall Ree. 178. (c) Id. 826. (z) Id. ib. 4 City Hall Rec. 157. (d) East’s P. O. 694. y) 1 Mass. R. 6. 1 Tyler, 379. 4 (¢) Stark. Ev. pt. 4, 826, 887, City Hall Rec, 139, 118. od (f) 14 John. 294. 186 OF FELONIES. [Boox 1. indication of a felonious intent is the secrecy and privacy with which the act is done, and the asserting a dominion over the property by the pris- oner, or the actual conversion of it, by sale or otherwise, to his own use. On the other hand, the inference ofa felonious intent may be rebutted by evidence to prove that the taking was in joke; was by mistake; was accidental ; that the goods had been lost by the owner and found by the prisoner.(¢) The notoriety and openness of the taking, where posses- sion has not been gained by force or stratagem, is a strong circumstance to rebut the inference of a felonious intention ; and it is a good defense to show that the taking was bona fide under process of law ; or under a supposed claim of right, however unfounded such claim may be. It is a question of fact whether the goods were taken bona fide, under a claim of right, or with a roguish and felonious intent.(z) Where the thing is obtained by fraud or stratagem, it may amount to larceny although the owner consent to the act, in ignorance of the prisoner’s real intention; and proof that the prisoner obtained possession of the property by means of stratagem and artifice is strong evidence of the felonious intent. Itis however to be observed, that no intention will make the taking felonious where the owner intends to part with the property altogether to the prisoner. In such case the party is liable to an indictment for obtaining the property by false pretenses; and this seems to be the strong test of distinction between a larceny and an obtaining of money or goods by false pretenses. If by means of a false pretense the prosecutor be in- duced to part with the temporary possession only, reserving a right of ownership, the prisoner, provided he intend to appropriate the property to his own use, is guilty of larceny; but if the owner be induced by the artifice to part with his whole interest, without any reservation, the de- fendant is guilty only of obtaining the goods by false pretenses.(7) Proof of ownership.] In order to satisfy the allegation that the prop- erly was of the goods and chattels of the person specified, it must be proved either that that person was the owner, or that he had the legal custody of the goods; for the offense of larceny includes a trespass, to which possession is essential.(/) And, therefore, unless the person whose ptoperty is alledged to have been stolen, be either actually or construc- tively in possession, the taking can not amount toa larceny. But it is a general maxim that the ownership of goods draws after it the posses- sion; and, therefore, it is sufficient to prove that the goods are the prop- erty of the party whose goods and chattels they are alledged to be, in the indictment, although they were at the time in the actual possession of some other person, as a servant or agent; and so it is sufficient to (g) Stark. Ev. pt. 4, 827 (k) 1 Hawk, ch. 88. East’s P. C. 554. (A) Id. ib. 1 Hale, 507. Kel. 24, (i) Id. 827, 8. OHAP, Iy.] OF FELONIES. 187 prove that the goods were in the legal custody of the person alledged in the indictment to be the owner, who has the legal custody of the goods as the agent or-bailee of the actual owner. Fr such possession and in- terest are sufficient against a wrongdoer.(1) Where, however, the prisoner himself had possession of the goods delivered to him, with the consent of the owner, a different consideration arises; and the question will be, whether the prisoner had a bare charge of the goods, the posses- sion of which still remained in the owner, or he had acquired a legal possession of them as against the owner himself.(m) An indictment charging that the goods stolen were the property of A. is not sustained by proof that they belonged to A. & B. as partners, and that they were, at the time of the larceny, in A.’s possession.(n) Nor will proof that the defendant stole property of A., B. & C. respectively, in which they had no joint interest, support an indictment for stealing the property of A., B. & C.(0) In conclusion, it may be observed, generally, that it must be clearly made out by evidence, either actual or circumstantial, that the person indicted committed the offense—that the species of goods must be proved as laid in the indictment—that proof of a smaller number or quantity than that charged will be sufficient—that time and place need not be strictly proved as laid; but that it must be proved the offense was com- mitted before indictment found or complaint made, and within the juris- diction.( p) Verdict.| Where two persons are indicted together, for stealing the same goods, one can not be convicted of petit larceny and the other of grand larceny.(q) : Accessaries and receivers of stolen goods.| In grand larceny, there are accessaries before and after the fact, as in other felonies. Thus, a man may be accessary before the fact, in stealing his own goods, if he procures another to do so, with a felonious design ;(r) and accessary af- ter the fact, if he receives the felon and assist. him to escape.(s) In this offense at common law, those present aiding and abetting are principals in the second degree.(¢) In a case where several were acting together to steal privately in a shop, and some were in the shop, &c. and some out, and the property was stolen by the hands of one of those who were in the shop, those on the outside were held equally guilty as principals.(2) In petit larceny, there can be no accessaries.(v) Those who procure, (2) 4 Stark. Ev. 828. (r) Cro. Eliz. 587, (m) Id. 880, 833, 834. (8) Fost. 123. (n) Hogg v. State, 8 Blackf. Rep. 326. (t) 8 Chit. Or. L. 950. 1 Mass. Rep. 476. (u) Russ. & Ry. C. 0. 348, 421. Ry. (0) State v. Ryan, 4 McCord, 16. & Moo. O. O. 96. (p) Crown Cir. Comp. 303. (v) Ward v. The People, 3 Hill, 395. (g) State v. Davis, 8 McCord, 187, State v. Larumbo, Harper, 183. 188 OF FELONIES. [Boox 1. aid, or advise, are principals; and those who merely assist the felon’s escape are not, at common law, regarded as criminal.(w) Nor at com- mon law, did the knowingly receiving stolen goods make a man accessary, unless he harbored or assisted the original offender. This offense was only a misdemeanor and could not be punished with any severity ade- quate to its mischievous effects.(z) In order to constitute the offense of receiving stolen goods, it seems it is sufficient if the goods be of some value, however small.(y) Bank bills, complete in form but not issued, are the property of the bank; and may be so treated, in criminal proceedings for receiving them with knowledge of their having been stolen.(z) Indictment against receivers and accessaries.| In an indictment un- der the statute, for receiving stolen goods, it is not necessary to alledge that the goods were received upon any consideration passing between the thief and the receiver.(a) Where, in such an indictment, the charge was that the prisoner had feloniously received of an ill-disposed person, to the jurors known as D. B., a cow, the property of, &c. which had then lately before been stolen by the said ill-disposed person, with knowledge of the felony; and the verdict of the jury was, that the prisoner was guilty of receiving the cow, knowing her to be stolen, without finding by whom the property was stolen, the conviction was held proper.(b) But when- ever the principal is known, the averment ought to be according to the facts, or the defendant will be acquitted.(c) In an indictment against the receiver, it is not necessary to aver, nor on the trial to prove, that the person who stole the property has been convicted.(d) The indictment must describe the goods, with certainty. A variance in this particular will be fatal.(e) The word bond necessarily imports an obligation under seal. Hence, under an indictment for re- ceiving stolen goods, describing them as so many bonds, the defendant can not be convicted if it turn out that they were simple contracts.(/) Where an indictment for receiving stolen goods, knowing them to be stolen, omitted to state that the defendant had received them with intent to defraud the owner, but it stated that he had feloniously received them, knowing, &c. it was held that the indictment was insufficient.(g¢) The indictment need not aver any consideration between the thief and the receiver.(h) The common form of an indictment for receiving stolen goods is to (w) 1 Hale, 530, 616. ¢) 8 Chit. Or. L. 958. (x) 8 Ohit. Cr. L. 951. d) 2 B.S. 680, § 72. (y) Hodgman v. The People, 4 Denio, (e) The People v. Wiley, 3 Hill, 194. 285. (7) 4 Denio, 235. (2) Ibid. (g) Peltsv. State, 3 Blackf. Rep. 28. (a) 12 Wend. 76. (A) Hopkins vy. The People, 12 Wend. (0) 21 id. 86, 76. OHAP. Iv.] OF FELONIES. 189 state first, the fact of the stealing of them by the thief, and then the re- ceipt of them by the receiver; he then and there well knowing the goods to have been feloniously stolen. There is no occasion to state the time or place as to the original stealing. It will suffice if it be stated as to the offense of the receiver.(i) Whenever a variance is material as to the principal, it is material and available to the accessary.(k) When the defendant is indicted as an accessary, it is sufficient to state that the principal was duly convicted.(2) The words “ well knowing” are a suf- ficient averment that the defendant knew the goods to be stolen.(m) If the indictment state that F. M. received the goods, “he the said T. M. knowing,” &c., the words “he the said T. M.” in which the name is wrong, may be rejected as surplusage.(7) Receivers of stolen property may be indicted and tried in any county where they received or had such property, notwithstanding the theft was committed in another county.(o) Evidence.| On an indictment under our statute, on which the re- ceiver may be punished, though the principal felon is not convicted, the latter may be examined as a witness on the trial.(p) (4) 8 Chit. Cr. L. 958. 2 East’s P. C. (n) 1 Leach, 109. 780. 2 Blackf. Rep. 103. (0) 2 R. 8. 726, § 48. (k) 2 Hawk. ch. 46, p. 194. (p) 1 Leach, 418, 419. 2 id. 997, in (2) 2 Leach, 925. notes. See also 3 Chit. Cr. L, 959. (m) 2 Str. 904. 38 Chit. Cr. L. 959. 190 OF FELONIES. [Boox 1. CHAPTER V. Offenses affecting the Administration of Justice. Under this head we are to consider, 1. PERJURY, AND SUBORNATION OF PERJURY. 2. BRIBERY, AND CORRUPTION. 8. EsoAPES FROM PRISONS; ASSISTING THEREIN; RESCUE. 1. Persury, AnD SUBORNATION oF PERJURY. Perjury.] By the revised statutes perjury is defined to consist in willfully and corruptly swearing, testifying or affirming falsely to any material matter upon any oath, affirmation or declaration, legally ad- ministered—l. In any matter, cause or proceeding depending in any court of law or equity, or before any officer thereof; 2. In any case where an oath or affirmation is required by law, or is necessary for the prose- cution or defense of any private right, or for the ends of public justice ; 3. In any matter or proceeding before any tribunal or officer created by the constitution or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer.(a) The punishment is, disqualification as a witness, and, if the perjury be committed on the trial of an indictment for a capital offense or other felony, then imprisonment for a term not less than ten years. If com- mitted on any other trial, inquiry or case, then for a term not more than ten years.(b) Whenever it shall appear to any court of record that any witness or party has testified in such a manner as to induce a reasonable presump- tion of perjury on his part, such court may immediately commit such witness or party to prison; and may bind over the witness to testify before the grand jury and on the trial, to establish such perjury. Such court may also, by order, detain any papers or documents produced by either party which are deemed necessary to be used on such prosecution for perjury, and direct them to be delivered to the district attorney.(c) It is also provided by statute that if any elector, challenged as un- qualified, shall be guilty of willful and corrupt false swearing, or affirming in taking any oath or affirmation prescribed by the chapter respecting elections, other than for militia and town officers, such person shall be guilty of perjury.(d@) This section did not extend to elections for town (a) 2B. S. 681, $1. (0) Id. §§ 6, 7. (b) Id. ib. § 2. (d) 1 id, 149, § 1. OHAP. v.] OF FELONIES. 191 officers. To supply this defect, it is provided by section one of chapter 389, Laws of 1839, that if any person challenged as unqualified to vote at any town meeting held pursuant to title two, of chapter eleven, of part one, of the revised statutes, shall be guilty of willful and corrupt false swearing or affirming, in taking any oath or affirmation prescribed by said title, he shall be adjudged guilty of perjury.(e) False swearing by witnesses examined before the canal board,(f) or by surveyors of the state lands, in making their return or appraisal of the lands surveyed, is also declared to be perjury.(¢) The provisions of the statute respecting perjury having thus been stated, the crime will now be fully considered’ as an offense at common law; tlte statute not creating any new offense, but being merely declaratory of. the law previously existing. Perjury by the common law is a willful false oath, by one who being legally required to depose the truth in a proceeding in a course of justice, sweats positively, in a matter material to the point in issue, whether he be believed or not.(h) It consists in swearing falsely and corruptly, contrary to the belief of the witness; not in swearing rashly and inconsiderately, according to his belief.(2) We shall notice, 1. The oath; 2. The indictment or complaint; 3. The evidence. 1. The oath.| In order to constitute the offense of prejury, at com- mon law, the following things are necessary: 1. The oath must be ad- ministered by a competent authority; 2. It must be taken in a judicial proceeding ; 3. The fact sworn to must be material to the question in issue; 4. The assertion must be absolute ; 5. The oath must be false; 6. The intention must be willful. Ist. The oath must be administered by a competent authority. If the oath appears to have been taken before a person who had no lawful » authority to administer it, or who had no jurisdiction of the cause, the defendant must be acquitted.(/) Itis not necessary, however, in the indictment, to show the nature of the authority of the person administer- ing the oath.(Z) But enough must be shown to give the tribunal jurisdic- tion. Thus on a submission by bond to arbitrators, and perjury charged in an oath before them, the bonds must be produced.(m) The revised statutes specify the persons who are authorized to admin- (2) 2 B.S, 8d ed. 768, § 9. 111. 4 Black. Com. 187. 4 Hawks Rep. (f) Id. 280, § 9. 182. 1 Nott & McO. 546. 3 McO. 808. (g) Id. 199, § 15. 2 Hayw. 568. Pick. 453. (A) 1 Hawk. ch. 69, sec. 1. (2) 3 Dowl. & Ry. 97. 6 Barn & Cres. (2) U. States v. Shellmire. 1 Bald.370. 602. 2 Southard’s Rep. 772. Archb 6 Binn. 249. 1 Bailey, 50. Cr. Pl. 428. , (%) 8 Inst. 165, 6. 7 T. R. 815. 1 — (m) 9 Cowen, 30, Dowl. & Ry. 10. 3 Car. & P. 419. Yelv. 192 OF FELONIES. [Boor 1. ister oaths ;() and the manner in which they are to be administered.(o) And it is declared perjury to swear falsely in any form authorized by law.(p) It bas been decided that a sheriff or coroner has no power to take the affidavit of a plaintiff in replevin, as to the ownership of the property specified in the writ.(q) - As to the manner of administering the oath, the general rule is that every man should be sworn, or bound, according to the ceremonies of his own religion; so asto impose upon him an obligation to speak the truth, under a belief in the existence of a deity, and a state of future rewards and punishments; and if he believes not in these his evidence is not ad- missible.(r) An indictment will not lie upon an oath administered by a judge, out of the jurisdiction of the state in which he is judge.(s) False swearing, in a voluntary affidavit made before a justice of the peace before whom no cause is depending, is not perjury.(¢) No false swearing before individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question, will amount to perjury.(w) But perjury may be assigned in ai oath erroneously taken ; especially while the proceedings in which it is taken remain unreversed, as if a justice issues an attachment on the oath of the creditor, the proceeding is erroneous; but the party, never- theless, may be indicted for perjury.(v) = 2d. The oath must be taken in a judicial proceeding. For instance, by a witness, at a trial, or in answer to a bill in equity ;(w) or in deposi- tions in a court of equity ;(x) or in an affidavit in any of the superior courts; or upon a commission for the examination of wilnesses ;(y) or in justifying bail in any of the courts; or upon an examination before a magistrate ;(z) or ina judicial proceeding in any court, whether of record or not.(a) Even though the person administering the oath has lawful authority to do so, still, if it is not taken in a judicial proceeding, it is no, perjury. Therefore, taking a false oath before a surrogate, to procure a marriage license, is no perjury.(6) Where a party swore false in an affi- davit, which, from certain omissions in the jurat, could not be received in the court where it was sworn, the perjury was held complete at the time of the swearing.(c) So a party filing a bill for an injunction, and making (n) 2 B.S. 206, 218, 446, 455, 6. Lid.” (w) 5 Mod. 348, 8 Inst. 166. 70 (x) 5 Mod. 848. (0) 2 Id. 328, 9. (y) Id. 1 Show. 335, 397. ) Id. ib. § 110. (z) Cro. Car. 99. See 1 Bos. & Pall. (q) 12 Wend. 194. 240. (r) Oro. Cir. Comp. 893. 1 Leach, 488. (a) 1 Camp. 404. (s) 1 John. Rep. 498. (b) Moo. & Mal. 271. Russ. & Ry. O. (¢) 1 Binn. 642. O. 459. (u) 3 Inst. 166. Oro. C.C. 7th ed. 626. (c) Ry. & Moo. 94. 1 Car. & P. 258. (v) 10 John. 167. oar. v.] OF FELONIES. 193 an affidavit of matters material to it, is indictable for perjury committed in that affidavit, though no motion is ever made for an injunction.(d) But no oath made in a mere private concern, however willful or malicious, as in entering into a contract, is an indictable offense ; nor can any criminal proceeding be maintained for the violation of an oath to perform any duties in future.(e) Neither can any prosecution be supported for per- jury in a voluntary affidavit taken extra-judicially before a magistrate ;(f) and even where an oath is required by act of parliament, in an extra- judicial proceeding, the breach of that obligation does not seem to amount io perjury, unless the statute contains an express provision to that ef- fect.(g) It will be remembered, however, that by the revised statutes, perjury extends to the violation of an oath in every case where an oath or affirmation is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice.(A) A person may be indicted for perjury who gives false evidence before a gtand jury when examined as a witness before them; and another witness on the same complaint, who is in the grand jury room while such person is under examination, is competent to prove that such witness swore be- fore the grand jury. And so is a police officer, who was stationed within the grand jury room door, to receive the different bills at the door and take them to the foreman of the grand jury; these persons not being sworn to secrecy, although the grand jury are so.(i) To convict a per- son of perjury in swearing falsely before a grand jury it is not sufficient to show that he swore to the contrary before the examining magistrate ; as it does not appear which of the contradictory statements was the true one.(/) ™ It is a general rule, that an offense can not be prosecuted after the statute which created it is repealed, oy has expired by its own limitation, unless there is a provision therefor in the repealing or temporary act.(2) Therefore it was held, that a repeal of the bankrupt act was a bar toa prosecution for perjury before the commissioners, though committed pre- vious to the passing of the repealing act.(m) But where, by an act of the legislature, certain oaths are prescribed, and false swearing in taking them is declared perjury; and by a subsequent act, the original act is amended and the forms of the oaths altered, false swearing under the amendment is perjury, although it be not so expressly declared in the amended act.(7) Where a party is erroneously sworn in his own cause, he may be guil- (d) 1 Moo. & Mal. 271. (z) Ibid. (e) 8 Inst. 166. 11 Coke, 98. (2) 2 Russ. on Cr. 517, note (A). (f) 4 Black. Com. 187. (m) 4 Dallas, 872. 1 Wash, OC. O. Rep. (g) Ibid. Christian’s note, (5). 84, 8. C. (A) 2B. 8. 681, § 1, sub. 2. (n) 8 Wend. 636. (i) Queen v. Hughes, co & K, 619. 194 OF FELONIES. [Boox 1. ty of perjury ; especially while the proceedings remain unreversed(o) So perjury may be committed in an affidavit, made for the purpose of obtaining a certiorari to remove into the supreme court a judgment ren- dered by a justice of the peace, in a case where the writ of certiorari is abolished ; for there are cases in which a certiorari is the proper remedy.(p) To make false swearing perjury, it is not necessary that the oath should have been taken as a witness for another, but may be upon an affidavit ‘or in answer to questions in a court of law or equity, or respecting some collateral matter in some way affecting a judicial proceeding.(q) 3d. The fact sworn to must be material to the question in issue. For if it be of no importance, though false, it will not be perjury ; for as it does not concern the issue it is extrajudicial in this respect.(r) And it always lies on the prosecutor to prove that the perjury was material.(s) If a witness is asked whether goods were paid for on a particular day, and he answers in the affirmative; if the goods were really paid for, though not on that particular day, it will not be perjury unless the day 4s material.(¢) But if a man swears that A. B. beat another with a sword, and it turns out that he beat him with a stick, this is not perjury; for all that was material was the battery.(w) But if the fact sworn to is circumstantially material it will be perjury ; for evidence may be very material and yet not full enough to prove directly the point in ques- tion.(v} Thus, perjury may be committed by falsely swearing that an- other witness is entitled to credit, if such assertion conduce to the proof of the point in issue.(w) A question having no general bearing on the matters in issue may be made material by its relation to the witness’ credit, and false swearing thereon will be perjury.(7) Ewvery question, ‘on cross-examination of a witness, which goes to his credit, is material.(y) it is certain that there is no neoessity that the false evidence should be sufficient to render the party in whose behalf it is given suceessful; but it will suffice if that is its evident tendency ;(z) or if, in a civil action it has the effect of increasing or extenuating the damages(a) Ina late case it was held that the denial, in an answer in chancery, of an agree- ment, which by the statute of frauds, was not binding upon the patties, was immaterial, and not indictable.(b) But perjury may be committed jn an answer to a bill in chancery though it is in a matter not charged by the bill.(c) (0) 10 John. R. 167. (w) 1 Ld. Raym. 258. Com. Rep. 48. (p) 11 Wend. 127. (a) Queen vy. Overton. 2 Moo. O. 0. (q) 1 Leach, 50. 1 Hawk. ¢. 69,8. 5. 268. (vr) 2 Chit. Cr. L. 805. 2 Russ. on Cr. (y) 8. 0.1 Car, & M. 655. 521, 2, Roscoe’s Cr. Ev. 680. 2 Nott & (z) 2 Chit. Cr. L. 303, and note (A). 2 McOord, 118. 2 Mis. Rep. 158. Ld. Raym, 889. (8) Id. ib. (a) Wood’s Inst. 435. (t) 2 Rol. Rep. 41, 2. (6) Ry. & Moo. C. GC. 109. (uw) Cro. Cir. Comp. 401. (c) 5 Mod, 848. 1 Sid. 106, 274. (v) 1 La. Raym. 258, 2 id. 889. car. v.] _ OF FELONIES: 195 It seems that in testing the materiality of testimony charged to be false, reference. must be had to the issue as it-existed when the oath was ad- ministered to the witness.(d) Ath. The assertion must be absolute. 1. was formerly laid down that the witness must give his evidence absolutely and directly ; and therefore, if he only stated that he thought, remembered, or believed that which af- terwards is proved to be false, that he could not be indicted for per- jury.(e) But it seems now to be quite settled that if a man swears he believes that to be true which he knows to be false, he swears as abso- lutely, and is as criminal, in point of law, as if he had made a positive as- sertion that the fact was as he swore he believed it to be.(f) The prin- cipal difficulty in such a case is in proving the falsity of the allegation.(2) The false swearing, however, as to the legal operation of a deed, is not indictable.(h) 5th. The oath must be false. It must either be false in fact, or if true, the deponent must not have known it to be so. In other words the party must believe that what he is swearing is fictitious; for it is said that if, intending to deceive, he asserts of his own knowledge that which may happen to be true, without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him.(7} 6th. The intention must be willful. The false oath must be taken willfully and deliberately and with a consciousness of the nature of the “statement made; for if done from inadvertence or mistake, it can not amount to voluntary and corrupt perjury.(k) Therefore, where perjury is assigned on an answer in chancery, or an affidavit, &c., the part ou which the perjury is assigned may be explained by another part, or even by a subsequent answer, &c.(/) To show that false swearing is willful and corrupt, evidence may be given of expressions of malice used by the defendant towards the person against whom he gave the false testimo- ny.(m) 'To constitute perjury, at common law, it is not necessary that the false oath should obtain any credit, or occasion any actual injury to the party against whom the evidence is given. For the prosecution is not grounded on the inconvenience which an individual may sustain, but on the abuse and insult to public justice.(z) 2. The indictment.] In the introductory part of the indictment, such circumstances should be stated as show that the oath was taken in a judi- (d@) 4 Wend. 581. Palmer, 394. 2 Chit. Cr. L. 308, and (e) 3 Inst. 166. 1 Leach, 325. note (B). (f) 2 Chit. Cr. 1. 804,a. 1 Leach, (4) 1 Hawk. c. 69, 5.2. 1 Leach, 827. 827. 12 Jur. 283.17 L. J. 29. 2 Russ. on Cr. 518. 5 Mod. 350. (g) Queen v. Schlesinger, 12 Jur. 283. (1) Arch. Cr. Pl. 428, 9. Crown Cir. 17 L. J. 29. Comp. 402. (2) 1 Esp. Rep. 280. 2Taylor’s Rep. (m) 8 Car. & P. 498. 7. (n) 2 Leon. 211. Sid. 280. 7T.R. @ 1 Hawk. ch. 69, 8.6. @ Inst. 166, 315. 196 OF FELONIES. [Boor x. cial proceeding, before a competent jurisdiction, and, was material to the matter then before the court. The oath is then set out and the perjury is assigned upon it; that is, some one or more of the affirmative assertions in it are negatived, or the negative assertions contradicted by the opposite affirmative. No more inducement should be stated than is absolutely necessary to explain the perjury assigned.(o0) Thus, in a civil proceed- ing, it is sufficient to state that a certain cause had arisen and was de- pending, and came on to be tried in due form of law; and, in a criminal proceeding, that at such a court, A. B. was in due form of law tried on a certain indictment then and there depending against him for murder ; and in either case, that the perjury was committed.(p) It is not neces- sary to set forth more than the substance of the oath. It is sufficient if the indictment contain the substance of the offense, with the circum- stances necessary to render it intelligible, and to inform the defendant of the allegations against him.(qg) If it sufficiently appears from the oath itself that it was material to the matter then before the court, that fact need not be averred ;(r) otherwise, the materiality of that part of the oath apon which the perjury is assigned, must be averred.(s) For instance, if the perjury was committed upon the trial of a cause, it should be aver- red that it then and there became material to inquire whether A. B. was at C., on such a day, and that D. E. swore at that trial that A. B. was not at C. on that day; and so assigning the perjury. This mode of pleading will at once show the materiality of the evidence; and it is deemed sufficient, without setting out so much of the proceedings at the former trial, as might otherwise be necessary to show that it was mate- rial.(2) Where it appeared from an indictment that the defense set up to a criminal complaint amounted to an alibi; and that the testimony of a particular witness who was examined thereon, and whose evidence was alledged to be false, tended to establish this defense, and it was averred that each and every part of the testimony became and was material to the defense, it was held that the materiality of the alledged false testi- mony was sufficiently stated in the indictment.(z) It is not necessary that it should appear from the indictment whether the witness was compelled to attend court by a subpeena, or attended vol- untarily.(v) Nor it it necessary that it should appear whether the false testimony of the witness was given in answer to a specific question put to him, or in the course of his own relation of the facts; for in either (0) 2 Chit. Or. L. 307. (s) 5 T. R. 816. 12 Mass. Rep. 274. 1 (p) 5 T. R. 817. Orown Cir. Comp. Barn. & Adol. 21. 409. (#) Arch. Cr. Pl. 429, 5T.B.817. 2 (9) 5 Wend. 271. Chit. Or. L. 807, a. 7) 2 Stark. Rep. 48, n. 8 Wend. 686. (uw) Comm. v. Flynn, 3 Cush. Rep. 525. 12 Mass. Rep. 274. (v) Comm. v. Knapp, 12 Mass. Rep. 274. cnap. v.] OF FELONIES. 197 case he is equally required by law to depose the truth.(w) It is sufficient if it be averred in the indictment that an issue was duly joined in coutt, and came on to be tried in due form of law, and that the court had com- petent authority to administer the oath in question, without an express averment that the court had jurisdiction of the cause of action.(x) Where the ¢ime of committing the perjury is material, it should be laid with precision.(y) Therefore, where on an assignment of perjury on a policy of insurance, stated to have been underwritten on the 13th of August, which, on the production of the policy, proved to be the 15th of August, the variance was held fatal.(z) In another case, where the in- dictment did not state the day on which the trial took place; and in which the defendant was sworn in the case in which the perjury was alledged to have been committed, the court arrested the judgment.(a) But it was held no variance that a bill which was filed on the Ist of December, was entitled generally as of the preceding Michaelmas term ; for that is the practice when a bill is filed between two terms.(d) In stating the place where the perjury was committed, some place must be alledged to which a venire may be reasonably awarded.(c) An indictment for perjury in an affidavit of an attorney, on a summary ap- plication against him, need not specify the place where the court was holden to which the motion was originally addressed ; but it will suffice if a proper venue be laid to the fact of the actual perjury.(d) A too gen- eral statement of place, absolutely to the fact of false swearing, can not be aided by an innuendo expressing a parish, and containing a minute de- scription of the place where it was taken.(e) It suffices, however, to show that the perjury was committed any where in the county, though at a different parish or place to that alledged in the indictment, unless there be a variance in some specific local description.(f) In the instance of making an affidavit, the party is not to be indicted where the affidavit may happen to be used, but in the county where the offense was com- plete by making the false oath.(¢) The court by which the oath was administered, must be correctly de- scribed. ‘Thus, where on an allegation that the oath was taken before justices assigned to hold assize, it appeared that the commission was of oyer, terminer, &c. the variance was held fatal.(h) But where the oath was alledged to have been taken before one only of the judges in the commission, but the names of two were inserted in the nisi prius record, (w) Comm. v. Knapp, 12 Mass. R. 274. (6) 1 Stark. Rep. 524. And see 3 Stark. (x) Ibid. Ev. 1189. Matt. Dig. 342. y) 1 T. BR. 69. 2 Wash. ©. ©. Rep. (c) 2 Chit. Cr. L. 807, b. 828. 1 Gall. 387. (@d) 7 T. R. 3815. (2) 1 Stark. Rep. 524. (e) 1 Ld. Raym. 256. (a) United States v. Bowman, 2 Wash. (/) Holt’s Rep. 584. Skin. 408. C. C. Rep. 328, (g) 7 T. BR. 815, (A) Russ. & Ry. C. C, 421. 198 OF FELONIES. [Boox 1. it, was held no variance.(i) So the court of “the king’s palace at” in- stead of “of Westminster,” was held no variance.(/) But where, in set- ting out the record of a conviction, an adjournment was stated to have been made by Cons¢, Esq. and A., B., C. and others, their fellows, &c. and on being produced it appeared to have been made by Const, Esq. and D., E., F. and others, the variance was held fatal.(1) In an indict- ment for perjury, against a person voting at an election, an averment that he was sworn by and before the board of inspectors, is a sufficient averment that the oath was administered by the board. It seems it would be enough to alledge that he took the oath before the board—they being duly authorized to administer it.(m) The indictment need not set forth the whole oath. It is enough to set out the part of it in which the perjury is alledged to have been committed: as, where the prisoner is accused of having falsely sworn to his citizenship, only that part of the oath which relates to his being a citizen need be set forth.(n) It is not necessary to state the nature of the authority of the court or officer ad- ministering the oath.(o) Thus, in an indictment for perjury by an in- solvent debtor in the oath taken by him on presenting his petition, &c. to the officer, it is not necessary to set forth the facts which give jurisdic- tion lo the officer. It is enough to aver that he had lawful and compe- tent authority to administer the oath.(p) It must be averred that the defendant was regularly sworn, and de- posed, &c. That he was duly sworn, &c. is sufficient ;(q) but those facts can not be taken by intendment.(r) Where the indictment averred that the defendant was sworn on the holy gospel of God, proof that he was sworn and examined as a witness, was held to support the averment;(s) but such an averment would not have been supported if it had appeared that the defendant had been sworn only according to the custom of his own country.(¢) Yet, it has been held, in South Carolina, that an indict- ment charging the oath to have been taken on the gospels, will not be sustained by proof that the oath was taken with an uplifted hand.(w) It is not necessary to set out the jurat of an affidavit ;(v) nor to state or prove that the affidavit was filed or exhibited to the court, or in any man- ner used by the defendant or others.(2) (4) 1 Leach, 150. tioned by the court, but followed on the (k) 8 Dowl. & Ryl. 234. principle of stare decisis, (1) Ry. & Moo. C. C. 171. (q) Peake’s N. P. 155. (m) 8 Wend. 636. (r) 7 Dowl. & Ryl. 665. 5 Barn. & (n) Ibid. Cress. 346. (0) Cro. Cir. Comp. 408. (s) Ry. & Moo. C. C. 802. (p) People v. Phelps, 5 Wend. 10. (¢) Cro. Cir. Comp. 403. People v. Warner, id. 271. 2 Chit. Cr. (u) State v. Porter, 2 Hill’s 8. Car. R. L. 808, note (B). People v. Tredway, 611. 3 Barb. S. C. Rep. 470. In this last case — (v) 9 East’s Rep. 487. the decisions in The People v. Phelps, (w) 7 T. R. 815. and in The People vy. Warner, were ques- oHAP. Y.] OF FELONIES. 199 It should be averred that the defendant falsely swore, &c.(z) In an indictment at common law the word “willfully,” &c. is not necessary ; it being implied from the words “ falsely, maliciously, wickedly and cor- ruptly."(y) But the words “willfully and corruptly” can not both be omitted in'an indictment at common law ;(z) nor, as it would seem, in an indictment under our statute, which uses those words in defining per- jury. If the same person swears contrarily at different times, it should be averred on which occasion he swore willfully, falsely, or corruptly.(a) The matter falsely sworn to need not be prefaced by words requiring an exact recital; but it should rather be “in substance and to the effect following ;”(b) or, “in manner and form following, that is to say,” which allows greater latitude.(c) But accuracy is requisite in what is set out.(d) Thus, if a word were accidentally omitted in an affidavit, it must not be supplied as if sworn, but must be explained by an innu- endo.(e) Where perjury is assigned upon several parts of an affidavit, those parts must be set out as if continuous, though in fact separated by other matter.(f) If any use is made of an innuendo which is imperfect, it can not be rejected as surplusage, nor will it be cured by verdict; but where the innuendo and the matter which it introduces are altogether impertinent and immaterial, it may be rejected.(g) An innuendo is defined to be a mode of explaining some matter already expressed. It serves to point out where there is precedent matter, but can never intro- duce a new charge. It may elucidate what is already averred, but can not add to, enlarge, or alter its sense.(/) The indictment must expressly contradict the matter falsely sworn to by the defendant. And a general averment that the defendant falsely swore, &c. upon the whole matter, is not sufficient; but the in- dictment must proceed by particular averments to negative that which is false.(¢?) And where an indictment for perjury committed in the insolvent debtor’s court alledged that the defendant falsely, &c. swore “that his schedule contained a full, true and perfect account of all debts owing to him, whereas in truth the schedule did not contain,” &c. without specifying any debts omitted, it was held that this indictment was bad.(é) If there are several assignments of perjury in one count, it will suffice to prove one of them, and though some be bad, judgment will be given against the defendant on the sufficient assignments.(/) (2) 2M. & &. 385. (f) 9 Dowl. & Ryl. 97. 6 Barn. & Cress. (y) 2 Chit. Cr. L. 808, and note (D). 102. Ry. & Moo. N. P. R. 252. (2) 5 Barn. & Cress. 245. (g) Cro. Cir. Comp. 404. (a) 5 Barn. & Adol. 926. 1 Dowl.& (A) 2 Chit. Cr. L. 810. 2 Salk. 513. Ryl. 578. Cro. Cir. Comp. 404. ‘ (7) 2 Russ. on Cr. 542. 2M. & S. 885. (b) Cro. Cir. Comp. 404. 2Camp. 138. 1 Carr. & Payne, 608. 1T. R. 70. 5 Wend. 271. (4) 1 Ry. & Moo. N. P. R. 210. 5 Wend. (ce) 1 Leach, 192. 10, 271. , (d) 5 T. R, 3817. (2) 2 Chit. Cr, L. 811. (e) 1 Camp. 404, 134. 200 OF FELONIES. [Boox 1. Where the defendant has sworn only to belief, it may be proper to aver that he well knew the contrary of what he swore.(z) Two defendants can not be joined in an indictment for perjury.(7) 3. The evidence.] Allsuch introductory parts of the indictment as can not be rejected as surplusage, must be proved in substance as laid; and, generally, the evidence of one witness is not sufficient to convict for per- jury, for that would be only oath against oath.(o) But one witness and circumstances strongly corroborative are enough, though the circum- stances are not in themselves sufficient to prove a fact.(p) Evidence merely probable, however, is not sufficient. It must be strong and clear and the witnesses must be more numerous, or the weight of testimony greater for the prosecution than for the defense.(g) But where the evi- dence consists of the contradictory oaths(r) or declarations(s) of the party accused, this rule does not apply. This strong proof seems to be required not only as to the falsity of the oath, but as to the facts sworn to.(¢) But it is not necessary to prove by two witnesses every fact which goes to make out the charge of perjury.(u) One witness may prove the taking of the oath; but one witness without supporting circumstances, can not prove the falsity of the oath.(v) Where there are several distinct assignments, proof of any one of them is sufficient to support the indict- ment.(w) Documents and collateral circumstances often stand in the place of witnesses for the purpose of proving the contradictory statements of the defendant. Thus, to prove perjury, it is sufficient if the matter alledged to have been falsely sworn be disproved by one witness, if in addition to his testimony there is proof of an account or letter written by the defendant contradicting his statements on oath.(z) The party injured by the perjury is, it seems, a competent witness to prove the perjury.(y) And if a party is indicted separately for perjury with others, in swearing to the same fact, either of them, before convic- tion, may be a witness on the trial of the other.(z) If the false matter sworn is in writing, it must be produced, or suffi- ciently accounted for, as in other cases. Where perjury is assigned upon an answer to a bill in equity, it is sufficient after producing the bill or a copy of it,(a) to produce the answer, and prove either that the defendant (m) 2 Chit. Cr. L. 811. Matt. Dig. 848. (t) 4 McCord, 159. (n) 2 Yeates, 479, 2 Strange, 921. 2 (w) Queen v. Roberts, 2 Car. & K. 607. Burr. 985. (v) State v. Hayward, 1 Nott & McCord, (0) 2 Russ. on Cr. 545. 2 Chit. Cr. L. 546. 312. (w) State v. Hascall, 6 N. Hamp. R. 352. (p) 6 Cowen, 118. 1 Nott & McCord, («) Crown Cir. Comp. 405. 6 Carr. & 546. 2 Chit. Or. L. 812, note (A.) Payne, 315. (q) 10 Mod. 194. 2 Str. 1229. (y) 2 Russ. on Cr. 546, (r) 2 Russ. on Cr. 545, 2 Chit. Cr.L. — (z) 2 Chit. Or. L. 812, c. 2 Hale, 280. 312. 5 Barn. & Ald. 929, n. (a) 4 Carr. & Payne, 826, (s) 1 Dev. Law Rep. 268. 6 Cowen, 118. omar. v.] OF FELONIES. 201 was sworn to it, or that the signature to it is the defendant’s hand-writing, and that the name subscribed to the jurat is the name and hand-writing of a master or other person having authority for that purpose.(b) And the same as to depositions in equity, and other similar cases, so as at least to throw upon the defendant the burden of proving that he was personated.(c) And it is necessary to prove, in substance, the whole of what is set out in the indictment as having been sworn to by the defendant. Proving a part only, it seems, is not sufficient.(d) Also it must be proved literally or substantially as set out.(e) Any variance in substance between the- indictment and evidence in this respect will be fatal.(/) To prove that the person who administered the oath had authority to do so, itis merely necessary to show that he performed the duties of a certain office, without showing his appointment ;(g) and, (if the court will not judicially notice it,) that the person lawfully exercising the duties of that office has authority to administer an oath in such a case.(h) But the defendant is at liberty to rebut this prima facie evidence, by positive testimony that the appointment was defective; and if he succeed in so doing, he will be entitled to an acquittal.(z) A variance in stating the occasion of the making of the oath would be fatal.(&) As the perjury assigned must be material to the matter in question, so the materiality of the perjury must be proved.(1) But where the mat- ters assigned as perjury consist of several particulars, some of which are material and others not, the court will distinguish between the material and immaterial; and if any one particular be disproved, to which the perjury is alledged to relate, if the charge would remain entire and con- stitute perjury, without such proof, the court will not consider it to be a variance.(m) The corrupt intention must also be proved; but this is prima facie shown by proving the falsity of the oath; and if the perjury was occa- sioned by surprise or inadvertency, or by mistake of the true state of the question, this is for the defendant to show.(n) Evidence is admissible, on the part of the prosecution, to show that the motives which actuated the prisoner, at the time of committing the alledged offense, were corrupt; as, for instance, to show that when he swore to a complaint against the (6) 2 Burr. 1189. 2 Camp. 508. (A) Arch. Cr. Pl. 431. (c) Id. ib. (4) 38 Camp. 485. (d) Peake, 87. (k) Roscoe's Or. Ev. 675. (2) 2 Chit. Cr. L. 812, b. Archb. Cr. (2 2 Chit. Cr. L. 804, 807, 812, b. Pl. 430. Roscoe’s Cr. Ey. 676. Cro. Cir, Roscoe’s Cr. Ev. 680, 684. Comp. 405. (m) 8 Barn. & Cress, 113. 4 Dowl. & (f) ‘Td. ib. 2 Camp. 184. Ry. 670, 8. 0. (g) 8 Camp. 482. 2 pe Or. L. 812, a. a 2'Chit. Or. L. 812, c. Roscoe’s Cr, Ev, 672, 202 OF FELONIES. [Boox 1. prosecutor, ostensibly to procure sureties of the peace, his object was, in fact, to coerce him to settle a civil suit.(o) In a prosecution for perjury, proof of the general bad character of the defendant for truth and veracity is inadmissible.(p) Subornation of perjury.) Subornation of perjury, at common law, is the procuring another to commit legal perjury, who in consequence of the persuasion takes the oath to which he has been incited.(q) It is provided by the revised statutes that every person who shall will- fully and corruptly procure any person to swear or affirm falsely, on be- ing challenged as an elector, at an election, shall be adjudged guilty of subornation of perjury; and shall, upon conviction thereof suffer the punishment directed by law in cases of willful and corrupt perjury.(7) This section applies only to general elections. But by the act of 1839 the provision is extended to subornation of perjury committed at town meeting's.(s) To render the offense of subornation of perjury complete, either at common law or on the statute, the false oath must be actually taken. And no abortive attempt to induce perjury will bring the offender within the penalties of subornation of perjury.(¢) But the criminal solicitation to commit perjury, though unsuccessful, isa misdemeanor at common law.(w) Under the revised statutes, it is a felony, and punishable more severely. Those statutes provide that subornation of perjury shall be punishable, in the same manner as perjury ;(v) and that the mere attempt to suborn a witness shall be punishable with imprisonment for not less than five years.(w) And procuring any person to swear falsely at an election, in taking the election oath, is also declared to be subornation of perjury.(z) Indictment.] It does not seem necessary to set forth the means used by the defendant to effect his design. At common law, it is said to be sufficient to state that he, “by sinister and unlawful labors and means,” procured the commission of the perjury.(y) Our statute, in defining the offense where the oath is actually taken, uses the words “unlawfully and corruptly,” and “by any means whatsoever,” &c. An indictment under this section should probably contain the words “unlawfully and corruptly,” but the means used need not be stated. But the section re- specting attempts to induce perjury contemplates the offering of some “valuable consideration” to the witness; and it therefore seems necessa- ry that an indictment for this offense should either contain those words, a State v. Hascall, 6N. Hamp. Rep. (¢) 8 Mod. 122. 1 Leach, 455, notes. (uw) 2 East’s Rep. 17, 6 id. 464. 1 a 5 Ham. Ohio R. 227. See also 14 Hawk. ec. 19, s. 10. Wend. 111. (v) 2R.S. 681, 88 3, 4. (q) 1 Hawk. c. 69, s. 10. (w0) Id. 682, § 8 (7) 1B. 8. 149 § 2. (x) 1id. 149. (s) Laws of 1839, ch. 889, sec.2. 22. (y) 2 Ld. Raym, 886, 2 Leach, 796. 8. 3d ed. p. 768, § 10. omAP. yY.] OF FELONIES 203 generally, or specify the particular thing offered, and aver that it was valuable. The indictment need not particularly specify the perjury which the defendant is charged with having attempted to suborn a witness to com- mit.(z) Evidence.| In support of an indictment for subornation, the record of the witness’ conviction for perjury is no evidence against the suborners ; but the offense of the perjured witness must be again regularly proved.(a) 2. BRIBERY AND CoRRUPTION. Bribery is the receiving or offering any undue reward by or to any person whose ordinary profession or business relates to the administra- tion of public justice ; in order to influence his behavior in office, and in- cline him to act contrary to the known rules of honesty and integrity.(6) And it seems that, at common law, this offense may be committed by any person in an official situation who shall corruptly use the power or interest of his place for rewards or promises.(c) And bribery sometimes signifies the taking or giving of a reward for offices of a public nature.(d) This species of bribery will be noticed hereafter under the bead of “ Buy- ing and selling offices.” Attempting to influence an elector, in giving his vote, or to deter him from giving it, is also bribery at common law as well as by statute.(e) And the attempt to influence jurymen, by gifts or promises, is also a species of bribery.(f) And attempés to bribe, though unsuccessful, have in several cases been held to be criminal.(g) By the revised statutes every person who shall promise, offer, or give to the governor, lieutenant governor, or to any member of the legislature, after his election, and either before or after he shall have been qualified; to any commissioner of the land office, canal fund or canal commissioner, to the comptroller, surveyor general, secretary of state, or attorney gen- eral; to any judge of a court of record, or any judicial officer—any mon- ey, goods, &c. with intent to influence his vote, opinion, or judgment, on any question brought before him in his official capacity, shall, upon con- viction, be imprisoned in a state prison not exceeding ten years, or be fined not exceeding $5000, or both.(h.) Every officer above mentioned, who shall accept any such gift or promise, &c. under any agreement that his vote, &c. shall be given in a particular manner, &c. shall, on conviction, be forever disqualified from holding any public office, trust, or appointment, under the constitution of (2) State v. Holding, 1 McCord, 31. (d) Id. ib. (a) 1 Leach, 455. Roscoe's Cr. Ev. (e) 8 Burr. 1838. 1 Russ, on Cr. 156. 691. 2 Chit. Cr. L. 318. (f) 1 Russ. 156. (6) 3 Inst. 149. 4 Black. Com. 189. (gy) Id. ib. 3 Inst. 147., 2 East’s P. 0..5. 1 Russ. on Cr. 155. (A) 2 B.S. 682, § 9, (c) 1 Russ. on Cr. 156. ia f Jolt. 204 OF FELONIES. [Boox 1. this state, forfeit his office and be subject to the same punishment as above prescribed for the offense of offering a bribe.(z) And if any person shall by bribery, menace, or other corrupt means or device, attempt to influence any elector in giving his vote, or to deter him from giving the same, at any election, he shall, on conviction, be adjudged guilty of a misdemeanor, and be fined not more than $500, or imprisoned not more than one year.(k) Jurors, arbitrators, and referees, who shall take any thing to give their verdict, award, or report; or shall receive any gift or gratuity from any party to the suit, &c. in which they are drawn, chosen, or appointed— are punishable by imprisonment in a state prison not more than five years, in a county jail not more than one year, or by a fine not exceed- ing $1000, or both.(2) Corrupting, or attempting to corrupt jurors, referees or arbitrators, by giving or offering to give any gift, or gratuity, with intent to bias their minds in relation to any cause, &c. is punishable by imprisonment in a state prison not more than five years, or in a county jail not more than one year, or by a fine not more than $1000, or both such fine and im- prisonment.(m) — 3. Escapes From Prison; AssIsTING THEREIN; AND RESCUE. An escape is, where one who is arrested gains his liberty before he is delivered by the due course of law.(z) And it may be the party him- self; either without force before he is put in hold, or with force after he is restrained of his liberty; or it may be by others; and this also, either without force, by their permission or negligence, or with force, by the rescuing of the party from custody. Where the liberation of the party is effected either by himself or others without force, it is more properly termed an escape; where it is effected by the party himself, with force, it is called prison breaking; and where it is effected by others, with force, it is commonly called a rescue.(o) We shall consider, 1. Escape by the prisoner. 2. Escape by means of the officer; which may be either negligent or voluntary. 3. Assist- ing prisoners to escape. 4. Rescue. Ist. Escape by the prisoner.] To constitute an escape there must be an actual and justifiable arrest for a criminal offense.(p) The imprison- ment under such arrest must be continuing at the time of the escape, and must have so continued legally and for the purposes of public justice.(¢) (2) 2 B.S. 682, § 10. (0) 1 Hale, 590. 2 Hawk. P. C. 17, &e. (%) 1 id. 149, § 4. 1 Russ. 367. (2) 2 id. 683, § 11. (p) 1 Hale, 594. 2 Hawk. ch. 19, §§ (m) Id. ib. § 12. 1, 3,3 (a)..1:Russ. on Cr, 867. "(Q) 2 Hawk. ch. 19, § 4. 1 Russ, on Cr, 867. GHAP, V.] g OF FELONIES. 205 Any place in which a person legally arrested, on suspicion of crime, is restrained of his liberty, is, for this purpose, a prison; for imprisonment is only a restraint of liberty.(r) To constitute a prison-breach there must be an actual breaking. Passing out through an open door,(s) or merely getting over a wall,(¢) will not amount to prison-breach. But where a prisoner, intending to escape only, accidentally threw down some loose bricks from the top of the prison wall, that was held a sufficient break- ing.(w) A prison-breaker may be arraigned for that offense before he is arraigned for the trial for which he is imprisoned.(v) Prison-breach is a common law felony if the offender is a convicted felon.(w) . By the revised statutes, if any prisoner confined in a state prison for any term less than for life, shall break such prison and escape from thence, he shall, upon conviction, be punished by imprisonment in such prison for a term not exceeding five years, to commence from and after the ex- piration of the original term of his imprisonment.(z) And if any person confined in a county jail upon any conviction for a criminal offense shall break such jail and escape, he is punishable by im- prisonment in a state prison not more than two years, or in a county jail not more than one year, to commence from the expiration of his former sentence.(y) : The mere attempt to escape from a state prison by any person law- fully imprisoned therein, for any term less than for life, by force and vio- lence to any person, whether such escape be effected or not, is punish- able by imprisonment in a state prison for a term not exceeding five years, to commence after the termination of his former term of impris- onment.(z) So, every person lawfully imprisoned in a county jail, for any cause whatever, who shall forcibly break the prison, with intent to escape ; who shall attempt, by any force or violence, to escape from such prison, although no escape be effected, is punishable by imprisonment in a county jail, not exceeding one year.(a) The statute also provides that if any prisoner confined in a county jail, or in a state prison, upon a conviction for a criminal offense, shall escape therefrom, he may be pursued, retaken and imprisoned again, notwith- standing the term for which he was sentenced to be imprisoned may have expired at the time when he shall be retaken; and shall remain so im- (r) 2 Hawk. ch. 18, § 4. (w) Russ. & Ry. 0. C. 458. (8) Id. § 9. 3 Inst. 589. (2) 2B. 8. 685, § 21. (0) 3 P. Wms. 439. (y) Id. ib. § 22. (uv) Russ. & Ry. O. C. 458, (2) Id. ib. § 28. (e) 2 Hawk, ch. 21, § 7. (a) Td. ib. § 24. 206 OF FELONIES. [Boox 1. . prisoned until tried for such escape, or until he be discharged, on a failure to prosecute therefor.(b) 2d. Escape by means of the officer.| This may be either negligent or voluntary. A negligent escape is where the prisoner escapes against the will of his lawful keeper.(c) To allow a prisoner greater liberty than he by law ought to have, may be an escape.(d) Allowing a prisoner to go at large for a time and return again is an escape though he does return again.(e) If a prisoner flees and the jailer retakes him, without losing sight of him, this isno escape; but if the jailer loses sight of him it is an escape, though he afterwards retakes him(f) Only known officers of the law can be guilty of suffering prisoners to escape.(g@) If a prisoner suddenly, without the assent of the jailer, destroys himself, this is a negli- gent escape.(h) Ifa prisoner for felony break the jail, this also seems to be a negligent escape in the jailer, because there wanted either due strength in the jail, or due vigilance in the jailer or-his officers.(7) Wherever an officer who has the custody of a prisoner charged with and guilty of a capital offense, knowingly gives him his liberty, with in- - tent to save him from his trial or execution, this is a voluntary escape.(k) If a constable or other officer voluntarily suffers a prisoner being in his custody to destroy himself, this is felony both in the constable and the prisoner, and both are punishable, at common law, in the same degree.(/) The provisions of the revised statutes respecting escapes by means of the officer, are as follows: If any sheriff, jailer, marshal,coroner or constable shall, 1. Willfully and corruptly refuse to execute any lawful process directed to them, or any of them, requiring the apprehension or confinement of any person charged with a criminal offense ; or 2. Shall corruptly and willfully omit to exe- cute such process, by which such person shall éscape; or 3. Shall will- fully refuse to receive in any jail under his charge, any offender lawfully committed to such jail, and ordered to be confined therein, on any criminal charge or conviction, or on any lawful process whatever; or 4. Shall willfully suffer any offender, lawfully committed to his custody, to escape and go at large; or 5. Shall receive any gratuity or reward, or any security or engagement for the same, to procure, assist, connive at, or permit any prisoner in his custody on any civil process, or on any eriminal charge or conviction, to escape; whether such escape be at- tempted or effected or not; he shall, upon conviction, be punished by im- (6) 2B. S. 685, § 14. (g) 2 Chit. Burn. 5, 6. Crown Cir. (c) Dalt. c. 159. Crown Cir. Comp. Comp. 188. 188. (h) Dalt. 159. (d) 2 Hawk. c. 19, s. 5. (i) 2 Hawk. o. 19, s. 10. (e) Dalt. c. 159. (Ak) Id. ib. § 22. 1 Hale, 284. (f) 2 Hawk. ¢. 19, 3. 6. (@) Dalt. c. 159. 2 Hawk. P. ©. ch: 19, 3.22. 1 Hale, 294. OHAP, V.] OF FELONIES. 207 prisonment in a county jail not exceeding one year, or by fine not ex- ceeding $1000, or by both.(m) And every such officer who shall be convicted of any of the offenses above specified shall forfeit his office, and be forever disqualified to hold any office or place of trust, honor or profit, under the laws or constitution of this state.(7) 3d. Assisting prisoners to escape.| The aiding and assisting a prison- er to escape out of prison, by whatever means it may be effected, is an offense of a mischievous nature, and an obstruction to the course of jus- tice ; and the assisting a felon in making an actual escape, is felony at common law.(o) By the revised statutes it is provided that every person who shall con- vey into a state prison, jail, or other place of confinement, any disguise, instrument, arms, or other thing, proper or useful to aid any prisoner in his escape; with intent thereby to facilitate the escape of any prisoner lawfully committed to, or detained in such prison, jail, or place for any Jelony whatever, whether such escape be effected or attempted or not, shall, upon conviction, be punished by imprisonment in a state prison not exceeding ten years.(p) And the same punishment is prescribed for every person who shall, by any means whatever, aid and assist any person lawfully detained in a state prison, or in any jail, or place of confinement for any felony, to escape therefrom, whether such escape be effected or not.(q) Every person who, by any means whatever shall aid or assist any prisoner lawfully committed to any jail or place of confinement, in exe- cution of any conviction for a criminal offense other than a felony, whether such escape be effected or not; or who shall convey into such jail or place of confinement any disguise, é&c., proper or useful to facili- tate the escape of such prisoner, shall be punished by imprisonment in a county jail not more than one year, or by a fine not more than $500, or by both.(r) But if such aid and assistance prohibited by the two last sections be rendered by any prisoner detained for any crime in the same jail, &c. with the intent of facilitating his own escape, his punishment shall not exceed that prescribed on a conviction for his own escape.(s) Aiding and assisting any prisoner in escaping or in attempting to es- cape from the custody of any sheriff or other officer or person having the lawful charge of such prisoner, upon any criminal charge, is punisha- (m) 2 B.S. 684, § 18. (g) Id. ib. § 14. (n) Id. ib. § 19. (7) 2 B.S. 684, § 15. (0) 2 Leach, 671. (8) Id. ib. § 16. (p) 2B. 8. 688, § 18, 208 OF FELONIES. [Boox 1 ble by imprisonment in a county jail not exceeding one year, or by fine not exceeding $250, or by both.(¢) 4th. Rescue.] This is the offense of forcibly and knowingly freeing another from arrest or imprisonment.(w) It is of the same nature as the offense of prison breaking. Thus, whatever is such a prison that the prisoner himself would, by the common law, be guilty of felony in break- ing from it, a stranger would be guilty of as high a crime, at least, in rescuing him from it.(v) It is not material whether the person arrested for felony or suspicion of felony, be in the custody of a private person or of an officer. Yet, if he be in the custody of a private person, it seems the rescuer should be shown to have knowledge of the party being un- der arrest for felony.(w) The revised statutes provide that every person who shall forcibly res- cue any prisoner held in legal custody upon any criminal charge, shall, upon conviction, be punished by imprisonment in a state prison not ex- ceeding ten years.(x) (t) 2B. S. 684, $17. (w) 1 Hale, 606. (u) 1 Russ. on Cr. 882. (2) 2B. S, 684, § 14, (v) Id. ib, omar. v1] OF FELONIES. 209 CHAPTER VI. Offenses against the Public Peace and Public Morals, and other miscel- laneous Offenses, punishable by Imprisonment in a State Prison. 1, DUELLING, AND CHALLENGES TO FIGHT, 2. UNLAWFUL MARRIAGES, AND INCEST, 3. OFFENSES AGAINST PUBLIO DECENOY; MALICIOUS MISOHIEF; COMPOUNDING OF- FENSES; ORIME AGAINST NATURE. 1. DuELLinG, aND CHALLENGES To Fieur. Deliberate duelling is where both parties meet avowedly with intent to murder; and therefore the law has justly fixed the crime and punish- ment of murder, in case death ensues, upon those who engage in it, and upon their seconds.(a) And it is a very high offense, at common law, to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endeavor to provoke another to send a challenge, or to fight, as by dispersing letters to that purpose full of reflections, and insinuating a desire to fight, &c.;(b) or by posting a man as a coward, &c., or using opprobrious expressions calculated to produce a breach of the peace.(c) The offense of duelling consists in the invitation to fight; and the misdemeanor is complete by the delivery of the challenge.(d) The provisions of the revised statutes on this subject are as follows: Every person who shall fight a duel with any deadly weapon, al- though no death ensue, shall, upon conviction, be punished by imprison. ment in a state prison for a term not exceeding ten years. Every person who shall challenge another to fight such duel, or who shall send or deliver any written or verbal message purporting or intend - ed to be such challenge; or who shall accept any such challenge or message ; or who shall knowingly carry or deliver any such challenge’ or message; or who shall be present at the time of fighting any duel with deadly weapons, either as second, aid or surgeon; or who shall ad- vise or give any countenance or assistance to such duel; shall upon con- viction, be punished by imprisonment in a state prison for a term not ex- ceeding seven years. Every person offending against either of the above provisions shall be (a) 4 Black. Com. 199. (c) Crown Cir. Comp. 115. (0) 2 Hawk, 19. or (d) State v. Taylor, Const. Court R. 107. 210 OF FELONIES. [Boox 1. a competent witness against any other person offending in the same transaction, and may be compelled to appear and give evidence before any grand jury of iv any court, in the same manner as other persons; but such testimony shall not be used against the witness himself. Every person convicted of fighting a duel with any deadly weapon, shall be incapable of holding or of being elected or appointed to any office, place, or post of trust or emolument, civil or military, under the constitu- tion and laws of this state. If any inhabitant of this state shall leave the same, for the purpose of eluding the operation of the provisions of the statute, with the intent of giving or receiving any challenge therein prohibited, or of aiding or abet- ting in such intent, and shall give or receive any such challenge, or shall aid and abet. in giving and receiving the same, without this slate, he shall be deemed as guilty and shall be subject to the like punishment as if the offense had been committed within this state. Every such offender last above mentioned may be indicted and brought to trial in any county of this state, which shall be designated by the governor for that purpose, and where in his opinion, the evidence can be most conveniently obtained and produced. Every such offender may plead a former conviction or acquittal for the same offense in another state or country; and if such plea be admit- ted or established it is to be a bar to any further or other proceedings against such person for the same offense.(e) And in another part of the revised statutes the wounding another in a duel out of the state, by an inhabitant or resident of this state, of which wound the person injured shall die within this state, is declared murder within this state, in the principal and seconds; who may be indicted, tried, and convicted in the county where the death shall happen. f) But any person indicted under the above section may plead a formes conviction or acquittal for the same offense in another state or country.(g) No particular form of words is necessary to constitute a challenge. Parol testimony is admissible to explain it.(A4} Whether the words use& amount to a serious challenge to fight, or were a mere effusion of pas- sion, is a question for the jury.(i) Expressing a readiness to accept a challenge does not constitute one.(/) A challenge to fight a duel out of the state is indictable; for its ten dency is to produce a breach of the peace.(/) Indictment. An indictment for sending a challenge, in the form of a letter, to tight a duel, need not set out the words of the letter, nor the (¢) 2K. 8. 686, art. 1. tit. 5. ()_ 2 Nott & McCord, 181. 3 Wheel: (f) Id. GBT, § 6. er’s Or. C. 245. 8 Rogers’ Rec, 133. (g) Id. ib. § 7. (k) 1 Dana’s Rep. 524. ; (4) 6 J. J. Marsh. 120, (2) 1 Hawk’s Rep, 487. omar. vi] OF FELONIES. 211 substance thereof.m) An indictment for challenging to fight a duel, containing a a copy of the challenge, which appears to be merely a de- mand of satisfaction, and averring that it was intended and understood as a challenge to fight with deadly weapons, is sufficient if supported by oral evidence of such meaning.(7) Evidence.| The note sent by one party to the other, and parol testi- mony in explanation, are admissible in evidence, and the jury are to. decide whether there has been a challenge, within the meaning of the statute.(o) ~ It bas been decided in South Carolina, that the declarations of the second in a duel are admissible evidence against the principal.(p) 2. Untawrut Marriaces or Bicamy, AND Incest. Unlawful marriages or bigamy.] The offense of bigamy, or as it might more properly be termed, polygamy, consists in having a plurality of wives or husbands at the same time.(q) Our statute on this subject is as follows: Every person having a hus- band or wife living, who shall marry any other person, whether married or single, shall, except in the following cases, be adjudged guilty of biga- my, and liable to be punished by imprisonment in a state prison for a term not exceeding five years. These provisions do not extend to the following cases: 1st. To any person by reason of any former marriage, whose husband or wife, by such marriage, shall have been absent for five successive years, without being known to such person, within that time, to be living: nor 2d. To any person by reason of any former marriage, whose husband or wife by such marriage shall have absented himself or herself from his wife or her husband, and shali have been continually remaining without the United States, for the space of five years together; nor 3d. T’o any person by reason of any former marriage which shall have been dissolved by the decree of a competent court for some cause other than the adultery of such person; nor Ath. To any person by reason of any former marriage which shall have been pronounced void by the sentence or decree of a competent court, on the ground of the nullity of the marriage contract ; nor 5th. To any person by reason of any former marriage contracted by such person within the age of legal consent, and which shall have been annulled by the decree of a competent court; nor 6th. To any person by reason of any former marriage who shall have been sentenced to imprisonment for life. (m) Brown v. Commonwealth, 2 Virg. —_ (p) State v. Dupont, 2 McCord, 3844. ‘Cas. 516. (7) 4 Black. Com. 168. 1 Bac. Abr. (n) Commonwealth v. Pope, 8Dana,418. 525, note, (0) Comm. v. Hart, 6 J. J. Marsh. 119. 212 OF FELONIES. [Boox 1. An indictment may be found against any person for a second, third, or other marriage prohibited by the statute, in the county in which such person shall be apprehended, and the like proceedings, trial, judgment and conviction may be had in such county, as if the offense had been committed therein. If any unmarried person shall, knowingly, marry the husband or wife of another, in any case in which such husband or wife would be punish- able according to the provisions of the statute, such person, on conviction, shall be imprisoned in a state prison not more than five years, or in @ county jail not more than one year, or shall be fined not more than $500, or shall be subject to both such fine and imprisonment.(r) Though the penal consequences of a second marriage do not apply in these excepted cases, yet unless the first marriage shall have been an- nulled or dissolved for some cause other than the adultery of the party, or the former husband or wife shall have been sentenced to imprisonment for life, such’ second marriages are absolutely void, in all cases except where the former husband or wife shall have been absent for five years, at the time of the second marriage. In these cases, the second marriage is void only from the time that its nullity shall be pronounced.(s} After a divorce on the ground of adultery, the complainant may marry again; but the defendant, or guilty party, can not marry again, during the life of the complainant.(¢) It has been decided that after the dissolution of a marriage, for adul- tery, the marriage contract is at an end, and the relation of husband and wife no longer exists between the parties ; and if the guilty party marries again, he is not within the penalty of the act against bigamy. But the second marriage being absolutely prohibited by the 47th section of the act concerning divorce, is punishable as a misdemeanor, under the 45th section of the title of the revised statutes relative to misdemeanors.(z) As to the manner of solemnizing marriages in this state, see 2 R. S. 138. If the first or second marriage was celebrated in this state, the offense of bigamy is not committed unless it is a valid marriage within the provis- ions of the statute, or of the law previously existing. It is to be noticed, however, that the statute excepts Jews and Quakers from its provisions relative to the form and proof of marriages.(v) It isa general rule that a marriage valid where contracted is valid every where ;(w) even though the parties went into another state for the purpose of evading the laws of their own state.(z) In those states where (r) 2B. S. 687. (v) 2B. 8.141, § 19. (s) Id. 74, §§ 4, 5. 4 John. 42, 1 (w) 8 Phillim. Ecc. R. 58. John. Ch. R. 389. (%) 16 Mass. R. 157. 1 Pick. 506, 189. (t) 2 BR. 8. 146, § 47. . 8 id. 433. Story’s Confl. of L. 100. Ros- (u) The People v. Hovey. 5 Barb. 8. coe’s Or. Ev, 237. ©, Rep. 117. OBAP. V1] OF FELONIES. 213 there are no statutes regulating marriage contracts, consent alone to a contract of marriage, in the present tense, or a contract entered into by words concerning the future, followed by consummation, makes a valid mautriage.(y) If the first or second marriage took place abroad, circumstances should be proved sufficient to enable the jury to presume that the manner of celebration was valid according to the law of the place.(z) If the first marriage is void, an indictment for bigamy can not be sus- tained. Thus if a woman marry A., and in the life time of A. marry B., and after the death of A. and while B. is alive, marry C., she can not be indicted for bigamy in her marriage with C., because her marriage with B. was a mere nullity.(az) So in cases where the first marriage is de- clared by the statute to be void, as being incestuous.(b) ‘To constitute the offense of bigamy it is sufficient that the second marriage be a mar- riage de facto ; and an objection to the validity of the marriage, applies only to the first marriage.(c) Indictment.| The provisions of the statute, as to the venwe, in in- dictments for bigamy, have been given. The indictment must state both marriages, and that the former consort was alive at the time of the second matriage.(d) 'To this statement no venue need be inserted.(e) But it is not necessary that the first wife should be alive at the time the indict- ment is found.(f) It is sufficient to aver the life of the first wife, without going on to alledge that the marriage is still subsisting.(¢) If the pris- oner write down the names for publication of the banns, he will be pre- cluded thereby from saying that the woman was not known by the name he delivered in, and that she is not rightly described by that name in the indictment.(h) Evidence.| The prosecutor must prove, 1. The prisoner’s first mar- riage; 2. His second marriage; 3. That his first wife was alive at the time of the second marriage.(i) The mere presumption as to continu- ance of life is not sufficient evidence of the existence of the first consort, without some positive proof of the fact; although five years have not expired.(k) A marriage in fact is sufficient evidence of the first marriage, whether celebrated here or abroad, according to the laws of that coun- try ;(Z) although it be voidable, provided it be not absolutely void.(z) (y) 4 John. 22. 2 Haggard, 54, 81. (f) Russ. & Ry. C. C. 109. 1 Russ. 7 Mass. R. 48. 1 Day, 111. 2N.Hamp. 200. Rep. 268. (g) Murray v. The Queen. 14 Law J. (2) 8 Stark. 178. N.S. 857. 9 Jur. 596. (a) Roscoe’s Cr. Ev. 228. (A) Russ. & Ry. CO. C. 288. (6) See 2 BR. 8. 74, § 2. (7) Roscoe’s Cr. Ev. 228. (c) 5 Oar. & P. 412. Russ. & Ry.C. (4) 2 Barn. & Ald. 386. C. 109. 3 (1) 1 East’s P. 0. 465, 469. (@ 1 East's P. C. 469. (m) 3 Inst. 88. Stark. on Ev. part IV. (e) Stark, 62. 38 Chit. Cr. L, 718, 1185. note (d). 214 OF FELONIES. [Boox 1. The first wife can nol be admitted as a witness against her husband, or vice versa ; for by the very scope of the prosecution the first marriage was valid.(n) But the second wife may be a witness, after the first mar- riage has been established, for no legal relationship exists between them(o) On an indictment for bigamy, an actual marriage must be proved. Reputation, and cohabitation are not sufficient evidence.(p) Neither will the confession of the party suffice. Some party present at the marriage must be called, or the original register, or an examined copy of it be pro- duced.(g) By the revised statutes, the original marriage certificate, the original entry thereof made as therein directed,or a copy euch cettificate or entry ‘duly certified, are to be received in all courts and places as pre- sumptive evidence of the marriage.(r) The usual evidence is a copy of the register, with proof of the identity of the parties. But the marriage. may be proved by a person who was present at the ceremony and can speak to the identity of the parties.(s) Incest.| By the revised statutes, marriages between parents and chil- dren, including grand parents and grand children of every degree, ascend- ing and descending, and between brothers and sisters of the half as well as of the whole blood, are declared to be incestuous and absolutely void. And this extends to illegitimate as well as legitimate children and rela- tives.(2) Persons within the above mentioned degrees of consanguinity who shall intermarry with each other, or who shall commit adultery or forni- cation with each other, may, upon conviction, be punished by imprison- ment in a state prison for a term not exceeding ten years.(z) 3. OFFENSES AGAINST Pusnic Decency; Mauicrous Miscuier; ComPouNDING OR ConcEALING OFFENSES; CRIME AGAINST Nature. Offenses against public decency.] The offense of violating the sepul- chres of the dead is severely punished by statutes enacted for that pur- pose in most of the states, and indeed in nearly every civilized country. And in those states where there is no statute provision, this offense is pun- ishable at common law.(v) Taking up dead bodies, though for the pur- poses of dissection, is a misdemeanor indictable at common law.(w) And it is an indictable offense against decency to take a person’s dead body with intent to sell and dispose of it for gain and profit.(z) To sell the (n) Sir T. Raym. 1. (r) 1 Buss. on Or. 206. (0) 1 Hale’s P. O. 698. Bull. N. P. (s) 2 R. 8. 141, § 17. 287. (t) Roscoe’s Or. Ev. 229. (p) Fenton v. Reed. 4John. 52, Cay- — (u) 2 B.S. 189, § 2. ford’s case, 7 Green]. 58. 1 Phillim. Rep. (v) Id. 688, § 12. 288. Arch. Cr. Pl. 477. (w) See 2 Chit. Cr. L. 85, note A. (q) The People v. Humphrey. 7John. (@) Crown Cir. Comp. 178. 314, omaP. vI.] OF FELONIES. 215 dead body of a capital convict for dissection, where dissection is no part of the sentence, is a misdemeanor at common law.(y) If the grave clothes or coffin be stolen, an indictment for felony is sustainable, laying the property in the legal representatives of the deceased.(a) To cast a dead body into a river, without the rites of christian sepulture, is also in- dictable.(6) Soofa conspiracy to prevent its interment ;(c) or by threats and menaces to hinder a clerk from reading the order for the burial of the dead, and interring a corpse.(d) It is also a misdemeanor to arrest a dead body on a civil process for debt, and thereby prevent a burial in due time.(e) The provisions of the revised statutes on this subject are as follows : Every person who shall remove the dead body of any human being from the grave or other place of interment, for the purpose of selling the same, or for the purpose of dissection, or from mere wantonness, shall, upon conviction, be punished by imprisonment in a state prison not more than five years, or in a county jail not more than one year, or by a fine not exceefling $500, or by both such fine and imprisonment. Every per- son purchasing or receiving such dead body, knowing it to have been un- lawfully disinterred, is subject to the same punishment as the person removing it. Every person who shall open a grave or other place of interment, with intent, 1. To remove the dead body of any human being, for the purpose of selling the same, or for the purpose of dissection ; or 2. 'To steal the coffin or any part thereof, or the vestments or other articles interred with any dead body, may be imprisoned in a state prison not exceeding two years, or in a county jail not more than six months, or fined not more than $250, or receive both such fine and imprisonment.( /) Malicious mischief.| Under this head we shall only notice the offense of poisoning cattle, &c. We shall hereafter, under the head of misde- meanors, have occasion to speak of other kinds of malicious mischief, such as cruelty to animals, destroying trees, &c. The statute provides that every person who shall willfully administer any poison to any horse, cattle or sheep, or shall maliciously expose any poisonous substance, with intent that the same should be taken or swal- lowed by any horse, cattle or sheep, shall, upon conviction, be punished by imprisonment in a state prison not exceeding three years, or in a county jail not more than one year, or by a fine not exceeding $250, or by both such fine and imprisonment.(g) (y) Td, tb, Russ, & Ry. OC, C. 366, (d) 7 Dow. & R. 461. (2) Crown Cir. Comp, 174. (e) 2 Chit. Cr. L. 85, note B. 1 Russ, (a) 2 East’s P. ©. 652, 1 Hale, 575. on Or. 416, note A. (6) 1 Greenl. RB. 226, (f) 2 B.S. 688. (c) 2T. B, 788. (g) 2 id. 689, § 16. 216 OF FELONIES, [Boox 1. Compounding or concealing felonies.| The offense of compounding a felony is defined by the ancient writers, to be where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to proseeute.(h) Previous to the revised statutes this offense was punishable only as a misdemeanor, unless accompanied with some degree of maintenance given to the felon, which made the par- ty an accessary after the fact. By the revised statutes the offenceis raised to the degree of felony. The merely taking one’s goods again is no offense, unless favor be shown to the thief.(i) Of a similar nature to this offense of compounding a felony, is that of misprision of felony ; by which is understood the concealment of felony, or a procuring such concealment, whether it be felony by the common law or by statute.(k) Thus, silently to observe the commission of a fel- ony, without using any endeavor to apprehend the offender, is mispris- ion ;(2) for a man is bound to discover the crime of another to a magis- trate, with all possible expedition.(m) But there must be knowledge merely, without any assent; for ifa man assent to a felony he will be either principal or accessary.(7) In general, it may be observed that any contract or security made in consideration of dropping a criminal prosecution, suppressing evidence, soliciting a pardon, or compounding any public offense, without leave of the court, is invalid.(o) Our statute has the following provisions respecting these offenses : Every person having a knowledge of the actual commission of any of- fense punishable by death, or by imprisonment in a state prison for life, who shall take any money, or property of another, or any gratuity or re- ward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound or conceal any such crime, or to abstain from the prosecution therefor, or to withhold any evidence thereof, shall, upon conviction, be punished by imprisonment in a state prison not exceeding five years, or in a county jail not exceeding one year.(p) And concealing or compounding felonies punishable by imprisonment in a state prison for any other term than for life, may be punished by imprisonment in a state prison not exceeding three years, or in a county jail not exceeding six months.(q) Upon the trial of any indictment for any offense above specified, it is not necessary to prove the conviction of any offender for the offense in (4) 1 Hawk. ch.59,§5. 4Black.Com. (m) 8 Inst. 140. 183. (n) 4 Black. Com. 121. (4) Crown Cir. Comp. 137, (0) 1 Chit. Cr. L, 4. (4) 1 Hawk, ch. 59,§2. 1 Russ.on (p) 2R.S. 689, $17. Cr. 185. : (g) Id. ib. § 18. (2) 1 Hale, 874. 1 Russ. on Or. 185. OHAP, v1] OF FELONIES. 217 relation to which any agreement or understanding above prohibited shall have been m&de.(r) - And upon an indictment for compounding a felony and agreeing to withhold evidence, the defendant can not plead or prove the acquittal of the person charged with the felony, in bar of his own conviction.(s) Concealing and compounding misdemeanors will be noticed in an- other place. Crime against nature.| The offense against nature, or as it is some- times termed, sodomy or buggery, consists in a carnal knowledge com- mitted against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with a beast.(2) With respect to the carnal knowledge necessary to constitute this of- fense, as it is the same that is required in the case of rape, it will be suf- ficient to refer to that part of this work relating to that offense.(2) By the revised statutes, every person who shall be convicted of the detestable and abominable crime against nature, committed with man- kind or with a beast, shall be punished by imprisonment in a state prison for a term not more than ten years.(v) To constitute this offense, the act must be in that part where sodomy is usually committed. The act in a child’s mouth does not make the ‘offense.(w) Those who are present aiding and abetting in this offense are all principals; but if the party on whom the offense is committed be within the age of discretion, viz. under fourteen, it is not felony in him, but only in the agent.(7) When strictly and impartially proved, this crime well merits strict and impartial punishment. But it is, from its nature, so easily charged, and the negative so difficult to be proved, that the accusation ought clearly to be made out. The evidence should be plain and satisfactory, in pro- portion as the crime is detestable.(y) In cases where it is not probable that all the circumstances necessary to constitute this crime will be proved, it may be advisable only to pre- fer an indictment for an assault, with intent to commit an unnatural crime. And it should be observed, that the mere soliciting another to the commission of this crime has been treated as an indictable offense.(z) Evvidence.| The evidence in this case is the same as in that of rape ; (see ante, p. 74;) excepting that it is not necessary to prove that it was (7) 2B. S. 689, § 19. (x) Id. ib. 1 Hale, 670. 8 Inst, 59, (s) 18 Wend. 592. (y) 4 Black. Com. 215. 1 Russ. on Or. (¢) 1 Russ, on Cr. 698. 563, 568. (u) Ante, p. 71. @) 1 Russ. on Cr. 568. 2 Chit, Or. L, (v) 2B. S. 689, § 20. 50, (w) 1 Russ, on Qr, 567, 28 218 OF FELONIES. [Book 1. committed against the consent of the person on whom it was perpetra- ted; and both agent and patient, if consenting, are equally guilty.(a) An admission by the prisoner that he had committed such an offense at another time and with another person, and that he had a tendency to- wards such practices, ought not to be received in evidence, on an indict- ment for this offense.(b) (a) 8 Inst. 59, 1 Hale, 670. (6) Matt. Dig. 61. ° BOOK IL. Of Mistemennors. CHAPTER IL Misdemeanors at Common Law. As we have before remarked, a misdemeanor is any crime less than a felony ; and the terms “ misdemeanor” and “felony” are generally used in contradistinction to each other. If the offense is not punishable by imprisonment in a state prison, or by death, it is a misdemeanor.(a) Misdemeanors, as well as felonies, are of two kinds: 1. At common law ; 2. By statute. For although a great variety of offenses, amounting to misdemeanors, are enumerated in the revised statutes, yet it was not the intention of the revisers to mention particularly every offense of this grade. Besides those especially provided for in the statute, there are a great many offenses of a public nature, which do not depend upon, and which are not defined by, any statute, but which are nevertheless misdemeanors, and panisha- ble at common law. In these instances, where the statute book is entirely silent, it is fre- quently a point of great embarrassment, to determine whether the accu- sation amounts to a crime or not. Wherever a question on this subject arises, if, after all the lights which the justice can gather from works on criminal law and from experienced counsel, he still entertains serious and well grounded doubts as to the offense being indictable, it would be the safer course for him to discharge the complaint. In considering the subject of misdemeanors, we propose, in this Chap- ter, to submit some general remarks and illustrations relative to misde- meanors at common law, as calculated to afford some aid in this branch (a) Ante, p. 20. 4 Black. Com. 5, n. (5). 220 OF MISDEMEANORS, [Book n. of a justice’s duty. And, in carrying out this plan, we intend, without going into unnecessary detail, merely to lay down a few general rules on the subject, in order to enable the justice to decide whether the offense charged, in any case brought before him, is a misdemeanor or not. In the next chapter, we shall notice misdemeanors by statute. Whatever amounts to a public wrong is said to be indictable ;(b) and if it is not a felony, may be punished as a misdemeanor at common law, unless otherwise provided by statute. 'T‘hus, misprisons and all other - contempts, all disturbances of the peace, oppressions, misbehaviour by pub- lic officers, and all other misdemeanors of public evil example against the common law may be indicted.(c) But an injury of a mere private nature, committed upon an individual, can not be made the subject of a criminal prosecution ; unless it in some way concerns the public, or is accompanied by circumstances which either amount to, or tend directly towards producing a breach of the peace.(d) Acts injurious to private persons, however, committed through a spirit of wanton cruelty or revenge, which tend to excite violent resentments and thus produce a disturbance of the peace, are misdemeanors, and punishable at common law.(e) Offenses of this class are usually arranged in the books upon criminal law under the head of malicious injury or mischief. Blackstone defines malicious mischief to be an act “done not animo furandi, or with an intent of gaining by another's loss; which is some, though a weak excuse; but either out of a spirit of wanton and deliberate cruelty or black and diabolical revenge.”(f') The offense is distinguishable from an ordinary trespass or private injury, in this that it is not only a violation of private right without color or pretense, but without the hope or expectation of gain. It discovers, moreover, a de- gree of moral turpitude dangerous to society, and is an evil example ofa most pernicious tendency, inciting also to a breach of the peace.(g) Unlawfully and secretly entering the dwelling of another in the night time, and there making a great noise and disturbance, so as to frighten the wife of the owner of the house, and cause her to miscarry, has been held a malicious mischief within the above doctrine.(A) Also breaking in pieces a cutter, the property of another ;(z) or discharging a gun at wild fowl, with knowledge and warning that the report will affect injuri- . ously the health of a sick person near by, and such effect is produced.(k) So, injuring a tree belonging to the public, if useful for public convenience or ornament, has been held a public offense and punishable as a misde- () 1 Dallas, 388. 2 P. A. Browne’s (gy) Per Curiam. Woodworth, J. 5 Rep. 251. Cowen, 259. : (c) 1 Russ. on Cr. 48. (A) 5 Binn. 281, d) Id. 44, Arch. Cr, Pl. 3. (4) 19 Wend. 419. (e) 5 Cowen, 58, 9. 5 Binn. 281. (k) 9 Pick. 1. See 11 Mass. R. 139, (J) 4 Black. Com. 243. ° OHAP. I.] OF MISDEMEANORS. 221 meanor.(/) Maiming cattle appears in England not to have been held indictable, at common law.(m) But the rule seems to be otherwise ih this country. Thus, it has been decided that to willfully kill a domestic animal, as a horse or cow, the property of another ;(7) or to confine colts, and from motives of wicked and malicious mischief, fix a sharp instru- ment at the place of their escape, and then, with intent to wound, maim, and destroy them, to force them over such instrument whereby they are wounded,(o) are misdemeanors at common law. So, outrageous cruelty to adumb beast, shocking to the feelings of humanity, is a misdemeanor, - even though the offender be the owner of the animal.(p) Maiming and cruelty to animals are expressly declared to be misdemeanors, however, by statute.(q) And upon the same principle of malicious mischief, poison- ing a dog, poisoning chickens, and several other kindred offenses have been held misdemeanors in Pennsylvania, independent of any statute.(r) Poisoning a cow also, in Massachusetts ;(s) and horses or cattle, in Eng- land.(¢) But the revised statutes make this offense a felony.(z) The cases in which indictments have been sustained for maliciously killing or wounding domestic animals, depend upon features peculiar to such offenses; as, the depravity of mind, and the cruelty of disposition, which such acts evince.(v) And it seems to be an established principle that whatever openly out- rages decency and is injurious to public morals is a misdemeanor at common law.(w) As indecent exposures of one’s person to public _ view ;(z) keeping a bawdy house ;(y) or Jetting a house with intent that it be used as such ;(z) publishing an obscene print or book, or getting up an indecent exhibition.(a) And as to the latter offense it has been held in Pennsylvania that the exhibition need not be charged to have been madein public. If it is averred that it was made to sundry persons, for money, it is sufficient.(6) On the trial of an indictment for a misde- meanor, in exposing the bodies of the defendants, naked and uncovered, to the public view, the inten¢ with which the act was done is a material ingredient in the offense, and is a question of fact, for the consideration 1) 2 P. A. Browne’s Rep. 251. See (u) 2R.S. 689, § 16. also 19 Wend. 420. (x) Kilpatrick v. The People, 5 Denio, (m) Roscoe's Cr. Ev. 286. 2 East’s P. 2/77. ©. 1074. But see 19 Wend. 420. (w) 1 Russ. on Cr. 48, 4. (n) 1 Tenn. Rep. 305. 5 Cowen, 258. (x) 1 Sid. 168, 1 Keb. 620. 2 Camp. 1 Dall. 335 89. 5 Barb. 208. (0) 1 akin, 226. (y) 1 Russ. on Cr. 299. (p) 1 Whee. Or. Ree, 111. 8 City Hall (2) 3 Pick. 26. 4 Denio, 129. Ree. 191. (a) 2 Black. Com. 65, nh. 2 Ser. & g) 2B. S. 69, § 26. Rawl. 91. 17 Mass. R. 336. 3 Day’s R. (r) 1 Dall, 835, 338, 108. (s) 1 Mass. R. 59. (6) 2 Serg. & Rawle, 91. () 8 Carr. & Payne, 364, and note. Roscoe’s Cr. Ev. 287. 299 OF MISDEMEANORS, [Boox u. of the jury, under all the circumstances of the case. It is for the jury to find whether there has been an intentional, wanton and indecent expo- sure of the persons of the defendants, at such a time and place, and in such a manner, as to offend against public decency.(c) Letting a house with intent that it be used a sa bawdy house, is a mis- demeanor upon the principle that all those who aid or abet the commis- sion of a misdemeanor are principal offenders, The indictment should charge the defendant as the keeper of a common bawdy house, in the ordinary form ; and the lessee who lives in and conducts the house may be joined with ‘the lessor, in the indictment.(d) Casting a dead body into a river without the rites of christian sepulture is also a misdemeanor at common law.(e) So, arresting a dead body and thereby preventing a burial in due time ;(/) publicly selling and buying a wife,(g) and digging up dead bodies or selling them,(h) are misdemean- ors at common law, But by statute the latter species of offense is now a felony.(i) Adultery is not an indictable offense at common law; nor can an indictment be maintained for living in adultery, by charging it as an offense against public decency;(X) unless the act is committed in public, or there is a conspiracy.(l) All offenses against the public peace, not amounting to felony, are misdemeanors at common law; as unlawful assemblies, riots, routs, affrays, assaults and batteries, &c.(m) We shall proceed to define these offenses in this place. 1. UNLAwFuUL ASSEMBLIES. If three or more persons assemble together, with an intent mutually to assist each other against any one who shall oppose them in the exe- cution of some enterprise of a private nature, with force or violence against the peace, or to the manifest terror of the people, whether the act intended were of itself lawful or unlawful, and though they afterwards depart of their own accord without doing any thing, it is an unlawful assembly.(n) In Rex v. Birt,(o) an unlawful assembly was described as a disturbance of the peace by persons barely assembling together, with an intention to do a thing which, if it were executed, would make them rioters, but neither actually executing it, nor making a motion towards (c) Miller -v. The People, 5 Barb, 208. (4) 2 B.S. 688. (d) The people vy. Erwin & Clark, 4 = (&) 2 Baily, 159. Denio, 129. (2) 5 Rand. 627. (e) 1 Greenl, 226. (m) 4 Black. Com. 141. 1 Nun & (f) 4 Black. Com. 65, n. 4 East's Walsh, 124. Rep. 465. (n) 1 Hawk. P. ©. oh. 65, $1. (g) 3 Burr, 1488. (0) 5 Car. & P, 154, (h) 4 Black. Com. 65,n. 2T. R. 733. OHAP, I.] OF MISDEMEANORS. 223 itsexecution. Sergeant Hawkins, after thus defining the offense accord- ing to what he callsthe common opinion, says that this seems by much too narrow a definition ; for any meeting whatsoever of great numbers of people, with such circumstances of terror as can not but endanger the public peace, and raise fears and jealousies among the people, seems prop- erly to be called an unlawful assembly.(p) ‘This more comprehensive description of the offense has been very generally adopted ; and it seems now settled law that any meeting under such circumstances as, accord- ing to the opinion of rational and judicious men, are likely to produce danger to the tranquillity and peace of the neighborhood, is an unlawful assembly.(g) And all persons who join an assembly of this kind, disre- garding its probable effect, and the alarm and consternation which are likely to ensue, and all who give countenance and support to it, are criminal parties.(r) An assembly of a man’s friends for the defense of his person against those who threaten to beat him if he go to such a market, &c., is unlawful; for he who is in fear of such insults must provide for his safety by demanding the surety of the peace, and not make use of such violent methods, which can not but be attended with the danger of raising tumults and disorders, to the disturbance of the public peace.(s) But an assembly of a man’s friends in his own house, for defending the possession of it against such asgthreaten to make an unlawful entry, or for the defense of his person against such as threaten to-beat him in his house, is indulged by law; for a man’s house is looked upon as his cas- tle.(¢) He is not, however, to arm himself and assemble his friends, in defence of his close.() Anu assembly of persons to witness a prize fight is an unlawful assem- bly, and every one present and countenancing the fight is guilty of an offense.(v) Where sixteen persons, with their faces blackened, met at a house at night, intending to go out for the purpose of night poaching, Holroyd, J. held that it was impossible that such a meeting could be other than an unlawful assembly.(w) 2. Riots. A riot is a tumultuous disturbance of the peace by three or more per- sons assembling together of their own authority, with an intent mutual- ly to assist one another against any who shall oppose them in the execu- tion of some enterprise of a private nature, and afterwards executing (p) 1 Hawk, ch. 65, s. 9. (8) Ibid. (g) 1 Nun & Walsh, 125. Queen v. (é) Ibid. 1 Hawk. P.O. ch..65, s. 9, 10. Vincent, 9 Car. &P.109. 8 Stark. N. P. (u) Id. 274. Cas. 106. Rex v. Hunt, 3B. & Ald.567, — (v) 2 Car. & P. 234. 4 Id. 587. 1 576. Russ. on Cr. 274. (r) 1 Russ. on Or. 273. 8 Stark. N.P. — (w) Rex v. Brodribb, 6 Oar. & P. 571. Cas. 76, 994 OF MISDEMEANORS. [poox 11. the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.(z) An emi- nent judge has said, “ T take it that it is not necessary to say the patties assembled for such a purpose; but there must be an unlawful assembly. If a number of men assemble with arms to the terror of the people, though no act is done, it is a riot.”(y) In accordance with this more enlarged description of the offense, it has been held that if persons endeavor to effect an object by tumult and disorder, they are guilty of a riot, and that it is not necessary, in order to constitute this offense, that actual violence shall have been committed.(z) Such also is the mean- ing of the word, in the Riot Acts.(a) But whether, ia order to constitute the offense of riot, there must, ac- cording to some opivions, be an actual execution of the purpose for which the parties assemble, or some act of violence done, or whether, according to others, an endeavor to effect their purpose be sufficient, it seems clear that in every riot there must be some such circumstances either of actual force or violence, or of an apparent tendency thereto, as are naturally apt to strike a terror into the people, as the show of arms, threatening speeches, or turbulent gestures; for every such offense must be laid to the terror of the people, and the degree of terror must be such as would alarm persons of reasonable firmness and courage, and not merely sufficient to frighten a foolish or timid person.(6) It appears that the guilt or innocence of persons accused of being con- cerned in a riot does not depend upon the legality or illegality of the object for which they assembled. Thus persons may assemble for the purpose of executing, and even execute, an unlawful act without becoming rioters; as if it be to carry away something to which one of them pre- tends a right, and the number assembled is no greater than is necessary to bear it conveniently, and there be no threats or violence, so though the object be legal, as if it be to obtain entry into lands to which one of the parties has a rightful claim, or to remove a nuisance, or other thing which may be lawfully done in a peaceable manner, yet if the parties proceed by violence and trmult to effect their purpose, they are, in point of law, as much rioters as if the act intended to be done by them were ever so unlawful, and they may, therefore, be arrested as such ; for the law will not suffer persons to seek redress of their private grievances by force, or by such dangerous disturbances of the public peace; although the intention with which the parties have acted may be considered as some mitigation of the offense.(c) " @) 1 Hawk. P.C. ch. 65, s. 1. (8) 1 Nun & Walsh, 126. Queen v. (y) By Holt. Oh. J. in Rex v. Soley,11 Vincent, 9 Car. & P. 109. Mod: 116, 127, (c) Ibid. 1 Hawk, oh. 65, § 7 5 Car, (@) By Manafield, Ch. J. 2 Camp. 349. & P.164, 2 Ce (a) 5 Car. & P. 616. , 164, 2 Burp. $34, owAp, f] OF MISDEMEANORS. 225 If any person encourages, promotes, or takes part in riots, whether by words, signs or gestures, or by wearing the badges or ensigns of the riot- ers, he is considered a rioter; for in this case all are principals. It is not necessary, to constitute the crime, that personal violence be com- mitted.(d) Being armed, using threatening speeches, turbulent gestures, or the like, suffices for this.(e) Yet where the object of the assembly is lawful, it generally requires stronger evidence of the terror of the means used, to induce a jury to find the defendants guilty, than if the object were unlawful; and it has even been holden that if a number of persons assemble for the purpose of abating a public nuisance, and appear with spades and other tools for that purpose and abate it accordingly, without doing more, it is no riot;(f) unless threatening language or other fmis- behavior, in apparent disturbance of the peace, be at the same time used.(g) If persons meet on any lawful occasion, and on a dispute arising they form themselves into parties, with promises of mutual assistance, and then fight, it is a riot ; for the design to break the peace isas premeditated as if they had originally met for that purpose.(2) To a riot there must be three or more persons. Therefore if the jury acquit all but two, and find them guilty, the verdict is void, unless they are indicted together with other rioters unknown.(i) But where six per- sons were indicted for a riot, of whom two died before trial, two were acquitted and two convicted, on the objection that the two convicted were not indicted together with other persons unknown, Lord Mansfield said, “two are found guilty of a riof; consequently it must have been with one or both of those who have not been tried, or it could not have been a riot.”(k) Lastly, it has been stated, in the definition of a riot, that the injury or grievance complained of, or intended to be redressed or revenged, where it relates to some private matter only, properly constitutes this offense. By which it is not meant that when the disturbance arises from some public cause it is not criminal in an equal degree, and may not be re- pressed by the same means, as in case of riot strictly so called, but that, in the latter case, as where the object professes to be to redress public grievances, or to reform religion, or such like, the offense assumgs the deeper guilt of rebellion or treason.(2) 3. Routs. A rout is a disturbance of the peace by persons assembling together with an intention to do a thing which, if it be executed, will make them (d) 2 Camp. 370. (h) 1 Hawk. P. O. ch. 65, § 8. (e) 1 Hawk. ch. 66, § 5. (4) 2 id. ch. 47, § 8. (f) Dalt. ch. 137. (k) 8 Burr. 1262. (g) Ibid. () 1 Nun & Waleb, 127. 29 226 OF MISDEMEANORS. [Boox m1. rioters, and actually making a motjpn towards the execution of their purpose. In fact, it generally agrees in all particulars with a riot, except only in this, that it may be a complete offense without the execution of the intended enterprise.(m) 4. Arrrays. An affray, in the ordinary signification of the term, may be described as the fighting of two or more persons, in some public place, to the terror of the people ;(72) or, as it has been defined by high authority, it is a pub- lic offense, to the terror of the people, because it affrights and makes men afraid.(o) Therefore, although the commission of actual violence, or fighting, is generally considered an ingredient in this offense, yet it is held that there may, in some cases, bean affray where there is no actual violence, or fighting, as where persons arm themselves with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people.(p) The offense of affray may be considered in general as distinguished from that of riot, rout, or unlawful assembly, by the absence of any pre- meditated or preconcerted purpose among the parties; as for instance where a number of persons being met together at a fair or market, or any other lawful or innocent occasion, happen on a sudden quarrel to fall out, this appears to amount to an affray only, on the ground of the design of their meeting being innocent and lawful, and the subsequent breach of the peace happening unexpectedly, without any previous in- tention. But if, upon a dispute happening to arise among them they form themselves into parties, with promises of mutual assistance, and then make an affray; or if, upon a sudden proposal started, they go in a body to do any act of violence, and execute such purpose, there can be no doubt that they are rioters, and still they will not be exonerated from the guilt of the greater offense by their having been assembled at first upon another and an innocent purpose.(qg) An affray differs also from a riot in this: that two persons may be guilty of it, whereas three persons, at least, are necessary to constitute a riot, in its legal sense.(7) But hkgth offenses have this in common, that they must be public, and, as it is expressed, to the terror of the people. Hence it follows that there may be an assault which will not amount to an affray ; as where it hap- pens in a private place, out of the hearing or seeing of any except the parties concerned, because in such case it can not be said to be to the ter- (mn) 1 Nun & Walsh, 124. 1 Hawk. ch. (p) Lamb. 126. 1 Hawk. ch. 68, $4. 650, 8 1 Burn, 55. 1 Russ. 271. (n) 1 Buss. on Cr.270, 4 Black. Com. (q) 1 Nun & Walsh, 122, 9 Car. & P. 145. 434, 435. . aS 3 a 158. 1 Hawk. ch. 68,§1. (7) 1 Hawk.ch.65s.1. 4 Black. Com. 146, omap. 1] OF MISDEMEANORS. 227 ror of the people, and is an assault and battery merely.(s) So also, al- though an affray may be, in some cases, where there is no actual vio- lence, as in the instance before stated, yet it is held that no mere quarrel- some or threatening words whatsoever can amount to an affray ; bare words not being considered, in judgment of law, to carry with them that degree of terror essential to constitute this offense.(¢t) And so, shouting “hear, hear,” and putting questions to the chairman at a public meet- ing, are not a breach of the peace.(w) As to disturbance by an audience in a theatre, the following observations were made by Bushe, Ch. J. in the case of Rex v. Forbes and others, tried for a conspitacy to create a riot, and insult the Lord Lieutenant, in Ireland: “They may cry down a play or other performance which they dislike, or they may hiss or hoot the actors, who depend upon their approbation or caprice. Even this privilege, however, is confined within its limits: they must not break the peace, or act in such a manner as has a tendency to excite terror or dis- turbance. Their censure or approbation, though it may be noisy, must not be riotous. Jt must be the expression of the feeling of the moment ; for if it be premeditated by a number of persons, confederated before- hand, to cry down even a performance or an actor, it becomes crimi- nal.”(v) An indictment for an affray must charge the affray to have been in a public place.(w) Where an indictment charged that two persons, with force and arms &c., “did make an affray by fighting,” it was held that this charge of fighting was sufficiently certain and definite, and the in- dictment valid.(z). 5. Assau.ts AND BATTERIEs. An assault is an attempt or offer, with force and violence, to do a cor- poral hurt to another ; and may consist of an act tending to such injury, accompanied with circumstances denoting an intent, coupled with a present ability, to use violence against the person; as by striking at an- other with or without a weapon; or presenting a gun at him at such a distance to which the gun will carry; or pointing a pitchfork at him, standing within the reach of it; or by holding up one’s fist at him, in an insulting manner; or any other act indicating an intention to use vio- lence against the person of another.(y) So, striking at another with a cane, stick or fist, although the party striking misses his aim;(z) drawing (s) 1 Nun & Walsh, 128. Matt. Dig. 370. («) State v. Benthal, 5 Humph. 519. (t) Ibid. 1 Hawk. ch. 63 s.1,.2, 4. (y) 1 Hawk. P. C. ch. 62. 8. J. Hays (u) 9 Car & Payne 1. vy. the People. 1 Hill, 31. (v) 1 Cr. & D. 157. (2) 2 Ro. Abr. 545, 1. 45. (w) State v, Heflin, 8 Humph. 84. 228 OF MISDEMEANORS, [poox n. a sword or bayonet, or throwing a bottle or glass, stones, water, or other liquor, with intent to wound or strike; these are assaults.(a) So if a master take indecent liberties with a female scholar, though she does not resist, it is an assault.(b) If a medical man unnecessarily strip a female patient naked, pretending that he ean not otherwise judge of her illness, it is an assault if he himself take off her clothes.(c) So if parish officers cut off the hair of a pauper in the poor house, by force and against her will.(d) So, to expose a person of tender years under defendant’s care to the inclemency of the weather.(¢) Unlawful imprisonment is an assault.(f} Mere words, however, never amount to an assault. So if one strike at another, but at such a distance that he can not possibly touch him, it is no assault.(g) But it is not necessary, to constitute an assault, that there should be a direct attempt at violence.(h} One charged with an assault and battery may be found guilty of the assault and yet acquitted of the battery.(7) A battery is to beat or wound another. To beat, in a legal sense, means not merely to strike with the hand, a stick, or the like, but in- cludes every touching, however trifling, of another person, in an angry, rude or revengeful manner.(&) As thrusting or pushing him in anger, jostling him out of the way ;(2) holding him by the arm, spitting in his face ;(m) pushing another against him ;(7) throwing a squib at him ;(0) striking a horse upon which he is riding, whereby he is thrown ;(p) or the like. Hf one strike or throw any thing at another, if he miss him it is an assault, (as we have before remarked ;) if he hit him it is a bat- tery.(g) A wounding is where the violence is so great as to draw blood, whether by striking with a cudgel, fist, or the like, or by stabbing with a sword, knife, or other instrument.(7) Every battery, therefore, includes an assault. Consequently, if, in an indictment for assault and battery, the assault is not well laid, if the defendant be found guilty of a battery it is sufficient.(s) Eividence.| The assault and battery must be proved according to the circumstances under which it took place. Proof of either will support the indictment. Under the words “other wrongs,” (alia enormia,) evi- dence may be given of any circumstance of aggravation attending the assault and battery, if it does not itself amount to a distinct trespass.(f) (a) Com. Dig. Battery, O. (6) Russ. & Ry. C. 0. 180, (c) Ry. & Moo. C. C. 19. (d) 4 Car. & P. 239. (e) 2 Camp. 650. (7) Matt. Dig. 20. (g) Com. Dig. Battery, C. (4) 1 Hill’s Rep. 3651. (i) 1 Hawk. P. C. ch. 62, 5 I, (x) Id. ib. § 2. (2) Per Holt, 0. J., 6 Mod. 149. (m) 6 Mod. 172. (n) Bull. N. P. 16. (0) 2 W. Black, 892. (p) 1 W. Jones, 444, (q) Matt. Dig. 21. (r) Arch. Cr. Pl. 341, (s) 1 Hawk. 62, $1. (t) 2 Phil. Ev. 189. ouaP. 1.] OF MISDEMEANORS. 229 On the trial of an indictment containing a single count for one offense of assault and battery, and resisting an officer in the execution of pro- cess, the prosecution, after proving an assault and one act of resistance, can not give evidence of a similar offense, committed at another time.(z) Punishment.| This offense is not particularly mentioned in the re- vised statutes, and no punishment is specially prescribed for it. Hence it comes within the provisions of the sections respecting misdemeanors for which a punishment is not otherwise provided.(v) It is therefore punishable by imprisonment in a county jail not exceeding one year, or by fine not exceeding $250, or both. The defense.| The defendant may prove, 1. That he is not guilty at all; 2. That the facts proved do not amount to an assault and battery ; 3. That he was justified in law in what he did. In civil cases the two first, and in criminal cases all three of these defenses may be given m evidence under the general issue. He may show that the alledged as- sault or battery happened— 1st. By misadventure ; asif a horse run away with his rider, and run against a man, it is no battery.(w) If a soldier in his ranks discharge his gun, and a man unexpectedly pass before him at the time and be hurt by it, it is no battery.(7) It may be deemed a general rule, that the same facts which would make a killing homicide by misadventure, will be a good defense upon an indictment for a battery.(y) 2d. In an amicable contest ; as that he wrestled with the prosecutor for a wager.(z) So, that it happened by accident whilst the defendant was engaged in some sport or game which was neither unlawful nor dangerous, is a good defense.(a) 3d. By correction ; as the correcting of a child by his parent; ofa servant or scholar by his master; or the punishment of a criminal by the proper officer ;(6) provided the correction be moderate in the manner, the instrument, and the quantity of it, or that the criminal be punished in the manner appointed by law. It has been holden that the defendant may justify even a mayhem, if done by him as a military officer, for dis- obedience of orders.(c) ; Ath. In defense of self, husband, wife, parent, child, master or servant. It is a good justification even of a wounding or mayhem, to prove that the prosecutor assaulted or beat the defendant first, and that the defend- . ant committed the alledged battery merely in his own defense.(d) If he (w) The People v. Hopson, 1 Denio, 574. (a) Matt. Dig. 22. ) 2B. 8S. 679, § 40. Id. 3d ed. 784, at Id. ib. 1 Hawk. ch. 60, § 28, ch. § 56. § 2, (w) 2 Salk. 637. (c) Id. ib. Bull. N. P. 19. () Hob. 134. 1 Str. 490. (d) 18id. 246. 1Ro.Rep.19. 2Salk. (y) Matt. Dig. Cr. L. 22. 642, 3 id. 46. (2) Com. Dig. Pleader, 3 M. 18, 230 OF MISDEMEANORS. [Boox 1. prove an assault merely, as that the prosecutor lifted up his staff and offered to strike him, it is sufficient to justify the defendant’s striking him ; for he need not, in such a case, stay till the other has actually struck him.(e) So, a husband may justify a battery in defense of his wife, a wife in defense of her husband, a parent in defense of his child, a child in defense of his parent, a master in defense of his servant, and a servant in defense of his master.(f) But in all these cases the battery must be such only as was necessary to the defense of the party or his relation ; for if it was excessive, if it were greater than was necessary for mere defense, the prior assault will be no justification.(g) Also it will be a sufficient answer to this defense to prove that the first assault was justi- fiable.(/) 5th. In defense of his possession ; as, to remove the prosecutor out of his close or house ;() or to prevent him from entering it ;(4) to restrain him from taking or destroying his goods, é&c. ;(/) from taking or rescuing cattle, &c. in his custody upon a distress ;(77) or the like. If the assault and battery was committed in resisting persons entering upon the premises to open and work a highway, the defendant may prove that the alledged highway was laid through his orchard of four years’ growth, without his consent.(n) A police officer hearing a noise and entering a public house, the door being open, is not a trespasser so as to justify an assault on him.(o) In the case of a trespass in law merely, without actual force, the owner of the close, &c. must first request the trespasser to depart, be- fore he can justify laying his hand on him for the purpose of removing him. And even if he refuse, he can only justify so much force as is ne- cessary to remove him.(p) But if the trespasser use force, then the own- er may oppose force to force ;(q) and in such a case, if he be assaulted or beaten he may justify even a wounding or mayhem in self defense as above mentioned. In answer, however, to a justification in defense of his possession, the other party may prove that the battery was excessive;(r) or justify the alledged trespass on the defendant’s possession by proving that he had a right of way over the close, or the like.(s) 6th. Under authority of law. It is a sufficient justification to show that the assault was done under the authority of the law, with or without legal process, no greater assault being committed than was necessary.(2) (c) Bull. N. P. 18. 2 Ro. Abr, 547, (2) 2 Ro. Abr. 649, 1.7. 1. 37 : : (m) Id. 1, 10. (f) 2 Ro. Abr. 546, D. 1 Hawk. P. (mn) 6 Barb. 607. CO. ch. 60, §§ 28, 24. Matt. Dig. 28. (0) 6 Car. & P. 186. (g) Bull. N. P. 18. (p) 8T.R. 299. 2 Salk. 641. (h) Com. Dig. Pleader, 3 M. 15. 1 (q) Id. 78. 2Salk. 641. _ Salk. 407. Carth..280. (r) Skin. 887. Lutw. 1436. (i) Lutw. 1435. Hardw. 358. (s) Matt. Dig. Cr..L, 238. (%) 2 Ro. Abr. 548, 1.25. Harrington (2) 2 Ro. Abr. 546. y. The People, 6 Barb. 607. owaP, 1,] OF MISDEMEANORS. 231 An officer, however, can only justify laying his hand upon a man, in or- der to arrest him upon a writ or process; unless he resist, or an attempt be made to rescue him ;(z) and even then he can justify no greater de- gree of force than was necessary in order to secure his prisoner. And the same as to officers of justice and persons acting in their aid arresting on suspicion of felony, without warrant ;(v) and as to private persons ar- resting men committing felonies in their presence, see title ARREST, post. So, a man may justify laying his hand upon another to prevent him from fighting, or committing a breach of the peace ;(w) or to prevent him from rescuing goods taken in execution ;(z) or the like.(y) Yet even in these cases he must not use more force than is requisite to restrain the other party ; otherwise he can not avail himself of the threatened breach of the peace, &c. as a justification.(z) Assaulis with deadly weapons, and assaults with intent to commit felonies have been already noticed.(a) Assaults with intent to murder, rob, commit manslaughter, rape, &c. See those offenses ante, pp. 33, 149, 77. Upon the same principle which makes the above offenses misde- meanors, viz. because they are breaches of the peace, it has been held that driving a carriage through a crowded or populous street at such a rate or in such a manner as to endanger the safety of the inhabitants, is a misdemeanor, at conunon law.(b) Discharging fire arms in a public place, as mere matter of idle sport and negligence, to the danger of the property or safety of persons, has also been said to be an offense against the public peace, and therefore indictable. And it is much more so when the act is done with purposes of wanton or deliberate mischief.(c) But merely firing a gun, where no mischief will be likely to ensue, is not an offense at common law.(d) So, doubtless, if the gun be dis- charged at a military parade, pursuant to orders from the commanding officer.(e) ° And not only actual breaches of the peace, but any thing that tends to excite others to break the peace, is an offense of the same denom- ination.(f) Upon this principle challenges to fight, either verbal or written; or to be the messenger of such a challenge, or even barely to provoke another to send a challenge or to fight; as by dispersing letters for that purpose (uv) 1 Ld. Raym. 229. 2 Str. 1049. (a) Ante, 85, 94. (x) Matt. Dig. 28. (8) Peters’ C. C. Rep. 890. (w) Id. ib. Com. Dig. Pleader, 3 M. (ce) 11 Mass. Rep. 189. 9 Pick. 1. 16. (d) 4 Day’s Rep. 386. () 8 Lev. 118. : (e) Id. ib, 11 Mass. Rep. 139. (y) See 1 Mod. 168. 2 Ro. Abr. 546, (7) 4 Black. Com. 150, 6 Cowen, 258. 1, 40., 5 Binn. 281. (2) Matt. Dig. Or. L, 23. OF MISDEMEANORS. [Boox nm. 232 full of reflections, and insinuating a desire to fight, are misdemeanors at common law.(g) But mere words of provocation, as, “a liar” and “Inave” will not amount to a misdemeanor; for though they furnish motives and immediate provocation for a breach of the peace, yet they do not tend immediately to a breach of the peace.(h) But words which directly tend to a breach of the peace, as a challenge to fight, or threat- ening to beat another, will sustain a prosecution for a misdemeanor.(7) LIBEL. The offense of libel, is also a misdemeanor at common law, upon very much the same principles as challenges. For the direct tendency of libels is to produce a breach of the public peace, by stirring up the objects of them to revenge, and perhaps bloodshed.(k) A libel, is slander expressed otherwise than by mere words, as by writing, print, figures, signs, pictures,(2) or by any other symbol.(m) It is a malicious publication expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of the dead or the reputation of one who is alive, and expose him to public hatred, contempt or ridicule, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society.(1) Wherever an action will lie for libel without assigning special damage, an indictment is sustainable.(o) But mere verbal slander, unless it tend immediately to a breach of the peace, or relate to a judge or magistrate in the execu- tion of his office, is not indictable.(p) Thus, as to individuals, to write that a person is a swindler, or a hypocrite, or that a woman has been guilty of fornication, or that a man is an itchy old toad, or, the like, is libellous, and indictable ;(q) or to publish of a stage coach man that he had been guilty of gross misconduct, and insulted two females in a bare faced manner.(r) So, to charge a person with a gross want of feeling or discretion.(s) So, publishing of a landlord that he colluded with bis in- solvent tenant in putting in a distress to defraud his creditors,(¢) has been holden libellous. And it is a libel though the defamatory matter be not expressed in direct terms, but only in a scoffing and ironical manner. So, where only one or two letters of a name are expressed, in such a manner (g) 1 Russ, on Cr. 275. 6 East’s Rep. (0) 5 Coke, 1256. 464, 2 Camp. 506. See ante, p. 209. (p) 8 Salk. 190. 2 Camp. 142. (h) 1 Russ. on Cr. 276. (i) Id. ib. 6 Mod. 125. 21d. Raym. 1031. (k) 4 Black. Com. 150. 209. 4 Mass. Rep. 168. (1) 2 Camp. 512. 5 Co. 1256, (m) 1 Hawk. ch. 78,§2. 11 East, 227. (n) 4 Mason, 116. 4 Mass. Rep. 163, 168. 1 Russ. on Cr, (g) 2 Hen. Black. 532. 2 Wils. 404. 1 T. R. 748. Hard. 479. Holt’s Rep. 654. Matt. Dig. 814, (r) 9 Barn. & Cress. 172. & 1 Ohit. Rep. 480. 2 Barn. & Cress. 678. - (t) 9 Barn, & Cress. 642. onAP. 1] OF MISDEMEANORS. 232 that from what goes before or after, it must needs be understood to sig- nify a particular person.(w) But a greater latitude has been allowed on books (or pictures) (v) than on persons. Fair criticisms, though sharp, and though the critic employ ridicule, however poignant, and even attack the author, so far as he has mixed himself up with his book, is allowa- ble; butif the critic travels from the work to attack the author’s character, it is libellous.(w) So a fair comment in a newspaper on a place of public entertainment, is no libel;(z) or on a petition of general interest pre- sented to parliament and publishedy) But to publish in a newspaper a ludicrous story of an individual, although he may have told it of him- self, is libellous.(z) Publications casting general defamatory imputations on a particular body of men, though no particular individuals are pointed out, are indictable ;(@) as, for a libel in a newspaper reflecting on the clergy of a particular diocese, and generally upon the church of England, though no individual prosecutor was named, and the libellous matter was not negatived by affidavit, the proceeding being by information.(d) And where a libel on a deceased person is intended to create disturbance, to throw scandal on the family or descendants of the deceased, or to in- duce some one to break the peace, and vindicate the deceased, which, in such case, should be averred in the proceedings and proved on the trial, it is indictable.(c) Defamatory matter in any proceedings used in a reg- ul2z course of justice is no libel. Therefore, nothing contained in a peti- tion to either house of parliament is libellous, though it affect individu- als; nor are the necessary operations used in the printing and delivering copies of such petitions to the members ;(d) unless, perhaps, done as a shelter for guilt.(e) Nor is the declaration by a court martial of their opinion on the prosecutor’s conduct, subjoined to their sentence of ac- quittal of the accused, libellous, though the president deliver both sen- tence and declaration to the judge advocate f) But publishing the proceedings in courts of justice, if the matter published be scandalous, blasphemous, or indecent, though a correct account of what passed, is libellous and indictable ;(g) @ fortiori, if the account be highly colored or false ;(h) or commented upon injuriously ;(7) or where it does not set forth all the material evidence ;() or the publication is expressly for li- (uw) 1 Hawk. ch. 78, § 4. (2) 1 Lev. 240, 1 Saund. 182. 1 Hawk. (v) See Moo. & Malk. N. P. Ca. 18. ch. 738, § 8. (w) 1 Camp. 352, 355. 2 Stark. R. 93. (e) 1 Hawk. ch. 78, $6. 8 Chit. Or. (a) 1 Esp. Rep. 28. , L. 870. (y) Ry. & Moo. 287. 38 Bing. 88. (/f) 6 Esp. Rep. 63. (2) 6 Bing. 409. (g) 8 Barn. & Ald. 167. 1 Maule & (a) 2 Barnard, 188, 166. Kel. 230. Selw. 279. (0) 1 Dowl. & Ryl. 197, 5 Barn. & (h) 2 Mod. 118. 7 East. 493. Ald. 595. () 8 Barn. & Ald. 702, lid. 379. 7 (c) 4T. BR. 126. 5 Rep. 125. 3 Chit. East, 493. 2 Camp. 570. 5 Esp, 128. Cr, L, 868. (k) 6 Bing. 218. 30 234 OF MISDEMEANORS, [Book 11. belling the party, or for a vehicle of blasphemy.(/) So of defamatory matter on er parte proceedings at a public office, or coroner’s inquest.(7) The publication of libellous matter stated before a magistrate, not acting in discharge of his office, can not be justified as a correct report ofa judi- cial proceeding.(7) In order to constitute a libel an indictable offense, it must have been written or published with malice. The malice of the publication, or the intent to defame the reputation of another, is the essence of the offense of libel.(o) The very publication of it, however, is prima facie evidence of malice, which it lies on the defendant to rebut.(p) “The man who publishes slanderous matter calculated to defame another, must be pre- sumed to have intended that which the publication is calculated to bring about; and unless he can show the contrary, the jury are bound to find that he published it with a malicious intent.”(q) Therefore a publication, though defamatory, if written bona fide or in confidence, to investigate a fact in which the party making it is interested, is nota libel; as, giving a correct answer to a confidential inquiry into the char- acter of a servant;(7) or of a solicitor.(s) So where a petition addressed by the creditor of an officer to the secretary at war, bona fide, to obtain payment of a debt through his interference, stated facts derogatory to the officer’s character, which the creditor believed to be true, it was holden no libel.(¢) And where, in pursuance of the regulation of a particular society, two persons were posted as “not. being persons that the propri- etors and annual subscribers think it proper to associate with, are ex- cluded from this room,” it was holden no libel.(z) But an advertisement in a public newspaper strongly reflecting upon an individual who has been declared a bankrupt, is libellous, although published with the avowed in- tention of calling a meeting of creditors to consult upon measures for their own security; if the legal object might be obtained less injuriously.(v) Publications tending to degrade and vilify the constitution, and to cir- culate discontent and sedition among the people; as a publication stating that the laws of the state are contrary to the laws of God—are indicta- ble as libels.(w) So of any seditious publication.(2) A publication against judges, and juries, with a view to bring the ad- ministration of justice into contempt, is libellous. Nevertheless, it is law- ful to discuss, with decency and candor, the verdict of a jury or the de- @ 3 Barn. & Ald. 167. 1 Esp. Rep. (g) 5 B. & 0.257. 3 Dowl. & Ry. 464. 288. 1 Saund. 131, 133. See 8 B. & C. 584. 9 id. 648. (m) 8 Barn, & Cress. 556. 5 Esp. 123. (r) Matt. Dig. 815. 2 Camp. 563. 1 Barn. & Ald. 379. 4 id, (s) 4 Esp. 191. 218. () 5B. & A. 642. 1 Dowl. & Ry. 252. (n) 4 Dowl. & Ry. 695. 8 Barn. & (w) 1 Price, 11. Cress. 24. (v) 2 Stark. R. 297. (0) Comm. v. Clapp, 4 Mass. Rep. 168. (w) 2 Rolle’s Abr. 70. Comm. v. Snelling, 15 Pick. 337, (v) 8 Kel. 841, Vent. 324, Holt on (p) Gilb, Ons, 190, 192. Libel, 88. ona. 1] OF MISDEMEANORS. 235 cisions of a judge.(y) An order inserted by a corporation in their books, that a person, against whom a jury had given large damages in an action for a malicious prosecution, was actuated by motives of public justice, is libellous, as tending to throw discredit on judicial proceedings.(z) Whether the libel be true, or whether the party libelled be of good or bad fame, matters not, where the prosecution is by indictment or infor- mation.(@) But the court of king’s bench in England will not granta criminal information for libel, without a full and explicit denial on oath, by the complainant, of all the charges it contains;(6) and it seems the defendant may, on an information, prove the truth of the matters alledged to be false and libellous;(c) but not where a libel imputes to others an indictable offense ;(d) not even in mitigation of punishment.(e) As to the publication of the libel. He who composes or procures the composition,—who publishes or procures the publication of a libel,—is punishable for it; and it is said to be immaterial whether he who dis- perses it knows the contents or effect of it or not ; or if one read a libel or hear it read and afterwards maliciously read or repeat any part, or lend or show it to another, he is guilty of publishing it; and copying a libel is conclusive evidence of publication, unless to deliver to a magistrate to examine it.(f) So, it seems is writing a libel dictated by another.(g) Finding a libel on a bookseller’s shelf is a publication by the bookseller: though his servant put it there without his knowledge.(h) But a libel written by defendant’s daughter, who was authorized to make out his bills and write his general letters, is not sufficient to charge the defend- ant, without showing that the libel was written with his knowledge or procurement.(7) The proprietor of a newspaper is prima facie liable for whatever appears in it; but he may, under special circumstances, rebut that liability.(4) Thedelivery of a newspaper to the officer at the stamp office, is a sufficient publication to sustain an indictment for libel (7) and proof that the defendant accounted for the stamp duties of the paper in question, is proof of publication.(m) Where a reporter re- ceived a written statement from the defendant, and gave it to the editor of a newspaper, who printed it with slight alterations, not affecting the sense, it was holden that what the reporter published might be consider- ed as published by the defendant, but that the newspaper was not evi- dence without producing the writing delivered to the editor.(z) So if A. (y) 1 Camp. 359. (g) Id. ib. (2) 2T.R. 199. (A) 1 Sess. Ca. 83. 20 St. Tr. 808. (a) 5 Rep. 125. 8 Black. Com. 126. (4) 1 Moore, 477. 8 Taunt. 42. (0) 1 Doug. 284. (k) Matt. Dig. 817. (c) 2 Moo. & Rob. 152. (2) 4 Barn. & Cress, 35. 6 Dowl. & (d) 4 Barn. & Ald. 95. Ry. 125. e) Id. 814. 9 Barn. & Cress. 65. See (m) 6 Bing. 409. 2 Barn. & Adol. 678. (n) Ry. & Moo. O. G. 157. (f) 1 Hawk. ch. 78, § 10. 236 OF MISDEMEANORS. [Boor n. send a manuscript to the printer of a periodical publication, and do not restrain the printing or publishing of it, A. is liable as the publisher.(o) But if a libel the stolen, this is no publication.(p) And barely reading a libel to another, or merely having it in custody, without knowing it be- fore to be a libel, is no publication of it.(g) The mere having is no act.(r) But the having in one’s custody a written copy of a libel public- ly known, is otherwise.(s) Delivering a libel sealed, that it may be open- ed and published by a third person, in a distant county, is a publica- tion.(¢) A delivery at the post office in L. of a sealed letter enclosing a libel, is a publication of the libel in L. Also, where the defendant writes and composes a libel in L., with intent to publish it, and afterwards pub- lishes it in M., he may be indicted in either county.(w) Sending a letter full of provoking language to another, is punishable ;(v) if the indict- ment expressly alledgé an intention to provoke a breach of the peace.(w) Every copy of a libel sold by a defendant is a separate publication, and subjects him to a distinct prosecution.(z) Indictment for libel.] The venue should be laid in the county where the publication took place;Sand it seems that in the case of a libellous letter, the venue may be laid either in the county where it was put into the post office, or where it wasdelivered as addressed ;(y) and a delivery of a sealed letter, enclosing a libel, at the post office in L., is a publica- tion there.(z) Sohe who writes a libel in one county, with intent to publish it, and afterwards publishes it in another, may be indicted in either.(a)’ If the matter written does not, upon the face of it, appear libellous, it is necessary to insert an averment of such explanatory facts as show it to be so, and this is best done by a formal inducement ; for it can not be explained by an innuendo of a fact not previously stated upon the record with legal certainity.(b) And where a person’s name does not appear in the libel, or he is libelled under a fictitious character, it is necessary to show, by averment, to whom the libel refers.(c) Matter stated by way of inducement, if wholly impertinent, may be struck out as surplusage.(d) Proof of part of the indictment will, in some cases, suffice, as where it stated that the party carried on ¢wo trades, and but one was proved.(e)} (0) 5 Dow. 201. (y) 1 Camp. 215. 2id.506. 1Leach, ‘p) Hob. 62. 143. (gq) 1 Hawk. ch. 78, § 18. (2) 8 Barn. & Ald. 717. (r) 2 Car. & P. 414. (a) 4 id. 95. (s) 1 Hawk. ch. 78, § 13. (0) Matt. Dig. Cr. L. 819. (t) 4 Barn. & Ald. 95. (c) Id. ib. Sayer, 280. 8 East, 427. (u) Id. ib. 4 Maule & Selw. 164. (») 1 Hawk. ch. 78, $11. 2 Barnard, (d) 3 Chit. Burn, 628. 102. 11 East, 464. (e) 8 Barn. & Cress. 118. 4 Dowl. & (w) 2 Stark. 245. Ryl. 670. (x) 1 Chit. Rep. 451. BLOG WILE onaAP. 1.] OF MISDEMEANORS. 237 The office of an innuendo, is to explain the defendant’s meaning, by reference to such inducement or matter previously expressed in the pro- ceedings ;(f) which it applies to the part which is ambiguous; but it neither alters nor enlarges the sense of previous averments.(g) 'There- fore, if an innuendo bring in new matter, it is bad.(h) And so, where an innuendo gives a more extensive construction to words than their natural meaning, in common parlance, imports.(i) But if there is no occasion whatever for an innuendo, and it is not connected with any pre- vious averment to explain the words, it may be rejected as surplusage.() The libel itself must be set out in its very terms. Merely stating the substance or effect, will not suffice.(/) The words “according to the effect following,” are inefficient, vague, and useless ; but the words “ac- cording to the tenor following,” import the very words themselves; for the tenor of a thing is the transcript and true, copy of it.(m) The whole of the papers in which libellous matter is contained need not be set forth. The parts which are most offensive may be selected.(n) And tbe indict- ment may state the libel “amongst other things.”(0) But the parts omitted must not, by their contents, alter the sense of that which is set forth.(p) When parts are selected, they should be set forth thus; “In a certain part of which said there were and are contained certain false, wicked, malicious, scandalous, seditious, and libellous matters of and concerning,” &c. “according to the tenor and effect following, that is to say.” “And ina certain other part,” &c. &c.(q) If the libel be written in a foreign language, the original should be first set forth and then the translation.(r) And the translation must be proved to be cor- rect.(s) The defendant’s malicious intent should be shown, but the word falsely, or wrongfully, seems sufficient without saying mulicious- ly.(t) The publication of the libel must be averred. But it may be col- lected from the whole of the indictment, and needs not technical words.(w) Where no publication to a third person can be proved, the indictment should staté that the paper was sent to the party libelled, with the intent to provoke him to commit a breach of the peace; and if sent to the wife, it should alledge that the defendant did so with intent to disturb the domestic harmony of the parties.(v) The words “force and ) Cowp. 679, 683. 5 East, 463. (p) 1 Dowl. & Ryl. 820. 5 Barn. & (g) 5 Salk. 518. 1 Saund. 243, n. Ald. 615. 18 East, 554. (A) 6 Barn. & Cress. 154, 1 Moore & (7) Matt. Dig. 320. See 1 Camp. 850. P. 402. 4Bing. 489. 2 Young & Jer. 156. (r) 6 T. R. 162. 1 Saund. 242. (4) 1 Cromp. & Jer. 148. (s) 2 Selw. N. P. 1056, n. (k) 5 East, 463. 9 id. 98. (t) See 1 Saund. 242, a.n.(2). 1 East, (2) Matt. Dig. 320. 8 Barn. & Ald. 563. 1T. RB. 545. 508. 8 Dowl. & Ryl. 519, (u) Matt. Dig. 820, 2 Camp. 584, 1 (m) 2 Salk. 417, 600. Saund. 242, n. (1). (n) Id. 417. (v) 2 Stark, 245. (0) Vin. Abr. Libel, (E.) pl. 1. 238 OF MISDEMEANORS. [Boox u. arms” need not be used.(w) But it should be stated that the libel was of and concerning the prosecutor.(z) Any substantial variance which alters the sense will be fatal.(y) With regard to the offenses created by statute, it is said that if a stat- ute prohibit a matter of public grievance, or command a matter of public convenience, (such as the repairing of highways or the like,) all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specify no other mode of proceeding.(z) And if the statute spe- cify a mode of proceeding different from that by indictment, then if the matter were already an indictable offense at common law, and the stat- ute introduced merely a different mode of proceeding and punishment, the remedy is cwamadative, and the prosecutor has still the option of pro- ceeding by indictment at common law, or by the mode pointed out by the statute.(2) Thus, a turnpike road company is liable to an indictment at common law for suffering their road to be out of repair, notwithstand- ing that by the terms of their charter a specific penalty is provided; if the charter contains no negative words, nor any thing from which it can be inferred that the legislature intended to take away the common law remedy.(b) But where the statute creates a new offense, by prohibiting and making unlawful any thing which was lawful before, and appoints a particular remedy against such new offense by a particular sanction and particular method of proceeding, such method of proceeding must be pursued, and no other.(c) But the revised statutes contain a provision that where the perform- ance of an act is prohibited by any statuté, and no penalty for the viola- tion of such statute is imposed, either in the same section containing such prohibition, or in any other section or statute, the doing such act should be deemed a misdemeanor.(d) From this it follows, that if, in the same section, or any other section or statute, a penalty is inflicted for the violation of such statute, no indictment _will lie for such violation, but an action at law for such penalty is the exclusive remedy. If the statute make that a felony which before was a misdemeanor only, the misdemeanor is merged and can not be prosecuted.(e) Common nuisances, are offenses against the public order and econom- ical regimen of the state, to the annoyance of the public in general. If the annoyance is only to some particular person, and not to the commu- nity in general, it is only a private nuisance, and is a subject of civil ac- (wo) 7T.R.4. (a) Id. ib. 1 Russ. on Cr. 48. (z) 4 Maule & Selw. 164. 7 Mod. 400. (b) 15 Wend. 267. 4 Barn. & Ald. 314. (ec) 1 Russ. on Cr. 48. 2 Burr. 805. (y) Matt. Dig. 820. 47. RB. 217. 2 (d)2 B.S. 696, § 39. Esp. 491. (e) Arch. Or, Pl. 2. 18 Wend. 159. (2) Arch. Cr, Pl. 2. 2R.S, 696, § 39. onaP. 1.] OF MISDEMEANORS. 239 tion only.(f) All nuisances of a public nature, though occasioned by acts in themselves innocent, are indictable as misdemeanors, if the nui- sance be the probable consequence of the act.(g) Obstructing a highway, is within this rule.(2) A temporary occupation of part of a street or -highway, by persons engaged in building, or in receiving or delivering goods from stores or warehouses, or the like, is allowed, from the neces- sity of the case ; but a systematic and continued encroachment upon a street, though for the purpose of carrying on a lawful business, is unjus- tifiable.(?) Drunkenness is also indictable if it is open and exposed to public view.(k) Offensive or dangerous trades or manufactures, are in- dictable as nuisances; and it is not necessary to prove that they are offensive to health, if they are offensive to the senses.(/) But it must appear either that they are destructive to health, or make the dwellings of the inhabitants uncomfortable.(m) If the annoyance is only to a few inhabitants of a particular place, no indictment lies.(x) If a man sets up a noxious trade, remote from houses, &c. and afterwards new houses, &c. are built, he may lawfully continue the trade, though a nuisance to the new comers.(0) Exposing in a public thoroughfare a person infected with a contagious disease, has also been decided to be a misdemeanor.(p) Keeping disorderly houses, bawdy houses, gaming houses, unlicensed booths and stages for rope dancers, mountebanks, and the like, ‘are also misdemeanors coming under the head of nuisances.(q) And so of lotte- ries; keeping gunpowder in too large quantities near to a town; eaves- dropping ; common scolding, &c.(r) A party cannot defend an indictment for nuisance by showing its con- tinued existence for such a length of time as would establish a prescrip- tion against individuals.(s) The keeping of a common gaming house is indictable at common law, on account of its tendency to bring together disorderly persons, to promote immorality, and lead to breaches of the peace. But an indict- ment only alledging that the defendant kept a common gaming house, without stating what was transacted there, would not, it seems, be suf- ficient.(¢) The keeping of a room or place for the sale of tickets in lotteries not authorized by law is not indictable.(w) (/) Stephen’s Cr, L. 102. (0) 2 Car. & Payne, 483. g) Arch.2. (p) 4 Maule & Selw. 78, 272. (A) 10 Serg. & Rawle, B45. (q) Stephens’ Cr. L. 105, (4) The People v. Cunningham, 1 Denio, (v) Id. 107, 108, 109. 524. (s) The People vy. Cunningham, 1 De- (k) 8 Murphy, 229. i; nio 524. (2) Stephen's Cr. L, 108. 2 Car. & — (t) The People v. Jackson, 4 Denio, Payne, 485. 101 (m) 5 Esp. 217. Ge) Ibid. (n) 4 id, 200. 240 OF MISDEMEANORS. [Boox 11. A lottery which does not involve the determination of any right to property, is not illegal.(v) Indictment for nuisance.| The indictment ought to describe the situ- ation of, and state the place where, the nuisance was committed.(w) Laying it to be near a highway, and also near several dwelling houses, &c. is sufficient.z) Where a thing is not in itself a nuisance, but be- comes so by particular circumstances, the indictment should show the special matter, and not conclude to the common nuisance, &.(y) An indictment charging the defendant with keeping a certain common gaming house, in which he sold and furnished tickets in lotteries un- authorized by law, to divers persons, does not set forth an indictable offense.(z) The indictment must not conclude to the damage of an in- dividual only.(a) The defendant can not object to the indictment till he has pleaded to it ;(b) and if a party indicted for a nuisance continue the same, he may be again indicted for such continuance.(c) _ Selling unwholesome provisions is a misdemeanor at common law.(d) Refusing to serve an office.| To refuse, without lawful excuse or ex- emption, to serve a public office, (such as that of constable or overseer,) is a misdemeanor at common law, punishable with fine and imprison- ment.(e) Cheats.| To constitute a cheat or fraud an indictable offense at com- mon law, it must be such a fraud as would affect the public—such a de- ception as common prudence can not guard against; as by using false weights and measutes, or false tokens, or where there is a conspiracy to cheat.(f) So where a person got possession of a promissory note, by pretending that he wished to look at it, and then carried it away and re- fused to deliver it to the holder, this was held to be merely a private fraud, and not punishable criminally at common law.(g) By the statute, however, obtaining money or property by false pretenses, or tokens, is punishable as a felony.(/) A justice of the peace is indictable for misbehavior in his office when he acts partially or oppressively, from malicious or corrupt motives. Thus discharging an offender without requiring sufficient sureties, when it is done with intent to prevent the course of law and justice, is clearly an indictable offense.(2) Torturing a prisoner, to extort a confession, is a misdemeanor at com- mon law.(é) (v) The People v. Payne, 8 Denio, 88. (d) 38M. &S8.11. 2 East’s P. OC. 822.- (w) 2 Show. 216, (e) Arch. Or. Pl. 504, (x) Str. 686. (f) 7 John. 200. 6 Mass. 72. 9 Wend. (y) Com. Palm. 868, 374. 182. (z) 8 Denio, 101. (g) 14 John. 371. (a) 1 Hawk. ch. 76, § 8. (A) 2 R. 8. 676. Ante, 138. (b) Dalt. ch. 66, (¢) 15 Wend. 277. (c) 1 Ld. Raym. 870. (k) 2 Tyler, 880. OHAP, 1.] OF MISDEMEANORS, 241 Voluntary intoxication of one of the grand jury, during the sitting of the grand jury, and thereby disqualifying himself for the discharge of his official duties, is also indictable.(/) An indictment will nof lie in the following cases. For setting a per- son on the footway in a street to distribute handbills, whereby the foot- way was impeded and obstructed; nor for throwing down skins into a public way, by which a personal injury is accidentally occasioned ; nor for acting as a justice of the peace, not being qualified; nor for selling short measure; nor for excluding commoners by enclosing ; nor for an attempt to defraud, if neither by false tokens or conspiracy ; nor for se- creting another ; nor for bringing a bastard child into the parish; nor for entertaining idle and vagrant persons in the defendant’s house ; nor for keeping a house to receive women with child and deliver them.(22) With regard to ¢respasses, it has been held that a mere act of trespass, (such as entering a yard and digging the ground, and erecting a shed,) committed by one person, unaccompanied by any circumstances constitu- ting a breach of the peace, is not indictable.(n) Nor does an indictment charging that the defendant “with force and arms, unlawfully, willfully and maliciously did break in pieces and destroy two windows in the dwelling house of M.C., to the great damage of the said M. C. and against the peace,” &c., set forth an offense indictable by the laws of this state.(o) An act which would otherwise be only a private trespass does not become imdictable by being charged to be done with force and arms. Nor by being alledged to have been committed maliciously, or without claim of right, or without any motive of gain.(p) Neither is it an indict- able offense to pull the thatch off another’s house, who is in the peacea- ble possession of it.(g) And an indictment for taking away chattels must import that such a degree of force was used as to make the taking an offense against the public.(r) But where the indictment stated the en- tering a dwelling house, and with force and arms, and with strong hand turning out the prosecutor, the court held that it would lies) And an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace ; and though such goods are the prosecutor’s own property, yet if he take them in that manner he will be guilty.(¢) But an indictment will not lie for taking up and removing a corner stone in the boundary line between A. and B., with intent to injure and endam- age the said B.(u) So, cutting and girdling fruit trees is not an indicta- ble offense at common law.(v) (2) Addis. Rep. 29. (7) 1 Russ, on Cr. 51, (m) 1 Russ, on Cr, 49, 50, (8) ib. oo 1699, nm) Id. 52. (é) 8 Salk. 187. a 5 Denio, 277, (v) 2 Halst. Rep. 426. (p) Tbid. (v) 8 Greenl. 177. (q) Id.ib. 3 Burr, aes 242 OF MISDEMEANORS. [Boox 11. Besides the offenses above adduced as examples, there are a great va- riety of other common law misdemeanors. To undertake an enumera- tion of the whole would be a task almost endless, and altogether unprof- itable. Many of those to which we have alluded are now defined and expressly provided for by statute; and they are only made use of in this connection, by way of showing the general tenor and spirit of the com- mon law in respect to what constitutes a misdemeanor. It ought to be further observed, perhaps, that a bare intention, how- ever wicked, is not indictable. Lord Mansfield has accordingly laid it down as a general rule, which has been said to comprise all the principles of previous decisions, that, so long as an act rests in bare intention, it is not punishable, by our law.(w) Were courts of justice to assume the right to punish thoughts and in- clinations they would usurp the prerogative of the Omniscient, and be- come real Inquisitions. “My brother had but justice, “Ty that he did the thing for which he died; “For, Angelo, his act did not o’ertake his bad intent, “ And must be buried, but as an intent “That perished by the way: thoughts are no subjects ;* “Tntgnts, but merely thoughts.” Shake. : Nor does it impugn this general rule that the case of treason is opposed to it. There the intent is punishable, and for obvious reasons. In the punishment of treason the supreme power in the state resents injuries which are immediately done to itself; in the punishment of other crimes it resents those which are done to other men; and partial laws are the necessary consequence of the power to gratify the resentment, and to secure, by severer sanctions, the safety of the government. But, it is as a general proposition, true, that if any act manifestly un- lawful and dangerous be done deliberately, the mischievous intent will be presumed, unless the contrary be shown.(2) And the intention of a party at the time of committing an act charged as an offense, is as ne- cessary to be proved as any other fact laid in the indictment ; though it may happen that the proof of intention consists in showing overt acts only ; the reason, in such cases, being that every man is prima facie supposed to intend the necessary consequence of his ownacts.y) When an act is done, the law judges not only of the act itself, but of the intent with which it was done; andif the act be coupled with an unlawful and (w) 2 East’s P. 0.1028. Broom’s Leg. (#) 1 East’s P. C. 231. Max. 228. See also per Ld. Abinger, O. (y) Broom’s Leg. Max. 227, Per Lord B. 8 Oar. & P. 590. - Campbell, 9 Clark & Fin. 321. * That is, for punishment. ouaP. 1] OF MISDEMEANORS. 243 malicious intent, though in itself the act would otherwise have been in- nocent, yet, the intent being criminal, the act likewise becomes criminal and punishable.(z) In conspiracy, the conspiracy itself is the offense; and provided the indictment shows either that it was for an unlawful purpose, or to effect a lawful purpose by unlawful means, this will be sufficient; and whether any thing has been done in pursuance of it, or not, is immaterial. Proof of words used will support this charge, since they are per se an overt act sufficient to prove the conspiring.(a) In allcases where the intent to commit a crime is accompanied by any overt act, the party may be prosecuted for an attempt to commit the offense in case it was not consummated.(b) The mere soliciting another to commit a felony is a misdemeanor at common law, punishable by fine or imprisonment.(c) The soliciting must be proved in the same manner as the offense of an accessary before the fact,(d) with the exception that in this case it isnot necessary to prove the felony committed. If it appears that the person solicited to commit the offense actually did commit it, the person soliciting must be acquitted ; for in that case the misdemeanor would merge in the felony.(e) (2) Broom’s Leg. Max. 228, 2 East’s (¢) Crown Cir. Comp. 457. P, C. 1028. % (d) See post, tit. Principals and Acces- (a) Broom’s Leg. Max. 280. 1 Ad. & saries. El. 713. (e) 2 East’s Rep. 5. 1 Russ. on Cr, 45. (6) Arcbb. Cr. Pl. 2. 1 Deacon, 648. Walker’s Int, 448, Ante, p. 20. 244 OF MISDEMEANORS. [Boox n. CHAPTER II. Misdemeanors by Statute. The following are some of the offenses specified by the statutes of this state as being misdemeanors. Petit larceny.| Stealing the personal property of another of the value of $25 or under.(a) Punishment, imprisonment in the county jail not exceeding six months, or by fine of not more than $100, or both such fine and imprisonment.(b) Attempts to extort money, §c.] Threatening, either verbally or by writ- ten or printed communication, to accuse another of any offense, with in- tent thereby to extort any property, or any pecuniary benefit whatever.(c) Being parties, §c. to fraudulent conveyances.| Being a party to any conveyance or assignment of any estate or interest in lands, goods, or things in action, or of any rents or profits issuing therefrom, or to any charge on any such estate, &c. made or created with intent to defraud prior or subsequent purchasers, or to hinder, delay or defraud creditors or other persons; or willingly putting the same in use, as having been made in good faith, by a person privy to or knowing of such convey- ance, &c.(d) Concealing estate by insolvent debtors.| Insolvents applying for the benefit of any of the insolvent acts, willfully concealing, 1. Any part of their estate or effects, or any books or writings relative thereto, either before or after the execution of any assignment; or 2. Concealing and not disclosing to the court or officer before whom their petitions may be pending, any debts or demands which they shall have collected, or any transfer of their real or personal estate which they may have made after presenting to such court or officer a schedule of their estate.(e) Buying lands in suit.| Any officer, judicial or ministerial, or other person, taking a conveyance of any lands, &c. or of any interest or estate therein, from any person not being in the possession thereof, while such lands, &c. shall be the subject of controversy by suit in any court, know- ing the pendency of such suit, and that the grantor was not in possession of such lands, &c.( f) (a) If the value of the property stolen (6) 2 R.S. 690, $1. is more than $25, the offense is a felony, (c) Ibid, § 2. and is called grand larceny, as we have (a) Ibid. § 3. before seen, ante, p. 155. Seeopinion of (e) Id. 691, § 4. Nelson, Ch. J., as to petit larceny being (SF) Thid. § 5. a felony, 3 Hill, 398, onAP. 11] OF MISDEMEANORS. 245 Buying lands when grantor is out of possession.| Buying or selling, or in any manner procuring, or making or taking any promise or cove- nant to convey any pretended right or title to any lands or tenements, unless the grantor or the person making such promise or covenant shall have been in possession, or he and those by whom he claims shall have been in possession of the same, or of the reversion or remainder thereof, or have taken the rents and profits thereof for the space of one year be- fore such grant, sale, &c. made.(g) The two last preceding sections do not apply to any mortgage executed by a person not in possession of lands to which he has a just title but of which there shall be an adverse possession; nor to any conveyance of lands, &c. to any person in the lawful possession thereof.(/) It seems that by the revised statutes, the offense of unlawful mainte- nance is abolished, except as to buying and selling pretended titles to land, and falsely moving and maintaining suits.(2) Conspiracy.| A conspiracy is a misdemeanor, and is defined as fol- lows: Where two or more persons shall conspire either, 1. To commit any offense; or 2. Falsely and maliciously to indict another for any offense, or to procure another to be arrested or charged for any such of- fense ; or 3. Falsely to move or maintain any suit; or 4. To cheat and defraud any person of any property, by any means which are in them- selves criminal; or 5. To cheat and defraud any person of any property by any means which, if executed, would amount to a cheat, or obtaining money or property by false pretenses; or 6. To commit any act injuri- ous to the public health, to public morals, or to trade or commerce; or for the perversion or obstruction of justice or the due administration of the laws.(k) No conspiracies other than such as are enumerated in the last section are punishable criminally.(2) No agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.(m) This section is founded on the principle that acts and deeds should be the subjects of human laws, and not thoughts and intents, unless accom- panied by acts. (See Rev. Notes.) It has been decided by the supreme court that a conspiracy of journeymen workmen of any trade or bandi- craft, to raise their wages, by entering into combinations to coerce jour- neymen and master workmen employed in the same trade or business, to conform to rules established by such combination for the purpose of reg- (g) 2B. S. 691, § 6. (A) 2B. S. 691, § 8 (A) Ibid, §7. 1 id. 789, § 148. (J) Id. 692, § 9. (i) Mott v. Small, 20 Wend. 212. (m) Id. ib. § 10. 246 OF MISDEMEANORS. [Boox nm. ulating the price of labor, and carrying such rules into effect by overt acts, is a misdemeanor within the meaning of the 6th subdivision of the 8th section of the statute, above referred to, as being injurious to trade.(7) Whatever destroys or relaxes the principle of free and fair competition in trade isa publicdamage. It has accordingly been held that an agreement of various companies of forwarders on a public canal for the purpose of “ es- tablishing and maintaining fair and uniform rates of freight, and equaliz- ing the business among themselves, and to avoid all unnecessary expense in doing the same ;” “to stock the earnings and divide them in certain proportions,” and to make certain cash deposits subject to forfeiture, for the purpose of enforcing returns, and liquidating balances, is an agreement coming within the above recited 8th section of the revised statutes, as a conspiracy to commit an act “injurious to trade.”(0) To constitute the offense of conspiracy there must be a conspiracy to cheat and defraud some person of his property. Although there may have been an intention to defraud, yet if the means used could not possibly have that effect, the offense is not complete.(p) The crime of conspiracy to effect an unlawful act is perfect when the agreement to do the act is concluded. No overt act is necessary to be shown.(q) All who accede to a conspiracy, after its formation, and while it is being executed, be- come conspirators.(r) When a new party, with full knowledge of the facts, concurs in the plans of the conspirators as originally formed, and comes in and aids in the execution of them, he is from that moment a fellow conspirator. He commits the offense whenever he agrees to be- come a party to the transaction, or does any act in furtherance of the original design.(s) A conspiracy to commit a misdemeanor is not merged in the misdemeanor the result of the conspiracy when committed. Where the crime perpetrated is ofa higher grade of offense than a misdemeanor, the misdemeanor is merged in the crime.(¢) Indictment for conspiracy.| The indictment must eharge the conspi- .Tacy ; but in, stating its object the same certainty is not required as in an indictment for the offense conspired to be committed ; for the conspiracy is the gist of the offense. Thus for a conspiracy to defraud a person of goods, stating them as “divers goods,” was holden sufficient.(w) But if the indictment does not set forth the object specifically, and show that this object is a legal crime, it should set forth the particular means in- tended to be used by the conspirators, to compass the alledged fraud, and show that those means are criminal.(v) (n) 14 Wend. 9. (s) Ibid. (0) 4 Denio, 349. () Ibid. (v) 7 Barb. 391. (u) 1 Chit. Rep. 698. (qg) The People v. Mather, 4 Wend. 229, (v) 7 Barb, 891. 7 Cowen, 585, 9 id. (r) Ibid. 878, OHAP, 11] OF MISDEMEANORS. 247 “ By indirect means” to prevent one from exercising the trade of a tailor, was held good, without stating the mode.(w) Whether the con- Spiracy be to charge a man with criminal acts, or such as affect his repu- tation only,it is sufficient to lay the offense to bean unlawful couspiracy.(x) It is noi necessary to set forth the overt acts relied on as evidence of the defendant's guilt, when a legal offense is charged. The unlawful agree- meat is sufficient to convict.(y) So, charging the defendant to have conspired with divers persons to the jurors unknown, is good, notwith- standing that the co-conspirators are known to the jury, and their names might have been set forth.(z} But in those cases where an overt act is required by law to consummate the offense, no conviction can be had unless one or more overt acts be expressly alledged in the indictment, nor unless one or more of such overt acts be proved on the trial.(a) In an indictment for a conspiracy to indict or charge a man with an offense, it is not necessary to aver that he is innocent; for he shall be presumed to be innocent until the contrary appear(b) But a count ia an indictment for a conspiracy to cheat and defraud “the just and lawful creditors” of the party, was held bad, as‘too general.(c) _ The venue should be laid ia the county where the conspiracy took place ;(d) or in the county in which any one of the conspirators did an act to further their common object ;(e) and the trial must be in such county.(f) Evidence in cases of conspiracy.| ‘The conspiracy must be proved as stated in the indictment; but the actual fact of conspiring need not be proved. Tt may be inferred from circumstances(g) If parties concur in doing the act, it is a conspiracy.(/.) Proof of words used will support this charge, since they are per se an overt act sufficient to prove the couspiracy.(i) The prosecutor may go into general evidence of the existence of a con- spiracy, asa preliminary step, before he connects it with the defendants.(k) The acts of any one of the conspirators in furtherance of their common design may be given in evidence against all.(7) And if any one overt act be proved in the county where the venue is laid, other overt acts either of the same or of others of the conspirators may be given in evidence, although committed in other counties.(m) If the agreement be entered into in one county, and the conspirators go into another to execute their (w) 1 Leach, 274. (v) 1 Black. Rep. 368. (y) The People v. Mather, 4 Wend. 229. (2) Ibid. (a) 2B. S. 735, § 17. (0) 1 Stra, 198. 1 Salk. 174, 2 Burr, 998. (c) 4 Car. & P. 592. (d) 1 Salk. 174. 4 Wend. 229. (e) 4 East, 164. 4 Wend. 229. (f) 1 Salk. 174. (g) 1 Black. Rep. 892. 4 Wend. 229. (h) The People v. Mather, 4 Wend. 229, (7) Broom’s Leg. Max, 280. (4) 2 Brod. & B. 310. 2 Esp. 718. (1) 1 East’s P. 0.70. 6 T.R. 527, (m) 4 East’s Rep. 171, n. Fost, 9. 248 .OF MISDEMEANORS. [Boox m. plans, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of the agreement. Such overt act of any one of the conspirators, in furtherance of the coin- mon design, is considered in law a renewal or continuance of the ori- ginal agreement by all the conspirators.(n) What one of the party may have been heard to say at some other time, when no act was committed by him, as to the share others had in the execution of the common de- sign, or as to the object of the conspiracy, can not, it seems, be admitted as evidence against the other defendants.(o) . The wife of a co-defendant is not a competent witness for another de- fendant.(p) Where one defendant is acquitted, the record of acquittal is evidence for another defendant subsequently tried.(q) In those cases where an overt act is required by law to consummate the offense of conspiracy, no conviction can be held unless one or more overt acts be alledged in the indictment and proved on the trial; but other overt acts not alledged in the indictment may be be given in evidence on the part of the prosecution.(r) Where three persons were engaged in a conspiracy, and one was ac- quitted, and another died before trial, it was held that the survivor might, notwithstanding, be tried and convicted.(s) On an indictment against two, for a conspiracy to cheat, the judgment should be against each defendant severally, and not against them jointly.(¢) False imprisonment, §-c. by officers, §c.] Sheriffs, or other officers, or any other persons pretending to be officers, under pretense or color of any process or other legal authority, arresting any person, or detain- ing him against his will, or seizing or levying upon any property, or dispossessing any one of his lands or tenements, without due and legal process or other lawful authority therefor, are guilty of misdemeanors.(w) Compounding or concealing misdemeanors, §c.] Persons having a knowledge of the actual commission of any offense punishable by im- prisonment in a county jail, or by fine, or of any misdemeanor, &c. who shall take any money, property, gratuity, or reward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound or conceal any such offense or misdemeanor, or to abstain from any prosecution therefor, or to withhold any evidence thereof, are to be adjudged guilty of a misdemeanor.(v) Racing near courts.| Being concerned in any racing, running, or other trial of speed, between any horses or other animals within one mile of the place where any court shall be actually sitting.(w) (n) The People v. Mather, 4 Wend, 229. (s) People v. Olcott, 2 John. Cas. 301. (0) Matt. Dig. 91. 2 Stark. 141. (t) March v. The People, 7 Barb. 391. (p) 5 Esp. N. P. Ca. 107. (w) 2 RS. 692, $11. (q) Matt. Dig. 92. (v) Id. ib. § 12. (r) 2R.S. 735, $17. (w) Ibid, $13. omaP, th] OF MISDEMEANORS, 249 Criminal contempts.] The following acts are enumerated in the stat- ute as amounting to criminal contempts when committed in courts of record ; and such courts have power to punish the offenders in the man- ner prescribed by the statute: 1. Disorderly, contemptuous or insolent behavior, committed during the sitting of any such court, in immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority; 2. Any breach of the peace, noise or other disturbance, directly tending to interrupt its proceedings ; 3. Willful disobedience of any process or order, lawfully issued or made by it; 4. Resistance willfully offered by any person to the lawful order or process of the court; 5. The contumacious and unlawful refusal of any person to be sworn as a witness: and when so sworn, the like refu- sal to answer any legal and proper interrogatory ; 6. 'The publication of a false or grossly inaccurate report of its proceedings ; but no court can punish as a contempt, the publication of true, full and fair reports of any trial, argument, proceedings or decision had in such court.(z) Con- tempts committed in the immediate view and presence of the court may be punished summarily ; in other cases, the party charged is to be noti- fied of the accusation, and have a reasonable time to make his defense.(y) And in addition to this summary punishment which courts are thus authorized to inflict, persons guilty of such contempts are also liable to indictment therefor, if the same be indictable offenses. . But the court before which a conviction shall be had on such indictment, shall, in forming its sentence, take into consideration the punishment before inflicted(z) Persons punished, also, under the title of the revised statutes relative to “proceedings as for contempts, to enforce civil rem- edies.,”(a) may still be indicted for the same misconduct, if it be an indictable offense.(6) Malicious trespass, §c.| The following acts of malicious trespass, &c. are misdemeanors; 1. Cutting down or destroying any kind of wood or timber standing or growing upon the lands of any other, or upon lands belonging to the people of this state; or, 2. Carrying away any kind of wood or timber that may have been cut down and may be lying on such lands; or 3. Maliciously cutting down, lopping, girdling, or otherwise in- juring any fruit, or ornamental or shade tree; or 4. Maliciously sever- ing from the freehold any produce thereof, or any thing attached thereto; or 5. Severing and carrying away from any freehold any property or thing attached thereto, of the value of twenty-five dollars or less, under such circumstances as would render the trespass a larceny, if the thing so severed or carried away was personal property. 6. Digging, taking, (@) 2 B.S. 278, § 10. (a) 10.584 |, ) Thid, § 12. (b) Id: 588, $26, > (2) hid, § 15. a 250 OF MISDEMEANORS. [Book 11. or carrying away from any lot situated within the bounds of any incor- porated city, without the license of the owner or legal occupant thereof, any earth, soil, or stone, being a part of the freehold, or severed therefrom at some previous time, under such circumstances as would render the trespass a larceny, if the thing so severed or carried away was personal property, or knowingly aiding or assisting therein. 7. Digging, taking or carrying away from any land in any of the cities of this state, laid down on the map or plan of said city, as a street or avenue, or otherwise established or recognized as a street or avenue, without the license of the mayor and common council of said city, or of the owner of the fee thereof, any earth, soil, or stone, under such circumstances as would render the trespass a larceny if the thing so severed or carried away was personal property, or knowingly aiding or assisting therein.(c) Punishmenit— imprisonment in a county jail not exceeding six months, or by a fine not exceeding $150, or both.(d) Under an indictment for maliciously cutting and girdling feuit trees, described in the indictment as the property of one B., it is sufficient proof of the ownership of the property to show that the premises on which the trees stood were in the possession and occupation of B. at the time of committing the offense; and evidence that B. was not the sole owner of the premises, but was only one of several joint owners who held the legal title in common, will not amount to a variance between the indictment and proof.(e) Attempting to corrupt jurors, arbitrators, or referees.| Attempting improperly to influence any juror in a civil or criminal case, or any one summoned or drawn as such juror, or any one chosen an arbitrator or appointed a referee, in relation to any cause or matter pending in the court for which such juror shall have been drawn or summoned, or pend- ing before such arbitrator or referee.( f) . Improper conduct in jurors.| Any person drawn, summoned, or sworn as a juror in any case, making any promise or agreement to give a ver- dict for or against any person accused of any offense, or for or against any party to a civil suit; or receiving any paper, evidence, or informa- tion from any one in relation to any matter or cause, for the trial of which he shall be sworn, without the authority of the court or officer be- fore whom such juror shall have been summoned, and without imme- diately disclosing the same to such court or ofticer.(¢) Improper conduct in drawing jurors, §c.| If any person whose duty it shall be to assist at the drawing of any jurors to attend any court, shall designedly put or consent to the putting upon any list of jurors as TS (c),2 R. 8. 693, $15. Laws of 1851, p. (e) The People v. Horr, 7 Barb. 9. ae tan 8/3 2B. 8. 693, § 16. of, AVM. foss. a rere § OHAP, I1.] OF MISDEMEANORS. 251 been drawn, any name which shall not have been drawn for that purpose in the manner prescribed by law; or shall omit to place on such list any name that shall have been drawn in the manner prescribed by law; or shall sign or certify any list of jurors as having been drawn, which was not drawn according to law; or shall be guilty of any other unfair, par- tial or improper conduct in the drawing of any such list of jurors, he is to be adjudged guilty of a misdemeanor.(h) Posting, Sc. for not fighting duels.| Any person posting another for not fighting a duel, or for not sending or accepting a challenge to fight a duel, forbidden by law ; or using in writing or in print any reproachful or contemptuous language to or concerning any one, for not sending or ac- cepting a challenge to fight a duel, or for not fighting a duel, is to be deemed guilty of a misdemeaner.(2) Causing miscarriages} Administering to, or prescribing for, any pregnant woman, or advising or procuring any such woman to take any medicine, drug, substance or thing, or using or employing any instruments or other means, with intent to procure the miscarriage of such woman. Punishment—imprisonment in a county jail not less than three months nor more than one year.(/) Soliciting and taking drugs, §c. for the same purpose.| Every woman who shall solicit of any person any medicine, drug, or substance or thing whatever, and shall take the same, or shall submit to any opera- tion, or other means whatever, with intent thereby to procure a mis- carriage, is to be deemed guilty of a misdemeanor, and, upon conviction, is punishable by imprisonment in the county jail not less than three months nor more than one year, or by a fine not exceeding $1000, or by both such fine and imprisonment.(/) Concealing death of a child.| Any woman who shall endeavor pri- vately, either by herself or the procurement of others, to conceal the death of any issue of her body, which if born alive would by law be a bastard, whether it was born dead or alive, or whether it was murdered or not, is to be deemed guilty of a misdemeanor, and, on conviction thereof, is pun- ishable by imprisonment in a county jail not exceeding one year. And any woman convicted a second time of this offense, may be imprisoned in a state prison for a term not less than two nor more than five years.(m7) Prescribing medicines by intoricated persons.] Physicians or other persons while in a state of intoxication prescribing any poison, drug, or medicine to another person, which shall endanger his life.(n) Neglecting tolabel poisons.) Apothecaries, druggists, or other persons (h) 2B. 8. 698, $18. (D Id.§3. 2B. 8.779, $21, 8d ed. (3) Id. ib. § 20. (m) Id. §§ 4, 5. 2 B.S, 779, 88 22, 28, (%) Laws of 1845, ch. 260,§2. 2R. 8ded. 8. 3d ed. 779, § 20. (nm) 2B. &, 694, § 22. 252 OF MISDEMEANORS. {noo 11. selling any poisonous substance or liquid, without having the word “poi- son” written or printed upon a label attached to the pbial, &c. in which it is sold; or selling and delivering any tartar emetic without having the true name thereof written or printed upon a label attached, &c. Punish- ment—a fine not over $100.(0) Negligence in lading vessels, §-c.| Receiving so many passengers, or so much other lading, as to cause a boat or vessel to sink or overset, and the life of any human being shall be endangered thereby.(p) Mismanagement of steamboats.| If the captain or any other person having charge of a steamboat used for the conveyance of passengers, or if the engineer or other person having charge of the boiler, &c. of such boat, shall, from ignorance or gross neglect, or for the purpose of excel- ling any other boat in speed, create or allow to be created such an undue quantity of steam as to burst or break the boiler, &c. by which human life shall be endangered, every such captain, engineer or other person shall be adjudged guilty of a misdemeanor.(q) Cruelty to animals.| Maliciously killing, maiming or wounding any horse, ox, or other cattle, or any sheep belonging to another, or malicious- ly and cruelly beating or torturing any such animal.(r) Opening and reading sealed letters.| Any person willfully opening or reading, or causing to be read, any sealed letter not addressed to himself, without. being authorized so to do, either by the writer of such letter or by the person to whom it. is addressed, is guilty of amisdemeanor. Punish- ment-—-a fine not exceeding $100, or imprisonment not over one month.(s) Publishing contents of letters.| Maliciously publishing the whole or any part of such letter without the authority of the writer thereof, or of the person to whom the same shall be addressed, knowing the same to have been so opened, is punishable as in last section.(¢) The two last sections do not extend to any breaking open of letters which shall be punishable by the laws of the United States.(z) Destroying, injuring or altering bridges, turnpike gates, mill dams, monuments in boundaries, mile-stanes, guide-boards, §-c.] These offenses are all misdemeanors.(v) Auctioneers neglecting to make certain reports.| Every auctioneer willfully neglecting to make any report required to be made to the comp- troller by statute,(w) is, in addition to any pecuniary penalty imposed by law for any such neglect, to be adjudged guilty of a misdemeanor, and in addition to any other punishment prescribed by law, to be subject to a fine not exceeding $1000.(2') (0) 2B. S. 694, § 28. (t) Id. § 28. (p) Id. § 24. (u) Id. § 29. (q) Id. § 25, (v) Id. § 30 to 88. (r) 14 § 26. See ante, p. 209. (w) Lid. 571, $185. Id, 8d ed. 695, $277. (3) Id. § 27. (z) 2K. 8, 696, § 84 omar, IL] OF MISDEMEANORS. 253 Selling offices.| Every person holding or exercising any office under the laws or constitution of this state, who shall for any reward or gratu- ity, paid or agreed to be paid, grant to another the right or authority to discharge any of the duties of such office, is to be deemed guilty of a mis- demeanor; and in addition to other punishments prescribed by statute, shall forfeit his office and be forever disabled from holding it.(y) Where a sheriff, on appointing a deputy, takes an agreement from him for the payment of a gross sum, which is not to come out of the profits of the office, the contract is void. But the rule is otherwise where the sheriff merely reserves a part of the fees of his office, or a sum certain, which is to come out of the profits(z) A bond given to the sheriff, by a deputy and his surety, conditioned, for saving the sheriff harmless from liability on account of the deputy’s conduct, and for paying over to the sheriff one half of the fees arising from business done by the deputy, is not within the above section of the statute, against selling offices.(a) It has been held, in Virginia, that a corrupt agreement between A. and B. that A. shall vote for C. as commissioner, in consideration that B. will vote for D. as clerk, and vice versa, although indictable as a misdemean- or, at common law, if carried into execution, is not an offense under the statute of that state against buying and selling offices.(b) Buying offices.| Giving or making any agreement to give any gratu- ity or reward, in consideration of any such grant or deputation, amounts to the same offense as selling.(c) Every grant or deputation made contrary to the above provision, is void ; but all official acts, done before a conviction for buying or selling the office, are valid.(d) Where a person receives a deputation to a public office, which entitles him by statute to a certain per centage upon the fees and emoluments of the office of his principal, and on receiving his appointment he enters into an agreement to perform the duties of his office at a fired salary, such agreement being in violation of the above sections of the statute against buying and selling offices, is void, although it be not certain that the stipulated sum would be less than the per centage allowed by law.(e) Bringing to this state foreign convicts.] Masters or commanders of ships, &c. arriving from a foreign country, knowingly bringing any per- son into apy port, city, harbor or place within this state, with intent to land or to permit him to land, which person shall have been or shall be a foreign convict of any felony, which if committed in this state would (y) 2B.S. 696, $35. (c) 2 B.S. 696, § 36. (2) Mott v. Robbins, 1 Hill, 21. (d) Id. § 87. (a) Ibid. (e) Tappan v. Brown, 9 Wend. 178. (2) Comm. v. Callaghan, 2 Virg. Cas. 460. 254 OF MISDEMEANORS. [Boox m1. be punishable therein, shall be considered guilty of a misdemeanor, and be punished by fine not over $300, or imprisonment not exceeding one year, for each offense.(f) But such punishment may be remitted by the court, if it is satisfied such master, &c. has reconveyed said convict or convicts to the place from whence he took them.(g) Using name of partner not interested.| No person to transact business in the name of a partner not interested in his firm. The designation “and Company” or “and Co.” must represent an actual partner or part- ners. Punishment, for violating these provisions—fine not exceeding $1000.(2) Obstructing railroads.| Placing upon any railroad any stone, piece of wood, or any other obstruction, with the design to obstruct or impede the passage of the cars, and with intent to injure said railroad or the passengers or cars passing thereon, isa misdemeanor. Punishment— imprisonment in the county jail not exceeding one year, or a fine not over $250, or both.(z) Entering arsenals to take arms, ammunition, &c. or taking them.| Punishment—fine not exceeding $1000, or imprisonment in county jail not over one year, or both such fine and imprisonment.(k) * Bribery, menace, Sc. at town or charter elections.| Attempting, by bribery, menace or other corrupt means or device, either directly or indi- rectly, to influence any elector in giving his vote or ballot, or to deter him from giving the same, or disturbing or hindering him in the free exercise of the right of suffrage, at any town meeting or charter election in any incorporated city or village. Punishment—fine not to exceed $500, or imprisonment in the county jail, not to exceed one year; or both.(/) Changing vote of an elector.| Fraudulently or deceitfully changing a vote of any elector, at a town meeting or charter election, by which such elector shall be prevented from voting for such candidate as he in- tended. Punishment—the same as in the last preceding section.(m) Non-residents voting’, or voting in more than onetown.| Any person voting in any town in which he does not reside, or voting or offering to vote, in more than one town at any annual town meeting, in the same year. Punishment—fine not exceeding $100, or imprisonment not ex- ceeding six months, or both.(n) Removing human remains.| Removing any dead body, or human remains, from any burying ground, for the interment of which compen- _ sation shall have been received by any church or religious corporation, or by any officer or officers thereof, and which shall have been used for ) 2B. S. 8d ed. 781, § 40. (k) Id. § 45. (g) Id. 782, § 41. (I) Id. §8 45, 47. (A) Ibid, §§ 42, 43. (m) Id. §§ 46, 47. (i Id. § 44. (n) Ta. § 48. OHAP, I1.] OF MISDEMEANORS, 255 that purpose’ during the last three years, with the intent to convert such burying ground to any other purpose, without having first obtained the consent in writing of three-fourths of the congregation or society, duly acknowledged and recorded. Punishment—imprisonment in a county jail not exceeding six months, or fine not exceeding $500 ; or both.(o) Unlawful assemblages of persons disguised.]| Fivery assemblage in public houses, or other places of three or more persons, disguised by hay- ing their faces painted, discolored, covered or concealed, or otherwise dis- guised in a manner calculated to prevent them from being identified, is declared to be unlawful; and every individual so disguised, present thereat, is to be deemed guilty of a misdemeanor, and on conviction may be punished by imprisonment in the county jail not exceeding one year.(p) , Resisting execution of process.| Resisting, or entering into a com- bination with any person or persons to resist the execution of process. Punishment—imprisonment in the county jail for a term not exceeding one year, or a fine not exceeding $1000; or both, in the discretion of the court.(g) And any person or persons who shall, after the publication of a proclamation by the governor declaring any county or counties to be in a state of insurrection, resist or assist in resisting the execution of any process in any such county, or who shall aid or attempt the-rescue or escape of any prisoner from lawful custody or confinement, or who shall resist, or aid or assist in resisting, any force ordered out by the governor to quell or suppress any such insurrection, shall, upon conviction, be adjudged guilty of a felony, and punished by imprisonment in a state prison for a term not less than two years.(r) Throwing gas-tar or refuse into public streams.) Manufacturers of gas, or other persons, throwing or depositing gas-tar or refuse of the gas-houses or factories in the counties of New-York, Queens or Kings, into any public waters, river or stream, or into any sewer or stream run- ning or emptying into any such public waters, river or stream, are also declared guilty of a misdemeanor.(s) Neglects by public officers.| Where any duty is or shall be enjoined by law, upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be punishable as a misdemeanor.(¢) T’o render a neglect of duty by a public officer wal/ful, within the above section, it is only necessary that it should appear to be intentional ; and it is no de- (0) 2 B.S. 782, §§ 49, 50. resistance to the execution of process, (p) Id. 783, § 51. 1,8, 8d ed. 808, see 2 R.S. 3d. ed. 587, 538. 5. (r) 2 B.S. 8d ed. 587, § 106. (g) Id. ib.§ 62. Fortheproper course = (8) Id. 783, § 53. to be taken by public officers in case of (t) 2R.8. 8d ed. 587, § 54, 256 OF MISDEMEANORS, [Boor n. fense that the officer believed he was not bound to do the act, and was not guilty of bad faith in refusing.(w) A justice of the peace, before whom a cause is pending, is bound, on the defendant’s request, to swear him to an affidavit prepared for the purpose of procuring the cause to be discontinued, on the ground of the justice being a material witness for the defendant; and his refusal to do so is a misdemeanor, whether the affidavit as drawn is sufficient for the purpose, or not.(v) Disclosing fact of indictment being found.| Grand jurors, constables, district attorneys, clerks or judges, who shall disclose the fact of an in- dictment having been found against any person for a felony, who is not in actual confinement, before the defendant shall have been arrested, are guilty of a misdemeanor. (w) Disobeying command of officers to render assistance in criminal cases.] This is also a misdemeanor.(z) Suing in the name of another, without his consent.| Punishment, im- prisonment not exceeding six months.(y) Officers granting process, Sc. to arrest fugitives from service.| Mis- demeanor in any other officer than those authorized to issue writs of habeas corpus.(z) Violating provisions of the act to preserve the purity of elections.] (See Laws of 1839, p. 363.)(a) Circulating notes of foreign banks, for less than $5.] Passing, cir- culating, or receiving in payment, within this state, any bank note, bill, or promissory note for the payment of money, issued by any state or sovereignty, or by any body politic or corporate, not authorized to issue the same in and by any of the laws of this state, under the denomination of five dollars, is also prohibited.(6) Any person offending against the provisions of this section will forfeit the nominal amount of such bank note, &c. with costs of suit, to be recovered in the name and for the use of any person who shall sue for the same, and prosecute such suit to judgment.(c) Setting up, drawing, or advertising lotteries.| The statute declares that every lottery, game or device of chance, in the nature of a lottery, by whatever name it may be called, other than such as have been authorized by law, shall be deemed unlawful, and a common and public nuisance.(d) No person, unauthorized by special laws for that pur- pose, shall, within this state, open, set on foot, carry on, promote, or draw publicly or privately, any lottery, game, or device or chance, of any nature or kind whatsoever, or by whatever name it may be called, for the purpose (u) The People v. Brooks, 1 Denio, 457, (2) Id. 561, § 14. (v) Ibid. (2) 1 B.S. 164, 8d ed. § 8. (w) 2 R. 8. Ist ed. 726, § 89. (b) Id. 896, § 18. (2) Id. 745, § 28. « Id. ib. § 14. (y) 1d. 650, §1. 1B. 8. 842, § 26. onAP, 11] OF MISDEMEANORS, 257 of exposing, setting to sale, or disposing of, any houses, lands, tenements, or real estate, or any money, goods or things in action. Whoever offends against this provision is to be deemed guilty of a misdemeanor: and on conviction will be subject to a fine equal to the amount of the whole sum or value for which the lottery, game, or device was made ; and if such amount can not be ascertained, then to a fine of $2500, or to impris- onment not exceeding two years; or both.(e) It is also provided that no person shall, by printing, writing, or in any other way publish an account of any such illegal lottery, &c. stating when or where the same is to be drawn, or the prizes therein, or where any ticket may be obtained therein, or in any way aiding or assisting in the same. Punishment, fine not exceeding $150, or imprisonment not exceeding three months.(f) - Welling or procuring tickets in illegal lotteries.) No person within this state shall vend, sell, or barter, furnish, supply, procure, or cause to be furnished or procured, or offer to vend, sell, barter, furnish, supply, procure, or cause to be furnished or procured, to or for any person or persons, any ticket, or part or share of a ticket, or any paper or instru- ment purporting to be a ticket or part of a ticket, or to be a share or interest in any ticket, or in any paper purporting to be a ticket, of any such lottery, device or game of chance not expressly authorized by law; nor shall any person be aiding, abetting or assisting in the commission of either of the said offenses. Whoever offends against either of these provisions, is to be deemed guilty of a misdemeanor, and is punishable by a fine not exceeding $500, or imprisonment not exceeding one year: or both.(¢) Offering for sale property dependent on the drawing of a lottery.] This is also declared a misdemeanor, pnnishable by a fine not exceeding $500, or imprisonment not exceeding one year.(h) For other statutory provisions respecting lotteries, and lottery tickets, see 1 Revised Statutes, 3d ed. pp. 843, 844, 845. It has been decided tha! the exception in the statute, of lotteries au- thorized by law, relates to the same thing as the exception in the con- stitution ; which exempts those lotteries and those only, that bad been authorized by the legislature of the state, prior to the adoption of the constitution.(7) And all lotteries, after the year 1833, being declared unlawful, and a common and public nuisance, it is not now necessary to aver, in the indictment, that the lottery is not authorized by law.(4) Lotteries, therefore, authorized by the laws of other states, are unlawful here, and within the statute.(Z) ‘T'o publish, in this state, an account of (e) 1 . s. ee § 27, A The People y. Sturdevant, 23 Wend. Id. ib. § 28. 418. ‘ _— (g) Id. ib. § 29. (k) Ibid. (h) Td. ib. § 80, (1) Ibid. 33 258 OF MISDEMEANORS: [poox nu. a lottery to be drawn in another state, being a misdemeanor, a demurrer to an indictment for publishing-ia New-York an account of a lottery to be drawn elsewhere is bad. And the indictment need not expressly alledge that such lottery was for the purpose of disposing of money or other property, if the fact appears from the advertisement set out in the indictment.(m) An indictment for selling lottery tickets must describe the lottery as one set on foot for the purpose of disposing of property, according to the terms of the statute.(z) But it need not set out the tickets sold; nor give the names of the persons to whom the tickets were sold; it being alledged that their names were unknown to the jurors.(o) See further, as to the requisites of the indictment, 3 Denio, 91. The keeping of a room or place for the sale of tickets in lotteries not authorized by law, is not indictable.(p) Taking usury.] The statute provides that any person who shall, directly or indirectly, receive any greater interest, discount, or considera- tion, than the legal rate, shall be deemed guilty of a misdemeanor ; and on conviction shall be punished by a fine not exceeding $1000, or im- prisonment not exceeding six months, or both.(q) Under this section it has been decided that one who secures to himself a usurious premium by retaining more than lawful interest, out of the amount of a security discounted by him, is indictable for receiving usury contrary to the statute.(r) Besides the above misdemeanors specified in the statute, which may be considered the most important, there are others of lesser note, which are so numerous that we can only refer to them very briefly. Concealing, removing, &c. persons entitled to habeas corpus. (2 R. S. 571, §§ 61 to 64.) Defendant in quo warranto refusing to deliver pa- pers, &c. after judgment. (Id. 582, § 33.) Extortion, in taking greater fees than those allowed by taw, or in receiving fees for services not ren- dered. (Id. 650, §§ 5,6.) Bringing to, or carrying from the state pris- on, letters, &c. (Id. 768, § 63.) Officers under election law guilty of willful neglect, or improper conduct. (1 id. 149, §§ 3, 5.) Persons guilty of bribery, menace, &c. at elections. (Id. ib. § 4.) Breaking or lowering canal walls or erections. (Id. 235, 95.) Signing or deliver- ing a false bill of lading of a canal boat. (Id. 241, § 125.) Wantonly opening any lock gate, &c. or destroying any bridge. (Id. 248, § 179.) Willfully destroying or breaking any lock, bank, aqueduct, culvert, &c. on canal. (Id. ib. $180.) Superintendent or inspector of Onondaga salt (m) ae ce hie ng ies i: oe (0) 3 Denio, 99. 425. arles v. The People omst. The People v. Jack: i ae 8 Denio, on . see e People v. Jackson, 3 Denio, (n) The People v. Payne, 8 Denio, 88. 2B. 8. 8d ed. 58, $13 The People v. Taylor, id. 91, ; @ 2 Denio, 185. ve omar. 11] OF MISDEMEANORS. 259 springs guilty of willful neglect of duty, or mal-practice. (Id. 257, § 26.) Town clerks neglecting to return names of constables chosen. (Id. 350. $15.) Violating provisions of health law. (Id. 437.) Violating regu- lations for the preservation of the public health in the city of New-York. (Id. 444.) Violating quarantine regulations at Albany, Troy, or Hudson. (Id. 448, $$ 1, 2.) As to Brooklyn. (Id. 449.) Ferrying, without license, except in certain cases. (1 R. S. 527, §§ 8,9, 10.) Selling goods by auction, in violation of auction law. (Id. 535.) Obstructing flour inspector in the execution of his office. (Id. 538.) Inspector of ashes, buying or selling ashes. (Id. 549, § 76.) Intermixing improper substances with hops. (Id. 566, $166.) Adulterating distilled spirits, or selling such adulterated spirits. (Id. 568, § 173.) Altering proof of spirits after inspection. (Id. ib. § 174.) Counterfeiting inspectors’ marks of leaf tobacco. (Id. 569, $181.) Inspector or deputy inspector of leaf tobacco violating inspection law. (Id. 570, § 182.) Inspectors neglecting to make certain reports and affidavits. (Id. 571, § 189.) Inspectors guilty of fraud, mal-prac- tice, &c. (Id. 572, $191.) Obstructing inspector in discharge of the duties of his office. (Id. ib. § 192.) Counterfeiting or defacing brands or marks. (Id. ib. § 193.). Injuring or defacing mile stones, guide posts, or mile boards. (Id. 525, §§ 128, 129. 2 id. 696, § 33.) Overseers of the poor, or other officers confining lunatics, except in manner authorized by law. (1 id. 635, §11.) Supervisors or overseers of poor neglecting to provide for support of bastards. (Id. 655, § 67.) Sending or taking slaves or servants out of this state, except as authorized by law. (Id. 658.) Cheating at play. (Id. 662, $11.) Winning or losing $25 within twenty-four hours. (Id. ib. § 13.) Wreck masters and other officers vio- lating provisions of law relative to wrecks. (Id. 694, § 24.) Not deliv- ering wrecked property. (Id.ib. § 25.) Driver of carriage running his horses. (Id. 695, § 4.) Owner of wood lands negligently setting fire to woods, or suffering fire to extend beyond his own land. (Id. 696, § 1.) Refusing to assist in extinguishing fire. (Id. ib. §3.) Defacing marks, or putting false marks on floating timber. (Id. 699, § 10.) Justice of peace or other officer giving a false certificate under law relative to de- struction of wolves, &c. (Id. § 13.) Violating Jaw in regard to pawn- brokers. (Id. 711, § 9. Partners in a limited partnership, guilty of fraud. (Id. 766, § 19.) Sheriff, &c. suffering insolvent to escape. (2 id. 44, § 16.) Ministers, &c. solemnizing: marriages in certain cases. (Id. 140, § 12.) Shakers or others secreting or carrying child out of the state. (Id. 149, § 7.) Attorneys, &c. guilty of deceit or collusion. (Id. 287, § 68.) Selling liquors, &c. in court house. (Id. 291, § 95. 96.) In jails. (Id. 431, §31. 775,§11.) Violating law respecting steam- boats. (1 R. 8. 685,§11.) Racing of animals. (Id. 672.) All offenses against the laws relating to excise, and to the regulation of taverns and 260 OF MISDEMEANORS, [poox 1. groceries. (Id. 682.) The offense of selling spirituous liquors, in viola- tion of the excise laws, may be established by circumstantial evidence. And the fact that the defendant kept liquor in his grocery store, to sell, is competent evidence for that purpose, in an action against him to recover the penalty.(s) Where the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or in any other section or statute, the doing such act shall be deemed a misdemeanor.() Gambling.| The act of July 10, 1851, “more effectually to suppress gambling,” directs that any person convicted of keeping any place used or occupied for gambling, shall be fined in any sum not less than $50 nor more than $500. If any person for gambling purposes, keeps or ex- hibits any gaming table, establishment, device, or apparatus, or deals in “ faro,” or banks for others to deal “faro,” or acts as “look-out” or “game- keeper” for the game of “faro,” or any other banking game; or if any person sells or vends lottery policies, &c. he is to be deemed a common gambler, and on conviction shall be sentenced to not less than ten days’ hard labor in the penitentiary, or not more than two years’ hard labor in the state prison, and be fined not to exceed $1000. The act also pro- vides a penalty for inveigling persons to gambling houses; and a penalty upon any commander, owner or lessee of any boat or float, who shall knowingly permit any gambling for money or property thereon, &c.(az} General provisions respecting punishment of misdemeanors.| Every person convicted of any misdemeanor, the punishment of which is not prescribed in the sixth title of the first chapter of the fourth part of the revised statutes,(v) or in some other statute, shall be punished by impris- onment in a county jail not exceeding one year, or by a fine not exceed- ing two hundred and fifty dollars, or by both such fine and imprison- ment.(w) The court before which any person shall be convicted of an offense punishable by imprisonment in a county jail, may sentence such person to be imprisoned in a solitary cell in such jail, if any such be erected ; but such imprisonment is in no case to exceed thirty days in the whole.(z) An attempt to commit a statutory misdemeanor, as, for instance, an indecent assault, is indictable as a misdemeanor.(y) (s) 8 Barb. S. ©. Rep. 5853. (w) Td. 697, § 40. 2 R. S. 696, § 39. (a) Id. § 41. u) Laws of 1851, p. 953. (y) 6 Car. & Payne, 368. (0) 2 R. S. 696, § 89. BOOK III. Of the Prrsung ropable of rummitting Crimes. Havina, in the preceding Books, considered the nature of crimes in general, and the several species of felonies and misdemeanors punishable in this state, either at common law or by statute, we are now to inquire what persons are or are not capable of committing crimes, and the sev- eral grounds of exemption from punishment. It is a general rule, that no person shall be excused from punishment for disobedience to the laws of his country, unless he be expressly ex- empted by those laws themselves.(a) All the grounds of exemption from punishment known to our laws proceed upon the want or defect of will in the party charged as the of- fender. For without the consent of the will, human actions can not be considered as culpable; nor, where there is no will to commit an offense, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes.(b) As the guilt of offending against law arises from the disobedience being willful, it follows that those who are incapable of understanding the law, or conforming themselves to it, for any reason, can not with propriety be said to transgress it, or incur the penalty instituted for its violation.(c) The cases of want or defect of will, which create an exemption from punishment, are reducible to the following heads: 1. Infancy, 2. Insan- ity. 3. Subjection to the power of others. 4. Ignorance, or mistake. (a) 4Black. Com. 20. 1 Russ. on Cr... () Crown Cir. Comp. 33. (6) 1 Russ, on Cr. 1. 262 OF THE PERSONS CAPABLE [Boox m1, CHAPTER I. Exemption from Punishment, arising from Infancy. Aw infant is a person under the age of twenty-one years. Infants above the age of discretion, which is, in general, fourteen years, are pre- sumed capable of discerning good from evil, and are, with respect to their criminal actions, subject to the same rules of construction, and the same modes of prosecution and punishment, as others of mature age.(d) There are, however, a few exceptions to this rule recognized by the common law; and in some misdemeanors, an infant is privileged by reason of his non-age, even though he be over fourteen ; for instance, if the offense charged be a mere non-feasance, as not repairing a bridge or a highway, and other similar offenses. In these cases, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires, and his laches shall not be imputed to him.(e) Infants above seven years of age, and under fourteen, are said to be within the age of possible discretion ; during which time they may or may not be guilty of crime, according to their natural capacity or inca- pacity. The presumption, where the offender is under the age of four- teen, is, that he has not a sufficient sense of right and wrong to be capa- ble of committing crime. But this presumption, like most others, may be overcome by counter evidence, and by circumstances. For the capa- city of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent’s understanding. One lad, eleven years old, may have as much cunning as another of four- teen ; and in these cases the maxim is, that malice supplies age.(f) Thus it is said, that an infant of seven (g) or eight years of age may be indicted for murder, and shall be hanged for it.(z) And an infant be- tween the ages of eight and nine years has been executed for arson—it appearing that he was actuated by malice and revenge, and had _perpe- trated the offense with craft and cunning.(i) So a girl of thirteen was burnt for killing her mistress.(4) And where an infant nine years of d) Arch. Cr. Pl. 10, 11. 1 Russ. on witnesses. Per Southard, J., 1 South. R. Cr. 2,3. 4 Black. Com. 22. 1 Wheel. 231, Crim. Rec. 231. 1 Ashm. Rep. 248, (g) 1 Ashm. Rep. 248. (e) 4 Black. Com. 22. (h) Dalt. Just. ch. 147. Arch. Cr. PI. “(f) Id. 238. 4 Car. & P. 236. And 11. ‘1 Russ. on Cr. 8. see 1 Wheel. Crim. Rec. 230, 281, and (i) 1 Hale’s P. C. 25. Arch. Cr. Pl. note. The intellectual capacity of the 11. 1 Russ on Cr. 8. 4 Black, Com. 24. child may be proved by the testimony of (4) 1 Hale’s P. O. 26. oHAP, I,] ‘OF COMMITTING CRIMES. 263 age killed another of the like age, and confessed the felony, it appearing on the examination that he had hid the blood and the body, the justices held that he ought to be hanged; but they respited the execution that he might have a pardon.(7) But an infant under twelve years of age can not be convicted of murder, upon his own confession alone, without other evidence.(m) An infant under the age of fourteen is presumed unable to commit a rape, and though, in other felonies, malice supplies age, yet, as to this fact the law presumes the want of ability as well as the want of dis- cretion.(z) But he may be punished for aiding and assisting in the com- mission of this offense, if it appear that he had a mischievous discretion.(o) And he may be indicted for an assault, with intent to commit a rape.(p) With regard to the maxim that malice supplies age, it seems agreed among all the writers on criminal law, that before an infant under four- teen is presumed capable of committing a crime, the evidence of mischievous discretion should be strong and clear, beyond all doubt and contradiction.(q) An infant under the age of seven years can not commit a crime; for within that age the law regards him as doli incapaz, (incompetent to dis- cern evil,) and asnot being endowed with any sort of discretion. No evidence is admissible to contradict.this legal presumption ; and all per- sons under seven years of age are absolutely exempted from criminal prosecutions without regard to their mental capacity.(r) On the trial or examination of an infant for a crime or misdemeanor, he has a right to appear and defend himself in person, or by attorney ; and it is error for the court to assign him a guardian, and try the case on a plea pleaded for him by the guardian.(s) Where infancy is set up as a defense to a criminal prosecution, it is necessary that the infancy should be proved, by competent evidence. It has been held that the mere opinion of a witness respecting the age of a person, judging from his appearance, unaccompanied by the facts on which that opinion is founded, is inadmissible evidence.(¢) By the revised statutes it is provided, that any person under sixteen years of age convicted of any felony, instead of being sentenced to im- prisonment in a state prison, may be sent to the house of refuge for juve- venile delinquents, in the city of New-York.(u) (2) 1 Hale’s P. 0.27. 1 Russ. on Cr. 8. (g) 1 Russ on Cr. 8. 1 Black. Com. 4 Black. Com. 24. Arch. Cr, Pl. 11. 24, Arch. Cr. Pl.11. 4 Car. & P. 286, (m) 1 South. 281, 240. 1 Wheel. Crim. Rec. 230, 231, and note. (n) 8 Car. & P. 396. 1 Hale’s P.C. 1 Ashm. 248, 630. Roscoe’s Cr. Ev. 777. Arch. Cr. (7) 4 Black. Com. 23. Arch. Or. Pl, Pl. 11. 1 Russ. 3. 10,11. 1 Russ. on Cr. 2. (0) Id. ib. (s) 3 Leigh’s Rep. 743. (p) 2 Pick. Rep. 880. Butthecontra- (¢) 6 Conn. Rep. 9. ry has been decided in England. See 3 (uw) 2R. 8. 701, $17. Car. & P. 396, 264 OF THE PERSONS CAPABLE [ox 1, » CHAPTER IL. Exemption from Punishment, arising from Insanity. Turs ground of exemption from punishment in criminal cases has been usually considered under three heads; 1. Idiocy ; 2. Adventitious in- sanity; 3. Voluntary or acquired insanity. Ist. Idiocy.| An idiot is a fool, or madman from his birth; one who never has any rational or lucid intervals.(a) And those are said to be idiots whose want of intellectual capacity is such that they do not know their fathers or mothers, can not number twenty, tell the days of the week, or the like ; but these instances are mentioned as tests of sanity only, and are not always conclusive.(d) A man who is deaf and dumb from his birth, is by presumption of law an idiot; he being supposed incapable of discriminating between right and wrong, or of understanding the penal enactments of the law, as ap- plicable to particular offenses. But if it can be shown that he has the use of his understanding, which many of that condition discover by signs, then he may he tried, and suffer judgment and execution ; though great caution should be observed in such proceedings.(c) 2d. Adventitious insanity] This proceeds from various causes, and is of several kinds and degrees. It may be partial, as monomania, which is an insanity upon some particular subject, the party being sane upon all others; or total. So it may be permanent, when it is usually called madness; or temporary, the subject of it being afflicted with the disorder only at certain periods and vicissitudes, and having lucid intervals. In the latter case, it is denominated lunacy.(d) A person made mon compos mentis by sickness, or as it has been some- times expressed, a person afflicted with accidental or adventitious mad- ness, is excused in criminal cases, from such acts as are committed while under the influence of his disorder. Several causes have been assigned for this disorder ; such as the distemper of the humors of the body; the violence of a disease, as fever or palsy; or the concussion or hurt of the brain; and as it is more or less violent, it is distinguishable in kind or degree, from a partial insanity, in respect of some particular matters, to a total alienation of the mind, or complete madness.(e) (a) Coke Litt. 247. 1 Russ. on Cr. 6, = (c) 1 Russ. on Or. 7. Arch. Cr. Pl. 12, 7. Arch. Or, Pl. 12. 1 Bl. Qom. 803. 1 Black. Qom. 304. (6) Arch, Cr, Pl, 1, (d) Arch. Or. Pl. 12. (e) 1 Russ. on Or. 7, OHAP, 11.] OF COMMITTING CRIMES. 265 A lunatic, or person afflicted by insanity, only at certain periods and vicissitudes, having intervals of reason, is entitled, during his frenzy, to the same indulgence, as to his acts, and stands in the same degree with one whose disorder is fixed and permanent.( f) 3d. Voluntary, or acquired insanity.| This consists in a temporary frenzy, or deprivation of reason, produced by drunkenness.(g) Or, it may be by the indulgence of violent passions.(/) With regard to the two first species of insanity, viz. idiocy and adven- titious insanity, the effect of them as a ground of exemption from punish- ment for criminal offenses, is usually the same. When the deprivation of understanding and memory is total, fixed and permanent, it excuses all acts. And a man, likewise, who labors under adventitious insanity, is entitled to the same indulgence, as to all acts committed by him during the frenzy, and connected with it.(2) This is the doctrine of the common law. Besides, it is now expressly provided by statute, that ‘No act done by a person in a state of insanity can be punished as an offense.”(£) One great difficulty which a magistrate has to encounter is, to distin- guish between such an insanity as shall amount to an excuse, and that sort of delusion or mental derangement, notwithstanding which the pa- tient may be capable of distinguishing between right and wrong, and which, therefore, will not excuse. The rules which have occasionally been laid down on this subject are by no means entirely satisfactory. “Partial insanity,” says Lord Hale, “is the condition of many, especially of melancholy persons, who generally discover its effects in excessive fear or grief, and yet are not wholly destitute of reason. And this par- tial insanity seems not to excuse them in the commission of crime.”() “ Doubtless,” he adds, “ most persons that are felons of themselves, and others, are under a degree of partial insanity when they commit these offenses. It is very difficult to define the invisible line that divides per- fect from partial insanity; but it must rest upon circumstances duly to be weighed both by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other side, too great an indulgence given to great crimes.” He concludes by suggesting the following test, viz. that such a person as, laboring under melancholy distempers, hath yet ordinarily as great understanding as an ordinary child of fourteen hath, is such a person as can be guilty of trea- son and felony.(m) In other instances the rule is laid down thus: that to excuse a man from punishment, upon the ground of insanity, it must (f) 1 Buss. on Cr. 7. (hk) 2B. 8. 697, § 2. (g) 4 Black. Com. 18. (2) 1 Hale’s P. C. 80. h) 8 City Hall Rec. 125. (m) Id. 80, 412. (fh) 8 City , (4) 4 Coke Litt. 247. 1 Hale's P. 0. 81. Arch, Cr, Pl. 81. 266 OF THE PERSONS CAPABLE [poox m1. appear distinctly that he was incapable of distinguishing right from wrong, at the time he did the act.(m) “It is clear,” says Mr. Russell, “that idle and frantic humors, actions occasionally unaccountable and extraordinary, mere dejection of spirits, or even such insanity as will sus- tain a commission of lunacy, will not be sufficient to exempt a person from punishment, who has committed a criminal act. And it seems that though there be a total permanent want of reason, or if there be a tem- porary want of it when the offense was committed, the prisoner will be entitled to an acquittal ; yet if there bea partial degree of reason, a com- petent use of it, sufficient to have restrained those passions which pro- duced the crime ; if there be thought and design ; a faculty to distinguish the nature of actions; to discern the difference between moral good and evil; then upon the fact of the offense proved, the judgment of the law must take place.”(0) In Maenaghten’s case,(p) it was laid down that, notwithstanding a party did an act which was in itself criminal, under the influence of insane delusion, with a view of redressing or avenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew, at the time, that he was acting contrary to law. And that if the accused was conscious that the act was one which he ought not to do, and if the act was at the same time contrary to law, he is punishable. In all cases of this kind the jurors ought to be told, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the con- trary be proved to their satisfaction. And to establish a defense on the ground of insanity it must be clearly proved that at the time of commit- ting the act the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.(q) A party laboring under a partial delusion must be considered in the same situation, as to responsibility, as if the facts in respect to which the de- lusion exists, were real.(r) In the Queen v. Oxford,(s) which was an indictment for treason, for attempting the life of the queen by shooting at her, the defense being insanity, it was held that the question for the jury was whether the prisoner was laboring under that species of insanity which would satisfy them that he was quite unaware of the nature, character, and consequences of the act he was committing ; or in other words, whether he was under the influence of a diseased mind, and was (n) Arch. Cr. Pl. 168. The Queen v. (r) Ibid. See 8 Scott’s Rep. N. 8. 595, Higginson, 1 Car. & K. 129. See 5 Car. questions of law propounded to the judges & Payne, 168. in relation to the law respecting alledged (0) 1 Russ. on Cr, 12, See 1 Beck’s crimes committed by persons afllicted Med. Jur. 587, et seq. Arch, Or. Pl. 14. with insane delusion; and the opinions 5 Car. & Payne, 168. of the judges thereupon. fp) nao & Fin, 200. (8) 9 Car. & Payne, 526. id. oHAP. I1.] OF COMMITTING CRIMES. 267 really unconscious, at the time he was committing the act, that it was a crime. In this state the rule has thus been laid down. When insanity is set up as a defense to an indictment, the question is, whether at the time of committing the act, the accused was laboring under such mental disease as not to know the nature and quality of the act he was doing, or that it was wrong.(t) But by far the most intelligible and comprehensive rule which we have met with is thus stated by a learned writer upon the criminal law of Scotland: “'T’o amount to a complete bar of punishment, the insanity must have been of such a kind as entirely to deprive the prisoner of the use of reason, as applied to the act in question, and the knowledge that - he was doing wrong in committing it. If, though somewhat deranged, he is yet able to distinguish right from wrong, in his own case, and to know that he was doing wrong in the act which he committed, he is liable to the full punishment of his criminal acts.”(w) The finding of a jury, upon a preliminary issue, to the effect that the prisoner was then sane, can not be taken into consideration upon the question of insanity set up as a defense upon the trial of an indict- ment.(v) With respect to voluntary or acquired insanity, the following seems to be the result of the authorities. If an offense be committed by a party during a fit of drunkenness, brought on by his owa wrongful indulgence, no matter how great the deprivation of reason may have been, it will not exempt him from punishment ; but he is answerable to the law equally as if he had perpetrated the act while in the full possession of his facul- ties. “A drunkard,” says Lord Coke, “hath no privilege thereby ; but what hurt or ill soever he doeth, his drunkenness doth aggravate it.”(x) Thus where a person, after a paroxysm of drunkenness, rose in the mid- dle of the night, and cut the throats of his father and mother, ravished the servant-maid in her sleep, and afterwards murdered her, notwithstand- ing his drunkenness, he was tried and executed for these offenses.(y) There are many men, soldiers who have been severely wounded in the head especially, who well know that excess makes them mad; and if such persons willfully deprive themselves of reason, they ought not to be excused for one crime, by the voluntary perpetration of another.(z) Yet (é) Freeman v. The People, 4 Denio, 9. 8. 4 Black. Com. 26. Arch. Or. Pl. 13. (uv) Alison’s Pr. Cr. Law of Scot. 645, 1 Hawk. P. O. ch. 1,§4. Ros. Cr. Ev, 654. See Roscoe’s Cr. Ev. 778. The 783. Martin & Yerger, 183. 1 Hale’s P, reader will find an able dissertation on C. 82. this subject in Beck’s Med. Jurisp. vol.1, _ (y) Dey’s case, 8 Paris & Fonb. Med. chap. 13. dur. 140, n. (0) 4 Denio, 9. (2) Ibid, 140. (a) Coke Litt, 247, 1 Russ. on Cr. 7, 268 OF THE PERSONS CAPABLE [poor mr. if a person, by the unskillfulness of his physician, or by the contrivance of others, and without any volition on his own part, eat or drink such a thing as causes frenzy, this puts him in the same condition as other in- sane persons, and equally excuses him. So also is he excused if he com- mit a crime under the influence of insanity which is habitual or fixed, though caused by frequent intoxication, and originally contracted by his own act.(a) The law discriminates between the delirium of intoxication and the insanity which it sometimes produces. While the drunkenness contin- ues, the person under its influence is responsible as a moral agent, though reason in the mean time has lost her dominion ; but when the intoxica- tion ceases, if insanity immediately follow as a consequence of the vice, he is, in the eye of criminal justice, no longer amenable for his acts. This legal distinction in the criminality of acts in relation to insanity and its causes, is exemplified in cases of delirium tremens, a species of mad- ness which often deprives the sufferer of the power of distinguishing be- tween right and wrong, and which medical writers attribute to frequent intoxication, or the sudden cessation from habitual drinking ; or to the combined effects of both upon the system.(6) Thus it has been decided that in cases of delirium tremens, or mania a potu, the insanity excuses the act, if the party be not intoxicated when it is committed ; the crime being a remote consequence superinduced by the antecedent drunken- ness.(c) Although voluntary drunkenness can not excuse the commisison of crime, yet where, as upon a charge of murder, the material question is whether an act was premeditated, or done only with sudden heat and im- pulse, the fact ofthe party being intoxicated has been holden to be a cir- cumstance proper to be taken into consideration.(d) Where a man, through the influence of violent passions, has been hur- ried into a state of temporary frenzy, and under that excitement commits a crime, he will not be excused.(e) Evidence of insanity.| When the defense of insanity is interposed, the burthen of proving that the crime charged was committed when the prisoner was insane lies upon the prisoner, and ought to be clearly made out; for, itis a general rule that every person is to be presumed sane unless the contrary be made to appear.(f) On the other hand, if a settled or habitual derangement is shown to have existed previous to (@)_1 Russ. on Cr. 8, Archb. Cr. Pl. (e) 8 City Hall Rec. 125. 18. 1 Beck’s Med. Jurisp. 628. (7) 1 Russ. on Cr. 6. 5 John. 158, 9. (6) Am. Jurist, vol. 3, p. 6. 1 Peters’ 0. C. Rep. 168. 4 McCord, 183. (c) 5 Mason’s Rep. 28. Mart. & Yerg. 4 Cowen, 207. 4 Wash. O. ©. Rep. 262 Rep. 147. 3 Am. Jurist, 5 to 20. State to 269. 5 Car. & P.168. 1 Russ. C. & v. McCants, 1 Spear’s Rep. 384. M. 9. (@ 1 Russ. on Cr. 8. Addis. Rep. 257. Arch. Or. Pl. 18. Roscoe’s Or. Ev. 784, omar. 11] OF COMMITTING CRIMES. 269 the commission of the offense, the burthen of proving that the act was committed when the prisoner was sane, will thereby be thrown upon the prosecutor; for so amply have medical science and general observation borne testimony to the obstinacy of this species of insanity, that, when once shown to exist, its continuance is presumed, until such presumption is overcome by counter evidence.(¢) Where this defense is set up, the evidence that may be adduced is of two kinds, matter of fact and matter of opinion.(h) The evidence of fact vari@s of necessity with each case, but in all it must be very strong, and even conclusive, to entitle it to success. Proof of the same degree of incapacity as would sometimes be sufficient to sustain a verdict of lunacy, in a civil proceeding, has failed to sustain a similar verdict, in a trial for felony.(2) If a lunatic has lucid intervals, the law presumes the offense of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper.) ‘This may answer as a rule, in the absence of all evidence save as to the general fact of lunacy with lucid intervals. What shall change the onas, and render it necessary for the prosecutor to exhibit proof of sanity, must depend upon the nature of the malady and the circumstances of each particular case. If, after all the evidence given, there remains good ground of doubt whether the prisoner was in such a state of mind as to render him accountable for his crime, at the moment he committed the act, it is doubtless the safest way to discharge him. For, as has been justly, as well as feelingly observed, insanity is of itself calamity enough without inflicting the pain of a conviction and its consequence.(/) Where it was shown that the prisoner was insane a day or two before the commission of the crime, Lord Kenyon directed the jury that as he was deranged shortly before the perpetration of his offense, it was improbable that he had recovered his senses in the interim; although were they to run into nicety, proof might be demanded of his insanity at the precise moment when the act was committed. Yet there being no reason for believing him to have been at that period a rational and accountable being, he ought to be acquitted.(sm) Still those doubts which are to ope- rate in this way should be rational, and such as arise from a careful and accurate estimation of the circumstances proved. A morbid sympathy towards the accused may sometimes lead those intrusted with the administration of justice to “seek for a place to hang a doubt on,” with (g) Stock’s Non Compos Mentis, 70. (4) 1 Russ. on Or. 6. 1 Hale’s P. CO. (A) Id. 71. 33, 34. 3 Stark. Ev. 1702. (i) Id. ib. 2 Virg. Cas.182. 1Const. (2) 1 Whee. Cr. Ree. 48. Court Rep. 225. Cowen & Hill’s Notes (m) 1 Russ. on Cr. 11. Coll. on Lu. to Phil. Ev. part 1, p. 295, 6. 480. Roscoe's Cr. Ev. 483. 270 OF THE PERSONS CAPABLE [Book mm, a view to acquitting him.(m) It is hardly necessary to say, that in form- ing an opinion upon testimony, such feelings should, as far as possible, be cautiously repressed. The evidence of opinion is of course important in proportion to the qualifications of the witness for forming a correct one, and to his oppor- tunities of observation. On the supposition that medical witnesses are best qualified by education and pursuits to judge rightly, their testimony, though too often unsatisfactorily given, has usually great weight with the court.(0) a Medical men may be asked their opinions derived from personal obser- vation of the conduct of the prisoner; and they may be asked whether, in their judgment, such and such appearances, proved by other witnesses, are symptoms of insanity.(p) Their evidence may be taken as to the prisoner’s state of mind, not only from previous knowledge of him, but from what transpires at the trial, alone.(g) ‘Thus a medical man who has been present in court and heard the evidence, upon the trial of the prisoner, may be asked, as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapa- ble of distinguishing between right and wrong.(r) So, on a trial for murder, the keeper of a lunatic asylum, after hearing the evidence, offered himself to give an opinion, founded on it, as to the prisoner’s gen- eral insanity, and also as to his particular insanity with regard to the actin question, and it was held by the judges, after argument in the exchequer chamber, that a witness of medical skill might be called to give his opinion of a prisoner’s general insanity, on the evidence he had heard in court.(s) But they doubted whether he could be asked as to the nature of the particular act ; as it was that the jury had to try. Where the court, on the trial of an indictment, refused to permit evi- dence to be given that the prisoner was insane at any time after the find- ing of the verdict upon a preliminary inquiry as to the insanity of the prisoner, and excluded the opinions of medical witnesses, formed from an observation of the prisoner after that time, as to his insanity when the offense was committed, it was held erroneous.(¢) Where a prisoner was tried for murder, four months after the crime was alledged to have been committed, it was held that it was competent for the prisoner to prove by professional witnesses that he was insane at the time of the trial; (n) 1 Beck’s Med. Juris. 632, note. (r) Macnaghten’s case, 10 Clark & Fin. (0) Stock’s Non Comp. Ment. 70. 200. (p) Arch. Or. Pl. 14. Russ. & Ry. ©. — (8) Rex _v. Wright, Russ. & Ry. 456, C. oe 2Moo. & Malk. 75. Rose. Cr. 2 Moo. & Malk. 75. Ev. 187. t) Freeman v. The People, 4 Denio, 9. (g) Stock’s Non Comp. Ment. 71. Rex ” ee : v. Searle, 1 Moo. & Rob. 75, OHAP, 11.) OF COMMITTING CRIMES. 271 with a view to establish the defense of insanity when the act was done.(2e) The grounds on which a medical opinion should be formed, if practi- cable, in order to entitle it to respect, are thus enumerated by an able writer on the subject of insanity. “The medical evidence, in order to impress and satisfy the tribunal before which his testimony is given, should not merely pronounce the party to be insane, but ought to ad- duce sufficient reasons for the formation of his opinion. For this pur- pose it beMoves him to have investigated accurately the collateral circum- stances. It should be inquired if he had experienced an attack at any former period of his life; if insanity had prevailed in his family ; if any of those circumstances which are generally acknowledged to be the causes of the disease, had occurred—as injuries of the head, mercurial prepara- tions largely or injudiciously administered, attacks of paralysis, suppres- sion of customary evacuations, &c. It should likewise be ascertained if previous depression of mind had prevailed, resulting from anxiety, grief, or disappointment.”(v) Another late writer makes the following observations respecting the examination of medical witnesses, upon the question of insanity. “The medical witness should, when called upon to give evidence in cases of insanity, never forget that he has nothing to do with the legal definition of the term. No medical man is competent, in every case, to say wheth- er the party supposed to be deranged is or is not competent to draw a line of distinction between good and evil, right and wrong. ‘The legiti- mate point which the medical witness has to decide is this: had the alledged lunatic, at the time he committed the offense, sufficient control over his actions? It is absurd to believe that any amount of medical information, or metaphysical knowledge, which the witness may be in possession of, will enable him to form any thing like an accurate notion of the lunatic’s capability of distinguishing between right and wrong. Above all things the medical man should avoid defining insanity. Counsel, knowing the obscurity of the subject, and conscious of the dif- ficulties with which medical men have to contend in arriving at a cor- rect opinion, most unfairly, in their examination, endeavor to tie them down to definitions; and then, by showing their fallacy, weaken the whole effect of their testimony. There is nothing so easily seized upon as a definition: therefore the witness should be cautious in committing himself by attempting to define insanity. It will be better and wiser for him at once to acknowledge his incapacity to do so, than by a vain and ostentatious display of metaphysical lore, to peril the life of a fellow crea- ture.”(w) Again, “in forming an estimate of the mental state of any (u) Freeman v. The People, 4 Denio, 9. (w) Winslow on the Plea of Insanity, (v) Haslam’s Med. Juris, of Insanity, 48, 75, 76. 272 OF THE PERSONS CAPABLE [soox mm. person, for the protection of whom insanity has been urged as a plea, there are other circumstances to be taken into consideration. Is the in- sanity simulated? Persons conversant with the peculiarities of dis- ordered mind, who have been in the habit of observing the manner of the insane, will have but little difficully in detecting real from feigned derangement. Georget maintains that ‘it is impossible for a person who has not made the insane a subject of study, to simulate madness so as to deceive a physician well acquainted with the disease.’ The person who is desirous of appearing insane generally exhibits his sanity by over- acting the part of a madman. The real maniac, although known to be deranged, will often absolutely deny that he is so. He becomes greatly indignant at the manifestation of the slightest suspicion of insanity. His delusions are seldom admitted to exist. He fancies that the predominant idea which may have influenced him to commit a crime is founded upon actual circumstances, not upon a false creation of the imagination. Ifa man kill another, under the belief that the individual whose life he has sacrificed was his secret enemy, and was conspiring against him, after the deed was perpetrated, he will obstinately adhere to his morbid hallu- cination. But there are cases in which the party will confess himself to have been driven to an act of homicide, not by any illusion of mind, but by an internal impulse, against the influence of which he was incapable’ of contending. The mind may exhibit no deviation from health, yet the feelings or effective powers may be greatly disordered. But even cases of this kind may be feigned.”(x) Witnesses called on in respect to questions of insanity should not be allowed to give opinions, unless they are persons of medical skill. They must state facts.(y) — It may be proper to observe here, that if a person arrested upon a crim- inal charge appears to be insane when brought before the magistrate, the fact should be investigated before any further proceedings are had against him. If it be found that the party only feigns himself mad, and he refuses to answer or plead, he shall be dealt with as one standing mute. As to the method of making this preliminary inquiry, see post, Book V, chap. 4. If after he has pleaded to the criminal charge, the prisoner becomes insane, he can not be tried. So if, after he be tried and found guilty, he loses his senses before judgment, judgment can not be pronounced upon him. And if after judgment he becomes insane, execution shall be stayed. This is the doctrine of the common law, which will be found pretty fully stated by Mr. Russell.(z) It is also expressly provided by statute, (z) Winsl. on the plea of Insan. 76, 77. (2) 1 Russ. onCr.18. See also 4 Black. (y) See 7 Wend. 78. Arch. Cr, Pl.14. Com. 24, 25, Arch. Cr. Pl. 14. Roscoe’s Or. Ev. 186, 7. oHaP, II] OF COMMITTING ORIMES. 273 that “no insane person can be tried, sentenced to any punishment, or punished for any crime or offense, while he continues in that state.”(a) And if after any convict shall have been sentenced to the punishment of death, he shall become ‘insane, the sheriff of the county, with the con- currence of a justice of the supreme court, or if he be absent from the county, with the concurrence of the county judge of the county in which the conviction was had, may summon a jury of twelve electors to inquire into such insanity, and shall give immediate notice thereof to the district attorney of the county.(b) It is the duty of the district attorney to at- tend such inquiry, and he may produce witnesses before the jury, and may issue subpeenas to compel their attendance.(c) The inquisition of the jury must be signed by them and by the sheriff. If the convict is found to be insane, the sheriff must suspend the execution of the warrant directing the death of the convict, until he shall receive a warrant from the governor, or from the justices of the supreme court, directing the ex- ecution of the convict.(d) The sheriff must immediately transmit the inquisition to the governor, who may, as soon as he shall be convinced: of the sanity of the convict, issue a -warrant appointing a time and place for his execution, pursuant to his sentence.(e) (a) 2R. 8. 697, $2. 4 Denio, 9. (c) 2R.S. 658, § 17. (b) Laws of 1847, ch. 328, §3, 2B. (d) Id. § 18. 8, 658, § 16. (e) Id. § 19. 35 274 OF THE PERSONS CAPABLE [Boox 11. CHAPTER III. Exemption from Punishment, arising from subjection to the power of others. Tsiz same sound principle which excuses those who have no mental will in the perpetration of an offense, protects from punishment those who commit crimes in subjection to the power of others, and not as the result of an uncontrolled free action proceeding from themselves.(a) Thus, if A. by force take the hand of B.,in which is a weapon, and therewith kill C.; A. is guilty of murder, but B. is excused. If merely a moral force is used, however, as threats, duress of imprisonment, or even an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse.(b) And though the fear of having houses burnt, or goods spoiled, is no excuse, in law, for joining and marching with rebels, yet an actual force upon the person, and present fear of death may form such excuse, provided they continue during the time the party remains with the rebels.(c) An idiot or lunatic, or a child so young as not to be punishable for his criminal act, when made use of for the purpose of committing crimes, is merely the instrument of the procurer, who will be answerable as a prin- cipal.(d) “ This exemption may arise from certain public relations; obedience to existing laws being a sufficient extenuation of guilt before a municipal tribunal.(e) So it may arise from certain private relations, as that of husband and wife. A married woman is so much favored in respect of that power and authority which her husband has over her, that she shall not suffer any punishment for committing an offense against the laws of society merely, by the coercion of her husband, or in his company, which the law construes a coercion.(f) The irresponsibility of the wife, however, for crimes committed by her through the compulsion of her husband, does not extend to such offenses as are mala in se, and prohibited by the laws of nature, or to those which are highly heinous.(¢) Hence she (a) 4 Black. Oom. 27. 1 Hale’s P. C. (d) 1 Hawk. P. C. ch. 81, §7. 1 East’s 43. Arch. Or. Pl. 15. P. C. 228, 1 Russ. on Cr. 15. (0) 1 Hale, 483. 1 East’s P. O. 295. (e) 4 Black. Com. 28. 1 Russ. on Cr. min Gn Cr. 15. Ben Or. Pl.15. 4 15. Arch. Cr. Pl. 15. ack. Com. 80, and note. (Ff) 1 Russ. on Cr. 15, 16. 4 Black. (c) 18 St. Tr. 398, 4. 1 Russ. on Cr. Com. 28,29. 10 Mass. R. 152. 1id. 391. 15. 4 Black. Com. 30. 1 East’s P. O. Davis v. The State, 15 Ohio R. 72. 71. As to acts done by persons in power (g) Id. ib. of mobs, see 5 Oar. & Payne, 133. onap. u1.] OF COMMITTING CRIMES. 275 may be punished for murder, though she commit the crime through coercion of the husband.(h) So as to manslaughter ;(i) and treason and robbery.(&) ‘ But, so far as the nature of the offense is concerned, the exception to the general rule is not, that we are aware of, extended beyond this. At any rate, it is quite clear in regard to all other offenses of the degree of felony, if committed by the wife through the husband’s coercion, she is excusable.(2) Yet the simple command of the husband will not excuse her if he be not present.(7) Even though he appear the very moment after the commission of the offense ; and no subsequent act of his can excuse her.(n) As has been previously intimated, however, the presence of the husband is enough, ordinarily, to raise the presumption of coer- cion, without any command shown.(o2) Thus, where a woman went from shop to shop uttering base coin, her husband accompanying her each time to the door, but not going in, she was held to have acted under her busband’s coercion.(p) The following case is full of illustration on this subject. The prisoner, Martha Hughes, was indicted for forging and uttering Bank of England notes. The witness stated that he went to the shop of the prisonet’s husband, when she took him into an inner room and sold him the notes. That while he was putting them in his pocket, the husband put his head in and said, “Get on with you.” On returning to the shop, he saw the husband, who, as well as the wife, desired him to be careful. It was ob- jected that the offense was committed under coercion, but the court held otherwise, and said that the law, out of tenderness to the wife, if a felony be committed in the presence of the husband, raises a presumption, and prima facie only, as is clearly laid down by Lord Hale, that it was done under his coercion; but it is absolutely necessary that the husband should be actually present, and taking part in the transaction. Here, it is entirely the act of the wife. It is indeed in consequence of a previous communication with her husband that the witness applies to the wife, but she is ready to deal, and has on her person, the articles which she deliv- ers to the witness. There was a putting off before the husband came, and it is sufficient, if before that time she did that which was necessary to complete the crime. The coercion must be at the time of the act done ; but when the crime has been completed in his absence, no subsequent act of his, (though it might possibly make him an accessary to the felony of his wife,) can be referred to what was done in his absence.(q) (A) 4 Black. Com. 29. 1 Russ. on Cr. (m) 1 Russ. on Cr. 17, 18. Arch. Cr. 16 Pl. 16. (2) Hale’s P. C. 47. (n) Arch. Cr. Pl. 16. (k) Arch. Or. Pl. 16. 1 Russ. 16. fo) Id. ib. (2) 2 Leach, 1102, Russ. & Ry. C.C. (p) Matt. Dig. 262. 270. 1 Hawk. P. ©. 11. Arch. Cr. Pl. (@) Russ. & Ry. O. C. 270. Roscoe's 16. Cr. Ev. 785. 1 Russ. on Or. 18, * 276 OF THE PERSONS CAPABLE [noox'm. In regard to offenses below the degree of felony, it is said to be the prevailing opinion in England, that the wife may be punished jointly with her husband for all misdemeanors committed by her, though in the pres- ence and by the coercion of her husband.(r) But Blackstone has not stated the exception so broadly. He seems to restrict it to those inferior offenses which relate to the domestic economy and management of the house, as keeping a brothel, &c. The reason given by him why the wife is responsible in such cases is, that these are offenses in which the wife has a principal share; and are also such offenses as the law presumes to be generally conducted by the intrigues of the female sex.(s) We find no American case recognizing any distinction like the one no- ticed, between felonies and misdemeanors, as such merely. On the con- trary, it has been expressly decided in Massachusetts, that where a wife committed an assault and battery by the command and in the presence of the husband, she was not responsible.(¢) In this case the court ob- serve, that “the exceptions to the general rule exempting the wife as to crimes committed by her through the coercion of the husband, consist of crimes forbidden by the law of nature, which are mala in se, and some where the wife may be presumed the principal agent.”(«) Indeed, it may be well doubted whether, in this country at least, misdemeanors stand upon any different principle, in respect to the wife’s responsibility, from felonies. For the offense of keeping a bawdy house, she is doubtless responsible with her husband.(v) So it has been held with regard to the offense of keeping a gambling house.(w) But the responsibility rests, not upon any principle applicable to misdemeanors generally, but upon her presumed voluntary participation in these particular offenses. That the wife acted by coercion of the husband is mere matter of le- gal presumption. And if, upon the evidence, it clearly appear that she was not coerced to the offense by her husband, but that she acted vol- untarily in it, or was the principal inciter of it, though the husband was present, and concerned, she is punishable as well as hex) Thus, a married woman who swore falsely that she was next of kin to a person who died intestate; and so obtained administration of his effects, was held responsible for the offense though her husband was with her when she took the oath.(y) And if she commit a theft, of her own voluntary act, or by the bare command of her husband, without his presence, she is ~~ (r) Arch. Cr. Pl. 16,17. See 4 Black. (rv) 1 Russ. on Cr. 16. 4 Black. Com. Com. 29, note. Matt. Dig. 268. 29. 1 Hawk. P. O. ch. 1, $12. (s) 4 Black. Com.29. See also 1 Hawk. (w) 10 Mod. 385. P. C. ch. 1, $12. 10 Mod. 63. 1 Salk. (v7) 1 Hale’s P. C.516. Arch. Cr. Pl. 384. 1 Russ, on Cr. 16, 17. 16. 1 Russ. 15, 16. (t) 10 Mass. Rep. 152. re * < tay Tas ib Pp sat? Arch. Cr. Pl. 16. 1 Russ. on Cr. onap. 111] OF COMMITTING CRIMES. 277 responsible.(z) Where a husband delivered a threatening letter igno- rantly, as the agent of the wife, she was held to be the guilty party, and the husband was excused.(a) If stolen goods are received by a wife in the absence of the husband, and concealed in the house without his knowledge, she alone may be punishable for the offense; but if the hus- band’s ignorance of the transaction be not satisfactorily proved, the law will, in most cases, impute the receiving to him.(b) But where the hus- band and wife were convicted jointly of receiving stolen goods, it was held that the conviction of the wife could not be sustained (though she appeared to have been most active) because it had not been submitted to the jury to say whether the husband was absent when the goods were received.(c) It is hardly necessary to mention that in every instance where the wife offends alone, without the company and coercion of ber husband, she is responsible, as much as if she were unmarried.(d) This must be understood, however, with reference to such prosecutions as are strictly criminal in their character. For if a wife incur a forfeiture by violating a penal statute, the husband may be made a party to an action for the same, and is liable to answer whatever shall be recovered.(e) The wife is not answerable for her husband’s breach of duty, however fatal, though she be privy to his misconduct, if no specific legal duty be cast upon her, and she be merely passive.(f) By other writers the rule is laid down as follows: “ Where the wife is to be considered merely the servant of the husband, she will not be answerable for the consequences of his breach of duty, however fatal, though she may be privy to his conduct.”(g¢) These propositions are both derived from the following case: Squire and his wife were indicted for the murder of Squire’s ap- ptentice boy. 1t appeared on the trial that the boy died from want of ‘food and nourishment. Upon which Lawrence, J. directed the jury that as the wife was the servant of the husband, it was not her duty to pro- vide the apprentice with sufficient food and nourishment, and she was not guilty of any breach of duty in neglecting to do so; though if the husband had allowed her sufficient food for the apprentice, and she had willfully withholden it from him, then she would have been guilty. But that here the fact was otherwise; and therefore, though in the tribunal of conscience the wife was guilty with her husband, yet in point of law she could not be said to be guilty of not providing the apprentice with sufficient food and nourishment.(h) (2) 1 Russ. 16. (¢) 1 Hawk. P. C. ch. 1, $18. 1 Russ, (a) 1 Leach, 447. Arch. Or. PlL16. = on Cr. 17. (6) Dalt. 353. Arch. 16. (f) Arch. Cr. Pl. 17. (c) Ry. & Moo. C. C. 148. Arch. 16. (g) 1 Russ. on Cr. 16. Roscoe’s Cr. (d) 4 Black. Com. 29. 1 Russ. on Cr.17, Ev. 785. : (A) 1 Russ. on Cr. 16. 278 OF THE PERSONS CAPABLE [poox nr. A wife is not punishable criminally for stealing her husband’s goods ; because she and her husband are regarded as one person, in law.(i) But if she and a stranger steal the goods, the stranger is responsible.(£) Tf, however, a wife deliver to a stranger goods stolen by the wife from her husband, and the stranger receives them upon the supposition that the wife was acting by consent of the husband, the stranger is not guilty of acrime; but he may be prosecuted for a trespass.(/) If a married woman deliver to her adulterer her husband’s goods, the adulterer is re- sponsible criminally.(m) So, if a man elope with another’s wife and take goods belonging to the husband, though he do this by consent of the wife, he is guilty of larceny; for in these and all similar cases he has no reason for presuming the husband’s consent.(7) A husband and wife alone can not be found guilty of a conspiracy ; for in law they are but one person.(o) The wife.can not be punished as an accessary for receiving her hus- band, knowing that he has committed a felony ; nor for receiving a felon jointly with her husband.(p) But if the wife alone, the husband being ignorant of it, knowingly receive a felon, she renders herself an acces- sary.(q) And so, if she incite her husband to commit a felony.(r) If a married woman prosecuted jointly with her husband, be described in the proceedings as his wife, she need not offer any proof of marriage, in order to defend herself on the ground of his coercion ; but will only need to show that she acted under his coercion.(s) If she be described as a single woman, she must prove her marriage.(¢) But evidence of cohabitation and reputation is sufficient, without proving an actual mar- riage.(2) The private relations which exist between parent and child, and mas- ter and servant will not, however, excuse or extenuate the commission of any crime, of whatever denomination ; for the command is void in. law, and can protect neither the commander nor the instrument.(v) (z) 1 Russ. on Cr. 16. Roscoe’s Cr. Ev. (9g) 1 Hale’s P. ©. 621. 1 Russ. on Cr. 475, 6, 787. 19, note (7). hk) 1 Moo. C. C. 248. Roscoe's Cr. (r) Arch. Cr. Pl.17. 1 Hale, 516. 2 Ev. 787, 475, 6. 6 Cowen, 572. Hawk. ch. 29, § 34. (Z) 6 ‘Cowen, 572, 5. (8) 1 Hale's P. ©. 46. Arch. Cr. Pl. 17. (m) Ibid. (t) Kel.387. Arch. Cr. Pl. 87. 1 Russ. (n) Id. ib, And see 1 Russ. on Cr. 19. 1 Moody’s C. C. 248, 876. Roscoe’s Or. Ey, 475. we 1 Hawk. ch. 72, §8. Arch. Cr. Pl. 17. (p ) 1 Hale’s P. C. 47. Arch. Cr, Pl. 17. 1 Hawk. ch. 1, $10. on Cr, 20. (u) 1 Russ. on Cr. 20. Arch. Cr. Pl. 87. 2 Car. & P. 434. (v) Arch. Cr. Pl. 16. 44, 516, 1 Hale’s P. C. OHAP. Iy.] OF COMMITTING CRIMES. 279 CHAPTER IV. Exemption from Punishment, arising from Ignorance or Mistake. IGNORANCE or MISTAKE is another defect of will which may exempt persons from punishment. It is a general rule, however, that ignorance of the daw will not excuse any person of capacity enough to be respon- sible for his criminal acts; for all are presumed to know the law.(a) And it is no defense for a foreigner charged with a crime committed in this country, that he did not know he was doing wrong; the act not being an offense in his own country.(b) But ignorance or mistake of facts is in some cases allowed as an excuse for the inadvertent commis- sion of crime ; as if a man intending to kill a thief in his own house kill one of his own family: in this case he is guilty of no offense.(c) So in larceny, the criminal intent may, in many cases, be rebutted by showing that the goods were taken through mistake—the person accused supposing they were his.(d@) And the same principle applies to a variety of cases ranging under the heads of accident or misfortune. It should be observed, however, that the rule alluded to proceeds upon the supposition that the original intention of the accused waslawful. For if an unforeseen con- sequence ensue from an act which was in itself unlawful, and in its origi- nal nature wrong and mischievous, the actor is criminally responsible for whatever consequence may ensue.(e) The rule also supposes an opportunity to know the law. Therefore, where a person was indicted for an offense under a statute, upon the high seas, shortly after the statute was passed and before notice of it could have reached the place where the offense was committed, the judges held that as he could not have been tried for the offense before that act, and as he could not have heard of it, he ought to be pardoned.( f) In this state, however, to prevent the ignorance of a recent statute from * injuring a party, it is provided that no act of the legislature shall take effect until twenty days after it is passed, unless there be a special pro- vision to the contrary.(g¢) (a) 4 Black. Com. 27. 1 Russ. on Cr, (d) Roscoe’s Cr, Ey. 471. 1 Hale’s P. 20, Arch. Cr. Pl. 17. O. 507, (6) 1 Russ. on Or. 24, Rexv. Esop,7 (e) 4Bl. Com. 27. Arch. Or. Pl. 18, Car. & P. 456. (7) 1 Russ. & Ry. O. 0. 1. (c) 1 Hale’s P. C. 42. 4 Black.Com. (gy) 1R.S, 157, § 12. 27. 1 Russ, on Cr. 20. BOOK IV. Primcigals aud Arressaries. WE propose, in this book, to speak of the several degrees of guilt among persons capable of offending. Every person amenable to criminal pun- ishment is guilty either as principal or accessary. Principals are either principals in the first degree, or principals in the second degree. Acces- saries also are divided into two classes, viz. accessaries before the fact, and accessaries after the fact. CHAPTER I. Principals. Ist. Principats in the first degree.| A principal in the first degree is he that is the actor or absolute perpetrator of the crime.(a) He is usually present when the offense is consummated ; but this is not necessary ; for if one lay poison purposely for another, who takes it and is killed, he who laid the poison, though absent when it was taken, is a principal in the first degree.(b) Neither is it necessary that a person, to be guilty as principal in the first degree, should perpetrate the crime with his own hands; for if an offense be committed through the medium of an inno- cent agent, the employer of the agent, though absent when the act is done, is answerable as a principal in the first degree.(c) Thus, if a child under the age of discretion, or any other person excused from responsi- bility for crimes by defect of understanding, ignorance of the fact, or other cause, be incited to the commission of an offense, the inciter, though ab- (a) 4 Black. Com. 38. 1Hale’s P.O. (c) Arch. Cr. Pl. 4. See Ry, & Moo. 238, 615. 1 Chit. Or. L. 256, 0. 0. 166, (6) Arch. Cr. Pl.4. Fost. 349. See 4 Car. & P, 869. 1 Hale, ag 282 PRINCIPALS AND ACOESSARIES. [poox rv. sent when the offense was committed, is liable for the act of his agent, and is a principal in the first degree.(d) But if the instrument thus employed be aware of the consequences of his act, and responsible for it, he is a principal in the first degree; and the employer, if he be present when the fact is committed, is a principal in the second degree ; or if he be absent, an accessary before the fact.(e) 2d. Principals in the second degree.| A principal in the second de- gree is one who is present, aiding and abetting at the commission of the crime.( f) In order to constitute one a principal in the second degree, he must be present, either actually or constructively, at the commission of the crime. It is not necessary that he should be an ear or an eye witness of the transaction. He is, in construction of law, present aiding and abetting i, with the intention of giving assistance, he be near enough to render it, should the occasion arise. Thus, if he be outside the house, watching to prevent surprise whilst his companions are in the house committing the felony, such constructive presence is sufficient to make him a principal in the second degree.(g) But he must be near enough to render assist- ance if required.(h) The mere circumstances of a party going towards a place where a felony is to be committed, in order to assist to carry off the property, and assisting in carrying it off, will not make him a prin- cipal in the second degree; unless at the time of the felonious taking he were within such a distance as to be able to assist in it.(z) And though an act be committed in pursuance of a preconcerted plan between the parties, those who are not present, or so near as to be able to afford aid and assistance at the time when the offense is committed, are not principals, but accessaries before the fact.(4) But presence dur- ing the whole of the transaction is unnecessary. For instance, if several combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals.(/) Also, if A. counsel B, to manufacture the paper, C. to engrave the plate, and D. to fill up the names of a forged or counterfeit note, and they do so—each without knowing that the others are employed for that purpose, B., C. and D. may be indicted for the forgery as principals, and A. as acces- (d) Fost. 340. 1 East’s P. C.118. 1 O.C. 96. 9 Pick. 496, 516, &c. 4 Cranch, Hawk. P. CO. ch. 81, § 7. 2 Leach, 978. 492, Arch. 4, (h) Russ. & Ry. C. O. 868. Arch. Cr. (e) Arch. Cr. Pl.4. Fost. 849. Russ. Pl.4, 9 Pick. 496. Wright's Ohio Rep. & Ry. O. O. 363. 75. (f) Id. ib. Matt. Dig. 4. 1 Chit. Cr. (4) Russ. & Ry. O. O. 421, 882. 1 Russ. L, 256. on Or. 28, 2 East’s P. O. 767. (g) Fost. 847, Arch. Or. Pl. 4. Seel Doug. 207. 1 Leach, 66. 1 Russ. on Or, 22, Russ. & Ry. O. 0.3438. Ry. & Moo, (%) Arch. Or. Pl. 4, Russ. & Ry. 25; 118, 142, 249. (2 Russ. & Ry. 0. 0. 446. Arch, Or. Pl. 4. See 2 East’s P. O. 768, OHAP. I,] PRINCIPALS AND AOCESSARIES. . 283 sary.(m) For if several make distinct parts of a forged instrument, each is a principal, though he do not know by whom the other parts ate exe- cuted, and though it is finished by one alone, in the absence of the others.(7) There must be a participation in the act, to render one a principal in the second degree ; for though he be present while a felony is commit- ted, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavor to prevent the felony, or apprehend the felon.(o) It is not necessary, however, to prove that the party actually aided in the commission of the offense. If he watched for his companions in or- der to prevent surprise, or remained at a convenient distance, to favor their escape, if necessary ; or was in such asituation as tobe able readily to come to their assistance, the knowledge of which was calculated to give them additional confidence; in these and similar cases, he will be regarded as present, aiding and abetting. So a participation, the result of a concerted design to commit an offense, is sufficient. to render a per- son a principal in the second degree. Thus, if several act in concert, to steal a man’s goods, and he is induced by fraud to trust one of them with the possession of the goods, in the presence of the others, and then an- other of the party entice the owner away, that he who has the goods may carry them off, all are guilty as principals.(p) A mere participation in the act itself, without a felonious participation in the design, will not be sufficient to make one a principal in the second deyree. Thus, if a master assault another with malice prepense, and the servant, ignorant of his master’s felonious design, take part with him, and kill the other, it is merely manslaughter in the servant, but murder in the master.(q) At common law, if one encourages another to commit suicide, and is present aiding and abetting him while he does so, such person is guilty of murder, as principal. So if two persons encourage each other to self- murder, and one kills himself, but the other fails in the attempt, the latter is a principal in the murder of the other.(r) By the revised statutes, however, assisting another in the commission of self-murder, is only manslaughter in the first degree.(s) The distinction between principals in the first and second degree is, in this stage, practically of little or no importance ; and much of the learn- ing applicable to it has become comparatively useless, except so far as it (m) Moody’sC. 0. 807. Arch. Cr. Pl. 4. (g) 1 Hale’s P. C.446. Kel. 109. Arch. (n) Moody’s C. OC, 304. Cr. Pl. 6. 1 East's P. OC. 257. (0) 1 Hale’s P. C. 489. Fost. 350. (r) Russ. & Ry. ©. C. 528. Arch. Cr. Pl. 4. Doug. 207. 1 Russ.on O.C. 356. 13 Mass. R. 356. Or. 22... (8) 2B. 8, 661, § 7. ae Russ. & Ry. C. C. 805. Arch. Cr. }. 5. 1 Buss. on Or, 24, Moody’s 284 PRINCIPALS AND ACOESSARIES. [Boox rv. may aid us in discriminating between principals and accessaries. For though it was once held that aiders and abettors were accessaries at the fact, and so could not be tried until the principal had been convicted, this notion has long been exploded. And in England, as well as in this country, it is settled by an unbroken current of authority, that those who are present aiding and abetting in a felony are not accessaries, but prin- cipals in the second degree, and may be arraigned and tried before the principal in the first degree has been dealt with. Indeed, they may be convicted though the principal in the first degree has been acquitted.(¢) Moreover, in respect to all mere misdemeanors, principals in the second degree might always be treated in the proceedings as principals in the first degree. The same rule also applies, in this state, to the whole range of felonies. For by the revised statutes, principals in the second degree in the commission of a felony are visited with the same punish- ment as principals in the first.(u) And as a consequence of this provis- ion, it follows that principals in the second degree may be prosecuted as principals in the first. This is the doctrine of the common law in regard to all cases where the punishment of principals in the first and second degrees is the same;(v) though aiders and abettors, or principals in the second degree, may be proceeded against specially, as such, if the prose- cutor chooses.(w) Indictment.] In all felonies in which the punishment of principals in the first and second degrees is the same, the indictment may charge all who are present and abet the act, as principals in the first degree ;(x) provided the offense admits of participation.(y) But where the punish- ment is different, then principals in the second degree must be indicted specially, as aiders and abettors.(z) (4) Arch. Cr. Pl. 6. 1 Russ. on Cr. 21. (w) Arch. Cr. Pl. 6. 2 Hawk. P. C. 812. Fost. 847. 1Bay’s | (#) 2 Hawk. P. ©. ch. 28, § 76. 3T. Rep. 488. 1 Overton, 280. R. 105. (u) 2B. 8. 698, § 6. (y) Fost. 345. (v) Arch. Or. Pl. 6. 2 Hawk. P. CO. ch. (2) Matt. Dig. Cr. L. 6. 25, § 64. See 9 Coke’s Rep. 67, b. OHAP. IL.] PRINCIPALS AND ACCESSARIES. 285 CHAPTER IL Accessaries. Ist. Accressaries before the fact.| An accessary before the fact is, according to Sir Matthew Hale, one who being absent at the time of the commission of the offense doth yet procure, counsel, or command anoth- er to commit it. Absence is indispensably necessary to constitute one an accessary; for if he be actually or constructively present when the felony is committed, he is, as we have seen,(a) an aider and abettor, and not an accessary before the fact.(b) In all felonies there may be accessaries, except in crimes which the law deems sudden and unpremeditated, as manslaughter, which there- fore can have no accessaries before the fact.(c) And therefore, if A. be prosecuted for murder, and B. as accessary before the fact, if A. is found guilty of manslaughter merely, B. must be acquitted.(d) An accessary can not be guilty of a higher crime than his principal.(e) A new felony created by statute has all the incidents it would have at common law. Therefore, the procurers or abettors are principals or ac- cessaries upon the same circumstances which would make them so at common law; though the act be silent as to abettors or accessaries.(f ) It is settled that whoever procures a felony to be committed, if absent at the time of its commission, is an accessary before the fact.(g¢) The procurement may be personal, or through the intervention of a third per- son.(h) It may also be direct, as by hire, counsel, command, or conspi- racy; or indirect, by evincing an express liking, approbation, or assent to another's felonious design, whereby he is encouraged to commit it.(z) But the bare concealment of a felony to be committed, will not make the party an accessary before the fact.(/) Nor will a tacit acquiescence, or words which amount to a bare permission, be sufficient.(/) The procurement must be continuing; for if the procurer of a felony repent and actually countermand his order to commit it, before the of- fense is pepe he will not be deemed an accessary.(m) (a) Ante, p. 282. (h) Arch. Cr. P17. Fost. 125. 19 st. (6) 1 Hale’s P. ©. 615. 1 Leach, 515. Tr. 804. 1 East’s P. 0. 852. 4 Black. Com. 36, % oth te cass P. C. ch. 29, § 16. Arch. Arch. Cr. Pl. 7. (©) 1 Hale, 615. a ; ee P. ©. ch. 29, § 28. (d) Id. 347, 450, 616. Arch. Or. PL. 8. ae 1 Hale’s P. C. 616. 1 Russ. on () 8 Inst. 189. (f) 1 Leach, 76. a “Arch. Cr. P17. 1 Hale, 618. (g) 4 Black. ‘Com, 87. 286 PRINCIPALS AND ACOESSARIES. [pox rv. If the accessary order or advise one crime to be committed, and the principal intentionally commit another, the accessary will not be answer- able; as if he advise the principal to burn a house, and instead of doing so, the latter commit a larceny; or if he advise the principal to commit a crime against A., and he intentionally commits the same crime against B. ;(7) but if the principal commit the same offense against B. by mis- take, instead of A., it seems it would be otherwise.(o) At all events, it is clear that the accessary is liable for all that ensues upon the éxecution of his unlawful command or advice; as if A. com- mand B. to beat C., and he beat him so that he dies, A. is accessary to the murder.(p) Or if A. command B. to burn the house of C., and in doing so, the house of D. is also burnt, A. is accessary to the burning of D.’s house.(q) So if the offense commanded be committed, though by different means from those prescribed by the command ; for instance, if A. hire B. to poison C., and instead of poisoning he shoots him, A. is nev- ertheless liable as accessary.(7) It is proper to observe, that it is only in felonies that there can be ac- cessaries, either before or after the fact. All those, therefore, who in felonies would be accessaries before the fact, are, in respect to offenses below that degree, principals, and must be proceeded against as such.(s) Therefore, one who demises a house, with the intent that it shall be kept, and which is accordingly kept, for the purposes of public prostitu- tion, and who derives a profit from that mode of using the property, is punishable by indictment for a misdemeanor.(¢) So all are principals, it seems, in treason against the people of this state.(z) With regard to the degree of incitement put in requisition by the ac- cessary, in procuring the offense to be committed, no rule is laid down in the cases. That it was sufficient to effect the evil purpose, is proved by the result. On principle, it seems that any degree of direct incite- ment, with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the guilt of the accessary. Hence it is unnecessary to show that the crime was effected in consequence of such incitement ; and it would be no defense to show that the offense would have been committed without any incitement.(v) .(n) Arch. Cr. Pl. 7 1 Hale, 617. 1 Chit. Cr. L. 263. (0) Fost. 870. Arch. Cr. Pl. 7. But Bee 1 Hale, 617. “(p) 4 Black. Com. 37. 1 Hale, 617. Arch. Or. Pl. 7. -(g) Plowd. 475. Arch. Cr. Pl. 7. ~ (ry Fost. 869. Arch. Or. Pl. 7. (s) 4 Black. Com. 86. 1 Hale, 616. Fost. 74. The People v. Adams, 3 De- nio, 190. 4id,129. U.8.v. Mills, 7 Pe- ters, 188. State v. Westfield, 1 Bailey, 182. Curin v. State, 4 Yer; 143. oe v. Borden, 1 Dev. 518. 7 ore 229. id. 28. (t) 4 Denio, 129. (u) 2R.8. 656, §2. Id. 785, §§ 15, 16. 1 Bay’s Rep. 15. Arch. Or. Pl. 8. Fost. 841. 1 Chit. Cr. L. 261. 2 Stark. (v) Roscoe’s Or. Ev. 168, Vv. 8. OAP. IL] PRINCIPALS AND ACCESSARIES. 287 We have noticed before that words amounting to a bare permission will not render a man an accessary ; as if A. says he will kill J.S., and B. says, “ You may do your pleasure, for all me.”(w) There may be an accessary to an accessary before the fact ; asif A. procure B. to murder C., and D. conceals A. from justice, D. becomes an accessary.(x) The punishment of an accessary before the fact is the same as that of the principal.(y) Indictment.] Where the indictment is for a felony at common law, it will be sufficient, after setting out the committing of the principal of fence, to charge that the defendant did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the principal to commit the crime.(z) Where the indictment is upon a statute, it is best to fol- low the words of the statute ; but the offense may be described in equiv- alent terms. Words of the same legal import are sufficient.(a) A man may be indicted as accessary to one or to all of several principals; and if to all, he may be convicted on such indictment as accessary to one or some of them.(b) It is generally best to try the principal and accessary together. In that case, if the principal plead otherwise than the general issue, the accessary shall not be bound to answer until the principal’s plea be first determined.(c) But if the general issue be pleaded, then the jury shall be charged first to inquire as to the principal; and if they find him not guilty, then to acquit the accessary; but if they find the principal guilty, then they are to inquire as to the accessary.(d) In a case where the principal was indicted for a burglary and larceny in a dwelling house, and the accessary was charged in the same indict- ment as accessary before the fact, tothe said “felony and burglary,” and the jury acquitted the principal of the burglary, but found him guilty of the larceny, it seems the judges were of the opinion that the accessary should have been acquitted ; for the indictment charges him as accessary to the burglary only, and the principal being acquitted of that, the acces- sary should have been acquitted also.(e) In a case where the principal has already been convicted, it is not neces- sary to aver, in the indictment, that the principal committed the felony. It is sufficient to recite with certainty the record of his conviction.(/) In an indictment for a substantive felony, it does not seem necessary to alledge the original offense with that particularity as to time and (w) Roscoe’s Cr. Ev. 167, 8. (c) Matt. Dig. Cr. L. 9. (2) 3 Peer Wms. 475. (d) Id. ib. 1 Hale, 624. 2 Inst. 184. (y) 2 B.S. 698, § 6. (e) 1 Russ. & Ry. O. ©. 40, 2 Marsh. (2) Matt. Dig. Cr. L. 9, 419. 1 Stark. 571. Cr. Pl. 130. (/) Matt. Dig. Cr, L. 10. Fost, 865, (a) 1 And. 195, Matt. Dig. Cr.L.9. 7T R. 468. (2) 9Co,119. Fost.861. 1 Hale, 624. 288 PRINCIPALS AND ACCESSARIES. [Boox rv. place, as in an indictment against the defendant together with the prin- cipal.(g¢) It is unnecessary to aver that the principal has not been con- victed.(x) If the principal is unknown, the indictment may state the offense to have been committed by “some person or persons unknown.”(7) But if he be known, the indictment must charge the offense to have been committed by him.(%) Evidence.| Where the principal and accessary are indicted together, it will be necessary, after proving the guilt of the principal, to prove that the accessary procured, hired, advised, or commanded the principal to commit the offense. If the person charged as accessary be proved to have been present, either actually or constructively, he must be acquit- ted ; for the minor offense of accessary is merged in the greater one of principal.(z2) In his defense he may controvert the guilt of his princi- pal.(m) So he may prove that he countermanded the order, &c.; or that the crime which he advised was not that which the principal com- mitted.(7) . An accomplice is a competent witness, although his expectation of pardon depends upon the defendant’s conviction.(0) Soan accessary isa competent witness against his principal, and the principal against the ac- cessary; as for instance, upon an indictment for receiving stolen goods, the person who stole the goods is a competent witness.(p) But the fact of the witness being an accomplice, accessary or principal, detracts very materially from his credit ;(q) and it is always considered necessary to give other evidence confirmatory of at least some of the leading circum- stances of his story, to show that he has told the truth as to the rest.(r) And if, upon an indictment against several, the accomplice be confirmed in the testimony he gives against some of the prisoners, but not as to the others, still this is holden a sufficient confirmation to warrant the convic- tion of all.(s) But where, upon an indictment against the principal and accessaries, the case was proved by an accomplice, who was confirmed as to the accessaries, but not as to the principal, the jury were directed to acquit the prisoner.(¢) ‘The corroboration of an accomplice, ought to be as to some fact or facts, the truth or falsehood of which goes to prove or disprove the offense charged against the prisoner.(w) If he be confirmed in the particulars of his story, he does not require confirmation as to the person charged.(v) eee Dig. Cr. L. 10. 2 East’s P. ©). Id. 303. Gilb. Ev. 136. Matt. ; Dig. (h) 5 T.R. 88. 2 East, 782. 1 Leach, 467. i 2 East’s P. O. 781. cH Gilb. Ev. a k) 3 Camp. 264. 2 Leach, 925. (v) Matt. Dig. 1 (2) Matt. Dig. Cr. L. 9. 1 Leach, 515. (s) Id. ib. 3 stark. 34, n. (m) Fost. 365. (t) Moo. & Malk. N. P. Rep. 826, (nm) 1 Hale, 617. (uw) 6 Oar. & Payne, 389. (e) Russ. & Ry. ©. O. 252. OHAP, It] PRINCIPALS AND ACCESSARIES. 289 But it is no confirmation of an accomplice in material facts, as against the others, that the robbery be proved to have been effected in the man- ner stated by him.(w) 4 Where the direct charge rests for its proof upon the testimony of ac- complices, such proof is sufficient to convict, if it be corroborated by the evidence of credible witnesses; although such evidence has only an indi- rect tendency to establish the commission of the particular offense charged ; as where the testimony of the accomplice fixes upon the prisoner thg charge of having in his possession counterfeit bills, with the intent to pass, and the proof by the unimpeached witnesses shows that the prisoner was possessed of a press and plates used in making counterfeit impressions of bills. The confirmation of the accomplices must, however, be of some fact or facts which go to fix the guilt of the accused.(z) The rule of not convicting on testimony of an accomplice alone, equally applies where there is more than one accomplice.(y) The evidence of the wife of an accomplice is no confirmation of the testimony of her hus- band. For this purpose, they must be taken as one person.(z) The rule requiring the testimony of the accomplice to be corroborated by other evidence is not inflexible, however; for the jury may, if they please, act upon the evidence of an accomplice, without any confirmation of his statement.(a) On an indictment against an accessary, in a case where the principal has been already convicted, the record of the latter’s conviction, or at least an examined copy, must be produced. But its production will not prevent the accessary from proving the principal innocent.(d) 2d. Accessaries after the fact.| An accessary after the fact, at com- mon law, is one who knowing a felony to have been committed by an- other, receives, relieves, comforts or assists the felon.(c) Generally, any assistance whatsoever given to one known to be a felon, in order to bin- der his being apprehended, tried or punished, is sufficient to bring a man within this description.(d) 'The revised statutes contain the following provision on this subject: “ Every person who shall be convicted of hav- ing concealed any offender, after the commission of any felony, or of hav- ing given such offender any other aid, knowing that he has committed a felony ; with intent and in order that he may avoid, or escape from ar- rest or trial, conviction or punishment, and no others, shall be deemed an accessary after the fact, and upon conviction shall be punished by im- prisonment in a state prison not exceeding five years, or in a county jail (w) 6 Car. & Payne, 595. (6) Matt. Dig. Cr. L. 10. Fost. 865, («) 21 Wend. 309. 868. 1 Leach, 228. (y) 5 Car. & Payne, 326. (c) 4 Black. ‘Com. 87. Arch. Cr. Pl, 9, (2) 7 id. 168, 1 Russ, on Cr. 34, (a) Per Denman, ©. J. 7 Car. & P. (@) 2 Hawk. P. ©. 317. 152. 37 290 PRINCIPALS AND ACCESSARIES, [poex tv. not exceeding one year, or by fine not exceeding $500, or by both such fine and imprisonment.”(e) The above provision of course supersedes the common law in all cases where the latter conflicts with, or varies from the former. Such instances, however, will, it is apprehended, be found somewhat rare. The following doctrine seems to be sanctioned as well by the statute as at common law. Any assistance given to one known to be a felon, evith intent and in order to prevent his being apprehended, tried, or pun- ished, is sufficient to render a man an accessary after the fact. As, for instance, concealing the felon in a house; shutting the door against his pursuers, so as to give the felon an opportunity of escaping ; supplying the felon with money or a horse, in order to enable him to escape ; brib- ing the jailer of the prison where the felon is confined to let him escape ; conveying instruments to him to enable him to break prison, and the like.( f) But a mere omission, as not arresting the felon, will not make the party an accessary after the fact.(g) So, ifa person supply a felon in prison with victuals or other necessaries for his sustenance; or relieve and maintain him if he be bailed out of prison ;(#) or if a physician or sur- geon visit professionally a felon sick or wounded, though he know him to be a felon ;(2) or if a person assent toa forged note after it has been uttered ;(£) or speak or write in order to obtain a felon’s pardon or legal deliverance ; none of these acts are sufficient to make the party an ac- cessary after the fact.(2) . And notwithstanding that the statute before quoted contains no ex- press exception arising from the relation of husband and wife ; yet it is doubtless as true under that provision as it is at common law, that the wife of a felon is not to be deemed an accessary for acts committed by her in respect to her husband, where his coercion is presumed.(m) The husband, however, may be an accessary for criminally aiding his wife who has committed a felony.(n) If the wife alone, the husband being ignorant of it, renders criminal assistance to a felon, the wife is accessa- ry, and not the husband; for then his coercion is not to be presumed. Where, however, the husband and wife co-operate jointly in giving aid, &c. to a felon knowingly, it shall be adjudged the act of the husband solely, and the wife shall be acquitted.(o) And no other relation save (e:) 2 B.S. 699, § 7. () Ta. 684. (f) Arch. Cr. Pl. 9. 1 Hale’s P.O. (2) Arch. Cr. Pl. 9. 619, 621. 1 Roscoe’s Cr. Ev. 171. Russ. (m) See ante, p. 275. 1 Hale's P. O. on Cr. 84. 4 Black. Com. 37, 88. 48, 621. Arch. 9. 1 Russ. on Cr. 36. (g) See 1 Hale’s P. 0.619. Arch. Or. — (m) 1 Halo, 621. 1 Russ. on Cr. 86, Pl..9, note (b\, (4) 1 Hale, 620. (0) 1 Hale’s P. O. 621. Arch, Or, Pl. (4) 14. 832. 9,10. See ante, p. 276, 7. OHAP. 11] PRINCIPALS AND ACCESSARIES, 291 that of husband and wife will excuse criminal aid and assistance fur- nished to felons. A father can not assist his child in escaping ; a child his parent ; a brother his brother ; a master his servant, or a servant his master.(p) Even one may make himself an accessary after the fact to a crime committed on himself; as by aiding the felon to escape, &c.(q) To constitute one an accessary after the fact, he must have notice direct or implied, at the time he renders the assistance to the felon, that he had committed a felony. The words of our statute, as has been seen, are “knowing that he has committed a felony ;” and this accords with the common law.(r) And the felony must be complete at the time of the assistance given; else it makes not the assistant a felon. As where one wounded another mortally, and after the wound given but before death ensued, a person assisted or removed the delinquent, this would not, at common law, render him accessary to the homicide; for till death ensued there was no felony committed.(s) This rule seems to be perfectly consistent. with our statute. We have hefore observed, that in all cases below the degree of felony there can be no accessaries.(¢) This, moreover, so far as regards acces- saries after the fact, is in express accordance with the before mentioned statutory provision on the subject. In high treason, likewise, there are no accessaries either before or after the fact; for the consenters, aiders, abettors, and knowing receivers and comforters of traitors are all princi- pals.() But where the treason consists in harboring and receiving a traitor, the indictment or complaint must be ‘special, for the receiving, &c. of the traitor, and not for the principal treason.(v) Although it be a settled principle of the common law, that an acces- sary cannot be tried before the conviction of his principal, without his consent,w) yet he may nevertheless be arrested and secured to answer to an indictment, even before proceedings have been instituted against, the principal. If the principal die before conviction, it seems the acces- sary never can be convicted.(z) And the acquittal of the principal, it seems, would be admissible evidence in defense of the accessary, though it would not be conclusive, in bar of a conviction.( y) The statute provides, however, that in an indictment against a person for receiving or buying stolen goods, it shall not be necessary to aver, nor on the trial to prove that the principal who stole the goods has been convicted.(z) Se FER eT a Re ~(p) Arch. Cr. PL 9. 0) 1 Hale’s P. 0. 618. Arob. C) ian ib. Fost. 128. Cromp. 41 b. 10. OLE 345. rh. . Pt pl. © ond 8. (w) 1 Hale, 628. 2 Hawk. P. ©. eh, (r) Arch. Gr. Pl.10. Roso. Or. Ev.170. 29,§ 45. 3 Mass. R. 126. 16 ia, 428. 1 (s} 4 Black. Com.38. Arch.Cr.Pl.10. Murp.270. 2Bail.66. 1 Chit. Or. L.266. () Ante, p. 286. (@) 16 Mass. Rep. 428. (u) See ante, p. 286. 1 Hale, 613. (y) 18 Wend. 592. @® 2B. 8. 680, § 72. 292 PRINCIPALS AND ACCESSARIES. [BOOK Iv. If on the accessary being brought before the magistrate, it appear be- yond all doubt that the principal is dead without having been convicted, or that he has been acquitted, the accessary should perhaps be discharg- ed. But if there is any doubt about the fact, and there is probable ground for believing that the accessary is guilty, the magistrate should not discharge, but should secure him; so that the whole subject may undergo a deliberate and full investigation before the proper tribunal. An accessary before or after the fact may be indicted, tried, convicted and punished, notwithstanding the principal felon may have been par- doned, or otherwise discharged, after his conviction.(a) Accessaries after the fact may be tried with their principals, or separately, after the prin- cipal has been convicted.(d) Accessaries after the fact to kidnapping are punishable by imprison- ment in a state prison not exceeding six years; or in a county jail not exceeding one year; or by a fine not exceeding $500, or by both such fine and imprisonment.(c) Indictment.] Where the principal and accessary are indicted togeth- er, the indictment, after charging the principal offense to have been committed by the principal, should aver that the defendant knowing the offender to have committed a felony, did feloniously conceal him, or give him some other aid, with intent that such offender might avoid or escape from arrest, trial, conviction or punishment.(d) An indictment against an accessary after the fact, the principal having been convicted, should, after reciting the fact of the indictment against the principal for a felony, and of his conviction upon it, charge that the defendant well knowing that the principal had committed such felony, did feloniously conceal or aid him, &c.(e) Venue.| The revised statutes provide that an indictment against an accessary to any felony may be found in the county where the offense of such accessary shall have been committed, notwithstanding the principal offense was committed in another county; and that the like proceedings shall be had thereon, in all respects, as if the principal offense had been committed in the same county.(/ ) Evidence.| If the principal has been convicted, the record of his conviction, or an examined copy, will be conclusive evidence of such conviction having taken place, and prima facie evidence also of the guilt of the principal as to the offense of which he was convicted.(g@) And the burden of proof rests on the accessary, not merely that it is ques- tionable- whether the principal ought to have been convicted, but that he (a) 2.B. 8. 727, § 49. (2) 2 B.S. 699, a Matt. Dig. 420. (@) 1 Hale, 623. (f) 2B. 8. 797, § 48 (c) 2 B.S. 665, § 81. (g) Roscoe’s Cr. Ev. 173. 10 Pick. R. (d) Matt. Dig. Cr. L420, 2R.8,699, 477. 2 Bailey, 85, 66, oHAP, I1.] PRINCIPALS AND ACCESSARIES. 293 clearly ought not to have been convicted.(h) But it is not conclusive ; and the accessary may avail himself of every matter both of law and fact, to controvert the guilt of the principal.(?) The magistrate, however, we think, so far as the preliminary duty to be performed by him is con- cerned, should not enter upon this question of the principal’s guilt or in- nocence, when a record of conviction is produced. But we would advise hin, in all cases, to treat the record practically as conclusive, and leave the accessary to disprove the principal’s guilt, at the trial, if he is able to do so. Where the principal and accessary are indicted together, it is neces- sary to prove the principal guilty of the offense charged, as in-ordinary cases. It must also be proved that the accessary concealed, relieved or assisted the principal, after the felony was committed ; and that he knew at the time he did so, that the felony had been committed by the prin- cipal.(/:) The statutory provisions respecting the evidence of a former conviction, so far as they relate to principals and accessaries, are as follows: A copy of the minutes of any conviction, with the sentence of the court thereon, entered by the clerk of any court, duly certified by the clerk in whose custody such minutes shall be, under his official seal, together with a copy of the indictment on which such conviction shall have been had, certified in the sme manner, shall be evidence in all courts and places of such conviction, in all cases in which it shall appear by the certificate of the clerk, or otherwise, that no record of the judgment on such con- viction, bas been signed and filed.(2) Where a record of such conviction has been signed and filed, the re- cord itself, or an examined or certified copy must be produced.(7m) (h) 10 Pick. 477. (4) 3 Peer Wms. 439. Matt. Dig. 12. (2) Fost. 365, 368. 1 Leach, 228, 828, (J) 2 R. S. 739, § 10. and note, 509. Roscne’s Cr. Ev. 172, 178. (m) Ante, p. 292. But see 2 Whee. Cr. Ca, 325. BOOK V. 5 Che several Criminal Courts of the State. I. OvER AND TERMINER. II. Crrovrr court. III. Courr oF sEsstons. IV. GENERAL SESSIONS OF THE CITY AND COUNTY OF NEW-YORK. V. Recorpers’ couRTs. 1. Buffalo. 2. Oswego. 8. Utica. ‘ VI. Mayor’s COURT OF THE OITY OF ALBANY. VII. THE orry COURT OF BROOKLYN. VIII. SPECIAL SESSIONS, POLICE COURTS, AND JUSTIOES’ COURTS IN CITIES. Tz Code of Procedure declares that all the courts therein enumerated, among which are the criminal courts hereinafter mentioned, shall con- tinue to exercise the jurisdiction then vested in them, respectively, except as otherwise prescribed by the code.(a) CHAPTER I. Oyer and Terminer. Oyer and Terminer (to hear and determine) is a half French phrase applied in England to the assizes, which are so called from the commis- sion of oyer and terminer, directed to the judges, empowering them “to inquire, hear and determine” all treasons, felonies and misdemeanors.(6) In this state, and generally throughout the union, the higher criminal courts are called courts of oyer and terminer. ‘ The constitution of 1846 provides that any one of the justices of the (a) Code of 1849, § 10, Lawsof1849, (6) 4 Black. Com. 269, 270. 4 Steph. p. 615. Code of 1851, § 10. Oom. 388. 296 CRIMINAL COURTS OF THE STATE, [Boor v. supreme court may preside in courts of oyer and terminer in any coun- ty.(c) The judiciary act of May 12, 1847, in organizing the courts, under the new constitution, provides that courts of oyer and terminer of the respective counties, except in the city and county of New-York, shall be composed of a justice of the supreme court, who sball preside, and the county judge and the justices of the peace designated as mem- bers of the court of sessions. And the presiding justice, and any two of the other officers above nentioned, shall have power to hold said courts. And such courts are to be held at the same times and places that circuit courts of the same county are appointed to be held.(d) 'T'he courts of oyer and terminer of the county of New-York are to be composed of a justice of the supreme court, who shall preside, and any two of the fol- lowing officers: the judges of the court of common pleas of said city and county, the mayor, recorder and aldermen of said city. Such courts to be held at the same time and place with the circuit courts.(e) Previous to the passage of the judiciary act, it was enacted by the re- vised statutes, that in the counties of Albany, Columbia and Rensselaer, the mayor, recorder and aldermen of the respective cities therein, or any two of them, might sit and act in the court of oyer and terminer, in their respective counties, with or instead of the county judges; and that in the county of Schenectady the mayor and aldermen of the city of Sche- nectady, or any two of them, might sit and act in the court of oyer and terminer, with or instead of the county judges.(f) These provisions appear to be still in force; for the judiciary act contains a section pro- viding that courts of oyer and terminer shall possess the same powers, and exercise the same jurisdiction which were possessed and exercised by the courts of oyer and terminer under the old constitution, so far as is consistent with the new constitution and the judiciary act. And all laws relating to the present courts of oyer and terminer and the jurisdiction, powers and duties of said courts, the proceedings therein, and the offi- cers thereof, and their powers and duties, are made applicable to the present courts of oyer and terminer, their powers and duties; the pro- ceedings therein, and the officers thereof and their powers and duties, so far as the same can be so applied and are consistent with the new con- stitution and the provisions of the judiciary act.(g) Each court of oyer and terminer has power to inquire, by the oath of good and lawful men of the same county, of all crimes and misdemean- ors committed or triable in such county; to hear and determine all such crimes and misdemeanors ; and to deliver the jails of the said county or city and county, according to law, of all prisoners therein.(h) (c) Const. art. 6, sec. 6. (f) 2B. 8. 204, § 28. (d) Laws of 1847, p. 330, § 38. (g) Laws of 1847, p. 882, § 43. (6) Ia. § 89, (A) 2B. 8. 205, § 29. OHAP. 1.] © CRIMINAL COURTS OF THE STATE. 297 Every court of oyer and terminer has power also to try all indictments found in the court of sessions of the same county, or city and county, which shall have been sent by order of such court of sessions to, and re- ceived by the said court of oyer and terminer, or which shall have been removed into the said court of oyer and terminer; and which, in the opinion of the said court of oyer and terminer, may be proper to be tried therei.(2) It has been decided that the oyer and terminer is not a superior court of general jurisdiction ; and that it has no power to grant a new trial, on the merits, after a defendant has been convicted of a felony.(k) Where an indictment has been found at the general sessions, for an offense triable in that court, and the cause is subsequently removed into the oyer and terminer, by a judge’s order, the oyer and terminer has power to direct the indictment to be sent back to the sessions for trial ; and this without notice to the accused.(2) The court of oyer and ter- miner has a discretion to refuse to try such indictments as, in the opinion of the court, may not be proper to be tried there.(7) (4) 2 BR. 8. 205, § 80. (2) 3 id. 144. 2R. 8. 205, § 31. (4) 2 Barb. Sup. Court Rep. 282. (sm) Ibid. 38 298 ORIMINAL COURTS OF THE STATE. " faoor CHAPTER IL. Circuit Courts. : CrreuiT courts may be held by either of the justices of the supreme court.(z) There are to be held, in each year, at least two circuit courts in each of the counties of this state, except Hamilton ; and in the city and county of New-York, at least four circuits.(0) Any circuit court may be continued by adjournment to such time as the justice holding the same shall, by rule to be entered in its minutes, direct ; and such ad- journed circuit may be held and continued by further adjournment, as often as such justice shall direct.( p) The present circuit courts possess the same powers and jurisdiction as were possessed and exercised by the circuit courts under the former con- stitution, so far as is consistent with the new constitution and the judi- ciary act. And all laws relating to the former courts apply to-the pres- ent, so far as such laws are applicable.(q) The only case in which a circuit court has any criminal jurisdiction is where an indictinent, after having been removed into the supreme court by certiorari, is sent down for trial in a court below. In such a case the indictment can not be sent to the oyer and terminer; and consequently the trial must either be had at bar, or at the circwit.(r) The revised statutes, therefore, direct that every such indictment shall be carried down for trial at the proper circuit court, by the district attorney of the county in which the same was found, in the same manner in all respects as issues joined in the supreme court in civil cases; and the same pro- ceedings, so far as applicable, are to be had thereon.(s) (7%) Const. of 1846, art. 6, sec. 6. (r) 1 John.-Cas. 104. Cai Cas. 68. (0) Laws of 1847, p. 326, § 21. See People v. McKay, 18 John. 212. (p) Id. p. 325, § 19, (s) 2B. 8. 788, § 84. See 8 Wend. 549. (q) Id. 826, § 22. OHAP, IL] CRIMINAL COURTS OF THE STATE. 299 CHAPTER III. Courts of Sessions. Tue new constitution of 1846 provides that the county judge, with two justices of the peace to be designated according to law, may hold courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and perform such other duties as may be required by law.(¢) In order to carry out this provision, the legislature, by the judiciary act, has prescribed the method in which two justices of the peace in each county excepting the city and county of New-York, shall be designated to hold courts of sessions, associated with the county judge.(w) The act then declares that the courts of sessions of the respective counties, thus organized, shall possess the same powers, and exercise the same jurisdic- tion, in their respective counties, as were formerly possessed and exercised by courts of general sessions, so far as is consistent with the new consti- tution, and the provisions of that act. And that all laws relating to the courts of general sessions, their jurisdiction, powers and duties, the pro- ceedings therein, and the officers thereof, shall be applicable to the courts of sessions, so far as the same can be so applied and are consistent with the constitution and the provisions of the judiciary act.(v) And all indictments and proceedings pending in the courts of general sessions are directed to be transferred to, and vested in, the courts of sessions of the counties in which they were pending, respectively, except in the city and county of New-York, and except indictments for crimes which the courts of general sessions had no jurisdiction to try.(w) Courts of sessions, except in the city and county of New-York, are to be held at the time and place at which county courts are held; and the same number of grand and petit jurors are to be drawn and sum- moned therefor, as was formerly required for courts of general ses- sions.(z) If, in any county, a grand jury is not by law required to at- tend every term of the court of sessions, the county judge is to direct at which terms a grand jury shall attend.(y) These courts have power to inquire, by the oaths of good and law- ful men of the county, of all crimes and misdemeanors committed or tri- (¢) Const. art. 6, sec. 14. (w) Id. 381, § 41. (uw) Laws of 1847, p. 881, § 40. Amend- (x) Ibid, § 42. ed, id. p. 644, § 34. (y) Id. 642, § 26. (v) Id. 882, § 44. 300 CRIMINAL OOURTS OF THE STATE. [Boox v. able in such county; and to hear, determine and punish, according to law, all crimes and misdemeanors not punishable with death, or impris- onment in the state prison for life.(z) They must send all indictments for offenses not triable therein, to the next court of oyer and terminer to be held in their respective counties. And they may send all indictments for offenses triable before them, which shall not have been heard or de- termined, to the next court of oyer and terminer, to be there tried. If any such indictment shall be remitted back, without trial, by the court of oyer and terminer, to the court from which it came, such court may proceed thereon.(a) Courts of sessions have no jurisdiction of the offense of rape. 'There- fore, where a prisoner is indicted at the sessions for a rape, and for an as- sault with intent to commit a rape, and the district attorney proceeds to trial without entering a nolle prosequi on the counts charging a rape, and the jury convict the defendant of an assault and battery only, judg- ment can not be rendered—the issue being general, on all the counts, and the verdict rendered on that issue.(b) (2) 2B. 8. 208, § 8. (2) 19 Wend. 191, 201. (a) Id. 209, §§ 6, 7. 19 Wend. 192, 201. 3 Barb. S, C. Rep. 144. : OHAP, IV.] CRIMINAL COURTS OF THE STATE, 301 CHAPTER IV. General Sessions of the city and county of New-York. THE court of general sessions, so far as respects the city and county of New-York, is not abolished by the constitution of 1846. It is provided by statute that in the city and county of New- York, the first judge of the county courts, and the mayor, recorder, and aldermen of the said city, or any three of them, of whom the said first judge, mayor or recorder shall always be one, shall have power to hold courts of general sessions in and for the said city and county. But it is the special duty of the recorder of the said city to hold such court of general sessions.(a) The said court of general sessions possesses the like powers as similar courts in other counties possessed previous to the adoption of the new constitution ; and, in addition thereto, it has power, when the first judge shall preside, to hear, try, and determine any indictment for any crime punishable by im- prisonment for life. And the court has the same power when the mayor or recorder presiding is of the degree of counsellor in the supreme court of at least three years’ standing.(d) It is made the duty of two of the aldermen of the city to attend as judges of the said court, when notified or required for that purpose, by the mayor or recorder.(c) By an act of the legislature, passed on the 8th of April 1850, provision is made for the election of a judicial officer in the city of New-York, to be styled the city judge ; upon whom all judicial powers vested by law in the recorder of the city are conferred. And he is required, con- currently with the recorder, to perform and discharge all judicial duties imposed upon the recorder.(d) The city judge may, therefore, in con- junction with any two of the officers above named, hold courts of gen- eral sessions. (a) 2B. 8. 216, $§ 27, 28. (c) Ibid, § 30. (B) Ibid, § 29. (d) Laws of 1850, p. 888. 302 ORIMINAL COURTS OF THE STATE. [BooK v. CHAPTER V. Recorders’ Courts. Tuere are three recorders’ courts in this state, having criminal juris- diction, viz.: in the cities of Buffalo, Oswego, and Utica. Buffalo.| By the act of 1839 establishing the recorder’s court of the city of Buffalo, it is declared that such court shall have criminal juris- diction of all offenses committed in the said city, to the same extent and in the same manner, and with the same powers, as the courts of general sessions.(a) When any indictment shall be found in the court of oyer and terminer, or in the court of general sessions of the county of Erie, for any of the offenses above mentioned, triable by a court of general sessions, either of such courts in which the indictment shall be, may or- der the same to be transmitted to the recorder’s court, and bind by recog- nizance the witnesses and the defendant, to appear at the next term thereof. The proceedings upon indictments thus transmitted are to be in all respects the same as on indictments in a court of general ses- sions.(6) By the act of 1842, it is declared that the recorder’s court, in addition to the powers previously given to it, shall have power to hear, try and determine indictments for crimes committed in said city of Buf- falo, punishable by imprisonment for any term of years, or for life.(c) It is further declared by the act of April 1, 1850, that such court shall be continued, with the jurisdiction conferred by that act. It then provides that such court shall have criminal jurisdiction to inquire, by a grand jury, of all crimes and public offenses committed in the city of Buffalo, and to try and determine all indictments found therein, or sent thereto by another court, for a crime or public offense committed in that city, not punishable with death.(d) Such court may send any indictment pend- ing therein undetermined, to the court of oyer and terminer for Erie county, or to the court of sessions of that county, to be determined ac- cording to law.(e) This court is to be held by the recorder of the city of Buffalo, alone, except for the trial of indictments, when it must be held by the recorder with the mayor and an alderman, or with any two aldermen of the cily.( f) (a) Laws of 1889, ch. 210,§8. 22.5, (c) Laws of 1839, oh. 109,§5. 8R. 3d ed. 302. S. 306, § 86, 8d ed. (B) Id. §§ 8, 4, 2B. S, 8ded.802, 303, — (d) Laws of 1850, p. 209, § 5. $8 68, 64. (ce) Ibid, § 6. (7) 1d.’210, § 7. OHAP, V.] ORIMINAL OOURTS OF THE STATE. 303 The court has power to review all of its decisions, and to grant new trials.(¢) It is the duty of the district attorney of Erie county to prosecute all indictments which may be found by the grand jury empannelled by the said recorder’s court, and all indictments transmitted to the recorder’s court, in the same manner as if such indictment had been tried in the court of sessions for Erie county; and he has the same power in all re- spects.(h) The court has a clerk and a seal, and the sheriff of Erie county is required to attend its sittings.(¢) All process issuing out of the court is to be directed to such sheriff; and his duties in respect to such process are the same as the duties and liabilties of sheriffs in regard to pro- cess issued by courts of sessions.(/) Oswego.| By the act of March 26, 1849, amending the act originally establishing the recorder’s court in the city of Oswego, it is provided that the recorder, with the mayor and an alderman, or with any two aldermen of the said city, or in case of the absence of the said recorder, the mayor and any two aldermen, shall hold a court of criminal jurisdiction, to be called “the recorder’s court of the city of Oswego,” which shall have criminal jurisdiction to the same extent, and in the same manner, and with the same powers as courts of sessions of the several counties of the state, in all criminal matters and proceedings whatsoever, within its ju- risdiction, and in the indictment and trial of all offenses committed in the said city, or in the adjoining towns of Oswego and scriba, or committed in this state on board of any vessel or boat, &c. which shall come within the jurisdiction of said court; and in all cases of larceny or embezzlement in which the property stolen or embezzled shall be brought or found within such jurisdiction : and all recognizances in matters of which such court has jurisdiction may be returnable at such court, and conditioned for the appearance of persons thereat.(Z) All the provisions of the code of 1848 applicable to the recorders’ courts therein named, and such amendments and additions as shall be made thereto, are made to apply to the recorder’s court of the city of Oswego.(m) Wherever any indictment shall be found in the court of oyer and ter- ‘miner or in the court of sessions of the county of Oswego, for any offense committed in the city of Oswego, triable by a court of sessions, either of the said courts in which the indictment shall be, may order the same to be transmitted to the said recorder’s court,and shall bind, by recognizance, the witnesses and the defendant or defendants to appear at the next term thereof. And when any recognizance shall have become forfeited, the (g) Laws of 1850, p. 209, § 8. (k) Thid. § 78. (A) 2 B. 8. 3d ed. 804, § 73. (2) Laws of 1849, p. 187, 84, (4) Thid, §§ 65, 66. (m) Id. 186. § 1. 304 ORIMINAL COURTS OF THE STATE. [Boox v. same may be prosecuted in the said recorder’s court; which court has power, in its discretion, to remand such indictment, and to remit any in- dictment found in the recorder’s court, to the said court of oyer and ter- miner or sessions of the peace.(7) The court has a clerk, and aseal.(0) All process issuing out of it must be directed to the sheriff of the county of Oswego; and the duties and liabilities of the said sheviff in respect to all process to him directed and delivered, are the same as in respect to process issued by county courts or sessions of the peace.(p) It is the duty of the district attorney of the county of Oswego to pros- ecute all indictments which may be found by the grand jury empannelled by the said recorder’s court, and all indictments which shall be trans- mitted to the said recorder’s court, in the same manner as if such indict- ment had been tried in the court of sessions ; and he has the same power in all respects.(q) The recorder of Oswego as police justice, has, in addition to his other powers, all the powers of justices of the peace in criminal matters and proceedings, and while holding courts of special sessions has in addition to, and including the cases above specified, power to try for various offenses mentioned in the statute, when committed within his jurisdic- tion.(r) Utica.] The act of May 7th, 1844, establishing the recorder’s court in the city of Utica, provides that the recorder, with two aldermen of said city, to be selected by him from time to time shall hold a court of criminal jurisdiction, to be called “'The recorder’s court of the city of Utica,” which shall have criminal jurisdiction to the same extent, and in the same manner and with the same powers as courts of sessions in the indictment and trial of all offenses committed in the said city. And whenever any bill of indictment shall be found in the court of oyer and terminer, or in the court of sessions of the county of Oneida, for any offense committed in said city, triable by a court of sessions, either of the said courts in which the indictment may be, may in its discretion order the same to be transmitted to the said recorder’s court, and bind by re- cognizance the witnesses and the party to such indictment to appear at the next term thereof. And when any recognizance thus taken shall have become forfeited, the same may be prosecuted in the recorder’s court. The proceedings in the recorder’s court upon an indictment thus trans- mitted are to be in all respects the same as on indictments in a coutt of sessions.(s) This court has the same power as was possessed by courts of general (n( Laws of 1848, p. 491. § 4. (q) Ibid, § 17. (0) Id. § 5. (r) Laws of 1849, p. 186, § 2. (p) Id. 498, § 16. (s) Laws of 1844, ch. 819, §§ 8, 4. OHAP., Y.] ORIMINAL COURTS OF THE STATE. 305 sessions to order indictments pending in said court to be removed therefrom to the court of oyer and terminer; and the provisions of the revised stat- utes in relation to the removal of indictments pending in courts of general sessions apply to indictments pending in the recorder’s court.(¢) The recorder’s court, when sitting as a criminal court, has power and jurisdiction, concurrent with the court of sessions, in all cases arising in the city of Utica, respecting the support of bastards; cases arising under the laws respecting masters, apprentices and services; reviews of con- victions of disorderly persons; recognizances of persons bound to keep the peace, and the complaints on which the same were founded ; all pro- ceedings relative to poor persons; committees of the estates of lunatics, and the support of the persons of lunatics; the estates of persons ab- sconding and leaving their families chargeable to the public; letting to bail of persons indicted ; discharging persons remaining in prison without being indicted or tried ; and all other proceedings the subject matter of which shall arise, or be within the said city, and which were cognizable in courts of general sessions.(z) No justice of the peace of the city of Utica has power to take any examination or recognizance, to let to bail, issue subpoenas, or commit to prison in any criminal case. And no warrant can be issued by any such justice in any criminal case, unless the recorder is absent from the city; and in such case it must be returnable before the recorder, and the complaint and all other papers concerning such warrant must be forthwith returned by the justice to the recorder.(v) And no justice of the peace of the county of Oneida, residing or doing business out of the city of Utica, has jurisdiction of any suit, complaint or proceeding under either of the acts entitled “Of disorderly persons,” “Of proceedings to prevent the commision of crimes,” “ Of the arrest and examination of of- fenders, their commitment for trial, and letting them to bail,” and “Of trials for offenses before courts of special sessions of the peace,” in any case where the crime or offense is committed, or the thing complained of or sued or proceeded upon shall occur, or the cause of the complaint or proceeding shall arise or be within the city of Utica. In every such case the recorder possesses all the powers and has all the jurisdiction which are given to justices of the peace by the said statutes.(w) All courts of special sessions in the city of Utica are to be held by the recorder and two aldermen of the city. Such court is invested with all the authority devolved upon courts of special sessions, for the trial, con- viction pad punishment of offenses, and in the summoning of jurors for such trial. The recorder is invested with all the authority possessed by (t) Laws of 1846, p. 98, $1. (v) Laws of 1844, ch. 319, § 5. (uw) Laws of 1845, ch. 291,§2. 2R. (w) Laws of 1845, ch. 291, § 6, 8. 8d ed. 310, § 106. i 7 306 CRIMINAL COURTS OF THE STATE. [Book ¥. any justice of the peace in hearing complaints, issuing process, causing arrests, compelling the attendance of witnesses, taking examinations and recognizances, letting to bail, binding over, and committing in criminal cases. If, on the return of any warrant issued in pursuance of the above provisions, the recorder is absent or unable to attend, the county judge, or the mayor of the city, may perform any of the powers vested in the re- corder for the examination, trial and punishment of the defendant arrested on the said warrant.(x) It is made the duty of the aldermen of the city of Utica to attend the recorder’s court for the indictment and trial of offenses, when notified to do so by the recorder, and alsoto attend such courts of special sessions, when notified to do so by the recorder, or the county judge or mayor.(y) This court has a clerk anda seal.(z) The sheriff of the county of Oneida, his under sheriff or deputies, or so many constables of the city of Utica as shall be directed by the recorder, is required to attend the sittings of the court.(a) All criminal process issuing out of the court must be tested in the name of the recorder, and be directed to the sheriff, or to any constable or police officer of said city. The duties, powers, and liabilities of those officers respectively, in the execution and return of such process, are the same as they are in the case of process issuing from the sessions, from courts of special sessions, or from justices of the peace in similar cases.(b) The district attorney of Oneida county is authorized to prosecute all indictments found by the grand jury empannelled by the recorder’s court, and all indictments transmitted to the said recorder’s court, in the same manner as if such indictment had been tried in-the court of sessions for the county of Oneida; and he has the same powers in all respects. In all cases where the district attorney shall decline or omit to prosecute such indictments, the recorder may designate a suitable person to prose- cute the same, with like compensation as said district attorney.(c) The court has the same power to impose fines on jurors, for non- attendance, to remit fines imposed, and to discharge persons from serving as jurors, as is given by the revised statutes to courts of common pleas.(d) All persons brought before the recorder, and required to give security to keep the peace, may, in default of such security being given, be bound over to appear at the next term of the recorder’s court, or at the next court of sessions. And every person committed by said recorder for want of sureties of the peace, or for good behavior, may be discharged by him, or by any two justices of the peace of the county, upon such person find- ing such security as was originally required.(e) (x) Laws of 1844, ch. 819, § 6. (b) Ia. 6 14, (y) Ibid. (c) Id. § 10. @Iag7. - (d) Id. § 18, (@) Id. § 8. (e) Laws of-1845, ch. 291, § 1, wa OMAP. VI] CRIMINAL COURTS OF THE STATE. 307 CHAPTER VI. Mayor’s Court of the city of Albany. Tue only mayor’s court in the state, having criminal jurisdiction, is that in the city of Albany. The mayor’s court of the city of Albany possesses the like powers, and has the same jurisdiction, over crimes and misdemeanors arising within the city of Albany which the court of gene- ral sessions of the county of Albany had under the old constitution ; and in addition thereto, in case the recorder be of the degree of counsellor at law of at least three years’ standing, in the supreme court, has power to hear, try, and determine indictments for any crimes punishable by im- prisonment for life.(a) It is the special duty of the recorder of the city of Albany to preside in and hold the said court; and in the trial of all indictments, and the exercise of all criminal jurisdiction, two aldermen of the city are to be associated with him.(6) The criminal jurisdiction of said court may be exercised at any regular term thereof, and two alder- men of said city, or the mayor and any one alderman, must be associated with the recorder in holding such criminal court as provided by law, while said court is engaged in the trial of indictments, and during the empan- nelling of the grand jury, in case one is summoned, and not otherwise.(c) The like process and proceedings formerly had in the general sessions, in criminal cases, are to be used in said mayor’s court when exercising criminal jurisdiction ; and the like power to take recognizances, and all other powers and duties incidental to such jurisdiction, and which the court of general sessions formerly possessed, together with the powers granted by the act of 1830, are vested in such mayot’s coutt, so far as re- gards any offenses, crimes and misdemeanors arising or committed within the city of Albany.(d) The court has the power to send to any other criminal court having jurisdiction of the offense charged, any indictment found or pending in said mayor’s court; and the court to which the same shall be sent has the same power over such indictment as if it had been found therein.(e) And the court of oyer and terminer of the county of Albany has the power to send to the mayor's court any indictment found or pending in the court of oyer and terminer, which is cognizable by the mayor's court; (a) 2 B.S. 8d ed. 294, § 5. (@ Ibid, § 11. (0) Id. 295, § 6. (¢) Laws of 1848, p. 84, § 4. (c) Ibid, § 8. 308 ORIMINAL COURTS OF THE STATE. [Boox v. and the mayor's court, when exercising criminal jurisdiction, has the same power over such indictment as if it had been found therein.(f) Whenever the recorder of the city, together with any two aldermen, or the mayor and any one alderman, shall be of opinion that the condition of the jail and the number of prisoners therein renders it necessary or proper, they are required to direct the sheriff, by a precept to be issued to him under their hands, to summon a grand jury from the city of Albany, to appear at any of the regular terms of the court; which grand jury has all the powers and authority over offenses committed in the city of Alba- ny which grand juries of the county have.(g) (7) Laws of 1851, p. 907, § 1. (9) 2 B.S. 295, § 9, 8d ed. OHAP, VIL] CRIMINAL COURTS OF THE STATE. 309 CHAPTER VI. The City Court of Brooklyn. Tue act of March 24th, 1849, to establish courts of civil and criminal jurisdiction in the city of Brooklyn, provides for the election of a city judge, who shall hold his office for the term of six years, and be subject to removal in the same manner as the county judge.(a) Section 11 of the act directs that the said city judge, with the mayor and an alderman, or with any two aldermen of said city, or in case of the absence of the city judge, his inability to attend, or vacancy in said office, the mayor and any two aldermen of the city, may and shall hold a court of criminal jurisdiction to be called “The city court of Brooklyn,” which shall have criminal jurisdiction to the same extent, and in the same manner and with the same powers, as the courts of sessions of the several counties of this state, in the indictment and trial of all offenses committed in the said city.(6) When an indictment has been found in the court of oyer and terminer, or in the court of sessions of the county of Kings, for any offense committed in the city of Brooklyn, triable by a court of sessions, either of the courts in which the indictment may be, may order the same to be transmitted to the city court, and shall bind by recognizance the witnesses and the party or parties to the indictment, to appear in the city court, at the next term thereof. And when any such recognizance becomes forfeited, the same may be prosecuted in the city court. The proceedings upon indictments thus transmitted to the city court are to be in all respects the same as on indictments in a court of sessions. And the court has power, in its discretion, to remand indict- ments, and to remit any indictment found in the city court, to the court of oyer and terminer, or sessions of the peace.(c) The sheriff of the county of Kings, his under sheriff, or one of his deputies, and so many constables or marshals of the city of Brooklyn as shall be directed by the city judge, and summoned by the sheriff, are required to attend the sittings of the court.(d) And the district attorney of the county of Kings is required to prosecute all indictments which may be found by the grand jury empannelled by the said city court, and all indictments which shall be transmitted to the said city court, in the (a) Laws of 1849, p, 170, § 1. (c) Ibid, §§ 11, 12. (b) Ibid, p. 172. , (d) Laws of 1850, p. 149, § 7. 310 CRIMINAL COURTS OF THE STATE. [Boox vim. same manner as if such indictment had been tried in a court of sessions of the county ; and he has the same power in all respects.(e) In case of the absence, or inability to attend, or vacancy in the office of district attorney, the city court may designate some suitable person to discharge the duties of the district attorney, in said city court, for the time being, who shall receive such compensation therefor as the board of su- pervisors of the county of Kings shall fix for that purpose. (f) The city judge may constitute a member of any court of oyer and terminer to be held in and for the county of Kings, and for that purpose possesses all the powers and authority of a county judge.(2) CHAPTER VIIL Special Sessions, Police Courts, and Justices’ Courts in Cities. Tues courts will be treated of in a subsequent part of this work.(h) Laws of 1849, p. 178, § 20. (g) Ibid, § 28. , Id. 174, § 21. me (h) See post, Book IX. BOOK VI. Snbictuent. - I. WHAT Is AN INDICTMENT, AND WHEN IT LIES. TI. PREvERRING ; FINDING; AND PRESENTMENT. III. GENERAL REQUISITES OF AN INDICTMENT. IV. Form AND SEVERAL PARTS OF AN INDIOTMENT. Y. OF THE JOINDER OF DEFENDANTS, AND OF OFFENSES, IN THE SAME INDIOTMENT. VI. GranTING COPY OF INDICTMENT; ARRAIGNMENT OF DEFENDANT; PLEADING, VII. Iv wHAT OASES INDICTMENT WILL BE QUASHED. VIII. REMovaAL OF INDICTMENT BEFORE TRIAL OR JUDGMENT. IX. TRIAL oF INDIOTMENT. X. VERDIOT AND JUDGMENT. CHAPTER I. What is an Indictment, and when it lies. Aw indictment is a criminal prosecution at the suit of the people, on the written accusation of one or more person or persons, preferred to the grand jury against one or more person or persons, and presented by the grand jury to the court.(a) In strict legal parlance, an indictment is not so called until it has been found “a true bill,” by the grand jury. Before that, it is termed a bill only.(b) An indictment is a record, and can not be impeached by plea, or evidence upon the trial. But it may be set aside, on motion, for having been found by less than the legal number of grand jurors.(e) By the revised statutes, it is provided that not more than twenty-three, nor less than sixteen, shall be sworn on the grand jury.(d) No indict- (a) 2 Hawk. P. O. ch. 25, $1. (c) The People v. Hulbut, 4 Denio, 188. (b) Arch, Cr. P64. | (d) 2B. S. 724, § 26. : : 312 ORIMINAL COURTS OF THE STATE. ~ [Boox vr. ment can be found without the concurrence of at least twelve grand jurors. But if twelve agree, it is sufficient, though the rest dissent.(e) When such an accusation is found by the grand jury, without any bill brought before them, and afterwards reduced to a formed indictment, it is called a presentment.( f ) And when it is found by jurors returned to inquire of that particular offense only which is indicted, it is properly called an inquisition.(g) An indictment lies for all treasons and felonies; for misprisons of trea- son and felony; for all contempts; disturbances of the peace; all op- pressions ; and all other misdemeanors of a public evil example ;(h) for blasphemies against God, the christian religion, or the holy scriptures; impostures in religion; open and scandalous breaches of morality ; for such acts as tend to the prejudice of the community ; seditious writings and practices; or such acts or attempts as tend to endanger the consti- tution, or bring the government into contempt; or to corrupt, mislead, and pervert public justice ; or to prejudice the public good.(2) , In general the offense must be of a public nature, oy tend to an offense of a public nature—as to a breach of the peace. Injuries of a private nature are not indictable unless they in some way affect the public.(/) Yet refusing or neglecting, when the party is bound by contract, to pro- vide sufficient food or necessaries for an infant of tender age, whether child, servant or apprentice, so that its health is injured, is an indictable misdemeanor.(2) A mere private injury to an individual is not, in gen- eral, indictable, however.(7) As to offenses against statutes.| If a statute specify a mode of pro- ceeding different from that by indictment, then if the matter were already an indictable offense at common law, and the statute introduced merely a different mode of prosecution and punishment, the prosecutor has still the option of proceeding by indictment at common law, or in the mode pointed out by the statute.(7) Where a statute adds a further penalty to an offense prohibited by the common law, and prescribes a partial remedy by.a summary proceeding, in that case either method may be pursued.(o) The true rule of distinction seems to be, that where a statute prescribes a particular method of pun- ishing an offense which was before punishable, the latter remedy is cu- mulative and does not take away the former; but where an act not before punishable, is by a statute made for the future punishable, and a particular mode of proceeding is prescribed, that mode must be specifically pur- (c) 2 B.S. 726, § 36. 2 Hale, 161. (k) Id. ib. (f) 2 Hawk, ch. 25, $1. (2) Russ. & Ry. ©. O, 20. (g) Bac. Abr. tit. Indictment, C. 2 (m) Matt. Dig. 257. Ante, 2. 220. Hale, ch. 19, (mn) 2 Burr. 799. 2 Salk. 460, 15 (h) 2 Hawk. P. O. ch. 26, § 24. Wend. 267. 2 Cowp. 648, (a) Id. ib. (0) 3 Barn. & Ald. 161. 2 Stark. 536. OHAP, 1.] INDICTMENT. 313 sued.(p) Thus where the offense is created by statute, or the statute declares a common law offense committed under peculiar circumstances, not necessarily included in the original offense, punishable in a different manner from what it would be punished without such circumstances ; or where the nature of the common law offense is changed by statute from a lower to a higher grade, as where a misdemeanor is declared a felony, the indictment must be drawn in reference to the provisions of the statute, and conclude against the form of the statute. But where the statute is only declaratory of what was previously an offense at com- mon law, without adding to or altering the punishment, the indictment need not conclude against the form of the statute.(q) And it isa general rule that the adding accumulative penalties in subsequent statutes does not repeal former statutes.() The revised statutes contain a provision that when the performance of an act is prohibited by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such pro- hibition, or in any other section or statute, the doing such act shall be deemed a misdemeanor.(s) Hence it follows, that if in the same section, or in any other section or statute, a penalty is imposed for the violation of such statute, an action at law for such penalty is the exclusive reme- dy for such violation, and no indictment will lie. . Against corporations.| An indictment lies against a corporation quasi a corporation, for neglecting to do what the common good requires ; as where the corporation of a city have power to direct the excavating, deepening or cleansing of a basin connected with a river, and neglect to take the proper measures in that respect, whereby the air becomes in- fected by noisome and unwholesome stenches and a nuisance is cre- ated.(2) See further as to indictments, and in what cases they will lie, ante, 220, et seq. (p) 2 Burr. 805. (s) 2 R. 8. 696, § 89, (q) 13 Wend. 169, (¢) 11 Wend. 539. (r) 1 Cowp. 297. 40 314 : INDICTMENT. [Boox v1. CHAPTER II. Preferring, Finding, and Presentment. r In most cases, the district attorney, on being furnished with the par- ticulars of the offense by the prosecutor, will draw the indictment. But in cases where more than ordinary care may be requisite in framing the indictment, it may be drawn by any other counsel.(a) The names of the witnesses intended to be examined before the grand jury should be indorsed on the indictment.(d) Preferring.| The indictment is next taken by the district attorney to the grand jury, and preferred before them. But two indictments for the same offense, one for a felony under a statute, and another for a mis- demeanor at common law, ought not to be preferred or found at the same time.(c) The witnesses being called in, are examined (on oath) by the grand jury, or with their consent by the district attorney.(d@) The grand jury should require the same evidence, written and parol, as may be ne- cessary to support the indictment at the trial. They are not, however, usually very strict as to the documentary evidence ; they often admit copies where the originals alone are evidence; and sometimes even evi- dence by parol of a matter which should be proved by written evidence. But as they may, and in general should, insist on the same strictness of proof as must be observed at the trial, it is prudent in all cases to be pro- vided, at the time the bill is preferred, with the same evidence with which it is intended afterwards to support the indictment.(e) it seems that the defendant has no right to have a counsel or attor- ney, or any person skilled in the law, present before the grand jury as an advocate on his behalf; it being only a preliminary investigation, and not conclusive on him.{ f ) The statute provides, that a person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecu- tor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been subpeenaed or bound (a) Arch. Or. Pl. 68. (d) 8 Chit. Burn, 354. Matt. Dig. 281. te Id. ib. Russ. & Ry. O. O. 401. (e) Arch. Cr. Pl. 68. ¢) 1 Leach, 588. (Ff) 1 Barn. & Oress, 87, 51. 10 id. 287, OHAP. 11.] INDICTMENT. 315 in a recognizance as such ; and if such objection be established, the per- son so summoned shall be set aside.(g’) But no challenge to the array of grand jurors, or to any person summoned to serve as a grand juror, shall be allowed in any other cases.(h) The court, however, would doubtless have the power, of its own ac- cord, to set aside a person returned asa grand juror, against whom a complaint for a criminal offense was intended to be preferred before the grand jury. And neither the prosecutor or a witness in support of the prosecution, if he happens to be a member of the grand jury, should be permitted to vote on the question of finding an indictment, or be present when the vote is taken. . Subpenas for witnesses in support of any prosecution may be issued and signed by the district attorney, without the seal of the court. And the attendance of such witnesses may be compelled in the same manner as in civil causes.(7) Finding.] After the evidence has been gone into, if a majority, (at least twelve) of the grand jury consider the charge sufficiently proved, their clerk (or the foreman) will indorse on the indictment “a true bill ;"(4) but if they consider otherwise, then, “no true bill,” or “not found.”(Z) It seems agreed, that the grand jury may not find part of an indictment to be true and part false; but must either find a true bill, or ignoramus for the whole; and if they take upon themselves to find it specially or conditionally, or to be true for part only, and not for the rest, the whole is void, and the party can not be tried upon it, but ought to be indicted anew.(m) But where there are two counts in the indictment, as one for a riot, and another for an assault, the same may be considered as two dis- tinct indictments, and the jury may affirm the bill as to one, and reject it as to the other.(n) And where a bill is presented for murder, they may find a true bill for manslaughter only.(o) But upon an indictment for murder, against A. and B., they can not find a true bill against A., and as to B. manslaughter only ;() for if it were murder in A., it could not be merely manslaughter in B. They might, however, find a true bill as to A., and ignoramus as to B.(qg) So, upon an indictment for murder, they can not find “a true bill, se defendendo ;”(r) for the offense charged is a felony—the offense found is not.(s) (9) 2B. 8. 724, § 27. (0) 8 Chit. Burn, 355. (h) Id. ib. § 28. (p) Matt. Dig. Cr. L. 281. 1Ro. RB. (i) Id. 729, §§ 68, 64, 407. Arch. Cr. Pl. 65. (&) Id. 726, § 36. (g) Id. ib. Cro. Car. 464. (1) Arch. Cr. Pl. 64, Matt. Dig. 281. (7) 2 Ro. Rep. 52. (m) 2 Hawk. ch. 25,§2. Yelv. 50, (s) Arch. Cr. Pl. 39, (nm) 1 Cowp. 825, 316 INDICTMENT. [Boox v1. If the bill be not found, or if the indictment be defective, a new and more regular one may be framed and sent to the same or another grand jury ;(é) or the court may order it to be quashed and another preferred. The mere insufficiency, therefore, of the finding, affords no future in- demnity to the party indicted.(w) If a bill be thrown out, (upon the merits,) it can not be preferred again to the same grand jury during the same assizes or sessions; but it may be preferred at the next sessions, if no time be limited for preferring it, or if such time has not elapsed.(v) In what courts indictments may be found.| In this state, indictments can only be found in courts of oyer and terminer,w) general sessions of the peace in the city of New-York ;(x) courts of sessions ;(y) in the mayor’s court of Albany ;(z) in the recorders’ courts of the cities of Buffalo,(a) Oswego,(b) and Utica ;(c) and in the city court of Brook- lyn.(d) Receivers of stolen goods may be indicted and tried in any county where they received or had such property; notwithstanding the theft was committed in another county.(e) Within what time indictments must be found.] 'The revised statutes provide, that indictments for murder may be found at any time after the death of the person killed. In all other cases, indictments must be found and filed in the proper court within three years after the commission of the offense. But the time during which the defendant shall not have been an inhabitant of, or usually resident within this state, shall not constitute any part of tbe limitation of three years.(f) Finding two indictments for same matter.] By the revised stat- utes it is also provided, that if there be at any time pending against the same defendant two indictments for the same offense ; or two indict- ments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.(g) The supreme court have decided, under this section of the statute, that a previous indictment for the same offense is no bar to a second indict- ment, although upon the first the defendant has been arraigned and has pleaded.(h) It has also been decided, that after a conviction, an indict- ment will not be quashed on the ground that, during the pendency of the (t) 4 Black. Com. 305. (a) Id. 8d ed, 802, § 68. (u) 1 Chit. Cr. L. 325. (5) Laws of 1849, p. 187, § 4. (v) Arch. Cr. Pl. 65. Matt. Dig. 282. (c) 2R. 8. 807, § 89, 8d ed. (w) 2B. 8. 205, § 29. Laws of 1847, (d) Laws of 1849, p. 172, § 11. p. 330, §§ 38, 39, 43. (ec) 2 B.S. Ist ed. 726, § 43. (w) Id. 208, $5. (7) Id. § 87. (y) Laws of 1847, p. 881, §§ 41, 44. (9) 2 B.S. 726, § 42. (2) 2 R. S. 218, §§ 5,8, Laws of 1848, (A) 14 Wend. 9. See also 2 Hawk. ch. p. 84, $4. 84, § 1. CHAP. II.] INDICTMENT. : 317 trial, a second indictment for the same offense was found by the grand jury.(?) The mere finding of a second indictment is not, per se, a supet- sedeas to the first indictment. A motion to quash must be made, and made too before the trial on the first indictment has commenced. At all events before the cause is submitted to the jury.(k) Nor is an indict- ment for forging a check ona bank in the name of A. B., superseded by an indictment subsequently found charging the same party with person- ating A. B., and in such assumed character receiving a sum of money, although the money be alledged to have been received from the same individual alledged in the first indictment to have been defrauded by means of the check, and the amount thereof corresponds with the sum received by means of the check.() A similar rule as regards a plurality of indictments, exists at common law. Thus where several indictments for misdemeanors are found, be- ing substantially for the same offense, the court will compel the prosecu- tor to elect one and abandon the others.(2) In The People v. Van Horne,(n) the practice of finding two or more indictments for different degrees of the same offense, or for different of- fenses, founded on the same matter, was disapproved by the court, as a general rule, : Presentment.] Indictments found by a grand jury must be presented by their foreman, in their presence, to the court, and must be there filed and remain as public records; but such as are found against any person for a felony, not. being in actual confinement, shall not be open to the in- spection of any person except the district attorney, until the defendants therein respectively shall have been arrested.(o) And any person dis- closing the fact of such indictment having been found against a person ‘for a felony, not in actual confinement, is to be deemed guilty of a mis- demeanor.(p) Warrant to arrest.| After an indictment has been found, by the grand jury, and presented to the court, a warrant for the arrest of the defendant may be issued by the court, or by the district attorney, or by any justice of the supreme court, or county judge of the county in which the indictment was found, either during the sitting of the court or in vacation.(g) This warrant is to be delivered to the sheriff and constables of any county in the state. Ifserved in any county other than that in which the indictment was found, the same proceedings are to be had as on an indorsed warrant issued before the indictment, as prescribed in the sec- ond title of the second chapter of the fourth part of the revised statutes.(r) (4) 20 Wend. 108. (0) 2B. S. 726, § 38. (&) Id. ib. (p) Id. ib. §§ 39, 40. (2) 12 id. 425. (q) Id. 728, § 55. Laws of 1847, ch, 888, (m) 2 Moo. & Rob. 297. (r) Id. § 66. (n) 8 Barb. 158. 318 INDIOTMENT. [Boox vz. CHAPTER II. General Requisites of an Indictment. First. It must be certain. The indictment should be framed with suf- ficient certainty to identify the offense, lest the grand jury find a bill for one offense, and the defendant be tried for another; also, that the pris- oner may know what accusation he has to answer—that the jury may be able to deliver a verdict upon it—that the court may be able to give judgment and award the punishment which the law prescribes; also, that the prisoner may plead his conviction or acquittal in bar of subse- quent proceedings for the same offense.(a) The degree of certainty must be as great as the case will admit.(b) The charge must be special ; therefore, to say a common highwayman, defamer, disturber of the peace, &c. is not good.(e) Nor to say divers scandalous, threatening, and contemptuous words; for the words ought to be set forth.(d) But there are some excepted cases, as on a charge of being a common scold, barrator, keeper of a common bawdy house, &c.(e) It ought to be as certain as a declaration; for all rules in civil plead- ings apply to criminal accusations(f) Therefore, if the indictment ap- ply to either of two different definite offenses, and does not specify which, it is bad ;(g°) for it ought to be certain to every intent, without intend- ment to the contrary.(2) But mere matter of inducement does nor re- quire so much certainty as the gist of the offense.(z) 2d. It must be explicit. So the charge must be sufficiently explicit to support itself; for nothing more can be included in it than is ex- pressed.(/) 3d. The charge must not be repugnant in a material matter.(2) But averments altogether superfluous and immaterial, seldom prejudice; for if the indictment can be supported without the words which are bad, they may, on arrest of judgment, be rejected as surplusage.(7) Ath. It must be positive, and not by recital. The offense must be charged positively, and not by recital. Therefore, the words “that (a) Matt. Dig. 266. Cowp. 682, 688. (4) Cro. Eliz. 490. BT. R. 611. 623. 2 id. 586. 1 Leach, @) 1 Ventr. 170. Com. Dig. Indict- 429. 2% Maule & Selw. 386. ment, (G. 5). (4) 1 Chit. R. 698. 2 Barn, & Ald. 204, (%) 2 Burr. 1127. 2 Maule & Selw. (c) 2 Hale, 182. 881. 5 Barn. & Cress. 246, (d) 2 Str. 699. (1) 5 East, 254. (¢) 2 Hawk. P. OC. ch. 26, §§ 57, 59. (m) 1 Leach, 474. 1 T. R. 828. 2 Hawk. (7) 2 Stra. 904. ch. 25, § 55. 1 Chit, Cr. L. 231. (g) By. & Moo. ©. O. 158. omar. u1] INDICTMENT. 319 whereas,” render it invalid.(n) But in an indictment on a conviction, the conviction may be set forth shortly ; and mere matter of inducement may sometimes be set forth by recital.(o) So may the order of a justice, on an indictment for disobeying it.(7) 5th. Jt must not be expressed disjunctively, as “murdered or caused to be murdered ;"(q) nor argumentatively, or by way of inference, but expressly and positively.(r) 6th. It must not be doubles) Yet in burglary, it is usual to charge that the defendant broke and entered, with intent to commit a felony, and also that he committed the felony intended. Laying several overt acts in a count for high treason, is not duplicity ;(¢) and the same as to conspiracy. That the defendant published and caused to be published, is not double; nor is charging a man with one endeavor to commit ¢wo offenses ;(w) or with a battery upon two or more persons.(v) So, a count in an indictment for selling spirituous liquors without license, charging the sale of divers quantities of different sorts of liquors, to divers persons unknown, can not be objected to on error, as a count embracing more than one offense. The whole will be deemed a single transaction. The public prosecutor, however, on such acount, may be confined to the proof of a single offense.(w) And it seems that duplicity is cured by pleading over.(z) What need not be stated. Presumptions of law ;(y) and facts of which the court will ex officio take notice,(z) need not be stated. Nor need conclusions of law. It suffices to state the facts; the court will draw the inference.(a) Nor need mere matters of evidence, unless it alters the offense ;(6) nor any matter of defense, which in reason must come from the defendant, and need not be stated by the prosecutor.(c) Nor is it necessary to negative matter which may be given in evidence by the defendant in his justification.(d) Facts which lie more particularly within the defendant’s than the pros- ecutor’s knowledge, need not be stated with more certainty than toa common intent.(e) If notice be necessary to raise the duty which the defendant is alledged to have broken, it should be averred; but when knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never necessary to alledge or prove it.(f) If a request (n) 3 Stra. 900, n. (1). 2 Ld. Raym. (x) Matt. Dig. 267. 1368. 1 Chit. Or. L. 230. (y) 4 Maule & Selw.105. 2 Wils. 147. (0) 2 Ld. Raym. 1196, 920, (2) Russ. & Ry. ©. ©. 448. (p) Matt. Dig. 266. (a) 2 Leach, 941. g) 2 Hawk. ch. 25, § 58. (0) 1S8tra. 139, 140, 2 Barn. & Ald. 204. (7) 1 Salk. 373. (c) 5 T. BR. 84. 2 Leach, 580. (s) See post, Ch. V. (d) 2 East, 19, 20. 2 Burr. 1086. 2 (¢) Kelyng, 8. Leach, 580. (4) 1 Bos. & Pul. 181. (e) 5 T.R. 607. (v) Matt. Dig. 267. (f) Id. 621. (w) 17 Wend. 405. 320 INDIOTMENT. [Boox Yt. or demand be necessary to complete the offense, it must be stated.(¢) And where an evil intent is required to constitute an act a crime, it must be alledged and proved.(h) Butif the intention be divisible, it will suffice to prove that part necessary to constitute the offense.(i) In an indictment for selling spirituous liquors without license, it is not necessary to specify the names of the persons to whom the sales were made.(k) The same strictness is not required at this day in indictments at com- mon law as in those founded on statutes.(l) And as respects indictments for misdemeanors created by statute, the general rule is that it is sufficient to charge the offense in the words of the statute.(7) Improper to state unnecessary matter.| Unnecessary matter should not be inserted. It frequently throws a greater burthen of proof on the prosecutor than the law requires, and is both censurable and dangerous. Still less should things be stated that are repugnant, inconsistent or ab- surd.(n) So it is reprehensible as well as unnecessary to magnify tri- fling offenses, as for a small assault where little or no bodily harm was done, to alledge that such a one, with swords, staves, and pistol, beat, bruised, and wounded him, so that his life is greatly despaired of; and the like. If an indictment be vexatiously long the court will refer it to the master, and sometimes make the clerk of the peace pay the costs of the unnecessary matter.(o) Liffects of the want of general requisites.| If any fact or circumstance which is a necessary ingredient in the offense be omitted, or stated with- out sufficient certainty, it vitiates the indictment, and the defendant may demur, move in arrest of judgment, or bring a writ of error.(p) Every fact and circumstance which is not a necessary ingredient in the offense may be rejected as surplusage, and need not be proved at the trial; nor will a defect in the manner of stating such matter vitiate the indictment.(qg) But where an unnecessary allegation is descriptive of some ingredient in the offense, and not merely of circumstances of ageravation, it is material and relevant and cannot be rejected as sur- plusage.(r) By the revised statutes it is provided that no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be . affected, 1. By reason of having omitted the addition of the defendant’s (g) 8 East, 52, 58, 1T. R. 816, (n) 2 Leach, 660. (A) 2 Stark. N. P. Cas, 245. Russ. & (0) 1 Chit. Cr. L. 293. Ry. 0. C. 445. (p) 5 East’s Rep. 804. 2 Hale, 184. Ie 8 Stark. 62, 35. 2 T. R. 581. (4) 17 Wend. 475. (g) 40o.41,a. 51d.121,b. 8 Stark. (2) State v. Stedman, 7 Porter, 495. 26. | See 4 Porter, 410. (r) 3 Chit. Burn, 827. (m) U. States v. Mills, 7 Peters, 142. . OHAP, 111] INDICTMENT. 321 title, occupation, estate, or degree ; or by reason of the mis-statement of any such matter, or of the town or county of his residence, where the defendant shall not be misled or prejudiced by such misstatement; or 2. By the omission of the words “ with force and arms,” or any words of similar import; or 3. By reason of omitting to charge any offense to have been committed contrary to a statute, or contrary to several stat- utes, notwithstanding such offense may have been created, or the pun- ishment thereof have been declared, by any statute; or 4. By reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.(s) Under this latter clause of the statute it has been decided that an in- dictment is good if it contain the substance of the offense, with the cir- cumstances necessary to render it intelligible, and inform the defendant of the allegations against him.(¢) . Surplusage.| The strictness with which indictments were formerly construed has yielded to considerations of public justice, and the true ob- jects of society. Hence surplusage will not vitiate, if it be not contradic- tory ; nor will a conviction for misdemeanor be set aside, if that be well charged in the indictment, although there be also an allegation of facts which characterize a felony.() So, where an indictment for an offense at common law concludes contra formam statuti, the surplusage will not vitiate.(v) (s) 2 B.S. 728, § 52. (u) People v. Lohman, 2 Barb. Sup. O. (t) 5 Wend. 271, Rep. 216. 1 Comst. 379. (~) State v. Wimberly, 8 McCord, 190. Al 322 INDICTMENT, [Boox v1. CHAPTER IV. Of the form and several parts of an Indictment. Wuen the record of the court where an indictment is tried is made up, or when it is returned to a certiorari, the indictment is preceded by a kind of preamble called the caption, which shows the time and place where and before whom, the trial was had, and the names of the grand jury who made the presentment. It constitutes no part of the indict- ment.(a) A mistake in it may, in general, be amended.(d) Where an indictment found at the sessions is removed into the supreme court by certiorari, with a caption stating that the grand jury were sworn and charged, omitting the words “then and there,” the omission will be fatal, on motion in arrest of judgment.(c) The proper parts of an indictment are 1. The commencement. 2 The statement. 3. The conclusion. Ist. The commencement ; and herein of the venue.| The only part of the commencement which requires attention is the venue, which, at com- mon law should always be laid in the county wherein the offense was committed, though the charge be in its nature transitory.(d) And it must be proved by the prosecutor.(e) So much was the venue regarded as matter of substance, at common law, that where an offense was com- menced in one county and completed in another it could not be laid in either, and the offender escaped.(f) This inconvenient strictness however has been remedied by several statutes, and particularly by the revised statutes; which contain various provisions on the subject of venue in criminal cases. Receivers of stolen property may be indicted in any county where they received, or had such property, notwithstanding the theft was committed in another county.(g¢) Where an offense is committed on the boundary of two counties, or within five hundred yards of the boundary, an indictment may be found in either of such counties.(h) When an offense shall have been committed within this state, on board a) Matt. Dig. 268. Arch. Or. Pl. 26, (e) 2 New Rep. 92. 21 @ i a one Oe ie am 5 Maes East’s P. O. ox each, 6384, 2 (c) 8 John. Cas. ee od. 26. (f) 1 Hale, 651, 2. 9 Hawk. P.O. ch. 2 Keb. 588. ea awk. P. 0. ch (d) Co. Litt. 26, a. 2 Hawk. P. oO. ch. (g) 2R.8. 726, § 48. are (i) 14. 797, § 45, ouar, tv.] INDICTMENT. 323 of any vessel, an indictment may be found in any county through which or any part of which such vessel shall be navigated in the course of the same voyage or trip, or in the county where such voyage or trip shall terminate.(i) Where the mortal wound, &c. is given in one county, and death takes place in another, the indictment may be found in the county where the death happened.(k) As to venue in indictments for robberies, burglaries, against acces- Saries, &c. see ante, pp. 134, 90, 267. Venue how stated.| The venue is stated in the margin, next after the caption, thus: “Saratoga county, ss.”; for a city and county, “City and county of New-York, ss.” In the body of the indictment the facts must generally be stated to have arisen within the jurisdiction of the court in which the indictment is preferred ; therefore if a parish, vill, or place where an offense was committed, be stated without naming the county in the margin, or with- out referring to it but by the words “the county aforesaid,” it will be defective.(/) And where two counties are named, as Surrey in the margin and Middlesex afterwards in the body, the words “ county aforesaid” will then refer to the last antecedent, “ Middlesex ;” and if Surrey was in- tended, the words should be “county first aforesaid,” or “said county of Surrey.”() But on an indictment for being riotously assembled at the parish of A., and feloniously beginning to demolish the house of the pros- ecutor, “situate at the parish aforesaid,” it was held this was a sufficient reference to the parish, and that the words “ parish aforesaid” must be taken to relate to the last before-mentioned parish.(7) Where a statute authorizes a mode or place of trial which did not ex- ist at common law, all facts within the state should be laid where they actually happened; but where a statute creating a new felony directs that it may be tried in the county where the offender is apprehended, without containing any negative words, the provision is only cumulative, and he may still be tried in the county where the offense was com- mitted.( p) In general it is also essential to lay every issuable and triable fact to have happened at some particular parish, town, vill, or place, within the county, to which a venire may be awarded; and it will not suffice merely to state the county.(q) Where a mere omission or non-feasance is alledged, no vill, &c. need (4) 2B. 8. 727, § 44, (0) 1 Chit. Or. L. 195. (k) Id. ib. § 47. (p) 1 Hale, 694. 3 Inst. 87. (2) 1 Saund. 208. 3 P. Wms. 496. 2 (g) 1 Chit. Cr. L. 196. 7 Mass. Rep. Hale, 166. 2 Hawk. ch. 25, §§ 34,128. 15. 1 Pick. 375. 1 Chit. on Pl. 4th ed. (m) 2.Ld. Raym. 888, 1804. 2 Hale, 249, 5T.R.620. 24Hale, 180. 8 Camp. 180. Oro. Eliz. 184. 1Saund.308,n.(1). 77. (n) 1 Moo. & Reb. 177. * 324 INDICTMENT. [Boox YI. be stated in the body of the indictment ;(r) nor where the offense con- sists of the repetition of several acts, as being a common barrator ; for it must be supposed to have happened in several places.(s) Nor need any venue be laid to immaterial facts.(¢) In general, when a positive fact is averred it should be stated to have been done “then and there” after the county and vill have been clearly expressed in the body of the indictment ;(w) and should be repeated to every material fact issuable and triable.(v) An indictment for an assault, charging that the defendant “then and there did,” &c. does not refer to the county in the margin, so as to lay a sufficient venue.(w) Where a transitory act or matter of inducement does not happen in the county where the venue is laid, it may be laid there; and if laid out of that county and where it really did happen, it should be under a vide- licet.(z) In cases of public nuisance, it is sufficient to lay it near to the highway and dwelling houses which it annoys.(y) It will not suffice to state the defendant as late of W. and then refer to the venue as “the patish aforesaid,” without showing that W. is a parish; and if the in- dictment be so framed, judgment will be arrested.(z) And so, if the of- fense be laid “at the town aforesaid,” when vo town has been mention- ed, the defect will be fatal.(a) And though it is in general unnecessary to aver a mere conclusion of law, either with time or place, yet if it be so averted improperly the indictment will be defective.(b) Effect of omission or misstatement of venue.] If the facts be stated, as to place, with repugnancy or uncertainty the indictment will be inval- id(c) on demurrer, motion in arrest of judgment, or writ of error; and a verdict will not aid the defect.(d) As, if two places are previously named, and afterwards a fact is only laid “then and there,” the in- dictment is defective because it is uncertain to which it refers ;(e) or if it be laid at B. aforesaid, when B. was not previously named. f) Or if the stroke be in one county and the death in another, and the indictment conclude, that so the prisoner murdered the deceased in the county where the cause of the death proceeded.(g) The want of a venue, in an indictment for a conspiracy, to the averment of the false pretense, is fatal.(/) (r) 5 East’s Rep. 376, 8. 1 Hawk. ch. (2) 5 T. R. 162, 3. § 5. (a) 1 Ohit. Or. L. 199. (s) 1 Chit. Or. L. 198. (b) Id. ib. (t) 8 Chit. Burn, 384. Com. Dig. In- (c) Id. ib. 2 Hawk. ch. 25, § 88. dict. G. 2. (d) 4T. R. 490. 5 Id. 162. 2 Leach, (u) Matt. Dig.270. 1 Chit. Or. L. 198. 800. : ) Id. ib. 5 T. R. 620, (e) 2 Hale, 180. Bac. Ab. Indict. G. 4. 1) 8 Bibb, 490. (f) 1 Ohit. Cr. L. 200. 2) Kel. 15. Stark. 222. Cro. Jac.17. (g) Id. ib. 2 Hawk. ch. 25, § 88. (y) 1 Burr. 387, 1 John. 78. (A) 1 John. 66. onaP, 1v.] INDIOTMENT. 325 Notwithstanding this strictness, however, it is in no case necessary to prove that the offense was committed at the precise vill, parish, or place laid in the indictment. It is sufficient to show that it happened any where within the county or jurisdiction covered by the venue(7?) Ex- cept indeed where the place is the essence of the crime, as in striking in a church yard, or in indictments for burglary, night-poaching, &c.(k) As to changing place of trial, see post, Ch. 9. 2d. Statement.] Where an indictment for a statutable offense con- tains matter wnnecessary to the description of the offense, the unneces- sary matter may be rejected as surplusage. If it charges the statutable offense, but adds something more, it is nevertheless maintainable.(/) Immediately after the statement of the venue, in the margin, the in- dictment proceeds to show the presentment of the jury upon oath. It must appear in the caption that the indictment was taken upon oath, and the names of all the jurors by whom it is taken should be stated ; but it is not usual to insert them in the indictment itself.(m) And it must be expressed in the present tense; for if the word did present, be inserted instead of do, the objection will be fatal(x) In an indictment with three counts, if in the third count it is omitted to be stated that the grand jury “on their oath present,” (the first two counts being regular in that respect,) the objection is obviated by the fact that the record states that the grand jury were sworn in open court.(0) Defendant's name.| The defendant must be described by his chris- tian name, his surname, and his addition.(p) A name which he has usually gone by and acknowledged, is sufficient ; and if there be a doubt which of two names is the real one, the second may be added after an alias dictus, thus: “Richard Wilson, otherwise called Richard Sayer.” If his name be unknown, and he refuse to disclose it, he may be indict. ed as “a person whose name is to the jurors unknown, but who was _ personally brought before them by the keeper of the prison.”(q) But an indictment against him as a person to the jurors unknown, is insuffi- cient, without something to ascertain whom the grand jury meant.(r) If, however, it appears in evidence that he is known, it seems he must be . acquitted.(s) And where, in an indictment for receiving stolen goods, the principal was so described, and it appeared that he was known, the re- ceiver was acquitted for the variance.(¢) But if the principal be really unknown, he may be so described in an indictment against the receiv- . (4). 8 Burn, J. 24th ed. 56. 1 Chit. Cr. (n) Id. ib. L. 200. (0) 5 Rand. 685. (k) 2 Hale, 179, 244,5. 2 Hawk.ch. (p) 2 Hale, 175. 25, §84. Russ. &@Ry.C.C.515. 1Chit. (g) Matt. Dig. 270. Cr. L. 201. (7) Russ. & Ry. ©. O. 489. (2) 2 Barn. & Adol. 614, (8) 1 Holt, 595. 3 Oamp. 264, (m) 1 Chit. Cr. L. 202. {) Id. ib. 326 INDIOTMENT. [Book VE. er.(u) The inhabitants of a parish or county, may be indicted for not re- pairing a bridge or highway, without naming any of them.(v) Where T. H. P. was indicted by the name of T. P. junior, it was held a mis- nomer.(w) But in another case,(z) Thompson, J. said: “It may well be questioned whether the middle letter of a name forms any part of the christian name of a party.” And in a case in the supreme court of this state, it was expressly decided that the law recognizes but one christian name.(y) Junior, or younger, also forms no part of the name(z) A defendant can not be described with an alias dictus of the christian name.(a) It seems, that if the soznd of the name is not affected by the mis-spell- ing, the error will not be material.(b} And if two names are in original derivation the same, and taken promiscuously in common use, though they differ in sound, yet there is no variance.(c) If the defendant plead misnomer of his surname, the prosecutor may reply, that the defendant is known as well by one name as the other.(d} Where a man is in the habit of using initials for his christian name, and is so indicted, and the fact whether he was so known is put in issue, and he is convicted, the court will not interfere on that ground; for if a man by his own conduct renders it doubtful what his real name is, he is an- swerable for the consequences.(e) Whatever mistakes may be made in the name of the defendant, how- ever, he cannot afterwards take advantage of the error, if he appears and pleads not guilty.(f) Misnomer, is only matter of abatement, and is not a good cause for arresting the judgment.(g) The name of the defendant committing the offense must be repeated to every distinct allegation ; but it will suffice to mention it once as the nominative case in one continuing sentence.(h) Addition of defendant.| At common law as well as by the statute, in England, it is necessary in indictments to state not only the name of the defendant, but his addition of estate, degree or mystery.(?) And this is the custom in this state, although we have no statute making it neces- sary. The addition required is of his degree, as yeoman, gentleman, esquire ; (u) 2 East’s P. CO. 781. (5) Id. ib. 10 East, 84. 16 id. 110. (v) 2 Hawk. P. O. ch. 25, § 68. Wood’s a eee ey ae Fig uae ak t. b. 4, ¢. 5. c ol. r. . Bac. Abr. Mis- ar 1 Pick. 888. 8 id. 2d ed. 262, 268, nomer. n.1. (d) 2 Hale, 238. 2) 8 Peters, me acd di ee @) cor eas 487. See also 2 Cromp. 5 John. 84. See also Co. Litt. er, 215. a 11d Raym. 562. (7) 1 Chit. Cr. L. 202. 1 Bay, 377. ick. 888. 10 Mass.Rep.205. 7 — (g) 16 Mass. Rep. 146, 147. John. 540, (h) 4Harg. St. Tr. 747. (a) 1 Obit. Cr. L, 208, and note (m). a 1 Chit, Cr. L. 208. Oro. Cir. Oomp. oHar, ty.] INDICTMENT. 327 of his mystery, as husbandman, sailor, spinster, &c. And it should be the addition to which the party was entitled at the time of the indict- ment. “Late Esq.” &c. would be bad.(/) Therefore, if the addition be only general, as a servant, farmer, citizen, &c. these are no good additions.(2) The additions commonly in use are, for a man, laborer; for a woman, if single, spinster; if married, A. B., the wife of C. D., laborer; if a widow, widow.(m) The addition ought to be to the substantive name, and not to the alias dictus.(n) Laborer and yeoman, though both good additions for a man, are bad when applied toa female; but she may be described as the wife of A. B., yeoman, because that term applies with certainty to the husband; but not as the wife of A. B., spinster, because that may refer either to the wife or the husband.(o) With respect to the addition of mystery, the following are sufficient: husbandman, merchant, tailor, broker, hostler, smith, miller, manufacturer, carpenter, cook, brewer, baker, butcher, parish clerk, schoolmaster, scriv- ener, mercer, fishmonger, dyer, and all other lawful trades and profes- sions.(p) But all epithets which charge the defendant with improper or unlawful practices are insufficient; as maintainer, extortioner, abettor, vagabond, common informer, thief, and all terms of a similar descrip- tion. So also the addition of an office is bad, unless the defendant is prosecuted for something done in his official capacity.(q): It is said, that where the defendant is engaged in several occupations, he may be de- scribed by either of them. But if a gentleman by birth engage in trade, he should be described as a gentleman, and not by his art or mystery.(r) As to the addition of the residence of the defendant, it seems that a county as well as a place must, in general, be laid in the indictment. If the defendant occasionally live in two places, the addition of either will suffice. If there are two places in the same county, the names of which are partly similar, as Great Dale and Little Dale, the defendant can not be indicted as of Dale only. So if the same place be sometimes called North Dale and sometimes East Dale, but never Dale simply, he may plead that there is no such town, because a part of the name is not equal to the whole.(s) But it seems that if there are two places of precisely the same name, in the same county, and never otherwise denominated, it will suffice to alledge the defendant to be of the town generally, with- out adding any distinction.(¢) () Leach, 420. . (p) Ia. ib. (2) Crown Cir. Comp. 42. (g) Id. ib. (m) Td. ib. (r) Id, 208, 2 Inst. 688. (n) Id. ib. 1 Chit. Cr. L. 209. (s) 1 Chit, Cr. L. 209, (0) 1 Chit. Or. L, 206, (d Id. 209, 210. 328 INDICTMENT. [Boox v1. Tt is universally agreed that it is sufficient to describe the defendant as late of a particular parish. And it is said that if he be described as of A., late of B., proof of either allegation may be admitted.(w) But he must be positively described as late of the place in question ; and there- fore to describe him merchant of London will be bad ; as it may merely signify that he carries on trade, not that he personally resides in the city.(v) If the addition be absolutely bad, on the face of it, or be omitted,?the defendant may before plea move the court to quash the indictment, on affidavit giving his addition.(w) Ifthe objection do not appear on the indict- ment, advantage must be taken of the defect by a plea in abatement.(z) These are the rules of the common law respecting misnomer of name or addition. The revised statutes contain a general provision that no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be affected by reason of baving omitted the addi- tion of the defendant’s title, occupation, estate, or degree; or by reason of the misstatement of any such matter, or of the town or county of his residence, where the defendant shall not be misled or prejudiced by such misstatement.(y) Name and description of the prosecutor and of third persons.| When- ever the person injured is known to the jury, his christian and surname ought to be put in the indictment.(z) But if they know not his name, an indictment for the murder of a person to the jurors unknown, or for stealing the goods of a person to the jurors unknown, is good.(a) Anda prosecutor or third person may be described by the name he has assumed, though it is not his right name.(6) And the property may be laid in the christian name by which the prosecutor is generally known.(c) And if a party be known by one name as well as another, he may_be described by either.(d) But if, he be described as a person to the jurors un- known, and it appear in evidence that he is known, the defendant will be acquitted.(e) : Addition.| There is no need of an addition of the person upon whom the offense is committed ; though, where there is a plurality of persons of the same name, it may be convenient, for distinction sake.(f) So, the addition of Esquire to the name is not material, nor a ground for acquittal, though not proved.(g) Bastards.| A bastard should Be described by the name he has gained (u) 1 Chit. Cr. L. 210. 2 Hawk. ch. (a) 2 Hale, 181. 98,§119. 4T. RB. 541. : (0) 1 Leach, 100. 2 Russ. & Ry. 510. (v) Id. ib. Com. Dig. Indict. G. 1. (c) 6 Car & Payne, 408. (w) 1 Leach, 420. 3 Dow. & Ryl.621. (d) 1 Leach, 100. 2 Hale, 244. 2 Har. & McHen. 479. (e) 1 Holt, 595. 8 Camp. 264. (w) 1 Chit. Or. L, 204. 1 Mass. R. 76. (f) 2 Hale, 182. 8 Chit. Burn, 340. (y) 2B. 8. 728, § 52. (g) 2 Car. & Payne, 280. (2) 2 Hawk. P. O. ch. 26, § 71. OHAP, Iv.] INDIOTMENT. 329 by reputation ; even describing him by his mother’s name, if he had not gained it by reputation, would be bad.(h) Idem sonans.| The mis-spelling of a name, if it does not affect the sound, will be immaterial.(7) Misnomer.}| The misnomer of the prosecutor, or of third persons, will not be fatal if the name inserted be immaterial, and may be rejected as surplusage.(/:) Goods.| | Where the goods of a corporation are stolen, or injured, they must be laid to be the property of the corporation, in their corporate name, and not in the names of the individuals who compose it.(2) And there isa difference upon this subject between an ancient corporation and a corporation newly created. The former may by use have a special name, differing in substance from that by which they were originally incorporated, and may plead and be impleaded by that name: but a cor- poration created within memory must plead and be impleaded by the name by which they were incorporated.(m) Where the property is vested in a body of persons not incorporated, it must be described as in thecase of partners or joint owners, &c.(m) A dwelling house, the joint property of partners in trade, in which the partnership business was carried on, but only one of the partners (and the shopman) resided in it, was held to be properly described as the dwelling house of all the partners.(o0) Of time and place.| Whenever a venue is necessary to be stated, so is time.(p) And no indictment'can be good without precisely showing a certain day on which the material facts alledged in it happened.(q) But where a charge is of a bare omission, as, not scouring a ditch, it is said the indictment need not show any time ; for it is a present evil.(r) So where time does not enter into the nature of the offense, it may be al- ledged to have been committed on any day previous to the finding of the bill, during the period in which a prosecution may be commenced.(s) Yet where the offense consists in the omission of an act to be done at a certain time, such time must be stated. If an offense be done in the night time, before midnight, the indictment should suppose it to be done the day before ; butif after midnight, then it must say it was done on the day after.(¢) If the hour be stated no exception is allowed to it ;(w) but (A) Russ. & Ry. C. C. 358. v. McNeal, 1 Gallis, 887. State v. Roach, (i) 1 Chit. Or. L. 216. Matt. Dig.272. 2 Hayw. 552. 1 Tyler, 295. State v. (k) Ry. & Moo. C. C.1. 2 East’s P. Beckwith, 1 Stew. 318. C. 598. . (r) Ibid, § 79. (2) 2 East’s P. C. 1059. 1 Leach, 258. (s) Shelton v. State, 1 Stew. & Porter, (m) Hob. 211. Noy, 54. Latch, 229. 208. (n) 1 Leach, 518. Ry. & Moo. 15. (t) Matt. Dig. 2738. Lamb. 84, ¢. 5, p. (0) 1 Moody’s C. C, 329. 402. 38 Oush. Rep. 525. (p) 5 T. RB, 6380. (u) 8 Burr. 1484. 1 Bulst. 208. (g) 2 Hawk. P. 0. “ 877. U.S. \ 330 INDICTMENT. [Boox v1. it is not necessary to mention it.(v) The time laid should be the day of the month and year upon which the act is supposed to have been com- mitted.(w) To say on such a day last past is good; for the year would be rendered certain by the caption of the indictment.) But this per- haps is doubtful if the objection were made at the time of the trial.(y) And an allegation that the offense charged in the indictment was com- mitted on a certain specified “day of September now past” is not sufhi- ciently certain.(z) To lay divers offenses to have been committed on divers days between two days specified, is bad; unless perhaps in offen- ses which have a continuance, as nuisances, é&c.(a) But an indictment charging an offense on a particular day and also on divers other days, is good; a day certain being alledged, the residue will be rejected as sur- plusage.(b) In indictments for misdemeanors, if time and place be added to the first act, it shall be construed equally to refer to all the ensuing acts ;(c) but in felonies time and place must be laid to every material fact.(d) However, it is the practice to add time and place to every ma- terial fact, as well in misdemeanors as in felonies.(e) But after the time has been once named with certainty, it is afterwards sufficient to refer to it by the words then and there, which have the same effect as if the day and year were actually repeated.(f) If, however, two times or places have been previously mentioned, and afterwards a part only is laid “then and there,” the indictmeut is defective, because it is uncertain to which it refers.(g°) Although the indictment lay the time so’long before the indictment is found that the crime appears to be barred by the statute of limita- tions, this is no ground for arresting judgment; for non constat but that the defendant is within the exception of the statute of limitations.(h) The indictment must expressly show some place within the jurisdiction of the court, where the offense was commitled, and without repug- nancy.(i) It is a general rule that the time and place of every material fact issuable and triable must be plainly and consistently alledged. An uncertainty or incongruity in the description of time and place will vitiate the indictment, on demurrer.() Yet circumstances merely accompany- ing these acts need not be laid with time and place ;(/) unless rendered essential by the particular nature of the offense. Thus in an indictment (v) 2 Hawk. ch. 25, § 36. (c) Cro. Jac. 41. (w) Arch. Cr. Pl. 87. Com. Dig. tit. (d) 2 Hale, 178. Indict. (G. 2). 2 Hale, 177. (e) Matt. Dig. 273. (z) Com. Dig. Indict. (G. 2). 2 Ma- (7) 1 Chitty’s Or, L. 218. 5 Serg. & son, 129. Rawle, 315. (y) Arch. Cr. PI. 37. (g) Jane v. State, 3 Mis. Rep. 61. (2) Comm. v. Griffin, 3 Cush. 523. (h) 9 Cowen, 655. (a) 2 Hawk. ch, 26, § 82. 4 Mod.101. (2) 2 Hawk. ch. 25,§ 838. 8 Wend. 229. 1 Chit. Or. L. 217. (%) 1 Stark. O. P. 54. 1 John. R. 66. (0) 17 Wend. 475. (2) March’s Pl. 127. 2 Ro. Rep. 226. our. rv.] INDIOTMENT. 331 for bigamy, in averring that the first wife was alive at the time of the second marriage, it is not necessary to alledge a place where ;(m) although from the nature of the offense, the ¢ime must’ be stated(n) But when the offense is in its nature local, and the place is stated by way of local description, and not as venue merely, the slightest variance between the description in the indictment and the evidence will be fatal. Thus where an indictment for arson states the tenement to have been situated in the sixth ward and the evidence shows it to have been in the fifth, this will be a fatal variance.(o0) Yet, where an indictment for larceny on board ship charged the offense to have been committed in the first ward of the city of New York, and it appeared to have been in the third ward, the variance was held not to be material.(p) It would be different if the offense took place in a dwelling house, because that is strictly local ; but a ship is not.(q) Though the allegation of a specific time is thus important, it is in no case necessary to prove the precise day, or even year laid in the indict- ment, except where the time enters into the nature of the offense.(r) Neither is it necessary to prove the place laid; provided the place proved is within the jurisdiction of the court ;(s) unless the offense isin its nature local, and the place is stated by way of local description.(¢) Statement of the offense. In the statement of the offense itself all the facts and circumstances necessary to constitute it must be specifically set forth; for the omission of any ingredient necessary to constitute the offense will vitiate the indictment.(z) ‘These requisites will be found pointed out in this work as respects nearly every species of offense, under the head of indictment. The only exceptions to this rule are: 1. A man may be indicted for being ‘a common barrator,” without detailing the particulars of the barratry ; 2. A woman may be indicted for being “a common scold,” without detailing the particulars of her conduct; 3. A person may be indicted for keeping a common gambling house or bawdy house, without stating those circumstances which it may be necessary to give in evidence to show that it is a house of that description ;(v) 4. In an indictment for soliciting or inciting to the commission of a crime ;(w) or for aiding and assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid and assistance.(z) (m) 1 Stark. C. P. 62. (8) Arch. Or. Pl. 40. (n) Matt. Dig. 278. (t) 5 Hill, 401. (0) People v. Slater, 5 Hill, 401. (u) Matt. Dig. 274. (p) People v. Honeyman, 3 Denio, 121, (v) Id. ib. 9 Cowen, 586. 7, per Spen- qg) Ibid. cer, Senator. 2 Hawk. ch. 25, §§ 57, 59. (r) 1 Chit. Cr. L. 228. 9 Cowen, 655. (w) 2 East’s Rep. 5. 2 Mason, 49. Roscoe’s Cr. Ev. 85. 1 (z) Arch. Or. PL 42. Moo. ©. C. 298. 332 INDICTMENT, [Boox vt. Such a degree of certainty is necessary, in the description of the of- fense, as that the defendant may not he indicted for one thing and tried for another; that he may know what crime he is called upon to answer ; that the jury may deliver an intelligible verdict; that the court may render the proper judgment; and that the defendant may, with proper averments, plead the judgment in bar of another prosecution for the same offense.(y) But if a particular fact, which is matter of descrip- tion and not vital to the accusation, can not be ascertained, the indict- ment will be good if it state that such fact is unknown to the grand jury.(2) The defendant may avail himself of the omission of any necessary in gredient of the offense, in the indictment, by demurrer, motion in arrest of judgment, or writ of error.(a) Statutes.] There is no necessity to recite any public statute on which the indictment is founded; for the judges, ex officio, take notice of all public statutes.(d) But if it be recited with a material variance and the indictment conclude “contrary to the form of the said statute,” it will be fatal; though if it conclude generally, as, ‘contrary to the form of the statute in such case made and provided,” withvuut veferring to the recited statute, the recital may be rejected as surplusage.(c) But the parts of a private act on which an indictment is framed, must be set out specially, as other facts, and a variance properly shown to the court will be fa- tal.(d) Neither the day on which a private statute was enacted, nor the title or preamble, need in any case be stated. But if set forth it must be done with correctness, or, if the indictment conclude contrary to the stat- ute aforesaid, the variance will be fatal.(e) hs Whether the statute be public, or private, the indictment must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it; and must with certainty and precision charge him with having committed or omitted the acts constituting the offense, under the circumstances and with the intent mentioned in the statute(f) The defect will nog be aided by ver- dict ;(¢) nor by a conclusion contra formam statuli{h) Nor will the fullest description and legal definition of the offense be sufficient without keeping close to the expressions of the statute ;(7) which should be pur- sued in the precise and technical language used in the statute(4/) Thus, for rape, no expressions of force and carnal knowledge will excuse the (y) The People v. Taylor, 8 Denio, 91. __(¢) 1 Chit. Cr. L. 277. Holt, 662. 2 (2) Ibid. Hawk. eh. 25, § 106. (a) Arch. Cr. Pl. 42. (7) 1 Hale, 517, 526, 535. (0) Dyer, 155, a. 2 Hawk. ch. 25, § (g) 2 East’s Rep. 338. 100. 1 Saund., 153, n. (8). (h) 2 Hale, 170. Yost, 428, 424. See (c) 2 Hawk. ch. 25,§101. 6T.R.776. 8 T.R. 536. (d) 2 Hawk. ch. 25, § 103. (i) Fost. 424. (k) Id.ib. 2 Hawk. ch, 26, § 110. omar. rv.] INDICTMENT. : 333 omission of the word “ravished.(I) So if a statute make it criminal to do an act “unlawfully and maliciously,” it must be stated to have been done “unlawfully.” “Feloniously, voluntarily and maliciously” is not enough.(m) But where a word not in the statute is substituted in the in- dictment for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient. As, if the word “ knowingly” be in the statute, and the word “ advisedly” substituted for it in the indictment ;() or the word “willfully” in the statute, and “ ma- liciously” in the indictment, (the words “ advisedly” and “ maliciously” not being also therein) the indictment would be sufficient. Yet it is better to pursue strictly the words of the statute ; as the court, in favorem vite, are sometimes inclined to listen toand countenance very nice distinctions upon the subject. Where the subject of the indictment can not be brought within the meaning of the statute without the aid of extrinsic evidence, it is necessary, besides charging the offense in the words of the statute, to aver such facts and circumstances as may be necessary to bring the matter within the meaning of it.(0) ; And if there be any exception contained in the same clause of the act which creates the offense, the indictment must show, negatively, that the defendant, or the subject of the indictment, does not come within the ex- ception.(p) But if an exception or proviso be in a subsequent clause or statute ;(q) or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference,() it is in that case matter of defense for the other party, and need not be negatived in the pleading.(s) It is generally, but not always, sufficient, in an indictment for a misderneanor created by statute, to describe the offense in the words of the statute(¢) In an indictment for setting on foot a lottery, con- trary to the statute, it is essential to specify the purpose for which the lottery was made; that being a part of the statute description of the offense. Buta general statement of the purpose for which the lottery was madeis not enough. Some further description must be given, where it is practicable to do so.(z) Written instruments.| When a written instrument forms a part of the gist of the offense charged, it must be set out verbatim, unless where a statute declares that it shall not be necessary. When necessary it is (1) 2 Hawk. ch. 28, § 77. (9) 1T. RB. 320. (m) Ry. & Moo. C. C. 289, 247. (r) 1 Barn. & Ald. 94. (n) 1 Bos. & P. 181. (s) Matt. Dig. 275. Arch. Cr. Pl. 48. (0) Matt. Dig. 200, 275. 2 Leach, 664. 8 Chit. Burn, 456. 2 East’s P. C. 928. (t) The People v. Taylor, 3 Denio, 91. p) Id. 275. 1 T. R. 141. 15 East, (w) Ibid. 456. 1 id. 648. Leach, 580. Russ. & Ry. C. C. 174, 321, 78 334 INDICTMENT. [poox v1. usually introduced by the words “according to the tenor following,” or “of the tenor following,” or “in the words and figures following,” or “the false, &c., words and matter following,” or other words which imply that a correct recital is intended. On the other hand, when the sub- stance only is intended to be set out, il should be introduced by such words as “in substance as follows,” “to the effect following,” or the like.(v) The word “tenor” implies that a correct copy is set out; and a variance in such a case would be fatal ;(w) even although more than the substance need not in that particular case have been set out. And the same as to “the words and figures following,” &c. The words “to the tenor and effect following” have been holden sufficient; as the word effect, in such a case, may be rejected as surplusage.(z) The word “effect,” however, by itself, implies that the substance only is set out ;(y) and the same, of course, of the words “in substance as follows.(z) It seems also to have been holden that the words “in manner and form fol- lowing” require the substance only to be set out.(a) ‘‘ Purport” means the substance of an instrument as it appears on the face of it to every eye that reads it. “ Tenor” means an exact copy of it.(b) Foreign language.| An instrument in a foreign*language must be set out first in the original; otherwise the defendant may demur, move in arrest of judgment, or bring a writ of error ;(c) and secondly ina translation, which must be proved at the trial to be correct.(d) Records.] In stating records as part of the offense, and not merely as inducement, the recofd must be, referred to, or the omission is bad, on demutrer.(e) i Variance.| When a written instrument, or parts of it, are professed to be set out verbatim, the slightest variance between the indictment and the evidence in this respect would be fatal. A mere literal variance, however, (where the omission or addition of a letter does not alter or change a word so as to make it another word,)( f) will not be material ; as “receved” for “received;(g) “undertood” for “understood ;”(A) ‘“¢Messes” for “ Messrs.” or the like.(7) Description of goods.| Where general chattels are the subject of an offense, as in larceny, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods must be stated.(/) See also LARCENY, ante, p. 154. (v) Matt. Dig. 275. (c) 6 T. RB. 162. (w) 2 East’s P. ©. 076. (d) 7Moore,1. Russ. & Ry. O. 0. 478. (v) 2 Salk. 417. 1 id. 824. 1 La, (e) Ry. & Moo. ©. C. 47. Raym. 415. (f) 2 Salk. 661. 2 Camp. 229. (y) 2 Salk. 417. (g) Leach, 145. 2 East’s P. ©. 977. (2) 8 Barn. & Ald. 508. (A) Cowp. 229. (a) Leach, 227. 1 Doug. 198. 4) Matt. Dig. 276. (b) Id. 661. Matt. Dig. 276. f ) 2 Hale, 182, 3. OHAP, 1Y.] INDICTMENT. 335 Technical words.| In some cases particular technical words are cs- sential to the definition of the offense, and must be inserted in the indict- ment, as in rape, burglary, murder, &c., which have been already no- ticed. If these essential words are omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error.(2) Unlawfully.| Though the word “unlawfully,” is frequently used in the description of an offense, it is not necessary when the crime existed at common law, and was manifestly illegal.(m) But if a statute, in de- scribing an offense which it creates, uses that word, an indictment on the statute will be bad without that word.(m) And itis, in general, best to insert it, as it precludes every legal cause of excuse for the crime.(o0) The words “with force and arms,” though usual in indictments for of- fenses against the person, are not, it seems, essential. The omission is now cured by the revised statutes.(p) Wickedly, §c.| The words “wickedly, maliciously, of his own wicked and corrupt mind, being a person of evil disposition,” &c. are, in general, mere matter of aggravation, and not material.(q) Knowingly.| The word “knowingly,” or “ well knowing,” will supply the place of a positive averment that the defendant knew the facts sub- sequently stated.(r) Where a scienter is absolutely necessary to con- stitute guilt, it must be positively alledged.(s) But if notice or knowledge be unnecessarily stated, the allegation may be rejected as surplusage.(¢) Therefore, where there is the least doubt, it is best to insert them. Intent.| Where an act must be done with a particular intend, in order to render it criminal, an evil intention must be averred upon the record, and must be proved as laid; or the variance will be fatal.() But if the intention be divisible, it will suffice to prove that part of it necessary to constitute the crime.(v) : 3d. Tue conciusion.] An indictment, at common law, concludes “against the peace of the people of the state of New-York.” Indict- ments for nuisances, usually conclude “to the great damage and common nuisance of all the people of said state, as well as against the peace,” &c. But this conclusion “to the common nuisance,” does not seem to be es- sential.w) The words “against the peace of the people,” however, seem to be essential in all cases ;(7) excepting in indictments for non- (2) 8 Chit. Burn, 349. (s) Id. ib. (m) 2 Hawk. ch. 25, § 96. Bac. Abr. (t) 2 East’s Rep. 452. Indictment, (G. 1). (uw) 2 Stark. N. P. Rep. 245. See Russ, (n) Hawk. 0. GC, 48. Matt. Dig. 277. & Ry. C. CO. 365, 445. (0) 4 Maule & Selw. 274. (v) 3 Stark. 62, 35, (p) 2B. S. 728, § 52. (w) Matt. Dig. Cr, L. 278. (g) 6 East, 472. (@) 2 Hale, 188. Cro. Jac. 527. 6 (r) 2 Stra. 904. Com. Dig. Indictment, Mod. 128. Russ. & Ry. 0. ©. 176. (G. 6). Russ. & Ry. 317. 1Stark. N.P. 390. 336 INDICTMENT, [Boox tv. feasance ;(y) and even in these, they are uniformly used. “ Against the peace,” without saying “of the people,” would be insufficient.(z) On statutes.| An indictment for an offense created by statute, con- cludes, “ Against the form of the statute in such case made and provided, and against the peace of the people,” &c. Where a statute either creates the offense altogether, or makes an offense at common law an offense of a higher nature, (as where it makes a misdemeanor a felony,) an indictment for the offense must conclude “acainst the form of the statute.”(a) Or at least it must refer clearly and explicitly to the statute as the foundation of the prosecution.(6) But where a statule does not create an offense, but alters the punish- ment for an offense at common law, it is not necessary that the indict- ment should conclude, contra formam statuti.(c) If the statute be merely declaratory of an offense at common law, without adding to or altering the punishment, &c. an indictment for the offense may conclude either “against the form of the statute,” or as at common law.(d) Bat where a statute merely takes away a certain privilege or benefit from a person committing a common law offense under particular circum- stances, to which benefit or privilege the defendant, but for the statute, would have been entitled at common law, an indictment for the offense, though it must charge it to have been committed under the circum- stances mentioned in the statute, should not conclude “against the form of the statute.”(e) An indictment against A., for shooting at B., and against others as aid- ing, &c. was held sufficient in a late case, without concluding “against the form of the statute,” as to each offense, but only at the conclusion of the count.(f) Where one statute is relative to another, as where one creates the offense and the other the penalty, an indictment for the offense. must conclude “against the form of the statute.”(¢) But where the offense is prohibited by several independent statutes, the indictment may either conclude “against the form of the statutes,” or “statute,” in the singu- lar.(h) And although two statutes are set forth in an indictment, it is not necessary to alledge the offense to have been committed “against the form of the statutes,” where it is wholly created by one of the statutes, ) 1 Vent. 108, 111. 1 Salk. 381. (e) Williams vy. The Queen, (in error,) (z) 2 Hale, 188. 10 Jur. 155. S.C. 14 Law J. N.S. 164. (a) 18 Wend. 159. 2 Hale, 192. 2 (@) 2 Hale, 189. 13 Wend. 159. 1 Hawk. ch. 25, § 116. 1 Salk. 370. 7 Black. 163. Mass. Rep. 9. 11 id.279. 2id.116. 10 (@) Id. 190. Pick. 87. Hardin, 95. (f) 6 Car. & Payne, 847. (vb) 7 Mass. Rep. 9. 2id. 116. 11 id. (g) 2 Hale, 178. Cro. Jac. 142. 279, (4) 2 Hawk. ch. 25, § 117. 6 Cowen, 512, 2 Sum. Rep. 19. onap, ty,] INDIOTMENT. 337 and the second merely makes some alterations in the first, without affect- ing the offense.(#) If the statute creating the offense be temporary, and be continued or made perpetual by another statute, an indictment for the offense may conclude against the form of the “statute.”(c) If one statute imposes a pecuniary penalty for an offense, and a subsequent statute makes the offense a felony, an indictment for the felony should conclude “against the form of the statute.”(7) But an indictment for a common law felony, committed abroad and made triable here by statute, need not conclude “against the form of the statute.”(m) If an indictment conclude “ against the form of the statute,” when it should conclude as at common law, the mistake is not material, and the words contra form. stat. may be rejected as surplusage.(7) In an indictment on a statute, besides the conclusion “against the form of the statute,” the words “against the peace of the people,” are abso- lutely essential ;(0) for the former conclusion will not supply the omission of the latter.(p) Formerly, omitting to conclude “ against the form of the statute,” when it was essential, was error, and might be taken advantage of by demur- rer, motion in arrest of judgment, or writ of error.(q) Defects of this kind, however, are now cured by the statute, notwithstanding the offense may have been created, or the punishment declared, by a statute.(r) (®) Kane v. The People, 8 Wend. 203. (x) 5T. BR. 162. Sayer, 225. 1 Vent. (k) 2 Hale, 178. Cro. Eliz, 750. 2 108. 2 Dana, 417. 38 Har. & John. 154, Str. 1066. (0) 2 Hale, 188. (2) Russ. & Ry. ©. ©. 425. 8 Greenl. (p) Russ, & Ry. C. C. 176. 113. (gq) Matt. Dig. Cr. L. 279. (m) Russ. & Ry. C, C. 294. (r) 2 B.S. 728, § 52, sub. 8, 43 338 INDICTMENT, [Boox v1, CHAPTER V. Of the Joinder of Defendants and Offenses in the same Indictment. Firs. Joinder of defendants.| Where the act is such that several may join in it, all or any number of the offenders may be indicted, either jointly or separately.(a) So, principals in the first and second degree, and accessaries before and after the fact, may all be joined in the same indictment ;(b) or the principal may be indicted first and the accessary after the conviction of the principal; or before, for a substantive felony.(c) But where the offense is such as not to admit of a participation or agency, several offenders can not be joined; as, for perjury,(d) or for seditious or blasphemous words, or the like ; because such offenses are in their nature several. Even where several commit a joint act, not of itself illegal, but which becomes so by reason of some circumstances applicable to each individual severally and not jointly, they must be indicted separately.(e) Thus, several partners can not be indicted jointly for exercising their trade without having served an apprenticeship. f) Persons have been jointly indicted for obtaining money by false pretenses ;(¢) for joining in singing a libellous song,(/) or jointly publishing a libel. But if the pub- lication be separate, they must be severally indicted. Also, several offenders for different offenses of the same kind may in some cases be included in the same indictment, if the word several be inserted, which makes it several as to. each of them. But if any material inconvenience arise from this mode, the court will, in its discretion, quash the indictment.(2) If an indictment charge two persons jointly with an offense which may be committed jointly or separately, as stealing in a dwelling house, both or either may be found guilty, but not of separate parts of the charge. And if they be found guilty separately, judgment can not be passed upon one, unless a pardon be obtained, or a noli prosequi entered as to the other.(/) So, on a joint charge for receiving stolen goods, a joint act of receiv- ing must be proved. Proof that one received in the absence of the other, (a) 2 Hale’s P. O. 173. 2 Burr. 984. (f) 1 Salk. 882. 2 Str. 628. 2 Hawk. P. C. ch. 25, §89. 1Salk.382. (7) 8 T. R. 98. (0) 2 Hale, 178. (A) 2 Burr. 985. (c) See ante, p, 287, 8. () 8 T.R. 106. 8 East, 46, (d) 2 Str 921. (&) Russ. & Ry. 0. 0. 344. (e) 2 Hawk. ch, 25, § 89. omar. v.] * INDICTMENT. 339 and afterwards delivered them to him, will not suffice.) But where several are indicted for burglary and larceny, one may be found guilty of both offenses, and the other of the larceny only.(m) In an indictment against two or more it is generally true that the charge is several as well as joint; so that if one is found guilty judgment may be rendered against him, although one or more may be acquitted. To this rule there are exceptions, as in cases of: conspiracy or riot, to which the agency of two or more is essential.(n) Misjoinder.| ‘The misjoinder of defendants may be taken advantage of by demurrer, motion in arrest of judgment, or writ of error; or the court will generally quash the indictment. But where different counts which might otherwise in substance be joined, are inserted in the same indictment against different persons, it seems to be no cause of demurrer, though it may be for moving to quash the indictment.(o) 2d. Joinder of offenses.| In point of law, there is no objection to the insertion of several distinct felonies of the same degree, though commit- ted at different times, in the same indictment, against the same offender.(p) And it is no ground, either of demurrer or arrest of judgment.(q) So, several misdemeanors may be joined in the same indictment, and con- viction for all may take place at the same time. The prosecution can not be compelled to single out a single offense from among those charged, and proceed for that alone, but may ask a conviction for as many as are ptoved.(r) But in treasons or felonies, no more than one distinct offense or criminal transaction should regularly be charged upon the prisoner in one indictment; for if that be shown to the court before plea, they will quash the indictment, lest it confound the prisoner in his defense, or pre- judice his challenge to the jury; and if it be not discovered until after- wards, the prosecutor may be compelled to elect on which charge he will proceed.(s) If upon an indictment for receiving stolen goods, it appear(but not upon mere probability) that the articles were received at-different times, the prosecutor must elect upon which receipt he will prosecute.(¢) It is no objection, in point of law, that a prisoner is charged in one count with stealing, and in another with receiving goods; but the judges, not agreeing whether the prosecutor should have been put to his election, directed that in future both charges should not be put in the same indict- ment.(u) (2) Russ. & Ry. C. O. 257. (r) People v. Costello, 1 Denio, 83. (m) Id. 520. 1 Sid. 171. (s) 8T. R. 106, 2 East’s P.C. 515. 3 (n) Com. v. Griffin, 8 Cush. Rep. 523. Camp. 131. 8 id. 132. 2 Maule &Selw, (o) 8 East, 41. 589. 8 Wend. 203. 9id.193, (p) 2 Hale, 178. 1 Leach, 1108. 8 (¢) Ry. & Moo. C.0.146. Wend. 203. (u) Id 234, 8 Car. & Payne, 413, (g) Id. ib. 1 Chit. Cr. L, 258. , “ 340 INDICTMENT. [Boor vr: But offences, although different from each other, and varying in the punishments authorized to be inflicted for their perpetration, may be in- cluded in the same indictment, and the accused tried upon the several charges at the same time, provided the offenses be of the same character and differ only in degree ; as for instance, the forging of an instrument, and the uttering and publishing it, knowing it to be false.(v) Different counts.) Though a defendant cannot be charged with dif- ferent felonies, in different counts, yet he may be charged with the same felony in different ways, in several counts, to meet the facts of the case. As, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was committed, be the goods or house of A. or B., they may be stated in one count as the goods or house of A., and in an- other as of B.(v) It has been held that a count upon the statute for embezzling bank notes might be joined with a count for larceny at common law.(z) Jn misdemeanors, the indictment may contain several counts for differ- ent offenses, if the judgment upon each be the same.(y) Where a per- son was indicted for assaulting two persons, it was objected that each as- sault wasa distinct offense; but the court said, “ Can not the king call a man to account for a breach of the peace, because he broke two heads instead of one ?”(z) If the legal judgment on the different counts be materially different ; as if one were for felony and another for misdemeanor, the joinder would be bad on demurrer, arrest of judgment, or error; but it seems that the objection may be cured at the trial by taking a verdict on the counts only which could be joined. The court will not, however, order a count to be struck out, as in civil cases; for the former is the finding of the grand jury.(a) A count charging A. as principal in the first and B. as principal in the second degree, may be joined with a count charging B. as principal in the first, and A. as a principal in the second degree.(b) (v) 12 Wend. 425. 2R.8.728,§51. 984. 8 East,46. 2Camp.131. 2Stark. * (w) 2 Bos. & Pull. 508. 458. 1 Denio, 83. (2) 8 Maule & Selw. 539. (2) 2 Burr. 988. (y) 8 Wend. 208, 3T.R,106. 2 Burr. (a) 2 Str. 1026. Hardw. 2038. (0) 7 Car. & Payne, 164. omar, v1] INDICTMENT. 341 CHAPTER VI. Granting Copy of Indictment, Arraignment of Defendant, Pleading. First. Granting copy of indictment.] At common law the defend- ant was not, in cases of treason or felony, entitled to a copy of the in- dictment.(a) Although a defendant acquitted of felony could not bring an action against the prosecutor of the indictment without obtaining a copy of the record of the indictment and acquittal, yet he could not have a copy without leave of the judge; and the judge would not grant it if there was a probable cause for the indictment.(b) Thus trying the whole question of the guilt or innocence of the party indicted, upon a motion for a copy of the indictment! The revised statutes have done away with this unreasonable and harsh rule. Every person indicted for any offense, who shall have been arrested upon process issued upon such indictment, or who shall have duly entered into recognizance to appear and answer to such indictment, shall, on demand, and on paying the fees allowed by law therefor, be entitled to a copy of the indictment and of all indorsements thereon.(c) 2d. Arraignment of defendant.] The arraignment is where the pris- oner is brought into court, the indictment read to him by the clerk, and he is required to plead to it. The objects of the arraignment are to as- certain the identity of the party, and to know whether he demands a trial. Upon any defendant’s being arraigned upon an indictment, it shall not be necessary to ask him how he will be tried; and instead of being required to say whether he pleads guilty or not guilty, he shall be required to say whether he demands a trial upon such indictment. He may an- swer that he does require such trial; and for the purpose of all further proceedings such an answer shall be deemed equivalent to a plea of not guilty. If he refuses to plead or answer, and in all cases where he does not confess the indictment to be true, a plea of not guilty shall be entered by the court; and the same proceedings in all respects shall be had, as if he had pleaded not guilty to such indictment.(d) No insane person can be tried, sentenced to any punishment, or pun- ished for any crime or offense, while he continues in that state.(e) When there is reason to believe that the accused is a lunatic or idiot, the most 8 ‘ i . (a) 1 Lev. 68. 2 Hale, 236. 4T.R. (c) 2B. 8. 728, §53. 692. 2 Hawk. ch. 29, § 18. (d) Id. 780, § 70.. (8) Matt. Dig. 282. (e) Id. 697, § 2. 342 INDICTMENT. [Boox v1. discreet and proper method of determining the question, in an important case, is for the court to empannel a jury to.decide whether he be non compos mentis or not; and if they find for the accused the trial will be suspended. But other modes may be adopted, in the discretion of the court.(f) On this preliminary trial the jurors are sworn in this manner: “You shall diligently inquire and a true verdict return, on behalf of the people of the state of New-York, whether A. B., the prisoner at the bar, who now stands indicted for niurder, be of sane memory or not, accord- ing to your evidence and knowledge.”(¢) Where a jury empannelled to try whether a person indicted for murder was then insane, were instructed by the court that they were to decide “ whether the prisoner knew right from wrong; and if he did, then he was to be considered sane,” it was held that the charge was erroneous. And the jury having found that the prisoner was “sufficiently sane in mind and memory to distinguish between right and wrong,” it was held that the verdict was defective.(h) The test of insanity, when it is set up to prevent a trial, is whether the prisoner is mentally competent to make a rational defense; and, when alledged as a defense to an indictment, it is whether at the time of com- mitting the act, he was laboring under such mental disease as not to know the nature and quality of the act he was doing, or that it was wrong.(t) On such preliminary trial the defendant is not entitled to pe- remptory challenges ; but challenges for cause may be made.(/) In a case recently tried in England, the prisoner having been indicted for a misdemeanor in uttering seditious words, and upon his arraignment re- fusing to plead, and showing symptoms of insanity, and an inquest being forthwith taken under a statute passed for that purpose (39 and 40 Geo. 3, ch, 94, § 2,) to try whether he was insane or not; it was held, first, that the jury might form their own judgment of the present state of the pris- oner’s mind from his demeanor while the inquest was being taken ; and might thereupon find him to be insane, without any evidence being given as to his present state ; secondly, that upon the prisoner showing strong symptoms of insanity in court during the taking of the inquest, it became unnecessary to ask him whether he would cross-examine the witness, or would offer any remark on the cvidence.(/) 3d. Pleading.| When brought to the bar and arraigned, the prisoner either confesses the charge, stands mute of malice, or does not answer directly to the charge, which may be entered as a plea of not guilty ; or pleads—to the jurisdiction or in abatement—or demurs—or pleads spe- cially in bar—or generally that he is not guilty.(m) _(f) 8 Robinson's Prac. 115. 2 Va." (i) Ibid. a oe 1 Mass. R, 102. Per Beards- (k) Ibid. ey, J. 4 Denio, 9. (2) Queen v. Goode, 7 Ad. & Ellis, 586. (9) 18 Mass. ‘Rep. 299, (m) Arch, Cr. Pl. 7 8. : (A) Freeman v. The People, 4 Denio, 9. omar, v1] INDICTMENT. 343 No more than one plea can be put in in answer to an indictment.(7) In felonies, however, if the defendant plead in abatement or specially in bar, he may at the same time or afterwards, if the plea be adjudged against him, plead over to the felony.(o) When the defendant has any special matter to plead in abatement or in bar, or if the indictment be demurrable, he should plead it or demur at the time of arraignment, before the plea of not guilty.(p) Plea to the jurisdiction.| Where an indictment is taken before a court that has no cognizance of the offense, the defendant may plead to the jurisdiction ; without answering at alltothe crime alledged ; asif a man be indicted for treason at the quarter sessions, or for a rape at the sher- iff’s tourn, or the like; or if another court have exclusive jurisdiction of the offense.(q) But if the offense were committed out of the jurisdiction of the court, the defendant may take advantage of it under the general issue ;(7") or if the objection appear upon the face of the record, he may demur, or (it should seem) move in arrest of judgment, or bring a writ of error.(s) Where any matter shall be pleaded to an indictment, as having occur- red in any other county than that in which such indictment was found, it shall be tried in the same manner as if it had been alledged to have occurred in the county where such plea is tendered.(¢) Plea in abatement.| If the indictment assign to the defendant no chris- tian or surname, or a wrong one, he can only object to this matter by plea in abatement.(w) But the want of an addition or giving a wrong one, can not be pleaded in abatement.(v) No plea in abatement or other dilatory plea, to an indictment, shall be received by any court, unless the truth of it shall be verified by affidavit, or some other evidence.(w) It is sufficient for the plea to state that the defendant’s name is so and so, and that by that name he was always called and known, without stating that he was baptized by it.(2) The court will not, upon motion, quash a bad plea in abatement.(y) The judgment for the people on a plea in abatement in misdemeanors is final; in treason and felony, that the defendant do answer over.(z) The judgment for the defendant on a plea in abatement, is that the in- dictment be quashed.(a) But this will not prevent the defendant from being indicted again by his right name. (n) Arch. Cr. Pl. 78. (x) See 2 R. S. 728, § 51. (0) Id. ib. (w) Id. 781, § 71. (p) Id. 78, a. 2 Smith, 620. (z) 6 Mod. 116. 1 Salk. 6. Hardw, (q)-2 pe a 4 Black. Com. 883, 286. - s 7) 6 East, 588. 2 Barn. & Cress. 618, 871, " Rusa. & Ry. C. 0. 158, w 8 East, 107. me (t) 2 B.S. 781, § 72. (a) Arch. Gr, Pl. 83, . (w) Arch. Cr. Pl, 30. 344 INDICTMENT, [Boox v1. Special pleas in bar.| Those most commonly in use are, 1. Auterfois acquit; 2. Auterfois conviet ; 3. Pardon. Ast. Auterfois acquit. Where a man is indicted for an offense, and acquitted, he can not afterwards be indicted for the same offense, pro- vided the first indictment were such that he could have been lawfully convicted on it; and if he be thus indicted a second time, he may plead auterfois acquit, and it will be a good bar to the indictment. The true test by which the question whether such a plea is a sufficient bar in any particular case, may be tried, is, whether the evidence necessary to sup- port the second indictment would have been sufficient to procure a legal conviction on the first.(5) A trial and acquittal for robbery is a bar to an indictment for larceny, where the property alledged to have been taken is the same(c) Ona plea of auterfois acquit where the only issue is the identity of the offenses, a variance between the record of acquittal and the indictment under which the last trial is had,in the number of articles alledged to have been taken, and in the names of the owners of the property, will be disregarded, when no proof is offered on the part of the prosecution to show that the offenses are in fact different.(d) ‘ ea On a plea of auterfois acquit, evidence is admissible as to the diversity or identity of the offenses.(e) A trial and acquittal for the forgery of a certificate of deposit of money in a bank, is no bar to an indictment for an attempt to obtain money from another bank by color of a forged letter enclosing the certificate of deposit, and desiring the amount to be transmitted to the writer of the letter.(f) An acquittal by a competent jurisdiction abroad is a bar to an indictment for the same offense before any other tribunal.(g¢) Even an erroneous acquittal, standing unreversed, is a sufficient foundation for this plea.(h) But an acquittal upon an indictment in a wrong county can not be pleaded to a subsequent indictment for the offense in another county(z) So an acquittal upon an indictment for a felony is no bar to an indict- ment for a misdemeanor, and e converso.(k) An acquittal as accessary also, is no bar to an indictment as principal, and e converso(/) Anda person indicted for compounding a larceny and agreeing to withhold evi- dence, can not plead the acquittal of the person charged with the larceny, in bar of his own conviction.(m) (6) Arch. Or. Pl. 87. “No person shall (Sf) 15 id. 281. be subject to be twice put in jeopardy for (g) 1 Leach, 185. Bull. N. P. 245, the same offense.” Const. of N. Y. 1846, (A) Arch. Cr. Pl. 88. art. 1, sec. 6. (2) Id. ib. Com. Dig. Indict. (L). (c)'1 Brod, & Bing. 473. 9 East, 478. (%) 2 Hawk. P. C. oh. 85, § 5. 2 Oar. & P. 634, 17 Wend, 386. (2) Id.ib.$11. 9 Hale, 944, Fost, $61, (@ 17 Wend. 386. (m) 18 Wend. 592, (¢) Id. ib. CHAP, VI] INDICTMENT. 345 It is provided by statute that when a defendant shall be acquitted or convicted upon any indictment for an offense consisting of different de- grees as prescribed in the statute, he shall not thereafter be tried or con- victed for a different degree of the same offense, or for an attempt to commit the offense charged in the indictment, or to commit any degree of such offense.(n) An acquittal upon an insufficient indictment, however, is no bar to an- other indictment for the same offense.(o) Thus our statute declares that when a defendant shall have been acquitted of a criminal charge, upon trial, on the ground of a variance between the indictment and the proof, or upon any exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for the same of- fense.(p) But where the defendant has been acquitted upon trial, on the merits and facts, and not on the ground of a defect or variance, he may plead such acquittal -in bar of any subsequent accusation for the same offense, notwithstanding any defect in form or in substance in the former indictment.(q) A nolle prosequi, or a dismission of the case, is not an acquittal, and can not be pleaded in bar to a subsequent indictment for the same offense.(r) If the indictment be for felony or treason, the defendant, besides this plea of auterfois acquit, should also plead over to the felony, &c.(s) If he plead auterfois acquit without pleading over, after his special plea is found against him, he may still plead over to the felony.(z) On a plea of auterfois acquit a jury are sworn, instantly to try the cause.(#) The proof of the issue upon this plea lies upon the defendant.(v) The judgment against the defendant upon this plea, in felonies, is res- pondeat ouster ; ov rather, as he generally pleads over to the felony at the same time with the plea of auterfois acquit, the jury are charged again to inquire,of the second issue.(w) In misdemeanors the judgment is final.(z) When the plea is allowed, the judgment is that the defendant “shall go without day, and he is altogether discharged from the pros- ecution.(y) 2d. Auterfois convict.| Now that benefit of clergy is abolished, a pre- vious conviction can only be pleaded in bar of any subsequent indict- ment for the felony of which the defendant has been previously convict- ed.(z) This plea, like that of auterfois acquit, must set out the record (n) 2 B.S. 702, § 28. (t) Arch. Cr. Pl. 90. (0) 4 Coke, 45, a. 1 John. 66. 2 Caines’ (uv) 2 Leach, 541. Rep. 304. (v) Arch. 90. (p) 2B. 8. 701, § 24, (w) 2 Leach, 708. 1 id. 448. (q) Id. 702, § 25. («) 2 Ld. Raym. 922. 2 Hale, 256. (r) 2 Vir. Cas. 845. 2 Mass, Rep. 172. (y) 2 Hale, 891. 1 Deacon, 90. 5 Rand. 669. (2) Id. 251. 400.45. 4 Black. Com, (s) 2 Leach, 712. 336, 44 346 INDIOTMENT. [Boox v1, of conviction, to the judgment, inclusive, and must contain an averment that the offenses charged in the former indictment, and in the present, are one and the same, and not different offenses.(a) The statute against duelling and sending challenges to fight contains a provision that persons indicted here for those offenses, may plead a former conviction or acquittal for the same, in another state or country ; and that if such plea be admitted or established, it shall be a bar to any further or other proceedings against him for the same offense.(b) 3. Pardon.] A pardon may be pleaded in bar to the indictment ; or after verdict, in arrest of judgment; or, after judgment, in bar of execu- tion. Butit must be observed that it is necessary to plead it the first opportunity the defendant may have of so doing ; for if, for instance, he have obtained pardon before arraignment, and instead of pleading it in bar, he plead the general issue, he shall be deemed to have waived the benefit of it; and can not afterwards avail lfimself of it in arrest of judg- ment.(c) This necessity of pleading a pardon, however, relates to the governor’s pardon only ; for a statute pardon need not be pleaded ; un- less there be exceptions in it.(d) In this state the governor is authorized to grant pardons upon such conditions, restrictions, and limitations, as he may think proper.(e) Where a pardon of this nature is pleaded it should be averred that the condition, &c. has been complied with. General issue.| The general issue is pleaded by the prisoner viva voce at the bar in these words, “not guilty ;” by which plea, without further form, every person on being arraigned upon an indictment, is deemed to have put himself upon the country for trial. Under the re- vised statutes, however, the defendant instead of being required to say whether he pleads guilty or not guilty, shall be required to say whether he demands a trial upon such indictment. If he answer that he does require such trial, such answer shall be deemed equivalent to a plea of not guilty. If he refuses to plead or answer, and in all cases where he does not confess the indictment to be true, a plea of not guilty is to be entered by the court.( f) The general issue makes it incumbent upon the prosecutor to prove every fact and circumstance constituting the offense, as stated in the in- dictment. On the other hand the defendant may give in evidence, under this plea, not only every thing which negatives the allegations in the indictment, but also all matter of excuse and justification.(g) Demurrers.| Another mode by which the defendant may object to (a) 1 Ohit. Or. L. 461. (e) 2B. 8. 745, § 21. (b) 2B. S. 687, § 7. (f) Id. 780, § 70. (¢) Arch. Or. Pl. 92. 1 Ro. Rep. 297. (g) Arch. Or. Pl. 98, (d) Id. ib. Fost. 48. 2 Hale, 252. onaP. v1] INDICTMENT. 347 the indictment is by demurrer; which signifies that the party will go no further because the indictment is defective in substance, or informal in statement./h) Thus, if a man be indicted for feloniously stealing a greyhound, which is an animal in respect whereof no theft can be com- mitted, the defendant may demur; for while he admits the taking he may deny the felony.(i) But it seems to be unsettled whether he can demur on account of the omission or bad statement of the defendant’s name, or must plead it in abatement.(£) As to the form of the demurrer, it seems that in capital cases it may be ore tenus, on whichever side the objection arises.(/) The defendant, when indicted for felony,.may either demur and at the same time plead over to the felony, or may take the latter course after the demurrer is found against him.(m) Where a prisoner, in a case of felony, has in the absence of his counsel, pleaded to an indictment which is objectionable on demurrer, the judge will, on the application of the prisoner’s counsel, allow the prisoner to demur, before the evidence is gone into.(7) The judgment for the defendant upon demurrer is that he be dismissed and discharged from the premises. The judgment against the defend- ant in misdemeanors is the same as upon demurrers in civil cases.(o) But demurrers in felonies have hitherto been of such rare occurrence that it is doubtful what judgment ought to be pronounced against the defendant. The older authorities go to show that it is final ;(p) but by some this is doubted; and it is said that in favorem vite the defendant shall plead over to the felony.(q) An information may be amended after domunen (r) But an indict- ment, which is a finding upon the oaths of the grand jury, can only be amended with their consent before they are discharged.(s) (A) 1 Chit. Cr. L. 438. (0) 5 Dowl. & Ry. 422. 5 Barn. & (i) 4 Black. Com. 334. Cress. 502, 612. k) 1 Chit, Cr. L. 489. Andrew, 148, (p) See 2 Hawk. ch. 31, § 5. 150. 2 Hale, 175. (g) Arch. Cr. PI. 85. 2'Hale, 225, 257. (2) Fost. 105. 1 Chit. Cr. L, 440. 4 Black. Com. 834. 8 East, 107. (m) 8 East, 112. 2 Hale, 257. 4 Black. (r) 4T. R. 457. Com. 334. (8) 2 Hawk. ch. 25, §§ 97, 98. (n) Queen v. Purchase, 1 Car. & M. 617. 348 INDIOTMENT. [poox 1. CHAPTER VII. In what cases an Indictment will be quashed. WHEN the indictment is defective, the court has a discretionary power, either to quash it, or oblige the defendant to plead or demur, or move in arrest.(a@) Where the question is doubtful, they will put him to his motion in arrest of judgment.(d) An indictment may be set aside, on motion, for having been found by less than the legal number of grand jurors. But whether it can be set aside, or amended, on motion, for having been found without evidence, or upon insufficient evidence, seems doubtful.(c) Ordinarily, a motion to quash must be made previous to plea pleaded, or any evidence given in the case; at all events, before the cause is sub- mitted to the jury.(d) If the indictment be so defective that no judgment can be given upon it, even should the defendant be convicted, the court will, in general, quash it. Thus, an indictment at common law, for perjury, found at the sessions, has been quashed, because the sessions have no jurisdiction of such perjury.(e) So of an indictment against six, for exercising a trade; because it was a distinct offense in each, and could not, therefore, be made the subject of a joint prosecution.(/) And there are several instances where indictments have been quashed, because the facts stated in them did not amount to an offense punisha- ble by law.(g) As, an indictment for contemptuous words spoken to a justice of the peace, not stating that they were spoken to him whilst in the execution of his office.(h) But after a conviction, an indictment will not be quashed on the ground that, during the pendency of the trial, a second indictment for the same offense was found by the grand jury.() Quashing an indictment as to one of several defendants, quashes it as to all.(z) 2 The application to quash, must be made to the court where the bill is found; except in cases of indictments found at the sessions, or other in- ferior courts, for offenses which they have no power to try; in which case it is made to the court of oyer and terminer or other court into which the record has been removed.(/) If the indictment be quashed, the recognizances become ineffectual.(m) And a jury sworn on an in- (a) 7 Cowen, 166. 2 Burr, 1127. 4 (g) See Andr. 230. 1 Burr, 516, 548. id. 2539. 2 Hawk. ch, 25, § 146. (h) Matt. Dig. 288. Arch. Cr. Pl. 36. (b) 7 Cowen, 166. (%) 20 Wend. 108. (c) The People v. Hulbut, 4 Denio, 133. (k) 7 Cowen, 166. d) 20 Wend. 108. (2) Arch, Cr. Pl. 67. See 2 R. 8, 208, (e) 2 Stra. 1088. Russ. & Ry. 158. §5. Id. 209,§6. Id. 205, § 30. (f) 4 Burr, 2046. 1 Str. 623, 921. (mn) 2 Sess, Ca, 1. OHAP. Vit.] INDIOTMENT. 349, dictment clearly bad in point of law, may, it seems, be discharged by the judge from giving a verdict.(n) Motion to quash, by prosecutor.]| When the application is made on the part of the prosecution, the court will quash the indictment in all cases where it appears to be so defective that the defendant can not be convicted upon it, and where the prosecution appears to be bona fide, and not from malicious motives, or for the purpose of oppression.(0) But a new bill for the same offense must have been first preferred against the defendant, and found.(p) And when the court, upon such an application, order the former indictment to be quashed, it is usually upon terms, viz. that the prosecutor shall pay to the defendant such costs as he may have incurred by reason of such former indictment ;(q) that the second indictment shall stand in the same plight and condition that the first would have done, if it were not quashed ;(r) and, (particularly when there has been any vexatious delay on the part of the prosecutor,) that the name of the prosecutor be disclosed.(s) The application on the part of the prosecutor may be made, it seems, at any time before the indictment has been actually tried.(¢) It is provided by statute, that where two indictments are pending against a defendant forthe same offense, the one first found shall be deemed to be superseded by the second, and shall be quashed.(u) But the mere finding of a second indictment, is not per se, a supersedeas to the first. A motion to quash must be made.(v) Neither has a district attorney any right to enter a nolle prosequi upon any indictment, without leave of the court.(w) If he wishes to try the defendant on a second in- dictment, for the same offense embraced in the previous one, he must move to quash the first, before he can do so. Motion to quash, by defendant.| When the application is made on the part of the defendant, the courts almost uniformly refuse to quash an indictment, where it appears to be for some enormous crime, such as trea- son or felony,(x) forgery, perjury, and subornation.(y) They have also refused t6 quash indictments for cheats ;(z) for selling flour by false weights ;(a@) for extortion ;(6) for not executing a magistrate’s war- rant ;(c) and in many other cases.(d) The application, if made on the part of the defendant, must also be before plea pleaded.(e) (n) Ry. & Moo. 27. (w) 2B. S. 728, § 54. (0) Arch. Cr. Pl. 67. (zy Oom. Dig. Indictment, (H). - (p) 2 East, 226. (y) 1 Salk. 872. 1 Sid. 54. 1 Vent. (q) 8 Burr. 1469. 8 Barn. & Ald. 378. 870. 8 Dowl. & Ry. 621. 8 Burr. 1468. 1 W. Black. 460. 3 (2) 6 Mod. 42. (r) 8 Barn. & Ald. 878. (a) 3 Burr. 1841. (s) 3 Burr. 1468. (6) 5 Mod. 18. (2) Matt. Dig. 284. 1 Burr. 651. Arch. (c) 2 Stra. 1211. Cr. Pl. 87. (d) See Matt. Dig. 284.. (u) 2B. 8. 726, § 42. (¢) Fost.281. Holt, 684, 4 St. Tr. 677. (v) 20 Wend. 108. 350 INDICTMENT. [Boox v1. CHAPTER VIII. Removal of Indictment before Trial or Judgment. Tus sort of proceeding is regulated in this state by statute, as follows: Every person against whom an indictment shall be pending in a court of sessions, may apply to any justice of the supreme court, for an order to re- move such indictment to the court of oyer and terminer of the county in which the same was found. Such application shall set forth a copy of the indictment, or the substance thereof ; the time when it was found; the pro- ceedings thereon, if any, and the facts and circumstances rendering a removal thereof expedient ; and shall be verified by affidavit. Such offi- cer shall grant an order that the indictment be removed to, and tried at the next court of oyer and terminer to be held in the county where the same was found, unless it appears that the application was not made in due season, or that such removal will produce any injurious delay, or in any way tend to prevent a due prosecution of such indictment. And the officer must take a recognizance from the defendant (if he is not in cus- tody) to appear at the oyer and terminer. No such order for the removal of an indictment shall be effectual, in the case of any defendant not being in actual confinement, unless such a recognizance be delivered at the same time with such order, and be filed with the clerk of the court; nor unless such order be delivered before any judgment rendered on any such indictment, and before any juror shall be sworn’ to try it. No certiorari to remove an indictment from a court of sessions to the supreme court or to any court of oyer and terminer, before trial thereon, can be allowed. And no certiorari to remove into the supreme court any indictment pending in a court of oyer and terminer, before trial thereon, is effectual unless allowed by a justice of the supreme court ; and no other officer has any power to allow such writ. The officer allowing a certiorari to remove an indictment from a court of oyer and terminer is to take the defendant’s recognizance, with sure- ties, to appear at the return day of the certiorari, in the supreme court, and plead to such indictment, if issue is not already joined; and not de- part such court without its leave; and to obey the orders and rules of such court, in respect to the trial of such indictment, and the judgment and all other proceedings thereon. Every indictment so removed is to be carried down for trial at the onaP. Vat] INDICTMENT. 351 proper circuit court, by the district attorney of the county in which the same was found, in the same manner, in all respects as issues joined in the supreme court in civil cases, and the same proceedings, so far as ap- plicable, are to be had thereon.(a) Since the adoption of the new constitution, the courts of general ses- sions of the peace have ceased to exist; but the above provisions of the revised statutes apply to the courts of sessions, which have been substi- tuted in the place of the former courts.(6) (a) 2B. 8. 781 to 783. (®) Const. of 1846, art. 6, § 14. Laws of 1847, p. 382, § 44. 352 INDICTMENT. (B0ox v1. CHAPTER IX. Trial of Indictment, . IN WHAT COURT TO BE TRIED. . IN WHAT COUNTY TO BE TRIED. . JURY, AND CHALLENGES. . DEFENDANT TO BE PRESENT. . RIGHT TO COUNSEL. . WITNESSES. . DISOHARGING ONE OF SEVERAL DEFENDANTS. . SEPARATE TRIALS. . ENTERING A NOLLE PROSEQUI. . COMMISSIONS TO EXAMINE WITNESSES ABROAD. . EXAMINING WITNESSES CONDITIONALLY. . COMPROMISING OFFENSES. . LETTING ACOUSED TO BAIL. . EXOEPTIONS BY DEFENDANTS. . PUTTING OFF TRIAL. . NEw TRIAL. OOD oP wo dD Bee eee arr WN HK OS 1. In wHat CourT TO BE TRIED. InDICTMENTs can only be tried in the oyer and terminer, circuit court, court of sessions, general sessions of the city and county of New-York, the recorders’ courts of the cities of Buffalo, Oswego and Utica, the may- or’s court of Albany, and in the city court of Brooklyn.(a) 2. In wHat CouNTY TO BE TRIED. All issues of fact joined upon any indictment must be tried by a jury, in the county where such indictment was found, unless for special causes the supreme court shall order an indictment removed into that court, to be tried in some other county.(d) When it appears that an impartial trial can not be had in the county where the offense is laid, the court will order a suggestion of this fact to be entered on the record, and a venire is then awarded to the sheriff of another county.(c) And such suggestion can not be made without special leave obtained from the court. A rule directing a criminal case, remov- ed into the supreme court by certiorari, to be tried in a county other than that in which the offense is laid, will not authorize the trial in such coun- (a) See ante, Book V. chapters 1 to 7. (c) 7 Cowen, 108. 2 McCord, 382, 1 (b) 2B. S. 788, § 1. Chit. Cr. L. 201. our. 1z.] INDIOTMENT. 353 ty, without such a suggestion on the roll(d) This suggestion when once entered is not traversable, and therefore the court will require very strong evidence of probable unfairness before they will allow it to be entered.(e) The venue may be changed, on motion of the public prosecutor, if it appears that a fair and impartial trial can not be had, in the county where the indictment was found. And this, although there bas been no actu- al experiment made, by way of trying the cause, or even empannelling a jury, in the county where the venue is laid(f') There is no fixed rule defining what shall not be: received, as proof of the fact thal a fair and impartial trial can net be had.(g) 8. Jury, AND CHALLENGES. The qualifications of jurors, and the manner of selecting names from the assessment roll to be put in the ballot box of jurors in each county, are fixed by the revised statutes.(h) It isalso provided, that the jury, for the trial of an indictment, shall be drawn in the same manner as they are drawn in civil cases, except that the defendant in an indictment is entitled to have at least twenty-four names in the box, from which the jury is selected.(i) The jurors returned for a circuit court are to be the jurors for the oyer and terminer, when both courts are held at the same time; and the jurors returned for any county court are to be the jurors for the court of sessions appointéd to be held at the same time.(£) The same proceedings respecting the impannelling of juries and keep- ing them together, which are prescribed by law in civil cases, are also applicable to trials on indictments.(Z) No alien is entitled to a jury of part aliens or strangers, for the trial of any indictment whatever.(m) The question how far the jury are judges of the law, as well as of the fact, is one of considerable importance, and deserves some attention in this place. They are judges of the fact, both in civil and criminal matters, on such evidence as the court shall submit to them as competent. But they are not, in®’general, either in civil or criminal cases, judges of the law. They are bound to find the law as it is propounded to them by the court. They may, indeed, find a general verdict including both law and fact ; but if, in such verdict, they find the law contrary to the instructions of (d) 8 Wend, 481. (a) Id. 788, 8§ 8, 4, 5. Id. 420, 421, (e) 1 Chit. Or. L. 201. 7 Cowen, 108. (4) Id. ib. $2. (f) The People v. Webb, 1 Hill, 179, (2) 2 B.S. 635, § 14. Ibid. (m) Id. 784, § 7. 8B 2B. S, 411, 12. () 8 45 354 INDICTMENT. _ [Boor v1. the court, they thereby violate their oath.(z) The same thing was lately held by Story, J. in a capital case. He stated, as the opinion of his whole professional life, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. He said that in each case they had the physical power, but not the moral right, to decide the law according to their own notions or pleasure. That it is the duty of the court to instruct them as to the law; and of,the jury to follow such in- struction. That if the jury were to decide it would render the law un- certain; it would be almost impracticable to learn what they did decide ; the court would have no right to review their decision ; that every per- son has a right to be tried according to the fixed law of the land. If he thought the jury were judges of the law, he should hold it his duty to abstain from stating the law to them.(o) Challenges to jurors are of two kinds as regards the parties taking them ; first, challenges by the prisoner, second, challenges by the prose- cuting attorney. Challenges by the prisoner are of two kinds; first, per- emptory, second, for cause. Challenges for cause are, first, to the array, second, to the polls. Challenges to the array and to the polls may be taken both by the prisoner and the prosecuting attorney. Challenge to the array is in respect of some supposed partiality or irregularity in the officer making the return or drawing the jury ; and where that fails, re- course may be had to the challenge tothe polls. Challenge to the array is either principal or for favor; the former, being for some gross and pal- pable partiality, is decisive: the latter being, generally, for a supposed partiality arising out of some relationship or interest existing between the juror challenged and the returning officer, is investigated by triors, whose verdict is decisive. Challenge to the polls is also principal or for favor. Principal challenge to the polls may be first, propter defectum, as alien- age, infancy, old age, want of property, or other necessary qualification ; second, propter affectum, or partiality, actual or presumed, and which will be presumed: from relationship to either party ; and third, propter delictum, or infamy arising from attainder or conviction of treason, fel- ony,,perjury, or any infamous offense. Challenge to the polls for favor is where, though the juror is not so palpably partial as to give cause for a principal challenge, yet there are reasonable grounds to suspect that he will act under some undue prejudice or bias. The only proper time for taking challenges, either to the array or to the polls, is after a full jury have been called, and have made their ap- pearance, and before they are sworn. A challenge to the array must be in writing; because it forms a part of the record; but not so as to a chal- (n) Cowen & Hill’s Notes to Phil. Ev. (0) 2 Snmner’s Rep. 240, 248. And 1501. 8 Barb, 603. seo 2 Blackf. 156. Addis, R. 156, 255. OHAP. Ix,] INDICTMENT. 355 lenge to the polls. A challenge to the array may be tried in the mode which the court in their discretion may think fit to direct. In the case of a principal challenge to the polls, for manifest partiality, it is sufficient if the ground is made out to the satisfaction of the court, without any further investigation. Achallenge tothe polls for favor is left to triors, who are sworn, and the trial proceeds by witnesses before them ; and their verdict thereon is decisive.(p) Or, the defendant may, by his counsel, consent to substitute the court for triors. But when such consent has been given it can not afterwards be revoked, and a demand made that the challenge shall be passed upon by triors; especially after the chal- lenge has been passed upon by the court.(q) Upon challenges for favor on account of bias, allhough evidence that the juror has given credit to written or oral statements as to the prison- er’s guilt, is admissible, for the consideration of the triors, the juror should not be set aside unless it is found that he has such a settled opinion that he could not render a verdict upon the evidence alone.(r) If by the default of jurors, or challenges, a sufficient number can not be had of the original panel, a tales may be awarded, as in civil cases, till the number of twelve be sworn.(s) This whole matter of challenges, however, is regulated by the revised statutes, as follows: Every person indicted for any offense is entitled to the same challenges as are allowed in civil cases, either to the array of jurors, or to individual jurors. And the prosecuting attorney is entitled to the same challenges in behalf of the state, either to the array or to in- dividual jurors, as are allowed to parties in civil cases; and the same proceedings are to be had thereon as in civil actions.(¢) Every person arraigned and put upon his trial for any offense punishable with death, or with imprisonment in a state prison ten years or longer, is entitled per- emptorily to challenge twenty jurors.(w) It has been decided that on a preliminary trial of a question as to the present insanity of a prisoner, the defendant is not entitled to perempto- ry challenges; but challenges for cause may be made.(v) A juror, to be competent, must not only be indifferent as to the issue he is to determine, but impartial between the parties; and where triors of a challenge for favor, to a juror, were sworn to find whether the juror was indifferent “upon the issue joined,” that qualification being objected to, the oath was held erroneousw) Where a juror is set aside by a peremptory challenge, the party on whose behalf it was made can not, on error, insist. upon an erroneous ruling of the court upon the pre- (p) Cro. Cir. Com. 116, 117. (t) 2B. 8. 784, §§ 10, 11. (q) 21 Wend. 509. ; (u) Td. 784, § 9. ; (r) People v. Honeyman, 8 Denio, 121. —_(v) Freeman v. The People, 4 Denio, 9, (s) Cro. Cir. Comp. 117. (w) Tbid. 356 INDICTMENT, [Boox vr. vious trial of a challenge of the same juror for cause.(r) A challenge toa juror for cause must-distinetly specify the ground of challenge, or it may be disregarded.(¥)} Where a challenge for principal cause, on the ground that the juror had formed and expressed an opinion that the prisoner was guilty, was overruled by the court, after evidence given in its support, and the juror was then challenged for favor, and the same evidence having been sub- mitted to triors, they were instructed that the latter challenge was in the nature of an appeal from the judgment of the court, upon the facts, it was held that the charge was erroneous.(z) The statute also provides that no member of the grand jury which found the indictment can serve as a petit juror on the trial of it, if chal- lenged for that cause.(a) Where several defendants are jointly indicted and tried, each of them is entitled to the number of peremptory challenges allowed by law; and a challenge by one excludes the juror challenged, as to all.(b) Persons of any religious denomination, whose opinions are such as to preelude them from finding the accused guilty of an offense punishable with death, are not to be compelled or allowed to serve as jurors on the trial of an indictment for any offense punishable with death.(c) Under this section of the statute it has been decided that it is not the opinions, on this subject, of the religious denomination to which the juror belongs which exclude him, but his own opinions; and therefore, if he entertains them, though he does not belong to a religious denomination, he is in- competent to serve as a juror.(d) Whete a juror, after he is sworn in chief and has taken his seat, is discovered to be incompetent to serve, the court may, in the exercise of a sound discretion, set him aside at any time before evidence is given; and this may be dene even in a capital case, and as well for cause exist- ing before as after the juror was sworn.(e) The forming and expressing an opinion by a juror, upon the guilt or innocence of the defendant, is a principal cause of challenge. And the mere forming of an opinion is enough.(f) Upon the trial of a challenge to a juror for principal cause, for having formed and expressed an opin- ion upon the guilt or innocence of the prisoner, the challenging party can not ask the juror, when examined as a witness, whether he has an impression as to the defendant’s guilt or innocence. Otherwise when -(2) Freeman v. The People, 4 Denio, 9. (c) 2B. 8. 784, § 12. (y) Ibid, per Beardsley, J. (d) 18 Wend. 351. “(2) Ibid. (e) Id. ib. (a) 2 B.S. 734, § 8. (f) 21 id. 509. (0) 2 Yerg. Rep. 246. 4 Mason, 159, 8.0. 12 Wheat. 480. 6 Ohio Rep. 86. oHAP, 1x,] INDICTMENT. 357 the challenge is for favor, on the ground of bias.(g¢) In such a case it is for the triors to determine whether the juror is indifferent or not.(/) The discharge of a jury, in a criminal case, without agreeing on a verdict, rests in the sound discretion of the court in which the trial is had; and the exercise of such discretion will not be reversed on writ of error. So held when the jury were discharged after being out only 30 minutes.(i) If a juryman be taken ill, so as to be incapable of attend- ing through the trial, the jury may be discharged and the prisoner tried de novo, or another juryman may be added to the eleven ; but in that case, the prisoner should be offered his challenges over again, as to the eleven, and the eleven should be sworn de novo.(k) So if during the trial the prisoner be taken so ill that he is incapable of remaining at the bar, the judge may discharge the jury, and on the prisoner’s recovery another jury may be returned, and the proceedings commenced de novo. The court, on a trial for a misdemeanor, doubted whether in such a case the consent of counsel was sufficient to justify the proceeding with the trial in the absence of the defendant.(/) ; In cases not capital, where there is no prospect of agreement, a juror may be withdrawn without the defendant’s consent.(m) And tn capital cases, the court may discharge a jury in case of necessity ;(n) but mere inability to agree, is not such a case, nor does it arise from the illness of some of the jury, if such illness can be removed by permitting refresh- ments, and the court, against the consent and prayer of the prisoner, re- fuses such refreshments, unless a majority of the jury agree to receive them. If, under such circumstances, the jury are discharged, the pris- oner may plead it in bar to another trial.(0) If it should appear in the course of a trial that the prisoner is insane, the judge may order the jury to be discharged, that he may be tried after the recovery of his understanding.(p) In this state, it is not a matter of discretion with the court, whether it will try a person who is insane, or not; for by statute, no insane person can be tried or punished for any crime or offense, while he continues in that state.(q) When the evidence on both sides is closed, or after any evidence has been given, the jury can not be discharged, unless in case of evident ne- cessity, (as in the cases above mentioned,) till they have given in their verdict, but are to consider of it and deliver it in open court. But the court may adjourn, while the jury are withdrawn to confer, and may (g) People v. Honeyman, 3 Denio, 121. _ (m) 9 Mass. R. 494. 12 id. 816. 2 Freeman. v. The People, 4 id. 9. - John. Cas. 301, 275. 2 Caines’ Rep. 100. (h) 4 Denio, 9. (n) 4 Wash. O. C. Rep. 402. 6 Serg, (4) 13 Wend. 55. & Rawle, 580. (x) Russ. & Ry. C. 0. 224, 4 Taunt, (0) 3 Rawle, 498. 309. (p) 1 Hale’s P. 0. 84. Russ. & Ry. 0, (2 Roscoe’s Cr. Ev.177, 2Car.&P. C. 481, (n). 439. @ 2B. S. 697, $2. “ 358 INDICTMENT. [Boox vI. e return to receive the verdict in open court.(7) And when a criminal trial runs to such length that it can not be concluded in one day, the court, by its own authority, may adjourn till next morning. But the jury must be kept together, (at least in a capital case,) so that they may have no communication but with each other.(s) It is a general rule, that upon a criminal trial, there can be no separation of the jury after the evidence is entered upon, and before a verdict is given.(¢) 4. DEFENDANT TO BE PRESENT. No person indicted for any felony, can be tried, unless he be personally present during such trial; nor can any person indicted for any other offense, be tried unless he be present either personally or by his attorney. And every person indicted shall be admitted to make any Jawful proof by competent witnesses on oath, or other lawful testimony.() 5. RIGHT TO COUNSEL. In every trial on irapeachment or indictment, the party accused is to be allowed counsel, as in civil actions.(v.)- 6. WITNESSES. The provisions of law in civil cases, relative to compelling the attend- ance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempts, to enforce the remedies and protect the rights of parties, are extended to trials, &c. on indictments, so far as they are applicable, subject to the provisions contained in any statute.(w) 7. DiscHaRGING ONE OF SEVERAL DEFENDANTS. Whenever two or more persons shall be included in the same indict- ment, and it shall appear that there is not sufficient evidence to put any defendant on his defense, it shall be the duty of the court to order such defendant to be discharged from such indictment, before the evidence shall be deemed to be closed.(x) 8. SEPARATE TRIALS. When two or more defendants shall be jointly indicted for any felony, any one defendant requiring it, shall be tried separately. In other cases, defendants jointly indicted shall be tried separately or jointly, in the dis- cretion of the court.(y) (r) 4 Black. Com. 360. Roscoe’s Cr. (v) Id. 165, § 14. 1 id. 98, § 12. Ev. 177. (w) Id. 735, § 14. (s) 6 T. R. 527. Steph. Sum. Or. L. — (z) Id. ib. § 19. 313. (y) 2B. 8. 785, § 20. 1 Bald. 78. 6 (t) Roseoe’s Cr. E. 178. 1 Hayw. 241. Ham. 86. 4 Mason, 158. (u) 2R. 8. 784, § 13. oar, 1.] INDICTMENT. 359° 9. ENTERING A NOLLE PROSEQUI. A nolle prosequi is often entered by the district attorney, with the consent of the court, It is not lawful for him to do so without such leave, or in any way to discontinue or abandon the indictment.(z) The form of a nolle prosequi is, “The attorney general of the state of New- York (or the district attorney of the county of 8.) saith that he will not prosecute further on behalf of the people against the defendant.” And if the defendant be in custody at the time, an order is, in most cases, add- ed that he be discharged from his imprisonment.(a) A nolle prosequi, and a consequent discharge from custody is not an acquittal or dis- charge from further prosecution, and is, therefore, no bar to a subsequent indictment for the same offence.(b) Even though the prosecutor desires it, a nolle prosequi can not be en- tered without the concurrence of the attorney general. The court will never direct it except at his instance.(c) A nolle prosequi may be entered as to one of several defendants at any time before the trial.(d@) So, it would seem, after verdict. Thus, where an indictment containing only one count, sets forth in aggravation of the offense charged, a former conviction of a similar offense, a nolle prosequi as to the matter in aggravation, may be entered after a convic- tion on the whole indictment. So, it seems, where there are several counts in the same indictment, and a general verdict, a nolle prosequi on one or more of the counts may be entered.(e) 10. CoMMISSIONS TO EXAMINE WITNESSES ABROAD. Commissions to examine witnesses residing out of this state may be issued by the court, upon the application of the accused, in the like ca- ses, upon the same proof, and on similar terms as provided by law in civil cases; and the attorney for the people may join in such commis- sion, and name witnesses on the part of the people. The interrogatories to be annexed to such commission are to be settled, and the commission issued, executed, and returned in the manner prescribed in respect to commissions in civil cases; and the depositions taken thereon and re- turned shall be read in the same cases and with the like effect as in civil suits.(f ) 11. EXAMINING WITNESSES CONDITIONALLY. After an indictment has been found, the defendant may have witness- es examined in his behalf, conditionally, on the order of a judge, in the (2) Id. 728, § 54. (c) 1 Ld. Raym. 721. 2 Mass, R. 414, (a) 3 Rob. Prac. 127, _ (d) 11 East’s R, 307. (0) 2 Va, Cas. 345. 2Mass. Rep. 172. — (e) 7 Pick. 179. 1Chit. Or.L.478. 7Pick.179. 7Conm; (/) 2B. 8. 781, $$ 78, 74. R. 418. : 360 ° INDICTMENT. [Boox v1. same cases, upon the like notice to the district attorney, and with the like effect in all respects, as in civil suits.(¢) 12. CoMPROMISING OFFENSES. After an indictment is found for an assault and battery or other mis- demeanor for which the injured party has a remedy by civil action; un- less such offense was charged to have been committed, 1. By or upon any officer or minister of justice, whilst in the execution of the duties of his office, or 2. Riotously, or 3. With an intent to commit a felony, the prosecutor may appear in court and acknowledge satisfaction for the in- jury and damage sustained by him; and the court may in its discretion, on payment of costs, order that no-further proceedings be had on such indictment, and may discharge the defendant therefrom. Which or- der shall operate as a perpetual stay of all further proceedings on such indictment.(h) 13. LerrinG ACCUSED TO BAIL. In the cases where by law persons indicted may be let to bail for their appearance at the court having cognizance of the offense, they may be so let to bail by the court having jurisdiction to try the offense charged ; or if such court be not sitting, by any justice of the supreme court. If the offense may be tried in a court of sessions, such persons may be let to bail by the county judge of the county where such indictment was found. And no other officers than those specified, can let to bail a person indicted for any offence.(i) The officer letting any person to bail after indictment shall immediately file the recognizance with the clerk of the county in which the indictment was found.(&) 14. ExcePTIoNs BY DEFENDANTS. On the trial.of any indictment, exceptions to any decision of the court may be made by the defendant in the same cases and manner provided by law in civil cases; and a bill thereof shall be settled, signed and seal- ed, and shall be filed with the clerk of the court, and returned upon a writ of error as authorized in personal actions, or upon a certiorari as provided by statute; and the same proceedings may be had to compel the signing and sealing of such bill and the return thereof. But nosuch bill of exceptions shall stay or delay the rendering or execution of judg- ment, unless the circuit judge who tried the cause or a justice of the su- preme court (if it was tried in the oyer and terminer) shall certify on such bill that in his opinion there is probable cause for the same, or so (g) 2B. 8. 781, § 75. (k) Id. 729, § 58. As to letting to bail (A) Id. 780, §§ 68, 69. before indictment, see 2 R. S. 710. (4) Id. 728, §§ 56, 67. OHAP. 1x] INDICTMENT. 361 much doubt as to render it expedient to take the judgment of the supreme court thereon. In which case such certificate, on being filed with the clerk of the court, shall stay judgment on such indictment until the de- cision of the supreme court can be had upon such exceptions. If the indictment was tried in the sessions, a similar certificate of the judge who presided on the trial, or of any justice of the supreme court, shall have the like effect. But no certificate shall be granted by a judge of the supreme court unless application therefor shall first have been made to the judge who presided at the trial, and his reasons for refusing the same be attached to the bill of exceptions.(?) Upon such certificate being granted, the defendant may be let to bail in the manner specified by the statute.(2) A bill of exceptions lies for refusing triors, or upon any question arising on any challenge to jurors, in a case where triors may be demanded.() Yet it has been held that a bill of exceptions does not lie to review ques- tions determined upon the trial of a collateral issue. Thus where ex- ceptions were taken upon a preliminary trial of a question of present in- sanity, which were incorporated in ‘a bill of exceptions taken upon the trial of the indictment, it was determined that such exceptions were not properly before the court.(o) 15. Purring orr TRIAL. There are several cases in which, upon a proper application, the court will put off the trial. And it has been laid down that no crime is so great, and no proceedings so instantaneous, but that the trial may be put off, for sufficient reasons shown.(p) And in general the trial may be post- poned on the ground of the publication of a libel tending to influence the minds of the jurors in forming their decision.(q) So the illness of the defendant’s attorney has been allowed as a sufficient reason.(r) But the most usual ground for the delay is the absence of a material witness, which if properly verified, will be sufficient, on an indictment for treason, felony or misdemeanor, at the instance of a defendant.(s) If, however, the witness was not absent at the time notice of trial was given, it seems the court will not grant the application on account of any subse- quent absence.(¢) And where the witnesses are in a foreign country and not likely soon to come hither, the court have refused to allow it ;(w) though as the witnesses may be examined on interrogatories sent out abroad, it should seem that when the evidence is very material the trial ( 2B. 8. 786, §§ 21 to 25. (r) Say. Rep. 68. Bac. Abr. Trial (m) Td. ib. § 26. (8) Bac. Abr. Trial, (H). ve ey 7 Wend. ate ee (t) ne Barnes, 442. o) Freeman v. The People. enio, 9. u) 3 . 1514, ‘ (p) 1 Chit. Or. L. 491. ; Bare oe Sree nae (q) 4T.R.285. 1Burr.510, 8 Brod. & Bing. 272. 46 362 INDIOTMENT, [BooxK VI. may be delayed till such examination has been obtained.(v) But when the defendant has been guilty of laches or delay, the court will refuse to put off the trial, or at least will impose terms upon him, as that he shall consent to examine upon interrogatories a material witness for the people.(w) ‘To obtain an order for putting off the trial, an affidavit must be made, stating the names and places of abode of the absent witnesses, and that they are material to the prosecution or defense.(z) This affidavit should state at what time the witness's return may be expected; but this may be in some cases dispensed with.(y) It is also necessary the affidavit should be positive that the absent witness is material, and not merely that the deponent believes him to be so.(z) When there is no cause for suspicion of mere desire to delay, it will-be sufficient generally to swear that the absent party is a material witness, without whose evidence the party can not safely proceed to trial; that he has endeavored, without effect, to serve him with a subpcena, and that there is a reasonable ground to expect his future attendance.(a) This affidavit must, in general, be made by the party applying ;(0) though in some cases his attorney, or a third person, has been allowed to do it in his stead, as if he be abroad or unable to appear.(c) Notice of an application to put off the trial is not usually given, in this a state. When the motion is granted, it is seldom for more than the next term or session of the court. But upon the particular circumstances of the case, the court will sometimes put off the trial to a more distant time.(d) The above observations apply to the putting off a trial by express order of the court, on the application of either party. The trial of a cause may also be put off or postponed by the mere laches or neglect of the prosecutor to bring it on. In cases of this kind, the revised statutes give a remedy to the prisoner, by providing for his discharge, if he shall not be brought to trial before the end of the next term of the court after’:. the indictment is found; unless good cause shall be shown for detaining him.(e) 16. New TRIAL. Under the provisions of the revised statutes allowing the defendant, on the trial of any indictment, to take exceptions to any decision of the court, in order to bring a writ of error or certiorari to the supreme court,(f) (v) 1 Chit, Or. L. 492. (a) 1 Chit. Or. L. 493. (w) Id. ib. 1 Black. Rep, 514, 2M. (0) Id. ib. Barnes, 487. 9 Pick. 515. & 8. 602. (c) Peake’sN. P. 97. Barnes, 448. (x) 8 East, 35. Fost. 2. (d) 1 Chit. Or. L. 494. (y) 1 Black. Rep. 614, 1 Barnard, 39. —(e) 2 R. S. 787, 8§ 28, 29) 30. (2) Id. ib. Bac, Abr. Trial, (H). (Sf) Id. 736, §§ 21 to 27. GHAP. Ix.] INDICTMENT. 363 there can be no doubt that a new trial may be granted to the defendant, in all cases where he takes exceptions on the trial and brings 4 writ of error. But there is no provision authorizing the public prosecutor to file a bill of exceptions, or to bring a writ of error or certiorari on the part of the people, in case the defendant is acquitted. Hither party, however, may remove the indictment into the supreme court, before trial, by cer- tiorari ;(@) and where an indictment, after having been so removed, was tried at the circuit and the defendant acquitted, the supreme court decided that for offenses greater than’ a misdemeanor, a new trial can not be granted, on the merits, whether the accused be acquitted or convicted.(/) In misdemeanors, if seems anew trial may be granted where the defend- ant has been improperly convicted, but not where he has been acquitted.(?) Inferior courts, as courts of sessions, have no power to grant new trials upon the merits.(/) But they may for irregularity.(/) Tt has been decided that the oyer and terminer is not a superior court of general jurisdiction ; and that it has no power to grant a new trial, on the merits, after a defendant has been convicted of a felony.(m) A new trial may be granted for want of a proper jury, as where they are not duly returned ;() or for the misbehavior of the jury, as if they cast lots for their verdict,(0) or refresh themselves at the cost of the pros- ecutor.(p) But anew trial will not be granted on account of the incom- petency of a juror ;(q) or for a trifling neglect of the clerk in drawing the jury, productive of no injury to the prisoner ;(7) or because the judge declined to charge the jury, in a case where there was no dispute as to the law ;(s) or upon the ground that further testimony to impeach the credibility of a witness has been discovered—his character having been testified to at the trial ;(¢) or because one of the witnesses has been dis- covered to be incompetent since the finding of the jury ;(w) or has made a mistake in giving his evidence.(v) But where material witnesses have been prevented by illness from at- tending, or gained credit on the trial by circumstances since falsified by affidavit, or are afterwards convicted of perjury or shown to be evidently forsworn, the court will, in some cases, allow a second investigation of the proceedings. The mere finding a bill for perjury, however, will not suffice, because it is grounded on ex parte evidence; nor is it of course (g) 2B. 8. 782, § 88. (n) 1 Chit. Or. L. 655. _(h) 8 Wend. 549, (0) 12 Wend. 272. 12 Pick. 521. 1 (j Id. ib. 5 Barn. & Adol.52. 4Mc- Mass. R. 542, n. Cord, 255. 1Chit. Or. L. 656. See 4 (p) 1 Str. 642. 2 Salk. 645. Wend. 229. (q) 4 Yerg. 111. 1 id. 206. But see (k) 1 Chit. Cr. L. 658. 2 Caines’ Cas. 7 Dowl. & Ryl. 684. in Err. 819. 8.0.1 John. Cas. 179. 15 (r) 7 Wend. 417. Wend. 581. (s) 5 id. 289. (2) 18 East, 416. 1 Chit. Cr. L. 653, (t) 5 Mass. R. 261. See 8 Greenl. 77, 12 Wend. 272. (u) 1T. R. 717. : (m) 2 Barb. 8. OC. Rep. 282. (xy Say. Rep. 27. But see 1 Bing. 145. 364 INDIOTMENT, [Boox v1. to receive affidavits impeaching the credit of witnesses.(w) Another rea- son for granting a new trial may be the misdirection of the judge, or the refusal of legal, or the admission of improper evidence.z) And it may be obtained on the ground that the verdict is without, or contrary to, ev- idence, if the judge himself expresses his dissatisfaction at the issue.(y) If a new trial be ordered by the supreme court, upon a writ of error or certiorari, the same must be had in the court in which the indictment was first tried.(z) Where the defendant has pleaded to an indictment in an inferior courts which is tried, but on certiorari to the supreme court a new trial is or- dered, he need not, in strictness, plead de novo ; for the old plea stands.(a) (w) 1 Chit. Cr. L. 656. (y) 1 Burr, 12. 2 id. 665, 936. 2 (v) 2Salk. 649. 2 Wils.278. Bull. N. Bailey, 29. P. 327. (2) 2B. 8. 741, § 26. (a) T Cowen, 108. owapP, x.] INDICTMENT. 365 CHAPTER X. Verdict and Judgment. 1. VerpIctT. Tue verdict in all cases of felony and treason, must be delivered in open court in the presence of the defendant.(a) But in all trials for inferior misdemeanors, or where no corporal punishment is to be inflicted, a privy verdict may be given, and there is no occasion for the presence of the defendant.(b) And it seems, that in England, by consent of par- ties, it may be delivered at the house of the judge, even where it is situ- ated beyond the limits of the county in which the trial was had.(c) But no such rule exists in this state. Verdicts are either, general, as to the whole charge—partial, as to part of it—or special, where the facts of the case alone are found, and the legal inference is referred to the judges.(d) No jury can be compelled to give a general verdict, so that they find a special verdict showing the facts respecting which issue is joined, and therein require the judgment of the court upon such facts.(e) A good finding on a bad count, and a bad finding on a good count, stand on the same footing ; both being nullities.( /) A general verdict of guilty is valid, if one count of the indictment is good, although the others are defective.(g) The jury may acquit the defendant of a part and find him guilty as to the residue. Thus, they may convict him upon one count of the in- dictment and acquit him of the charge contained in another; or upon one part of a count capable of division, and not guilty of the other part, as on a count for composing and publishing a libel, the defendant may be found guilty of publishing only.() But if, upon an indictment con- taining two distinct charges of different offenses, punishable differently, a general verdict of guilty is rendered, a new trial will be granted.(7) Yet in general, where from the evidence, it appears that the defendant has not been guilty to the extent of the charge specified, he may be found (a) 1 Chit. Or. L. 686. 1 Wend.91. (g) 1 John. 320. 1 Chit. Cr. L. 640. 1T. R. 484. 1 Blackf. 319. 1 Stew. 231. 7 Ham. R. (0) Id. ib. 240. Breese, 197. 8 Greenl. 1138. 8 (c) 5 Burr, 2667. Hill, 194. d) 4 Black. Com. 361. (h) 1 Chit. Or. L. 687. (e) 2R.S. 421, §68. 1 Chit. Or.L.637. (4) 2 McOord, 257. J) O'Connell v. The Queen, 11 Clark & Fin. 155. 9 Jur, 25. 366 INDICTMENT. [Boox v1. guilty as far as the evidence warrants, and be acquitted as to the residue ; as where he is charged with engrossing one thousand quarters of wheat, and the evidence amounts to but seven hundred.(/) And where the accusation includes an offense of inferior degree, the jury may dis- charge the defendant of the higher crime, and convict him of the less atrocious. Thus, upon an indictment for burglariously stealing, the prisoner may be convicted of the theft, and acquitted of the nocturnal entry ; upon an indictment for murder, he may be convicted of man- slaughter; on an indictment for stealing privately from a person, he may be found guilty of larceny only ; on an indictment for grand, the offense may be reduced to petit larceny ; robbery may be softened into felonious theft; and on an indictment founded ona statute, the defendant may be found guilty at common law.(/) So, under the revised statutes, on an indictment for an offense consisting of different degrees, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and guilty of such offense in any inferior degree, or of an attempt to commit such offense.(m) This provision of the statute has not affected the common law rule respecting the right to convict of an inferior offense, on an indictment for a superior one.(z) Hence it has been held that under an indictment for producing an abortion of a quick child, which, by the revised statutes, is a felony, the prisoner may be convicted, though it turns out that the child was not quick, and the offense was therefore a mere misdemeanor.(o) If there are three counts in an indictment, and the jury convict the prisoner on the second, finding nothing as to the first and third, the ver- dict should not be set aside on that account, but the court should enter a verdict of acquittal on those two counts, although a verdict of convic- tion may be entered on the second. p) Bach count in an indictment is a distinct charge, and a general ver- dict will be sustained, although the counts are inconsistent.(g) It is not material of what part of the charge the defendant is acquitted, if that part of which he is found guilty constitutes a specific indictable offense.(7) Where, upon an indictinent containing three counts, the jury find the defendant not guilty on the first, and can not agree on the others, the court may refuse to receive the verdict and have it recorded.(s) Although several are frequently included in the same indictment, yet as the charge is distinct against each of them, the jury may on the evi- dence, acquit some of them and find the others guilty.(¢) So where the jury have agrecd as to one or more of several prisoners, their verdict, as (k) 1 Chit. Cr. L. 637. 2 Camp. 583. (p) 2 Vir. Cases, 235. (1) 1 Chit. Cr. L. 638, 9. (q) 5 Wheat. 184, (m) 2 BR. 8. 702, § 27. (r) Durham y. State, 1 Blackf. 33. (n) The People vy. Jackson, 8 Till, 92. (s) Harley vy. State, 6 Ham. 399. (0) Ibid. (t) 2 St. Tr, 626. 8 T.R, 108. omurx} * INDICTMENT. 367 to them, ought to be received,~though they can not agree as to the rest, and are from necessity discharged by the court.(w) Even where they are all charged with the same offense, some of ther may be acquitted and others convicted.(v) So, where two defendants are charged, one as principal in the first and other in the second degree, as being present, aiding and abetting, the latter may be found guilty, though the former is acquit- ted.(w) And they may be convicted of different degrees of crime arising out of the same circumstances; as one of them of murder, and the other of petit treason, on any indictment against both for the latter ;{x) but it has been considered that one of several defendants can not be found guilty of burglary and the others of larceny, when all are accused of the for- mer.(y) And where the charge is of such a nature that one, as in case of conspiracy, or two, in that of riot, can not be guilty without the union of others, if all the rest are acquitted, and the indictment does not charge the offense to have been perpetrated in company with any persons un- known, the verdict of guilty would be altogether repugnant and void.(z) But where one is indicted for a conspiracy, or two for a riot, with others, the conviction will be valid, though the others never come in to be tried, or die before the time of trial(a) If an accessary be indicted at the same time with the principal, if the latter be acquitted the former must also be acquitted, since his guilt is entirely inconsistent with the innocence of him who is charged as principal.(b) : Where acount in an indictment contains only one charge against several defendants, the jury can not find any one of the defendants guilty of more than one charge. Where, therefore, a count charged several defendants with conspiracy together to do several illegal acts, and the jury found one of them guilty of conspiring with some of the defendants to do one of the acts, and guilty of conspiring with others of the defend- ants to do another of the acts, such finding is bad, as amounting to a finding that one defendant was guilty of two conspiracies, though the count charged only one.(c) Upon a count in an indictment against eight defendants, charging one conspiracy to effect certain objects, a finding that three of the defendants are guilty, generally ; that four of them are guilty of conspiring to effect some, and not guilty as to the residue of the objects, is bad in law, and repugnant; inasmuch as the finding that the three were cuilty was a finding that they were guilty of conspiring with the other five to effect all the objects of the conspiracy ; whereas by the (u) 6 Serg. & Rawle, 577. 12 Mass. (z) Id.ib. 2 Hawk. ch.47,§8,. Poph. Rep. 313. 202 (v) 3°T. R. 108. (a) Ia, 641. (w) 1 Leach, 360. (6) Stark. 332, (x) Fost. 104. (c) O'Connell v. The Queen, 11 Clark (y) 1 Chit, Or. L. 640. & Fin. 155. 9 Jur. 25. 368 INDICTMENT, “° [pox v1. same finding it appeared that the other five were guilty of conspiring to effect only some of those objects.(d) No particular form of words is necessary to be followed with technical exactness in drawing up a special verdict. It must positively state the facts themselves, and not merely the evidence adduced to prove them.(e) And all the circumstances constituting the offense must be found, in or- der to enable the court to give judgment. f) For the court can not sup- ply a defect in the statement made by the jury on the record, by any ‘intendment or implication whatever.(g) Therefore, where the indict- ment set forth that the defendant discharged a gun against the deceased, and thereby gave him a mortal wound, and the jury only stated that he discharged a gun and thereby killed him; omitting that it was against him, it was adjudged that the court could not give any judgment against the prisoner.(h) And a verdict, on an indictment for a conspiracy, that there was an agreement between A. and the defendant, to obtain money from B., but with intent to return it again, is bad, and the court can not give judgment upon it.(7) So where the jury, on an indictment against an officer for taking unlawful fees, find that he took more than his legal fees, but not corruptly, such finding was held tantamount to a verdict of acquittal.(/) To authorize the court to pronounce judgment on a special verdict, the legal affirmative or negative conclusion must follow as a necessary consequence from the facts stated.(Z) It is sufficient, however, if the jury find all the substantial requisites of the charge without following the technical language used in the indictment.(m) Where a fact is of a transitory nature, the jury may find it to have occurred in another place within the county than that named in the proceedings.(z) But they can not find any thing essential to the charge to have occurred beyond the jurisdiction of the grand jury.(o0) Neither can they vary from the time and place laid when it was material to have proved them in evidence.(p) And it has been said that they ought expressly to find all the material facts to have occurred within the county to which the province of the court is limited.(q) It does not seem necessary that the jury, after stating the facts, should draw any legal conclusion. But if they do so, the court will reject the conclusion as superfluous, and pronounce such judgment as they think warranted by the facts.(r) (d) O’Connell v. The Queen, 11 Clark = (&) 2 Car. Law Repos. 634. & Fin. 155. 9 Jur. 25. (2) 2 McCord, 129. (e) 1 Chit. Cr. L. 648. (m) 1 Chit. Cr. L. 644. (f) 2 Stra. 1015. (n) Ibid. (g) 2 East’s P. O. 708, 784. (0) 6 Coke, 47. of Kel. 111. Cowp. 880. 4 Burr, 2073, (p) Com. Dig. Plead. 8S. 15. om. Rep. 480. (g) 1 Leach, 882. 6 Co. 47. () 2 John. Cas. 811. (r) 1 Chit. Or. L. 645. onap, x.] INDIOTMENT. 369 It is said to be the better opinion that though a special verdict can not be amended in matters of fact, yet the court may amend a mere error in form, even in capital cases, when there are any notes or minutes by which it can be amended. Where the alteration is merely to fulfill the evident intention of the jury, the court will in all cases allow it to be ef- fected.(s)' But it will not amend by supplying facts incompatible with those found by the jury.(¢) A general, like a special verdtct, may be amended in matter of form, though not in any substantial degree.(z) If the jury, through mistake, or evident partiality, deliver an improp- er,(v) or an informal or insensible verdict, or one that is not responsive to the issue submitted,(w) they may be directed by the court to recon- sider it, and be recommended to make an alteration. Thus where the decision is repugnant, as if they find one alone guilty of a conspiracy, and acquit the other, they will, on explanation that they can not find that one person alone was guilty of a conspiracy, withdraw, and may on recon- sideration, find both the defendants guilty.(7) But it is said this has been seldom done in modern times, when the decision is in the defendant’s favor.( y) Where the verdict is so imperfect that no judgment can be given upon it, it will be set aside and a venire de novo awarded, in misdemeanors.(z) But it seems doubtful whether this ought to be done in capital cases ;(a) and at all events the court may enter a judgment of acquittal.(b) Such a discharge, however, by reason of an imperfect verdict, will be no bar to another prosecution for the same felony.(c) When the jury are agreed, they deliver. their verdict to the clerk of the court, who records it. In cases of felony, after the verdict is record- ed the clerk, addressing the jury says, “Gentlemen of the jury, hearken to your verdict as the court hath recorded it. You say that A. B. is guilty (of murder in the first degree) in manner and form as in the in- dictment against him is alledged ; and so say you all.” When this is done, if none of the jury express their dissent the verdict wil stand as recorded. Until it is done the verdict is not perfected.(d@) After the verdict is recorded it isa general rule that it can not be amended ;(e) unless indeed the mistake appear and be corrected promptly.(f) Before (8) 1 Chit. Or. L. 645. (2) 1 Chit. Or. L. 646. 2 McCord, 129. (¢) 2 McCord, 129. : 4 Leigh, 686. (u) 5 Burr. 2663. Dougl. 375. (a) Id. ib. 1 Ld. Raym. 141. 2 id. (v) 1 And. 104. Alleyn, 12. 2 Hale, 1585. 299, 800. 2 Hawk. ch. 47, § 11. (6) 2 Ld. Raym. 1586. (w) 2 Murphy, 571. (ce) 8 P. Wms.489. (@) Bro. Abr. Jurors, 7, Bae. Abr. (d) 3 Robinson’s Cr. Prac. 268. Verdict, (G). (e) 1 Chit. Cr. L. 648. 2 Hale, 299, (y) 2 Hawk. ch. 47, §§11, 12. 1 Chit. Oo. Litt. 227, b. Or. L, 648. (f) 1 Ry. & Moo. O. O, 45, 47 370 INDICTMENT. [Boox v1. it is recorded, however, the jury may themselves rectify the verdict, and it will stand as amended.(g) A verdict may be received by the court on Sunday.(/) The revised statutes contain a general provision that the proceedings prescribed by law in civil cases, in respect to the manner of rendering the verdict, shall be had upon trials of indictments.(2) 2. JUDGMENT. Presence of defendant.| When any corporal punishment is to be in- flicted on the defendant, it is absolutely necessary, unless some statute has otherwise directed, that he should be personally before the court at the time of pronouncing the sentence.(k) But where the defendant is found guilty, and the court pronounce judgment that he pay a fine and stand committed until it be paid, the imprisonment is no part of the pun- ishment, but only a mode of enforcing payment of the fine, and it is not necessary that the defendant should be present.(Z) Judgment when given.| The judgment or sentence of the court is usually given soon after the conviction—at least during the same term of the court at which the prisoner is convicted; unless the rendering of judgment is stayed by the filing of a bill of exceptions for the purpose of taking the opinion of the supreme court upon the case.(m) - By what court.| Judgment is rendered by the court, in which the de- fendant was convicted ; except in cases where the indictment is removed into the supreme court, by certiorari, before judgment, as provided by statute. In such cases, if the supreme court decides against the excep- tions taken, it must either proceed to render judgment and pronounce sentence against the defendant, or must remit the proceedings to the court in which the trial was had, with directions to proceed and render judgment.(n) Pronouncing sentence.| Before judgment is pronounced upon the de- fendant it is indispensably necessary that he should be asked by the clerk or court if he has any thing to say why judgment should not be pro- nounced on him ;(0) and it is material that this appear upon the record to have been done; and its omission, after judgment in high treason, will be a sufficient ground for the reversal of the attainder.(p) On this occasion he may alledge any ground in arrest of judgment; (which we shall notice presently ;) or may plead a pardon if he has obtained one, for it will have the same consequence which it would have produced (g) Co. Litt. 227, b. 2 Hale, 299, 300. (m) See 1 Chit. Cr. L. 699. 2.R.S8. 786. (A) 2B. 8. 205, § 7. (n) 2B. 8. 741, § 25. (i) Id. 785, § 14. (o) 1 Chit. Or, L. 700. (4) 1 Ld. Raym, 267. 12 Wend. 344. — ¢p) 3 Salk. 358. Comb. 144. 3 Mod. 7 Cowen, 525. 1 Va. Cas. 172. 265. (2) 12 Wend. 344. 1 Va. Vas. 172. onaP. x.] INDICTMENT. 371 before conviction, by stopping the attainder.(q) If he has nothing to urge in bar, he frequently addresses the court in mitigation of his con- duct, and desires their intercession with the pardoning power, or casts himself upon their mercy. After this, nothing more is done, but the proper judge pronounces sentence. This may be safely done in general terms, though a part of the indictment is defective, or the conduct charged in part is no legal offense, though the residue is sufficient; because the court will make the punishment proportioned to so much of the charge as is proved by the evidence.(r) A joint sentence may be, and frequently is passed, on several offend- ers convicted of similar offenses.(s) When any person is convicted of two or more offenses before sentence has been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent convic- tion, shall commence at the termination of the first term of imprison- ment to which he shall be adjudged, or at the termination of the second term of imprisonment, as the case may be.(¢) Whenever, by statute, an offender is declared punishable by imprison- ment in a state prison for a term not less thaa any specified number of years, and no limit to the duration of such imprisonment is declared, the court may sentence the defendant to imprisonment for life, or for any time not less than that specified. But no person can, in any case, be sentenced to imprisonment in a state prison for any term less than two years.(2) A sentence of imprisonment in a state prison for any term less than for life, suspends all the civil rights of the person so sentenced, aad for- feits all public offices and private trusts, authority, or power, during the term of such imprisonment. And a person sentenced to imprisonment, in a state prison for life, shall, thereafter, be deemed civilly dead.(v) On a prisoner being brought into the supreme court for sentence, the court will not pronounce judgment, unless the record of conviction be brought before them.(w) Motion in arrest of judgment.| 'The causes on which this motion may be grounded, though numerous, are confined to objections which arise upon the face of the record itself, and which make the proceedings (q) 4 Black. Com. 376. ing or offering to vote, in this state, by (r) 1 Chit. Cr. L. 700. 2 Burr. 984. an inhabitant of another state, is declared (s) Id. ib. 6 Harg. St. Tr. 833. a felony, and the person so voting or of- (t) 2B. 8. 700, § 11. fering to vote is liable, on conviction, to (uw) 2 B.S. 700, § 12. There is an ex- be imprisoned in a state prison for a pe- ception to this general rule, however, to riod not exceeding one year, at the dis- be found in the “Act to preserve the pu- cretion of the court. rity of elections.” (Laws of 1839, p. 365.) (v) 2B. 8. 701, §§ 19, 20. By the fourteenth section of that act, vot- —_ (w) 1 Caines, 72. 372 INDICTMENT. [Boor vr. apparrently erroneous ;(7) and therefore no defect in evidence, or improp- er conduct on the trial, can be urged in this stage of the proceedings.(y) But any want of sufficient certainty in the indictment, respecting the time, place or offense, which is material to support the charge, as well as the circumstance of no offense being charged, will cause the judgment to be arrested.(z) And it is to be observed that none of the statutes of jeofails, or amend- ments, extend to criminal proceedings ; and therefore essential defects in the indictment are not, as in civil cases, aided by verdict.(a) Nor is the ground of arresting the judgment confined to the indict- ment alone. It may be found in any part of the record, which imports that the proceedings were inconsistent or repugnant, and would make the sentence appear irregular to future ages.(b) It seems to be a general rule that any objection which would have been fatal on demurrer will be equally so on arrest of judgment, and it is therefore usually reserved till this time, in order to obtain the chance of an acquittal.(c) The defendant may move in arrest of judgment at any time before sentence is actually pronounced upon him.(d) And even though the de- fendant waives the motion, yet if the court, upon a review of the whole case, are satisfied that he has not been found guilty of any offense in law, they will of themselves arrest the judgment.(e) So, if the facts charged in the indictment do not constitute a crime, the court will direct the judgment to be arrested, although the defendant has pleaded guilty.(/) If the judgment is arrested, all the proceedings will be set aside, and judgment of acquittal will be given; but it will be no bar to a subse- quent indictment ; which the prosecutor may immediately prefer.(g¢) Though an indictment lay the time so long before an indictment is found, that the crime appears to be barred by the statute of limitations, this is no ground for arresting the judgment.(h) Neither is a variance _ between the indictment and proof.(7) Form of judgment.| Where a prisoner, convicted at the sessions, is brought into the supreme court for judgment, that court will give no other judgment than might have been pronounced by the court be- low.(k) Where there is no judgment of imprisonment the judgment is that the (z) 8 Harr. & John. 2. (dq) 5 T. RB. 444. 2 Burr. 801. 2 Stra. y) 4 Burr. 2287, 1 Ld. Raym. 231. 845. ! 1 Chit. Cr. L. 661. (e) 1 East, 146. 11 Harg. St. Tr. 290. (2) 1 Chit. Or. L, 661. (7) 1 Mass. Rep. 139. (a) Id. ib. (g) 1 Chit. Cr. L. 663, 804, 448. (0) Id. ib. (h) 9 Cowen, 655. (c) Id. 442, 8. (i) 1 Wend. 296. (&) 1 Caines, 37. omar. x] | INDICTMENT. 373 defendant pay the fine assessed upon him, and the costs of the prosecu- tion. Should he be in court at the time of pronouncing judgment, an order may be entered for his imprisonment until he shall pay the fine and costs, or be otherwise discharged. But if he be not in court, process may be awarded for the recovery thereof. There is a right to proceed by ex- ecution for the fine and costs, against the property of the defendant, or against the body, as upon judgments in civil cases.(/) In an indictment against two or more, it is generally true that the charge is several as well as joint ; so that if one is found guilty judg- ment may be rendered against him, although one or more may be ac- quilted. To this rule there are exceptions, as in cases of conspiracy, or riot, to which the agency of two or moré is essential. But violations of the license law, not being within the reason of these exceptions, come under the general rule.(7) A general judgment for the crown, on an indictment containing seve- ral counts, one of which is bad, and where the punishment is not fixed by law, can not be supported.(n) An indictment against different defend- ants consisted of several counts, charging them with various illegal acts. Some of the counts were bad, and on some of the good counts there were bad findings. The judgment against each of the defendants was stated to be in respect of “his offenses aforesaid.” Is was held that each count must be considered as charging a separate offense; and that the expression “his offenses aforesaid” must be treated as extending to all the offenses of which each defendant had been found guilty; and as some of the counts and some of the findings were bad, such judgment could not be supported.(o) It seems that where a defendant is found guil- ty of any part of an indictment, on which he receives judgment, it is not a sufficient ground for reversing the judgment that it contains no entry of a verdict of acquittal on another part of the indictment.(p) It is not necessary, in recording sentence, to refer to the statute which gives the punishment.(q) The judgment, on a verdict of guilty, must not be dependent on any contingency, nor subject to any future decision, but must be final and certain.(r) ' Upon an indictment against eight persons, for an unlawful assembly, five appeared and pleaded not guilty, and two of these five were found guilty and three not guilty. It was held that the judgment should be entered against the two found guilty, but that they must have been dis- charged had all the others indicted been tried and acquitted.(s) (D 8 Wend. 204. (p) Ibid. (m) Comm. v. Griffin, 3 Cush. 528. (7) Murray v. The Queen, 14 Law J. (n) O'Connell v. The Queen, 11 Clark 357. 9 Jur. 596. & Fin. 155, 9 Jur, 25, (r) Morris v. State, 1 Blackf. 37. (0) Ibid. (s) State v. Bailey, 2 Blackf. 151. 374 INDICTMENT. [BOOK VI. Judgment, generally.| A judgment acquitting several defendants charged with committing an offense jointly, will not bar a several prose- cution against them.(¢) Where a party convicted of an offense is subject to two distinct and independent punishments, it can not be alledged for error, by the defend- ant, that one only of the punishments to which he was liable is adjudged against him. The prosecutor may complain of such omission, but not the party convicted.(2) Every court before which any person is convicted of any offense not punishable with death or imprisonment in the state prison, has power, in addition to such sentence as may be authorized or prescribed by law, to require the defendant to give security to keep the peace, &c. for any term not over two years, or to stand committed until such security is given. But this does not extend to libels.(v) The same rule prevails in England. Thus, where an indictment for perjury had been removed into the queen’s bench by certiorari, and the * defendant convicted and sentenced by the court to be imprisoned for eighteen calendar months, and to give security to keep the peace and be of good behavior for two years, to commence from the expiration of the eighteen months, and to be further imprisoned until such security was given, it was held by the exchequer chamber, on error, that the court might, as a part of the sentence, require such sureties.(w) On a conviction for any offense punishable by imprisonment, in rela- tion to which no fine is prescribed by statute, the court may impose a fine on the offender not exceeding $200.(z) Stealing property in another state or country, if the property is brought here, may be punished in the same manner as if such larceny had been committed in this state.(y) The punishment for attempts to commit crimes ; of felons for com- mitting a second offense ; and of persons for committing a second offense after a misdemeanor, is also prescribed by statute.(z) No insane person can be tried, sentenced to any punishment, or pun- ished for any crime or offense, while he continues in that state.(a) All punishments prescribed by the common law for ‘any offense speci- fied in the first chapter of the fourth part of the revised statutes, and for the punishment of which provision is therein made, are prohibited.(b) No conviction for any offense whatever (except an outlawry for trea- son) shall work a forfeiture of goods, &c.(c) (t) Comm. v. McOord, 2 Dana, 242. (y) Id. 698, § 4. (uw) 8 Wend. 203. (2) See 2 R. 8. 698, §8. Id. 699, §§ 8, (v) 2 B.S. 787, § 1. 9, 10. (w) Queen v. Dunn, 12 Ad. & ELN.S. (a) Id. 697, § 2. 026. (b) Id. 701, § 16, (x) 2B. 8. 787, $18. (ce) Id. ib. § 22. oHaP, x.] INDICTMENT. 375 No person sentenced upon a conviction for felony shall be competent to testify in any cause, &c. civil or criminal, unless he be pardoned ; except in the cases specially provided by law. But no sentence upon a conviction for any offense, other than a felony, shall disqualify or render any person incompetent to be sworn or to testify in any cause, &c. civil or criminal.(d ) : Records of judgment.| Whenever a defendant who shall have been acquitted or convicted upon any indictment, shall require the district at- torney to make up a record of the judgment, it shall be his duty to do so, on being paid his legal fees; and if he shall neglect for ten days after being so required, to make up such record, the defendant may himself cause the same to be made up, signed and filed.(e) A court of oyer and terminer after quashing an indictment may, at a subsequent term, give leave to the public prosecutor to make up a record as if judgment had been rendered for the defendant on demurrer, for the purpose of enabling him to sue out a writ of error; and should such leave be refused, the supreme court will award a mandamus.(/ ) Entering judgment in minutes.] Whenever a judgment upon convic- tion shall be rendered in any court, it is the duty of the clerk to enter such judgment fully in his minutes, stating briefly the offense for which the conviction was had; and the court shall inspect such entries and conform them to the facts.(g¢) Statement of offense by district attorney, and transmitting same to _ secretary of state.| It shall be the duty of the district attorney, on being requested by the clerk, to prepare for him a statement of the offense of which any person shall be convicted, as the same is charged in the in- dictment, to be entered in the minutes of such clerk ; but the court shall inspect the same and conform it to the indictment.(h) Within ten days after the adjournment of any court at which any convictions for offenses shall have been had, the clerk thereof shall make out and certify a tran- script of the entries in his minutes, of all such convictions and the sen- tences thereon; and shall transmit the same to the secretary of state, under a penalty of $50.(¢) This transcript or statement shall contain such a description of the offense committed, abridged from the indictment, as would be sufficient to maintain the averments relating to such offense, necessary to be made in an indictment against the same person for a second offense; and if a defective transcript of any criminal conviction shall be transmitted to the secretary of state, it shall be his duty to re- quire a correct transcript from such clerk; and in case of his refusal or neglect to furnish the same within a reasonable time after being so re- @ 2 BB. eh § 28. @ fee § 5. € 5 F . . ib. § 6. (f) 9 Wend. 182. () Id. ib. $7. 376 INDICTMENT. [Boox VI. quired, he shall be liable to a penalty of $50.(4) If the district attorney shall neglect or refuse to prepare for any clerk of a criminal court, such a statement, within a reasonable time after being required by such clerk, he shall forfeit $50 to the use of the people of this state, for each state- ment so neglected to be furnished; and every such neglect shall be immediately reported by such clerk to the secretary of state.(/) Copy of transcript when evidence of conviction.] It is the duty of the secretary of state to file such transcripts, and whenever required by the attorney general, or district attorney of any county, he is bound to fur- nish an exemplification thereof, under the seal of his office; which exem- plification is declared to be sufficient evidence on the trial of any person for a second or subsequent offense, of the conviction stated in such tran- script.(m) But neither such transcript nor the exemplification thereof are, in any other case, evidence of such conviction.(n) Copy of clerk’s minutes, &c. how far evidence of conviction.| A copy of the minutes of any conviction, with the sentence of the court thereon, entered by the clerk of any court, duly certified by the clerk in whose custody such minutes shall be, under his official seal, together with a copy of the indictment, certified in the same manner, is made evidence of such conviction, in all cases in which it shall appear by the certificate of the clerk, or otherwise, that no record of the judgment on such con- viction has been signed and filed.(o) Statement, §c. to be sent to governor.| Upon conviction for a crime punishable with death, it is the duty of the presiding judge of the court at which the conviction took place, to transmit immediately to the governor, by mail, a statement of the conviction and sentence, with the notes of testimony taken by him upon the trial.( p) Duty of governor.| The governor is authorized to require the opin- ion of the judges of the court of appeals, justices of the supreme coutt, and of the attorney general, or of any one of them, upon any statement so furnished.(q) Authority to sheriff to execute the judgment.] A transcript of the entry of the conviction in the minutes of the court and of the sentence thereupon, certified by the clerk, or a certified copy of the sentence, if the prisoner was sentenced to imprisonment in a state prison, is a suff- cient authority to the sheriff to execute the sentence.(r) Such sheriff or deputy, while conveying a convict to the proper prison, has the same power and the like authority to require the assistance of any person, in securing such convict, and retaking him if he escapes, as if the sheriff (2) Laws of 1839, p. 234. (p) Ib. 658, § 18. Amended by laws (1) Id. 235, § 2. of 1847, p. 487, $1. (m) 2 R. S. 788, § 8. (gq) Id. 514. Laws of 1847, p. 487, § 2. (n) Td. 739, § 9. (r) Id. 789, $§ 11, 12. (0) Ibid. § 10. oar, x.] INDICTMENT. 377 were in the county for which he was elected. Aud all persons refusing or neglecting to assist such sheriff, when required, are liable to the same penalties as if such sheriff were in his own county.(s) Executing sentence of death.] Whenever any convict is sentenced to the punishment of death, the court, or a major part thereof, of whom the presiding judge must always be one, must make out, sign, and deliver to the sheriff of the county a warrant, stating such conviction and sentence, and appointing the day on which the sentence is to be executed. Such day must not be less than four weeks, and not more than cight weeks from the time of the sentence.(¢) Whenever, for any reason, any convict sentenced to the punishment of death, shall not have been executed pur- suant to such sentence, and the same stands in full force, the supreme court, on the application of the attorney general or of the district attor- ney, may issue a writ of habeas corpus to bring such convict before the court, or if heis at large, a warrant for his apprehension may be issued by the court, or any justice thereof. On such convict being brought be- fore the court, it must proceed to inquire into the facts and circumstances ; and if no legal reasons exist against the execution of the sentence, it is made the duty of the court to sign a warrant to the sheriff, commanding him to do execution of the sentence, at such time as shall be appointed therein; which must be obeyed by the sherif{(«) It has been decided where the execution of the sentence of the defendant is respited by the governor for the purpose of having the conviction reviewed by the su- preme court, it is the duty of the sheriff to execute the sentence of the court on the day to which the execution is respited, unless the judgment be reversed or annulled, or a further respite be granted. And it is not necessary in such a case that the defendant be previously brought into court by habeas corpus.(v.) The method of inflicting the punishment of death is pointed out in the revised statutes.(w) If, after a convict has been sentenced to the punishment of death, he becomes insane, the sheriff, with the concurrence of a justice of the su- preme coutt, or if he is absent from the county, with the concurrence of the county judge, may summon a jury to inquire into such insanity, and must give immediate notice to the district attorney of the county.(z) It is the duty of the district attorney to attend such inquiry, and he may produce witnesses before the jury. If it is found by the inquisition of the jury that the prisoner is insane, the sheriff must suspend execution of the sentence until he shall receive a warrant from the governor, or from the justices of the supreme court, directing the execution of the convict.(y) (8) 2B. 8. 789, § 18. (w) 2 B.S. 748, Bd ed. §§ 25 to 28, (t) Id. 657, §§ 11,12. ‘(@), Laws of 1847, p. 487, § 3. 2R.8. (u) Id. 659, §§ 28, 24. 6 658, § 16. (v) The People v. sa ae Wend. 159, (y) 2 R. 8. 658, §§ 17, 18. 378 INDICTMENT, [Book v1. Ifa female, sentenced to death, is pregnant, the sheriff is to summon a jury to try the question of pregnancy; and if it appears by the in- quisition that she is quick with child, the sheriff must suspend the execu- tion of her sentence, until he shall receive from the governor a warrant, appointing a day for her execution pursuant to her sentence.(z) Reprieve of convicts.| No judge, court, or officer, other than the gov- ernor, has any authority to reprieve or suspend the execution of any con- vict sentenced to the punishment of death; except sheriffs in the cases above specified.(a) (2) 2 B.S. 658, 8§ 20, 21, 22. (a) Ibid, § 15. BOOK VII. Writs uf Error and Certivraris. I, Wrirs oF rrror. I. Crrrioraris. 1. Generally. 2. To remove proceedings on indictments before trial. 8. To remove proceedings on indictments after trial and before judg- ment. 4, Certioraris to courts of special sessions. CHAPTER I. Writs of Error. js A WRIT oF ERROR is used to remove the indictment and others pro- ceedings from the oyer and terminer or sessions into the supreme court, after judgment given in the court below, for the purpose of reversing such judgment “When once judgment is given, this is the only remedy for any defect in the proceedings. But it can never be obtained before judgment.(a) In what cases authorized.| In all cases except on trials for capital offenses, writs of error upon any final judgment rendered upon any in- dictment are writs of right and issue of course, in vacation as well as in term, out of the court in which by law they may be made returnable.() But where the offense is capital, such writs can not issue unless allowed by one of the justices of the supreme court, upon notice given to the at- torney general or to the district attorney of the county where the con- viction was had; and no other officer is authorized to allow such writs.(c) (a) 1 Chit. Or. L. 747. (© Ibid, §14. (b) 2B. 8, 740, § 15. 7 Cowen, 39, 380 WRITS OF ERROR AND CERTIORARIS. [Boox vit. The statute declares that writs of error shall issue out of and under the seal of the court in which they shall be returnable, and shall be tested in the same manner as other writs issued out of such court.(d) It has been held that where proceedings in the sessions are removed into the supreme court upon certiorari, before judgment, according to the statute, and they are remitted, a writ of error does not lie to the supreme court from the court of errors, (now the court of appeals.)(e) Nor will a writ of error lie in behalf of the people, after judgment for the de- fendant.(f) In one case(g) it is said that the same rule applies to criminal as to civil cases; and that a writ of error will not be granted where the merits have been fairly tried. Wien to stay proceedings.] The statute provides that no writ of error shall stay or delay the execution of the judgment, or of sentence thereon, unless the same shall be allowed by a justice of the supreme court, or by a circuit judge, with an express direction therein that the same is to operate as a stay of proceedings on the judgment upon which such writ of error is brought.(A) Filing writ, §c.| Such writ, when so allowed, shall be filed with the clerk of the court in which the judgment was rendered, who shall furnish to the party filing the same, a certificate of the filing thereof, together with a copy of the allowance.(7) Custody of defendant.| If the defendant be in the custody of the sheriff, and such allowance direct astay of proceedings on the judgment, it is the duty of such sheriff, upon being served with the clerk’s certificate of such writ being filed, and a copy of the allowance of such writ, to keep such defendant‘4n his custody, without executing the sentence passed upon such indictment, and to detain the defendant, to abide such judg- ment as may be rendered upon such writ of error.(/) Letting defendant to bail] If the offense charged in the indictment is punishable by imprisonment in a state prison or in a county jail, any officer authorized to allow such writ of error, may allow a writ of habeas corpus to bring the defendant before him ; and may thereupcn let him to bail, upon a recognizance with sufficient sureties, conditioned that such defendant shall appear in the supreme court to receive judgment on such writ of error, or in the court where the trial was had, at such time and place as the supreme court shall direct, and that he will obey every order and judgment which the supreme court shall make in the premises.(2) Return to writ.) Upon any writ of error being filed which shall operate as a stay of proceedings, it is the duty of the clerk of the (d) 2 B.S. 277, § 8. (h) 2 BR. 8. 740, § 16. (e) The People v, Stearns, 23 Wend. 634. (2) Ibid, § 17. (f) The People v. Corning, 2 Comst. 9. (k) Thid, § 18. (7) Richard v. Walton, 12 John, 434. (2) Thid, § 19. oar. 1.] WRITS OF ERROR AND CERTIORARIS. 381 court to make a return thereto without delay, containing 4 transcript of the indictment, bill of exceptions, and judgment of the court, certified by the clerk thereof.(7) Duty of district attorney thereon.| 'The district attorney of the county must bring on for argument, as soon as practicable, the return to such writ of error; and it is also competent for the defendant in any indict- ment removed by writ of error, to notice and bring on for argument the return to such writ.(7) Notice of argument.| If an attorney has appeared for the defendant in any indictment so removed by writ of error, or by certiorari, by giving notice of his appearance to the district attorney, within ten days after the filing of such writ of error, or within ten days after filing the cer- tificate staying proceedings, notice of argument thereon may be served on such attorney, by the district attorney, asin other cases. If no attor- ney has so appeared, such notice must be served personally on the defend- ant if he be in custody; and if he be not in custody, it may be served by affixing the same in the office of a clerk of the supreme court.(o) Argument.| The argument of a criminal case, brought up on error, can not be moved out of its order on the calendar, unless the notice states the intention to do so. The counsel for the people has the right to move such cases out of their order during the first week of the term: after that either party may, on due notice.(p) Assignment of errors, &c.] No assignment of errors or joinder in error is necessary upon any writ of error issued pursuant to the foregoing provisions: but the court must proceed on the return thereto, and render judgment upon the record before them.(q) Judgment.] If the supreme court affirms such judgment, it must direct the sentence pronounced to be executed, and the same must be executed accordingly. If the supreme court reverses the judgment ren- dered, it must either direct a new trial or that the defendant be abso- lutely discharged, according to the circumstances of the case.(r) In a case where the defendant demurred to the indictment, and judgment was given against the people, which was reversed on error, it was held that the supreme court must pass final judgment for the peo- ple, on the demurrer, and pass sentence ; and that he could not withdraw the demurrer and plead.(s) A judgment of reversal, by default, will not be given, in a criminal case. There must be proof of error in the record or proceedings of the court below.(¢) (m) 2B. 8. 740, § 20. (r) 1 Barb. Sup. C. Rep. 186. (n) Id. 741, § 21. (s) People v. Taylor, 8 Denio, 91. (0) Ibid, § 22. () Barron v. The People, 1 Barb. Sup. (p) Ibid, § 23. ©. Rep. 186. (g) Ibid, § 24. 392 WRITS OF ERROR AND CERTIORARIS. [noox vii. New trial.| If a new trial is ordered by the supreme court, as above provided, the same is to be had in the court in which the indictment was first tried.(7) Defendant not appearing.] If a defendant in any indictment has been let to bail after the bringing of any writ of error, and neglects to appear at any new trial that may have been ordered, or to appear and receive judgment, the court authorized to render such judgment, or in which such new trial was directed, may cause such defendant to be arrested, in the same manner as upon the finding of an indictment, and may forfzit his recognizance and direct the same to be prosecuted.(v) Remanding indictment, §c.] Whenever any indictment shall be re- moved into the supreme court, or any person indicted shall be brought into that court by habeas corpus, the justices thereof may remand such person and such indictment to the proper county, where such indictment may be tried; and the court of oyer and terminer, or the court of sessions to which any indictment shall be so remanded, shall proceed therein in the same manner as if such indictment had not been removed into the supreme court.(w) It is a general rule that if a record come into the supreme court it can not be remanded to the court below. Had it not been for this last section of the statute above referred to, (which corresponds with 1 R..L. 1813, p. 496, § 7, and 6 Hen. 8, ch. 6,) indictments for felonies removed into the supreme court must always have remained there. It is in virtue of that statute that they go down to the oyer and terminer or sessions of the proper county.(z) (wu) 2 B.S. 741, § 26. (w) Id. 742, § 28. (v) Ibid, § 27. (a) 7 Cowen, 183. OHAP, IL] WRITS OF ERROR AND CERTIORARIS. 383 CHAPTER IL. Certioraris. 1. GENERALLY. 2. To REMOVE PROCEEDINGS ON INDICTMENTS, BEFORE TRIAL. 8. To REMOVE PROOEEDINGS ON INDICTMENTS, AFTER TRIAL AND BEFORE JUDG~ MENT. 4. CERTIORARIS TO COURTS OF SPEOIAL SESSIONS. 5. To REMOVE SUMMARY CONVICTIONS HAD BEFORE SINGLE JUSTICES. 1. CERTIORARIS GENERALLY. Tue writ of certiorari is an original writ issuing out of the supreme court, directed to the judges or officers of inferior courts, commanding them to,return the records of a cause depending before them, in order that the party may have more sure and speedy justice done him.(a) The supreme court has power, at common law, to review the proceed- ings of all inferior tribunals ; to pass upon the jurisdiction of such tri- bunals, and to review all legal decisions made by them, but not their de- terminations upon matters of fact; which are conclusive, unless a power of review is given by statute.(6) Where a new jurisdiction is created, to proceed according to the course of the common faw, it is always implied that a certiorari will lie, to remove its proceedings. But where a new special jurisdiction is to decide according to other rules, the implication will not include it.(c) A writ of certiorari lies to remove all judicial proceedings, except where otherwise directed by the express provision of some particular statute.(d) But it does not lie to remove other than judicial acts; therefore it does not lie to remove a mere order of court or warrant-of a magistrate.(e) A certiorari must issue out of and under the seal of the court in which it is returnable, and be tested in the same manner as other writs issued out of such court.( f)” A district attorney may remove a criminal case to the supreme court by certiorari, as a matter of course and of right.(g) The writ of certiorari is frequently used in order the better to consider and determine the validity of indictments and proceedings thereon, and a) See 1 Chit. Or. L. 371, (e) Id. ib. Cald. 809. Say. 6. See 2 b) 6 Wend. 564. See 4 Mass. R. 171. Caines’ R.179. 6 Wend. 564. (c) 1 Chit. Cr. L. 874. (f). 2B. 8. 277, § 8. (d) Id. 876. ‘ (g) 7 Cowen, 108. See 12 Pick. 498. 384 WRITS OF ERROR AND OERTIORARIS. [Boox vu. to prevent a partial and insufficient trial ; for when the proceedings have been removed, the trial will be either at bar or at nisi prius, by a jury of the county owt of which the indictment is brought.(#) And if a fair and impartial trial can not be bad in such county, the court will, upon a suggestion entered on the record, order it to be tried in the next adjoin- ing one(Z) So a special jury may be obtained in the supreme court, and more time for the trial may be thus obtained, or it may be brought on more expeditiously than in the iuferior court.(£) On the part of the de- fendant, too, this writ may frequently be advantageous ; as for the pur- pose of obtaining the judgment of the supreme court as to the validity of the proceediugs upon a demurrer ; or to enable the defendant to plead a pardon.(/) And as an inferior court can not, in a criminal case, grant a new trial, upon the merits, but only for irregularity in the formal proceedings, this advantage may be gained by the removal of the pro- ceedings.(72) ‘So, if after a verdict against the defendant, the judge entertain doubts as to the nature of the offense, the defendant may be brought up by habeas corpus and committed, and the indictment removed into the supreme court by certiorari, for the opinion of the court.(7) But the supreme court has recently decided that it will not hear criminal cases tried at the sessions or oyer and terminer upon a case made for the advice of the court; but that such cause must be brought up by certiorari.(o) Where several defendants are jointly indicted, and the indictment is removed by certiorari at the suit of a part of the defendants, whereupon the whole cause is retained for trial on the civil side, if the other de- fendants will not voluntarily come in and be recognized, &c. they may ‘be brought in on a capias.p) If there be an indictment to be removed, and the party be in custody, it is usual to have a habeas corpus to remove the prisoner, and a certio- rari to remove the record; for, without the latter, the defendant must continue in the same custody.(q) The certiorari ought regularly to be directed to the judges or magis- trates of the inferior court before whom the proceedings were originally taken.(7) But, in some cases, it may be directed to the proper officer known to have the actual custody of the record.(s) The writ may be served by delivering it to the clerk of the court below in vacation, who may return it immediately, though it be directed to the court.(¢) A certiorari does not operate as a supersedeas upon the court below, (h) 1 Chit, Or, L. 371. (0) 15 Wend. 159. (4) Id. ib, 8 Burr, 1380.: (p) T Cowen, 108. (%) 5 T. R. 626. (qg) 1 Chit. Cr. L. 386, (2) 1 Chit. Or, L, 373. (r) Id. 388. 7 Cowen, 108. 9 id. 655. (m) Td. ib. (s) 1 Chit. Cr. L. 388, (n) Id. ib. () 7 Cowen, 108, OHAP, 11.] WRITS OF ERROR AND CERTIORARIS, 385 until the defendant has complied with the direction of the statute,(w) by entering into the proper recognizance, previous to the removal. And it only operates as a supersedeas from the time of its being actually served, and not from the time of its being issued.(v) It will altogether lose its effect, unless served before the period appointed for its return; and though issued before judgment, yet if not served till after it, the certiorari will be quashed.(7) So, if after the issuing of a writ of certiorari, it ap- pear to have been improperly granted, as after judgment in the inferior court, it will be quashed by the supreme court, “because it improperly issued,” upon cause being shown.(x) The proper mode of making the return seems to be, for the clerk to indorse on the back of the writ, “the execution of this writ appears in a certain schedule hereunto annexed,” and then to give a transcript of the indictment, bill of exceptions and the certificate staying judgment, on a separate paper, annex the writ and return to the transcript, and transmit them together to the supreme court.(y) If the return be defective, it may nevertheless, be amended by leave of the court.(z) If any thing is inserted in it by way of explanation, or otherwise, Which was not commanded, it will not vitiate, but may be rejected as surplusage ;(a) as where the evidence was returned by a court of oyer and terminer.(6) 2. CERTIORARI TO REMOVE PROCEEDINGS ON INDICTMENT, BEFORE TRIAL. At common law, a certiorari lay, in criminal cases, of course, to remove the proceedings, on indictments from inferior courts, before conviction. But this right is now somewhat abridged by the revised statutes. They provide, that no certiorari to remove any indictment from a court of gen- eral sessions, before trial thereon, to the supreme court or to any court of oyer and terminer, shall hereafter be allowed. And that no certiorari to remove into the supreme court any indictment pend- ing in a court of oyer and terminer, before trial thereon, shall be effect- ual, unless allowed by a justice of the supreme court, or a circuit judge ; and no other officer shall have authority to allow such writ.(c) Before allowing any writ of certiorari to remove an indictment from any court of oyer and terminer, the officer to whom application for such allowance shall be made, shall take from the defendant a recognizance, with sufficient sureties, and in such penalty as such officer shall direct, (uw) 2B. 8. 732, § 88. (2) Id. ib. See 4 East, 175. fo) 1 Ohit. Or. L. 891. (a) 2 Salk. 493. (w) Id. ib. (6) 7 Cowen, 103. See form of certio- (w) Id. 395. 4 Halst. 21. 6 Mass. R. rari in criminal cases, 9 Cowen, 655, 72. n. (b). (y) See 1 Chit. Cr. L. ie (©) 2B. 8. 782, §§ 81, 82, 386 WRITS OF ERROR AND CERTIORARIS. [Book viz. conditioned that the defendant prosecuting such certiorari will appear at the return day thereof, in the supreme court, and plead to such indict- ment, if issue be not already joined thereon ; and will not depart such court without its leave; and that be will obey the orders and rules of such court, in respect to the trial of such indictment, and the judgment and all other proceedings thereon.(d) Every indictment so removed, shall be carried down for trial at the proper circuit court, by the district attorney of the county in which the same was found, in the same manner in all respects, as issues joined in the supreme court in civil cases, and the same proceedings, so far as they are applicable, shall be had thereon.(e) After a criminal cause is removed to the supreme court, such court has the immediate control of the whole case; and if the cause is ordered to go down for trial at the circuit, the proceedings at the trial may be reviewed on motion, the same as ina civil cause.(f) Where a criminal cause is tried at the circuit, judgment is rendered by the supreme court ; and if there be a conviction, i¢ seems that the circumstances in evidence must be laid before them by a case, or in some other way, to enable them to estimate the proper measure of punishment.(g) : , As to remanding indictments, see ante, p. 382. 3. CERTIORARI TO REMOVE PROCEEDINGS ON INDICTMENTS AFTER TRIAL AND BEFORE JUDGMENT. This matter is regulated by the revised statutes; the provisions of which are as follows: On the trial of any indictment, exceptions to any decision of the court may be made by the defendant, in the same cases and manner provided by law in civil cases; and a bill thereof must be settled, signed, and sealed, and be filed with the clerk of the court and returned upon a writ of error, or upon a certiorari, and the same proceedings may be had to compel the signing and sealing of such bill and the return thereof, as in civil cases. But no such bill of exceptions will stay or delay the rendering of judgment upon any such indictment, or the execution of such judgment, or of any sentence thereon, except as follows: Such bill of exceptions being settled and signed, if the circuit judge who tried the cause, (or if in the general sessions, the presiding judge,) or a justice of the supreme court, shall certify on such bill that in his opinion there is probable cause for the same, or so much doubt as to render it expedient to take the judgment of the supreme court thereon, such certificate, on being filed with the clerk of the court, will stay judgment on the in- dictment until the decision of the supreme court can be had upon such (d) 2R.S. 782, § 83. (7) 7 Cowen, 108, 138, 148. (6) Id. 783, § 84. See 7 Cowen, 160. Gy 1a le ese re, OHAP. I1.] WRIT OF ERROR AND CERTIORARIS. 387" exceptions. No certificate can be granted by a judge of the supreme court, however, unless application therefor has first been made to the judge who presided at the trial, and his reasons for refusing the same be attached to the bill of exceptions.(/) Letting convicts to bail.| Upon such certificate being granted, in any case where the offense charged is punishable by imprisonment in a state prison or in a county jail, the court in which the trial was had, or any justice of the supreme court, may let the defendant to bail, upon a re- cognizance with sufficient sureties, conditioned that he shall appear in the court where such trial was had, at such time as the supreme court shall direct, and that he will obey any order or judgment the supreme court shall make in the premises.(2) Certiorari to remove conviction.] When judgment has been stayed upon any indictment, as above provided, it is the duty of the district at- torney of the county immediately to sue out a writ of certiorari, returna- ble in the supreme court, to remove such indictment, with the bill of ex- ceptions and other proceedings thereon, into such court; and the clerk of the court must without delay make a return thereto, containing a tran- script of the indictment, bill or exceptions, and the certificate staying judgment. Bringing on argument of certiorari.| The district attorney of the county must bring on for argument, as soon as practicable, the return to any certiorari so issued by him in cases where judgment on an indictment is stayed. It is also competent for the defendant to notice and bring on for argument such return.(/) Notice of argument.| If an attorney has appeared for the defendant in any indictment so removed, by giving notice of his appearance to the district attorney, within ten days after filing the certificate staying pro- ceedings, notice of argument thereon may be served on such’ attorney, by the district attorney, as in other cases. If no attorney has so appeared, such notice must be served personally on the defendant if he isin custody; and if he is not in custody it may be served by affixing the same in the office of a clerk of the supreme court. Assignment of errors, §c.| No assignment of errors or joinder in error is necessary upon any certiorari so issued; but the court is to pro- ceed on the return thereto and render judgment upon the record before them. ; - Judgment.| If the supreme court decides against the exceptions taken, it must either proceed to render judgment and pronounce sentence against the defendant, or remit the proceedings to the court ia which the trial was had, with directions to proceed and render judgment. (h) 2 B.S. 736, §§ 21 to 25. (h) Id. 741, § 21. (® Ibid, § 26. 388 WRITS OF ERROR AND CERTIORARIS. [poox vm. New trial.] If a new trial be ordered by the supreme court, as above provided, ’the same is to be had in the court in which the indictment was first tried. Proceedings where defendant fails to appear.| If the defendant has been let to bail, after the staying of any judgment as above provided, and neglects to appear at any new trial that may have been ordered, or to appear and receive judgment, the court authorized to render such judgment, or in which such new trial was directed, may cause such de- fendant to be arrested, in the same manner as upon the finding of an indictment, and may forfeit his recognizance and direct the same to be prosecuted. Remanding indictments.| Whenever any indictment is removed into the supreme court, or any person indicted is brought into that court by habeas corpus, the justices thereof may remand such person and such indictment to the proper county, where such indictment may be tried; and the court of oyer and terminer or the court of sessions to which any indictment is so remanded must proceed thereon in the same manner as if such indictmeyt had not been removed into the supreme court.(Z) 4, CERTIORARI TO COURTS OF SPECIAL SESSIONS. At commen law, previous to the revised statutes, convictions had before courts of special sessions were reviewed by the supreme court, by virtue of the general supervisory powers of that court over inferior jurisdictions. According to the common law, it seems that the supreme court have no power to compel a return of the evidence, nor to reverse such a conviction for a defect in the proofs.(m) The revised statutes define and limit the powers of the court, and simplify the course of proceeding. The article of the statute relating to this subject is as follows : Who to allow certioraris.| A writ of certiorari to remove into the su- preme court a conviction had before a court of special sessions may be allowed on the application of the party convicted, by any justice of the supreme court, or by any officer authorized to perform the duties of such . Justice in vacation. When to be applied for.| The party desiring such certiorari, or some one in his behalf, shall apply for the same within ten days after such conviction shall have been had, and shall make an affidavit specifying the supposed errors in the proceedings or judgment complained of. When to be granted.] If the officer to whom application for such certiorari shall be made shall be satisfied that any error has been com- (2) 2B.8. 741, §§ 22 to 28. See ante, (m) See Revisers’ Notes, R. S. pt. 4, p. 882. 7 Cowen, 133. ch, 2, tit. 8, art. 4. e - OHAP. 11.] WRITS OF ERROR AND CERTIORARIS. 389 mitted in the proceedings or the judgment, he shall indorse upon the writ his allowance thereof, and shall certify the affidavit upon which the certiorari was allowed. But when the defendant shall have been tried by a jury, no certiorari shall be allowed upon the ground that the ver- dict of such jury was against evidence. (See 5 Wend. 530. 12 id. 347.) How served.] The said writ and original affidavit shall be delivered to the magistrates, or one of them, before whom the conviction was bad, within ten days after such allowance. : Return.| The magistrates to whom the certiorari shall be delivered, shall make a special return to all the matters specified in the affidavit accompanying the writ, and shall cause such writ, affidavit and return to be filed in the office of one of the clerks of the supreme court, within twenty days after the service of the said writ. The supreme court shall have the like power to compel the making of such return, and to require the same to be amended and perfected, as in cases of mandamus. Notice of argument.] A certified copy of every such certiorari, affi- davit and return shall be served by the party prosecuting the writ, upon the attorney general, with at least four days’ notice of the argument thereof. Proceedings in supreme court.| It shall not. be necessary for the party convicted to appear in the supreme court upon the prosecution of such certiorari ; nor shall any assignment of errors or joinder in error be ne- cessary ; but the supreme court shall proceed to hear the parties, and give judgment on the return to such writ. Staying execution on conviction.| If, at the time of his conviction, any defendant shall notify’ the magistrates before whom the same shall have been had, that he intends to remove such conviction by writ of certiorari, and shall offer to become bound in a recognizance, with satis- factory sureties, to appear at the next sessions of the peace to be held in the same county, and to abide the judgment or order of that court in the premises, it shall be the duty of such magistrates to take such recognizance, and thereupon to suspend the execution of any sen- tence upon such conviction. But such sentence shall be pronounced and entered in the minutes of the proceedings. Discharging prisoner.| If the party convicted shall have been com- mitted to prison in pursuance of his sentence, upon becoming bound with a condition as provided in the last section, with such sureties as shall be approved by the officer allowing the writ of certiorari, he shall be entitled to be discharged from such imprisonment; and the certificate of such officer stating the fact, and ordering the jailer to discharge such prisoner, shall be a sufficient warrant for his discharge. Filing recognizances.| The magistrates or officer, by whom any re- e 390 WRITS OF ERROR AND CERTIORARIS. [Boox v1. cognizance under either of the two last sections shall be taken, shall im- mediately cause the same to be filed with the clerk of the county. Proceedings by court of sessions.] The court of sessions, in which the party so convicted and recognized, shall be bound to appear, has power to continue such recognizance, or to require a new re- cognizance with further or other sureties, until the decision of the supreme court shall be had in the premises; and in default of compli- ance with any such requisition, the said court of sessions may commit the party so convicted to close custody.(z) Judgment of supreme court.| The supreme court, it seems, is re- stricted from reversing the conviction on the ground that the verdict is against the weight of evidence. But it may examine any other errors in the proceedings and judgment, which appear on the face of the return.(o) If the conviction be reversed, and the defendant be in prison by virtue thereof, the supreme court shall award a writ of supersedeas for his dis- charge. If the defendant shall have been let to bail, as above provided, the judgment of the supreme court, whether the conviction be reversed or affirmed, shall be remitted to the court of sessions of the proper county, to be by that court carried into effect.(p) Proceedings of court of sessions thereon.] Upon such judgment being received, the court of sessions, if the conviction be reversed, shall discharge the defendant ; if the conviction be affirmed and the defend- ant shall have been sentenced by the court of special sessions, such court of sessions shall order that such sentence be executed; and if the defendant shall have been let out of prison as herein provided, he shall be remanded to such prison for the remainder of the term for which he was sentenced. If the conviction be affirmed, and the defendant shall not have been sentenced, the court of sessions shall proceed to sentence the defendant upon such conviction, in the same manner and with the like effect as if such conviction had been had in such court of sessions. Quashing certiorari.] If it shall appear to the supreme court that the person prosecuting such certiorari has unreasonably delayed to notice or bring on for argument the return to such writ, such court may enter a rule to quash the certiorari; and upon the same being certified to the court of sessions in which the person prosecuting such writ shall be bound to appear, such court shall proceed thereon, in the same man- ner as if the judgment of the court of special sessions had been affirmed by the supreme court.(q) A court of special sessions before whom a conviction is had, may pro- ceed and cause their judgment to be executed, notwithstanding notice of (n) 2B. S, pt. 4, ch. 2, tit. 3, art. 4. (p) 22.8. 719, § 54. (0) Pulling vy. The People, 8 Barb. 384. (q) Ibid, §§ 55, 56, 57. OHAP. I.] WRITS OF ERROR AND CERTIORARI. 391 an intention to remove the conviction, and the entering into a recogni- ance by the defendant, if a certiorari is not actually sued out.(7) The proceedings of a court of special sessions will not be reversed, on certiorari, for the errors of the magistrate before whom the complaint was made.(s) ~ On certiorari the supreme court can not pass upon the question whether the finding by the jury before a court of special sessions was against or without evidence; and therefore, though the facts of the case be return- ed, they will not look into them to see whether or not the jury erred.(¢) 5. To REMOVE SUMMARY CONVICTIONS, HAD BEFORE SINGLE JUSTICES. The revised statutes make no provision for the removal of summary convictions had before single justices, into the supreme court by certiorari. Yet it could hardly have been the intention of the legislature that a party aggrieved by such a conviction should be remediless; and inas- much as a writ of error will not lie upon a summary conviction,(z) it is fair to presume that it was intended to leave the party to the common law remedy by certiorari. The right to bring a certiorari exists as a matter of course in every case in which it is not expressly taken away ; and it has been frequently decided that nothing but an express and positive enactment can have this effect.(v) And even when the statute declares in terms that the pro- ceedings shall not be removable by certiorari, this does not, in England, prevent its issuing at the suit of the prosecutor ; for, to restrain the pre- rogative of the crown in this particular there must either be words for that express purpose, or an intention manifestly appearing in the act that the crown as well as the subject should be included.(w) And though taken away generally, the writ will still be grantable in case of malversation.(x) In England it is the practice to remove summary convictions by certio- rari, and the practice is authorized and regulated by statute.(y) The writ is directed to the justice by whom.the conviction was made; or if the con- viction has been returned to the sessions, then to the justices assigned to keep the peace in and for the county, and to the clerk of the peace.(z) The writ is of no effect unless it is delivered before the time for its return has expired ;(@) but when duly delivered, its effect is to remove all proceed- ings of the nature described therein, which have taken place between (r) 5 Wend. 110. 1 Dow. & Ry. 486. Hult. 82, 88. Palm. (8) Id. 580. 279. Ante, p. 883. (t) Id. ib. 12 id. 347. (w) Rex v. Allen, 15 East, 341. 2 Chit. (uw) Rex v. Leighton, Fort. 178. Rex Rep. 136. Hult.85. Palm.283. 1 Per. v. Lomas, Comb. 297. 1 Burn, 604. & Day. 358. Palm. 278. 1 Nun & Walsh, 636. 2) 1 Gale & D. 167. (v) Rex v. Jukes, 8 T. R. 542. Rex v. { 1 Nun & Walsh, 636, 639. Mosley, 2 Burr, 1040. Rex vy. Reeve, 1 (2) Id. 639, 641. Palm. 293. W. BL. Rep. 231. Rex v. Eaton, 2T.R. (a) 2 Hawk. ch. 27, § 64. Rex v. 89. Rex v. Territ, id. 785. Rexv.King, Rhodes, 1 Keb. 944. 392 WRITS OF ERROR AND OERTIORARIS. [Boox vir. the teste and return, although the proceedings originated after the teste.(b) And further steps taken before the justice are void and cor am non judice(c) besides being a contempt of the court out of which the certiorari issued, for which the justice is liable to attachment and fine.(d) It is however said, that if the certiorari come after the adjudication made, but before the amount of the fine has been agreed upon, it is no con- tempt to fix the amount, in order to return the judgment complete.(e) The return to the writ should certify the record itself, and will be bad if it only certifies the tenor thereof, or even a copy of it(f) Butif the writ comes to the justice after the conviction has been returned to the sessions, he should state in the return that the record is returned to the sessions, and that a copy is annexed to the writ.(g) If the defendant be in custody, in pursuance of a summary convic- tion, his proper remedy is by habeas corpus, and if there be any fault or illegality in the warrant of commitment alone, the error may be gener- ally taken advantage of; as, upon the delivery of the writ to the jailer the commitment is returned along with the body of the prisoner. If the defect be in the conviction, a certiorari may be sued out along with the habeas corpus in order to have the conviction also returned.(h) (6) 2. Ld. Raym. 886. 1 Salk. 149. 1 (e) 2 Ld. Raym. 1584. 2 Str. 795. East’s Rep. 298. (f) 1 Salk. 147. 1 Dowl. P. ©. 510, (c) Id. ib. 2 Hawk. ch. 27, § 64. 4 Barn. & Cress. 401. 1 Hud. & Bro. 1, d) 1 Mod. 44. 1 Ld. Raym. 469. 1 (g) 1 Nun & Walsh, 641. 2 T. BR. 285, Balk. 148. 1 Burn, 619. (A) Thid, 642. Palm. 272, 277. BOOK VIII. : Cnitene. Unner this title the general rules and principles only of evidence will be treated of. The evidence applicable to each particular species of offense will be found stated under its appropriate head, in connection with each offense remarked upon in this work. It may be proper here to premise, that the rules of evidence in criminal cases are, in most respects, the same as in civil cases. The chief distinction which prevails will be found to originate in that caution which is always observed when life or liberty is in question, and in those benign presumptions with which the law meets every accusation involving moral turpitude.(a) The subject will be considered in the following order : I. GENERAL RULES OF EVIDENCE; AND WHAT ALLEGATIONS MUST BE PROVED. Tl, Wreirren Evmenoer. 1. Public documents and records. 2. Private documents. Ill. Parot Evipenor. . In what cases admissible. . Competency of witnesses. . Credibility of witnesses. . Examination of witnesses. . Compelling attendance of witnesses. . Their fees and expenses. . Privileges of witnesses from arrest. TV. SeconpARY EVIDENOE. V. PRESUMPTIVE EVIDENOE. VI. Hearsay EVIDENCE. VII. Conressions. IAT Pw OH (a) See Cowen & Hill’s Notes, 419. 8 Day, 283. 2 Hale’s P. C. 193. 50 394 EVIDENCE. [poor vu. CHAPTER I. General rules of Evidence, and what allegations must be proved. Tue first general rule respecting evidence, whether in civil or criminal cases, which we shall notice, is that the best evidence must be given of which the nature of the thing is capable.(b) That is, no evidence but the best in degree that is in the party’s power or possession shall be ad- mitted. Thus, if he offer a copy of a deed or will when he can produce the original, it raises a presumption that the original contains something which, if produced, would make against him. Therefore a copy in such case is not evidence. But if the original be in the hands of the adverse party, who refuses to produce it, on notice, or if it be lost or destroyed without his fault, a copy will be admitted, for it is then the best evidence in his power.(c) And if the party have no copy, then parol evidence may be given of the contents; and there is no difference between civil and criminal proceedings in this respect.(d) But though the best evidence is required, the greatest quantity of ex- isting proof is not. Thus, the execution of a deed, attested by several witnesses, may be proved by one of them; and if no witness can be pro- duced, proof of the signature of one is sufficient.(e) So evidence equal in degree to that for which it is substituted, is sufficient. Thus, the wri- ter of a paper need not he called to prove he wrote it; another may prove the hand-writing.(/) Parol evidence is inferior in degree to written eyidence; consequently, written evidence must be first resorted to.(g¢) But if a party can keep a written instrument out of view, he may, if he can, make a prima facie case by parol, which it lies on the opposite party to rebut.(h) When a document is not evidence at common law, and a copy is made evidence by act of parliament, a copy must be produced. The ougiial is still inadmissible.(7) / Another general rule is, that the evidence shall be confined to the point in issue(k) ‘Therefore it is not allowable to show, on the trial of an in- (6) Gilb. Ev. 13. Bull. N. P. 298. 9 (g) 8 eee & Oress. 708. 1 Barn. & Cowen, 20. Adol. 9 c) Matt. Dig. 120. Bull. N. P. 298. = (A) Por Bayley, J.8 Barn. & Cress. 710. 8 Barn. & Cress. 708. ae 2 Camp. 121, n. But see 6 T. R. d) 2T. BR, 201. (e) Stark. Ev. 391. Matt. Dig. 120. Om Roscoe’s Cr. Ev. 57. 2 Russ. on aor” Stark. N. P. O. 167. Stark. Ev. Or. 694, OILAP, 1.] EVIDENCE. 395 dictment, that the prisoner has a general disposition to commit the same kind of offense as that for which he stands indicted. Nor is it compe- tent for the prosecutor to give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference that the prisoner has committed the offense in question.(?) But where several offenses are connected together and form part of one entire transaction, then the one is evidence to show the character of the other.(7) So overt acts of treason, not expressly charged in the indictment, are evidence, if they be direct proof of any that are laid.(m) So on an indictment for cheating a tradesman, evidence of the defendant’s having made false representations to other tradesmen was admitted.(o) Where a person put marked money into a till, and set one to watch, evidence was admitted of several visits to the till by the prisoner, of several inspections of the till in consequence, and of the decrease of the money each time ; though it was objected that these were several felonies.(p) So where several articles are found in the prisoner’s possession, the prosecutor need not, on the mere probability that the prisoner stole them at different times, confine his evidence to one of them, if they might have been stolen at once.(q) Where the prosecution is not directly for a crime, but for a penalty, evidence of the character of the prisoner is not admissible.(r) But in trials for felony and treason and also for misdemeanors, where the direct effect of the prosecution is to subject the defendant to corporal punish- ment, witnesses may be called to testify to his general character ; but not as to particular transactions.(s) Evidence of good character, how- ever, will be of no avail in a clear case.(?) It is also a general rule that where the defendant pleads the general issue, not guilty, the prosecutor must prove every fact and circumstance stated in the indictment which is material and necessary to constitute the offense.(u) Thus, all facts stated on the face of the indictment which enter into the substance of the offense charged, and all facts necessary to constitute the offense, though not so stated, must be proved.(v) And all the distinctions between material and immaterial averments are equally well settled in criminal as in civil cases. Thusaverments wholly uncon- nected with the charge may be treated as surplusage, and need not be proved.(w) And where averments in an indictment are divisible, it is sufficient if the substantive crime stated be proved, though not to the full extent charged. As where a defendant is charged with having done and (2) Roscoe’s Cr. Ev. 57. 1 Leigh, 574. (r) 2 Bos. & P. 582. (m) 2 Russ. on Cr. 696, (8) Matt. Dig. 128. Peake’s Ev. 7. (n) 4 St. Tr. 661, 697. Holt, 683. (t) Roscoe’s Cr. Ey. 78, n. (1). (0) 1 Camp. 400. 4 East, 171, n. (u) Arch. Cr. Pl. & Ev. 95. (p) 6 Barn. & Cress, 145. (©) 2 Leach, 594. (D By. & Moo. ©. 0. 148. (w) 1 Chit. Cr. L, 294, 396 EVIDENCE. [Book vim. caused to be done, &c., proof of either is sufficient ;(7) or forged or caused to be forged.(y) So where a man was charged with publishing a libel against magistrates with intent to defame them and also to bring the administration of justice into contempt, Bayley, J. held proof of either intention sufficient.(z) On an indictment for felony, a felony must be proved; but the de- fendant may be convicted of a felony of less atrocity than that alledged ; as on an indictment for murder he may be found guilty of manslaughter;(a) or when indicted for breaking a house and stealing, he may be convicted of simple larceny.(6) On an indictment under the statute of stabbing, he may be acquitted of the statutable offense and found guilty of felonious homicide.(c) On an indictment for stealing privately from the person, he may be found guilty of the larceny only.(d) On an indictment for grand, the offense may be reduced to petit larceny ;(e) robbery may be softened into felonious theft ;(,f) and evidence of a man’s being a prin- cipal in the second degree will support an indictment charging him as principal in the first degree, and e contra.(g) Where an intent is laid to steal the whole, and the evidence is of an intent to steal a part, it seems to be sufficient.(z) And on an indictment founded on a statute the de- fendant may be found guilty at common law.(i) But a defendant can not be found guilty of a misdemeanor on an indict- ment for felony ; because he would by that means lose the benefit of having a copy of the indictment, a special jury, and of making his full defense by counsel.(k) Where the offense appears from the evidence to be of a higher degree than is alledged in the indictment, it is in the discretion of the court to discharge the jury, and direct another indictment to be preferred.(?) Thus, where a prisoner is accused of murder, and the crime amounts to petit treason, the court will not direct an acquittal, but discharge the jury of that indictment and directa fresh bill to be preferred, lest he should avail himself of the previous acquittal.(m) Upon an indictment for burglary and larceny, against two, one] may be found guilty of the burglary and larceny, and the other of larceny only.(7) The several parts of an indictment, and other facts, required to be thus proved, may be considered under the following heads: Venue and place.| Asa general rule, the offense must be proved to have been committed in the county where the defendant is indicted. The (#) 2 Camp. 588. -(f) Id. ib. 2 Hawk. ch. 47, § 6. (y) 1 Burr. 400. (g) Fost. 851. 1 Hale, 122. (2) 8 Stark. 85. (h) Ry. & Moo. ©. O. 107. (a) 9 Co. 676. (i) 2 Hawk. ch. 46, § 178. (b) 2 Hale, 208. (A) Str.1187. Kel. 29. Cro. Car. 332. (c) Style, 86. 2 Hale, 302. (2) Fost. 827. (d) 1 Leach, 240, 2 Hale, 802. (m) Id. ib. 1 Chit. Cr. L. 637, 8, 9. (e) 2 Hale, 302, 2 Str. 1184. (n) Russ. & Ry. O. OC. 344, onaP,. 1] EVIDENCE. 397 particular cases in which the legislature have dispensed with this rule and extended the jurisdiction, will be found noticed in the different heads under which they occur. If the offense prove to have been committed out of the jurisdiction of the court, the defendant must be acquitted. It is not in general necessary, even in treason or murder, to prove that the offense was committed in the precise village, parish, or place, laid in the indictment. Any where within the proper county is sufficient.(o) But where place is the essence of the crime, as in burglary, &c. the parish or place must be proved.(») And so wherever it is stated as matter of lo- cal description, and not merely as venue. So also where the indictment is on a particular statute which gives the penalty to the poor of the parish where the offense was committed.(q) Time.| In nocase need the precise day or even year be proved as laid, except where the time enters into the essence of the offense ;(r) as in burglary ; yet there it is not necessary to prove strictly the hour or day as laid, if it be proved to have taken place in the night time.(s) So where it was averred that a barn was set fire to in the night time, it was holden not necessary to prove it so, for the averment was unnecessary.(¢) But a variance in the date of a deed or other written instrument is fatal.(w) Where several offenses are described as having been commit- ted on such a day and divers days and times afterwards, evidence can not, it seems, be- admitted to prove more than one offense prior to the day named.(v) And if a person be charged with burglary and larceny committed on the day laid in the indictment, the prosecutor can not be admitted to prove a distinct larceny on a prior day.(w) Overt acts of treason may be proved to have been committed on a day different from that laid in the indictment.(z) Names of parties] A variance between the proof and the statement of the real name of the prosecutor, ora third party, is fatal, unless the name can be rejected as surplusage.(y) Where a defendant was indicted on the repealed statute of 12 Anne, ch. 7, for stealing in the dwelling house of A. B., on failure of strict proof that it was the dwelling house of A. B., he was acquitted of the capital charge, and found guilty of simple larceny | only.(z) Ifa party be described as a person to the jurors unknown, and it appear that at the time of finding the bill his name was known, he will be acquitted(a) : (0) 2 Hawk. ch. 25, § 84. Russ. & Ry. (v) Bull. N. P.86. 1 Saund.24,n. 1 ©. C.9. Matt. Dig. 118. Stark. 351. (p) 2 Hale, 179, 244. 4 Bl. Com. 306. = (w) 2 Leach, 708, (q) Matt. Dig. 118. (a) Fost. 8, 9. 1 East’s P. ©. 125. (rv) 9 East, 162. 2 Inst. 218. Holt, 301. (y) Ry. & Moo. O. ©. 257. 2 East’s P. (s) 2 East’s P. O. 518. C. 598. | (2) Id. 1021, 1085. (2) Leach, 889, n. a, 252. © See 2 Camp. 807,n. 4id.209. 1 (a) 8 Camp. 264. | T. R. 656. 398 EVIDENCE. [poor vit. Goods.] In offenses relating to personal property, the evidence must correspond with the description of the goods in an indictment; as in lar- ceny—an indictment for stealing a pair of shoes can not be supported by evidence of a larceny of a pair of boots.(6) A variance in the number of the ‘goods (if the precise number stated do not constitute the essence of the offense,) is not material.(c) Written instruments.| A written instrument set out in the indictment must be proved as laid, or a variance will be fatal.(d) Sums and value.| Fixcept where the precise sum stated forms the es- sence of the offense, or is matter of description, as in forgery, it isin gen- eral unnecessary to prove the precise sum as laid. Thus, in an indict- ment for extortion, or for taking a greater brokerage than is allowed by law, it is not necessary to prove the taking of the precise sum laid.(e) Where, to constitute an offense, it is essential that property should be of a certain value, it must be proved to be sufficient for that purpose.( f) Knowledge and intent.) Knowledge and intent can not be directly proved, (except by,a confession,) but when material, evidence must be given of such circumstances as will enable the jury fairly to infer them ; and when the tendency of the action is direct and manifest, it must be presumed that the prisoner designed the result.(g) So, for the purpose of establishing a guilty knowledge or intent, proof of other acts of a similar nature with those constituting the principal charge, is sometimes admis- sible.(z) Thus, on an indictment for murder, former attempts, former menaces or expressions of vindictive feelings by the defendant to the de- ceased, or the existence of any instigating motive, are admissible.(z) So for uttering forged notes or counterfeit coin, evidence of other utterings has been admitted, though not charged on the record.(k) In another case, the judge in his discretion refused it.(Z) In misdemeanors, distinct offenses, when charged, may be proved ;(7) but it is otherwise in felonies.(2) The identtty of the defendant must be established. For this purpose the attention of the witness may be directed to the person in court, and he may be asked if that is the person of whom he has spoken.(o)- Iden- tity is a question for the jury.(p) Negative and affirmative averments.] In indictments on statutes, where an exeeplion or proviso is mixed up with the description of the offense, then if the subject of the averment relate to the defendant per- (b) Arch. Cr. Pl. 66. (k) Russ. & Ry. ©. C. 182. 1 New (c) 2 Chit. Burn, 24. Rep. 92. (4) Matt. Dig. 119. (2) 2 Oar. & Payne, 633. (e) 6 T. R. 265, 462. 4 id. 590. (m) 2 Burr. 984. (/) Matt. Dig. 120. (n) 2 Camp. 132. Ry. & Moo, C. OC. (9) 6 East, 464. 294, 146, (2) 1 Denio, 574, per Bronson, J. (0) 2 Stark. 128, @ Arch. Or, Pl. 73. (p) 1 Chit. Cr. L. 558, \ OHAP. 1.] EVIDENCE. 399 sonally, or is peculiarly within his knowledge, the prosecutor need not prove the negative, but the defendant must prove the affirmative as matter of defense. If, on the contrary, the subject of such averment relates personally to the prosecutor, or be peculiarly within his know- ledge, (or, at least, as much so as in that of the defendant,) the prosecu- tor must prove the negative.(qg) Thus, on an indictment for selling ale without a license, it lies on the defendant to prove his license.(r) Where an act is required to be done by any person, the law presumes that done which ought to be done, and throws the burthen of proving the nega- tive upon the party who insists on it.(s) Presumptions of law, and facts of which the courts ex officio take notice without proof, need not be proved.(¢) Opinions.| The general rule is that witnesses must confine them- selves to facts, and that mere opinions are not admissible ;(u) except in the case of professional or scientific men, in reference to questions de- pending on science or skill in their particular art.(v) Thus the opinion of medical men is good evidence to go to a. jury, on the trial of an in- dictment for a homicide ; and their opinions may be asked upon suppos- ed cases, similar to the one before the court.(w) So, where the defense is insanity, a witness of medical skill may be asked whether such and such appearances proved by other witnesses are not, in his judgment, symptoms of insanity. But it is doubted if he may be asked whether, from other testimony given, the act with which the prisoner is charged is, in his opinion, an act of insanity ; for that is the very point before the jury to decide.(z) A physician who has not seen the patient may, after hearing the evidence of others, be called to prove on oath the general effects of the disease described by them, and its probable consequences in the particular case.(y) So, on a question as to the mental capacity of the grantor in a deed, the opinion of an intimate acquaintance, nota medical man, as to the condition of the grantor’s mind, is competent when connected with facts and circumstances within his knowledge and disclosed by him in his testimony as the foundation of his opinion.(z) Yet the opinions of witnesses, as to the capacity of a testator to do business, or make a will, unless supported by good reasons, founded on facts which warrant them, are entitled to little or no regard.(a) And the opinions of witnesses as to the improbability of a blow having been given from which death ensued, judging from the relative positions ) Arch. Cr. Pl. and Ev. 70. (e) 7 Verm. Rep.161. Russ. & Ry. C. (7) 5 Maule & Sel. 209. C. 456. 4 Wend. 320. (s) 8 East, 192. 3Camp.10. 10East, (w) 2 Halst. 244, 216. («) Russ. & Ry. C. C. 456. See ante, (t) 2Selw. N. P. 709. 8 East, 192. 8 p. 270. Camp. 10, 12. (y) Peake’s Ev. 208. Matt. Dig. 127. (u) 7 Barb. 314. (2) 7 Barb. 814. (4) 9 Conn. Rep. 102. 400 EVIDENCE. [Boox. vi. of the parties as stated by witnesses, are not admissible in evidence.(b) So of opinions as to the age of a person from his appearance ;(c) and the like as to fraud or criminal intention.(d) Professional men are to state facts and opinions within the scope of their professions, not to give opinions on things of which the jury can as well judge.(e) Where the opinion of an expert is offered, the court may hear evidence first to ascertain whether he is an expert, and then allow the opinion to be given in evidence to the jury.(f) - In proving ‘the laws of foreign countries also, the opinions of compe- tent witnesses are admissible. The unwritten law of a foreign state may be proved by the parol evidence of witnesses possessing professional skill; but where the laws are in writing, a copy properly authenticated must be produced.(g) Thus, on a trial for abduction, a gentleman of the Scotch bar was examined, as to whether the marriage as proved by the witnesses would be a valid marriage according to the law of Scot- land.(h) So, foreign unwritten laws, customs, and usages may be proved, and indeed must ordinarily be proved by parol evidence. The’ usual course is to make such proof by the testimony of competent witnesses, instructed in the law, under oath.(é) A party after having introduced evidence, before the jury, on the trial of a cause, can not be perniditted to withdraw it, on finding that it does not answer his purpose. Evidence, once given, belongs to the cause, and is the common property of all the parties.(£) (6) 19 Wend. 569. (A) Id. ib. Wakefield’s case, 238. ‘(© 6 Conn. Rep. 9. (4) Story’s Confl. of L. 580. Roscoe’s (d) 1 Whee. Cr. Cas. 205. Or, Ev. 187, n. (1). 15 Serg. & R, 84. (e) 5 Rogers’ Rec. 26. 1 John, 385. (Ff) 6 Rand. 704. (4) 7 Barb, Sup, C. Rep. 182. (9) Roscoe’s Cr. Ev. 187, 4 Camp. 155. omap. 1.] EVIDENCE, 401 CHAPTER IL. Written Evidence. 1. Pusuic DOOUMENTS AND REGORDS. 2. PRIVATE DOCUMENTS. First. Public documents and records.| Public statutes, the rules of the common law, and the general customs of the country, are never required to be set forth in the pleadings or proved at the trial; because the courts are bound ez officio to take notice of them. And therefore when the printed copy of a public statute is produced at a trial, as is frequently the case, it is not to be deemed to be produced as evidence, but rather in aid of the memory of the court and jury.(a) The revised statutes may be read in evidence in ali courts of justice and in all proceedings before any officer, board, or body in this state, provided there shall be annexed to the volume a printed certificate of the revisers or any two of them, or of the secretary of state, that such printed copy of the statutes is a correct transcript.(d) The preamble of an act, reciting that certain outrages had been com- mitted in particular parts of the kingdom has been admitted to prove an averment in an information for a libel that outrages of that description had existed.(c) Private statutes not concerning the public are considered as facts, not laws, and must be proved like other records of private rights, by examin- ed copies; unless (which is frequently the case) a clause is inserted de- claring that it shall be deemed and taken to be a public act, or thata copy printed by the public printer shall be admitted in evidence.(d) The journals of the legislature may be proved by examined copies. The printed journals are not evidence.(e) The journals are in general evidence of the facts stated therein. f) But the resolutions of the house are not.( g ) Proclamations, addresses, and articles of war, printed by and shown to have been purchased of the public printer, prove themselves.(h) And recitals in a proclamation are evidence of the facts recited.(i) (a) Arch. Or. Ev. 125. (¢) 24 How. St. Tr. 608. (b) 2R. S. 2d ed. 660, § 18. 661§§ (f) 17 id. 617. 5, 1. (g) 10 id. 1165. (c) 4 Maule & Sel. 532. (A) Matt. Dig. 128. (d) Bull. N. P, 225. See 1 Maule& (é) 4 Maule & Sel. 532. Sel. 421. 4 1 402 EVIDENCE. (soox vu. Books and chronicles of public history are not admissible in order to prove particular facts or customs.(&) But they are evidence to prove a matter relating to the country at large, being the best evidence of which the subject is capable.(2) An ancient map will bé received as evidence where it has accompa- nied possession, and agreed with the boundaries as adjusted by ancient purchases; but not against the rights of persons not parties to the making of it.(m) Records and proceedings in courts.] Records are of such authority that no evidence is allowed to contradict them ;(7) or to dispute the statement in a record, or to show that it has never been filed of record.(0) And in matters of general concern, as customs, tolls, public ways, &c. they are conclusive.( p) When a record is the gist of an issue in criminal cases in the same court, it should be produced ; or if in another court, an exemplification under the seal of the court.(g) When a record is not the gist of the issue, it may be proved by an examined copy, or sometimes by an office copy.(7) ‘To make a copy sufficient, the record must be complete. Neither the minute book of the clerk of the peace, nor of the proceedings at sessions, is a sufficient record(s) ‘The copy is to be proved by a person who has examined it throughout with the original.(¢) It should appear that the original came from the proper deposit or custody :(u) but a copy of a copy is not evidence.(v) An office copy in the same court and the same cause is equivalent to a record.(w) It is a general rule that an office copy authenticated by a person appointed for that purpose is good evidence of the contents of the original, without proof of its being an examined copy.(z) The in- dorsement by the officer on a deed enrolled is conclusive evidence of the date of enrollment.(y) Verdicts.] No verdict can be given in evidence as binding on a person, unless he be a party or privy to it.(z) To prove that a trial was had, the nisi prius record, with the postea indorsed and regularly stamped and marked, was holden sufficient.(a) Where a nisi prius record was pro- duced, with the verdict indorsed thereon by the associate, without a posted, the associate stating that none could be, as a motion for a new trial was pending, it was received.(b) (k) 1 Salk. 281, Skin. 628. (t) 1 Camp. 470, 2 Taunt, 52. (2) Bul. N. P. 249. (uv) 1 Stark. 183. 4 Camp. 372, (m) Peake’s Ev. 87, 95. (v) Bull. N. P. 226, (n) 1Inst. 117, b. 8 Price, 495. (w) 2 Burr. 1179. (0) Russ. & Ry. 526. ; (z) 1 Phil. Ev. 367. 2 Camp. 890. (p) Roscoe’s Ev. 80. Matt. Dig. 181. (y) 8 Price, 495. (q) Gilb. Ev.19. Sayer, 297. (2) Bull. N. P. 282. (7) Td. 26, (a) 1 Stra. 169. (s) 8 Barn. & Oress, 841, Moo.0.0.171, (8) 8 Car. & P. B72. omar. 11] EVIDENCE. 403 Writs.| Where a writ is the gist of the action, it must be returned and proved as a record; but where it is only inducement, it may be proved by producing the writ itself, if it has not been returned.(w) Parol evidence, without producing the writ, or sufficiently accounting for it, is not admissible.(v) An affidavit is evidence as an admission on oath against him who made it.(w) When filed of record in a superior court, it should be pro- duced or proved by an examined copy. If not so filed, it should be pro- duced, and parol evidence given of the swearing.(x) An inquisition of lunacy is evidence against third persons, but not conclusive. (y) Letters patent are proved by producing them, or an exemplification under the great seal, which is sufficient without further proof.(z) Proceedings in chancery, though public matters, are not records, and of these copies may be given in evidence(a) A bill in chancery is not admitted in courts of law to prove any facts either alledged or denied in the bill.(b) An answer will be evidence against the party ;(c) and against all persons privy to the party making it ;(d) but the answer of a guardian is no evidence against an infant, nor that of a trustee against his cestui que trust.(e) The answer may be proved by the production of the bill and answer, or of examined copies of them. f) If the bill is proved to be lost, the answer alone may be read ;(@) unless on an indictment for perjury in the answer.(f) An answer offered in evidence merely as an admission of the party on oath is sufficiently proved by an examiped copy.() Depositions in chancery are not in general admissible without proof of the bill and answer ;(£) unless so ancient that no bill or answer can be found ;(Z) or they be offered to prove an admission merely, or to contra- dict a witness.(m) In general, depositions before answers put in are not admitted.(x) But if the defendant in equity is in contempt, or has neg- lected an opportunity to cross-examine, they may be read as proof of the bill only.(0) On a trial at law directed by the court of chancery, depo- sitions may be read without proof of bill and answer, if the witnesses are unable to attend in person.(p) Depositions taken on interrogatories un- der a commission, unless of long standing, are not evidence without (u) Bull. N. P. 234. (f)_ Gilb. Ev. 56. (x) 8 Barn. & Oress. 839. 4 Esp. 160. (g) 1d. 55. 8 Barn. & Cress. 765. (w) Gilb. Ev. 51, 56. 7 Taunt. 577. (A) 2 Burr. 1189. 2 Camp. 508. _(a) Id. ib. Bull. N. P. 288. (4) 16 East, 334. 4 Barn. & Oress. 25. (y) 2 Atk. 412. 8 Camp. 126. (%) Bull. N. P. 240, Gilb. Ev. 62. (2) 1 Phil. Ev. 445. (2) 2 Price, 284, n. (a) Bull. N. P. 234. (m) 1 Phil. Ev. 875. Roscoe, 47. (6) Matt. Dig. 133. {n) Bull. N. P. 240. (c) Gilb. Ev.50. Bull. N. P. 287. (0) 1 Maule & Sel, 4. (d) 16 East, 334. {p) 15 Ves. 76. (e) Bull. N. P. 237. 404 EVIDENCE. [Boox vit. producing the commission.(q) And it must be proved that the witness is dead, insane, or absent ;(r) or has sailed on a voyage.(s) A decree in chancery is evidence between the same parties, or any claiming under them.(¢) It may be proved by an exemplification, or by a sworn copy ; or when in paper, by a decretal order with proof of the bill and answer.(z) Probate.| The probate, under the seal of the ecclesiastical (or surro- gate’s) court, of a will of personal property is good evidence of its con- tents ;(v) and is in general conclusive evidence of the facts whereof it is evidence ;(z) and the mere production of the probate will suffice, without further proof.iz) But it may be shown that the probate is forged, or was obtained by surprise, or is revoked.(y) And on an indictment for forging a will, the probate, though unrepealed, is not conclusive evidence to bar the prosecution.(z) It may also be shown that the court had no jurisdic- tion ;(@) or that the supposed testator is alive.(b) The probate is in no case evidence of a demise of lands.(c) To prove the probate revoked, the book of the prerogative (or surrogate’s) court is good evidence.(d) Letters of administration are proved by producing them, or a certifi- cate or exemplification thereof under the seal of the surrogate ;(e) or by the original book of acts diretting the grant of them.(f) An examined copy of the act book, stating the grant to the defendant, is proof of his being administrator, without notice to produce the letters.() By the revised statutes, letters testamentary and of administration, and letters appointing a collector, granted by any officer having jurisdiction, are made conclusive evidence of the authority of the persons to whom they are granted, until reversed or revoked.(h) Proceedings in foreign courts.| It seems that the sentence of a foreign court, of competent jurisdiction, if evidence abroad would be evidence here, upon the same question and between the same parties.(i) And generally the sentence will be presumed to be just ;() but it may be im- peached ;(/) and it does not seem to be in any case conclusive here, not being a record of this country, except perhaps on a question of prize.(m) Proceedings of foreign courts are proved by exemplifications under the seal of the court, though it be worn out ;(n) and its genuineness must (q) 6 Esp. 85. (c) Matt. Dig. 134. a Se a ea 1 Camp. 172. (d) 1 Leach, 30, n. 8 sp. 92. (e) Rep. Temp. Hardw. 108. (¢) Bull. N. P. 248. (f) Id. 8 East, 187. (wv) 1 Keb. 21. Bull. N. P. 244. (g) 18 East, 232, (v) Bull. N. P. 245. (A) 2 B.S. 80, § 56. (w) Gilb. Ev. 73. (i) 1 Ves. 159. 2 Stra. 733, (x) Rep. Temp. Hardw. 108. (&) 8 Bing. 358. (y) Matt. Dig. 184, (2) 9 East, 192. 1 Camp. 63. (2) Buss. & Ry. O, ©, 342, 8. (m) 4 Barn, & Cress, 411. 4 Bing. 486. (a) Bull. N. P. 247. (m) 1 Stark, 525. (2) 8 T. R. 180. onaP. 11] EVIDENCE. 405 be proved.(o) If a court never had a seal, the proceedings must be proved by examined copies ;(p) or distinct evidence should be given (if so) that the court has no seal and verifies its judgments by the signature of the judge, proving such signature(qg) But a copy signed by the clerk of the court would not be sufficient.(7) Foreign laws.| If an act done abroad be invalid by the law ther e, it is so here.(s) The written laws of a foreign state, must be proved as facts, and until proved to exist, they cannot be received in a court of justice.(¢) They may be proved by a copy duly authenticated.(u) Thus, when to prove the law of France as to marriage, the French vice consul produced a book which he said contained the code of laws upon which he acted at his office; that it was printed at the office for printing the laws of France, and that it would have been acted upon in any of the French courts; it was held sufficient proof of the law.(v) The rules are applicable to foreign laws that the best testimony shall be produced; and that such testimony as presupposes better testimony attainable by the party, shall not be received. But no testimony will be required which is shown to be unattainable. They should be authenti- cated by the authority of the foreign state, under its seal} or it should be shown that such evidence could not be procured.(w) The laws of another state, a member of the union, are to be proved as the laws of a foreign country.(x) The seal of another state, affixed to a copy of an act of its legislature, for the purpose of authenticating the same pursuant to the act of congress, proves itself, and imports absolute verity; and is presumed, until 'the contrary is shown, to have been affixed by the proper officer. But it must, in this state, be a common law seal, a scroll or impression on paper alone will not suffice.(y) Tf foreign laws are not written, they may be proved, as we have before seen, by the parol evidence of persons possessing professional skill.(z) The state acts of a foreign government must be proved by a copy examined with the archives abroad.(a) An instrument purporting to be a divorce, under the seal of the synagogue at Leghorn, is not admissi- ble without previous proof of the law of the country.(6) Proceedings in inferior courts.| It seems that the judgments of an inferior court, whether of record or not, are conclusive between the same (0) 8 East, 221. (v) 8 Stark. Rep. 178. (p) 6 Maule & Sel. 36. (w) 6 Wend. 475, 482. (g) 4 Camp. 28. (z) 1 Rawle, 886. 6 Conn. Rep. 480. (7) 2 Stark. 6. 6 Maule & Sel. 34. 8 Pick. 298. 9id.130. 5 Har. & John. (s) 1 Bos. & Pul. 141. 8 T.R. 609, 86. 2 Bibb, 238. (t) 2 Cranch, 187. 6 Wend. 481. 1 (y) 1 Denio, 876. 2 Caines, 155. John. 394, (2) re ante, p. 400. 4 Camp. 155. (u) 8 Camp. 166. 3 Stark. 178. 2 (a) I Camp. 65, n. Russ. on Cr, 723, 2° Wend. 411. (0)- Peake’s Ey. 17. 406 EVIDENCE. [boox vu. parties, upon the same subject matter.(c) Yet they may be avoided by proof that the cause of action did not arise within the jurisdiction of the court.(d) And it has been said that the judgment of an inferior court, not of record, may be controverted.(e) The judgment of a court of inferior jurisdiction, may be proved by producing the book containing the proceedings of the court, from the proper custody ; and if not made up in form, the minutes of the proceed- ings will be evidence; or an examined copy will be sufficient.(f) It seems that evidence should also be given of the proceedings previous to judgment. Of these, the book containing the original minutes will be sufficient evidence.(¢) By the revised statutes, the docket of a justice of the peace or a tran- script thereof certified by him, is declared good evidence before the same justice. And a transcript from such docket is evidence, generally, when subscribed by the justice and.verified by the certificate of the clerk of the county in which the justice resides, under seal of the court, specifying that the person subscribing such transcript was, at the date of the judg- nent therein mentioned, a justice of the peace of such county.(h) The proceedings iffany cause had before a justice, may also be proved by the oath of the justice. In case of his death or absence, they may be proved by producing the original minutes entered in a book kept by such justice, accompanied by proof of his hand-writing. Or they may be proved by producing copies of such minutes, sworn to by a competent witness, as having been compared by him with the original entries, with proof that such entries were in the hand-writing of the justice.(¢) In case a justice shall remove from the town in which he was elected, or be removed from office, the statute provides for the depositing of his books and papers with the town clerk; and makes it the duty of the justice to enter in each docket of judgments a certificate stating that the judgments entered therein were duly rendered as therein stated, and that the amounts appearing by such book to be due on such judgments re- spectively have not been paid, to his knowledge. And the entries con- tained in such docket are declared to be, in all cases, presumptive evi- dence of the facts stated therein, but may be repelled by contrary proof.(/) So if a justice, after having rendered judgment in any cause, shall die, become insane, remove out of the state, abscond, or otherwise vacate his office before issuing execution, an action of debt may be maintained (c) Matt. Dig. 136. § 247. This certificate must be given by (ad) isa 36,n. 2 Bing. 2138, the clerk of the county where the justice (e) Doug. resided at the time of the rendition of the (S) Cont, 837. 1 Barn. & Ald. 185. judgment. 8 Wend. Ne (g) Matt. Dig. 136. 2 Wm. Black. 886. * (@) 2 BR. 8. 270, § 24: Peake, 80. (k) Ig. ib. $$ 252 to OE, Td, 271, § 257. (h) 2B. 8. 269, §§ 245, 246, Td. 270, OHAP, 11] EVIDENCE, 407 on such judgment, in which the original docket thereof kept by such jus- tice shall be presumptive evidence of the facts therein stated, but liable to be repelled by contrary proof.(Z) A certificate of a justice’s judgment, to be competent evidence on the trial of a cause, must show on its face that the justice rendering judg- ment had jurisdiction, as well of the person as of the subject matter of the suit.(m) Such certificate may be granted after the expiration of the office of the justice.(m) Convictions.] Convictions must be proved like other records. A con- viction in a court of criminal jurisdiction is conclusive evidence of the facts contained in it, if it comes collaterally in question in a court of civil jurisdiction; yet an acquittal ia such courts is no proof of the re- verse.(o) Where a conviction has been procured on-the evidence of the party who seeks to avail himself of it in a civil action, it is inadmissible ; and it seems doubtful if it be admissible, even when procured entirely on the evidence of others.(p) By the revised statutes, a copy of the minutes of any conviction, with the sentence of the court thereon, entered by the clerk in whose custody such minutes shall be, under his official seal, together with a copy of the indictment on which such conviction was had, certified in the same man- ner, is declared to be evidence in all courts and places of such conviction, in all cases in which it shall appear by the certificate of the clerk, or otherwise, that no record of the judgment on such conviction has been signed and filed.(q) The statute also requires the judgment of the court upon any convic- tion to be entered in the minutes of the court; and requires the clerk to send a certified transcript of the entries in the minutes, of convictions and sentences thereon, to the secretary of state. An exemplification of which transcript, under the seal of the secretary of state, it is declared shall be sufficient evidence on the trial of any person for a second or sub- sequent offense, of the conviction stated in such transcript.(7) It has been held that it is no objection to the validity of a record of conviction by the general sessions, that the judge who signed it was not such when the conviction took place, but received his appointment after= wards.(s) It is also provided by statute that whenever any conviction shall be had before any court of special sessions, held in any other county than New- York, the magistrates shall make a certificate of such conviction, briefly stating the offense charged, and the conviction and judgment thereon, (D) 2B. 8. 272, § 265 (p) 2 Vesey, 246. 1 Camp. 151. 8 (m) 5 Wend. 291, Bing. 800. Roscoe’s Cr. Ev. 107. (n) 8 id. 898. (q) 2 RB. S. 739, § 10. (0) Bull. N. P. 245, Matt. Dig. 187. — (r) Id. 788, $8 5 to 8. (8) 1 Hill, 261. 408 EVIDENCE. [Book vi. and if any fine has been collected, the amount thereof, and to whom paid. This certificate is to be filed in the office of the county clerk within twenty days after the conviction ; and when so made and filed, such certificate, or a certified copy thereof, is made evidence in all courts and places of the facts stated therein.(¢) It has been decided thata certificate of conviction in the form directed by the above section of the statute, and which was filed in the clerk’s office within the prescribed time, is competent evidence of the facts there- in stated ; although it does not contain evidence that the court had ob- tained jurisdiction over the person of the prisoner.(u) Such a certificate being made evidence, by statute, of the facts contained in it, can not be contradicted by parol evidence showing that there was in fact no trial and conviction. Yet it seems that a party may so far contradict a record of conviction by a court of inferior jurisdiction, as to prove that the court had no jurisdiction of the offense, or of the person of the prisoner.(v) Examinations taken before magistrates.| In this state, the examina- tion of the complainant, the prisoner, and the witnesses on both sides, is regulated by the revised statutes ;(w) the provisions of which, on this subject will be more fully noticed hereafter. The rules in respect to examinations and depositions thus taken, as evidence, are not materially different from those which prevail in England under the corresponding statutes of Philip and Mary, and 7 Geo. 4, ch. 64.(z) All examinations and depositions taken under our statute, are to be certified by the magistrate taking the same, to the court at which the witnesses are bound to appear, on the first day of the sitting thereof.(y) In order to entitle the examination either of witnesses or of the prisoner to be read, it mus tbe proved, by testimony, that they are the same, without alteration, as those taken before the magistrate ;(z) and this authentica- tion is as necessary when they are introduced by the defendant for the purpose of destroying the credit of any witness for the prosecution, by showing that he varies from the statement he made before the magistrate, as when offered in evidence against the prisoner.(a) Though the statute authorizes an examination of the accused, itis not compulsory on him to answer. But if he submits to answer, and an- swers falsely, the prosecutor may disprove it, and it will be taken strongly against the prisoner.(b) An examination properly taken before a magistrate may be given in evidence against the prisoner on his trial, (t) 2B. 8. 717, $$ 88, 89, 40. (y) 2B. S. 709, $26. (u) The People vy. Powers, 7 Barb. 462. (2) Arch. Cr. Pl. 66, 78,74. 1 Chit. (v) Ibid. Or. L. 81, 65. 1Hale, 305. 8 Wend.599. (w) 2 BR. 8. 708, 9, §§ 18 to 19. (a) 1 Chit. Or. L. 80. 8 Wend. 599. (2) See 8 Wend. 599. (0) 1 Chit. Cr, L, 84, 1 Rogers’ Ree, 81. omar. 1] EVIDENCE. 409 though not against any other persons whom he may have incidentally, accused.(c) Accordingly, if two prisoners be taken before a magistrate on a charge of felony, what the first prisoner saysin his statement before the magistrate can not be given in evidence against the second prisoner ; because, when before the magistrate, the second prisoner is only called upon to answer the statements of the witnesses in their examinations taken on oath, and not what any other prisoner may have said in his examination.(d) And where a prisoner made his defense before the com- mitting magistrate, and on his trial he relied on matter of excuse wholly repugnant to his former statement, the former statement not having been given in evidence by the prosecution, the court would not allow it to be read, afterwards, to contradict the defense set up on the trial.(e) As the examination of the prosecutor, when regularly taken, is evi- dence against the prisoner, if the prosecutor dies before trial; so, on the other hand, where the prosecutor himself gives evidence on the trial, the examination may be used on the part of the prisoner to contradict his testimony.(f) So, where the testimony of a witness is impeached, at the trial, his examination taken before a magistrate may be read in evi- dence to support his testimony.(g) It may also be.read to invalidate the testimony of the magistrate in the account given by him of the facts tes- tified to by the witness on such examination.(h) One of the objects of the legislature in passing the statute was to enable the judge and jury, before whom the accused is tried, to see whether the witnesses at the trial are consistent with the account given by them before the commit- ting magistrate.(z) Though the examination of a witness, duly taken in writing, may be received in evidence on his trial, yet it can not be offered before the grand jury on preferring the bill, though there be strong grounds of suspicion that the witness has been since tampered with on behalf of the prisoner.(k) The statute is imperative on the magistrate to take the examination in writing. What the party accused says in other places may be received upon viva voce testimony ;(2) but as the law requires that his examina- tion shall be reduced to writing and returned to the court, the particulars of such examination can not be given in evidence viva voce ; unless it be clearly proved that such examination was never reduced into writing.(2) But where a written examination was inadmissible on account of the mode of taking it, parol evidence was permitted to be given of what the (c) 1 Hale, 586. 2 Hawk. ch. 64,§§31 (A) Id. ib. to 84. _5 Ohio Rep. 439. (4) 2 Leach, 558. 1Chit. Cr.L. 81. 3 (d) Queen v. Swinnerton, 1 Car. & M. Harg. St. Tr. 181. 593. (&) 2 Leach, 514. (e) Queen v. Powell, 1 Car. & M. 500. 1) 1 Chit. Or. L. 86, 7. McNall x ( f ) ao Cr. L.81. Butsee 1 Whee. Ee 1s ‘ ae C5 . 52. m) Id. ib. 5 Rogers’ Rec. 4. But (g) 15 Wend. 419. 19 id. 569. 1 Stoo, O. O. 282, 33. Grae 52 410 EVIDENCE. [Boox vim. prisoner had said at the time of his examination.(n) So, if it be proved that the examination was not taken in writing, it would seem that parol evidence of the prisoner’s declaration is admissible.(o) Therefore min- utes taken by a solicitor for the prosecution, on the examination of a prisoner, at the direction of such magistrate, may be read in evidence on the trial, asa memorandum to refresh the witness’s memory,’ though not signed either by the prisoner or magistrate.(p) The examination of a witness, sworn to have been taken pursuant to the statute, will be presumed to have been read to or by the witness be- fore it was signed by him, although the magistrate does not recollect that it was so read. The examination of a prisoner must be proved to have been read.(q) It is said by Lord Hale, that an examination taken before a magistrate, in order to be read in evidence against a prisoner, must be proved on oath by the magistrate that took it, or the clerk that wrote it, to have been duly taken.(r) In practice, however, it is said by Russell to be certainly not unusual to permit the examination to be read, upon proof of the identity of the instrument and of the hand-writing of the magis- trate, if he has signed the examination.(s) Although there is nothing in the statute providing that the deposition of the witnesses taken under it shall be, in any case, evidence, or used in any way except to support or contradict the testimony given by the witness on the trial, it seems, upon general principles of evidence, to be a settled rule, that if it be proved that the witness is dead, or is insane, or that he has been kept away by the practices of the prisoner, or is prevented by sickness from attending, or is unable to travel, his deposition duly taken on oath before the magistrate may be given in evidence on the trial of an indictment.(2) The rule is well settled, that a deposition is not admissible as evidence against the prisoner on his trial, unless it be shown that the witness was examined in his presence, so as to give the prisoner an opportunity of cross-examining him.() Depositions taken conditionally.| Depositions taken conditionally, under the New-York police act, (Laws of 1844, p. 476,) are not admissible generally, but only under certain circumstances. The words de bene esse, in the statute, import some condition to be first complied with by the party offering them. And where a deposition taken ander that act was offered in evidence on a trial, without other proof than that it had (n) 1 Moo. & Mal. 408. (r) 2 Hale, 52, 284. See also 1 Whee. (o) 1 Chit. Cr. L. 87. 2 Leach, 821. C, C. 240. 4. Rogers’ Rec. 189. 1 Hayw. 112. (s) 2 Russ. on Cr, 659, n. (p) 2 Leach, 637, 552. Roscoe's Cr. (t) See id. 659, Ev. 47, 48. 2 Russ. on Or. 658. (u) 1 Phil. Ev., Am. ed. 1889, p. 369. (%) 15 Wend. 419. Cowen é& Hill’s Notes to ditto, 988. OBAP, I1.] EVIDENCE. 411 been regularly taken, it was held that it was inadmissible, and that the party offering it should have proved that the deponent was not then a resident of the city; or, if he was a resident, that his attendance could not be procured after proper efforts made for that purpose. It need not, however, be shown preliminarily that the crime was committed in New- York, upon a non-resident; but it is sufficient if these facts appear from the deposition itself.(v) A deposition, thus taken, which is entitled in a court of general sessions, where there is no suit or proceeding pending, and in a suit which has not yet been commenced and which throughout refers to the accused, not by their individual names, but as defendants, can not be read on the trial of an indictment afterwards preferred on that charge; because of the rule that on such a deposition the witness could not be convicted of perjury, for any false swearing.(w) Depositions taken before coroners.| By the revised statutes it is pro- vided that the testimony of all witnesses examined before a coroner’s jury shall be reduced to writing by the coroner, and shall be returned by him, together with the inquisition of the jury, &c., to the next criminal court of record that shall be held in the county.(z) The statute does not seem to contemplate the presence of the accused at the time of taking the tes- timony before the jury. In England it has been held that depositions taken before coroners are admissible though taken in the absence of the prisoner.y) But this doctrine has been questioned by several writers of eminence.(z) And it seems to be the better opinion that such ez parte depositions ought to be excluded altogether as evidence against the ac- cused on his trial.(a) ° If depositions taken before a coroner are taken properly they are ad- missible in the same manner as depositions taken before a magis- trate, where the witness is dead or kept out of the way by the means or contrivance of the prisoner, or where he is unable to travel or can not be found; on proving that they are the identical depositions taken be- fore the coroner, without alteration.(6) 2d. Private documents.| It is a general rule that where a party, in making out his case, shows that any part of it rests upon written testi- mony, as a deed, agreement, or other instrument of a private nature, he must produce and prove it; unless in those cases where secondary evi- dence may be offered.(c) Proof of execution may be sometimes dispensed with, however. As (v) People v. Hadden, 8 Denio, 220. (a) See Cowen & Hill’s Notes to Phil. (w) People v. Chrystal, 8 Barb. 545. Ev. 940. (z) 2B. 8. 748, § 8. (0) Roscoe’s Or. Ev. 58. 1 Chit. Cr. (y 8T. B. 718, 722. Bull.N. P. 242. 1.586. Kel. 55. @) See 2 Russ. on Cr. 661. 2Stark. (ce) 6 Bing. 533. 3 Esp. 218. Ev. 277, 8, 9, 6th Am. ed. Roscoe’s Cr. Ev. 53, 54. A412 EVIDENCE. [BOOK VIII. if a deed be thirty years old or upwards ;(d) provided possession has fol- lowed the deed, or the custody of it be satisfactorily accounted for; but if there be any erasure or interlineation in the deed, it should be proved in the usual manner, especially if it import fraud.(e) Other old writings besides deeds are subject to this rule.(f) ‘Though the attesting witness can be produced, it seems unnecessary to call him when the deed is thir- ty years old(g) A will of thirty years old has been allowed to be read as proved, though the testator died within thirty years, and some of the subscribing witnesses were proved to be stillliving.(A) The execution of a deed to which enrollment was necessary, may be proved by the en- rollment indorsed on it; or if the deed be lost, by an examined copy of the enrollment. Where one deed or instrument recites another, it is deemed proof of the one recited, as against parties to the second, and their privies.(i) So, a deed reciting the payment of money is conclusive at law as against the parties and their privies(k) And if a party pro- ducing a deed claims a beneficial interest under it, the party calling for it need not prove the execution ;(2) otherwise, the party calling for it must prove it in the regular way.(m) A party producing a deed which he has had some months, must prove it notwithstanding he received it from the adverse party who formerly claimed a benefit under it.(7) Proof of execution.| Itis not absolutely necessary that the witness should see the deed or instrument actually executed. If the party boun- den by it acknowledges it to the witness, and asks him to witness it, it is sufficient.(o) Proof of hand-writing is presumptive evidence of due execution.(p) Anda witness may refresh his memory by looking at his own attestation.(q) Toa deed sealing is essential ;(r) but as to delivery, any act which testifies the intention to place it in the possession of the opposite party is sufficient.(s) Some evidence should be given of the identity of the par- ty whose execution is to be proved.(¢) Slight evidence of this is suffi- cient ;(w) as of the place of residence of the party as described in the deed.(v) Attesting witness, when necessary to produce him.] It isa general rule that the execution of every attested instrument, whether under seal or not, ought to be proved by a subscribing witness, if he can be produced and is capable of being examined.(w) And this is upon the ground (d) Bull. N. P. 255. 1 Esp. 275, 8. (0) 1 Esp. 97. 2 Bos, & Pul. 217. (e) Id. ib. (p) Peake, 146. 1 Bos. & Pul. 361. (7) Sel. N. P. 517, a. (q) 8 Barn. & Cress. 16. g) 2 Esp. 665. (7) Matt. Dig. 189. (h) 8 Barn. & Cress. 22. (8) 9 Rep. 187. 5 Barn. & Cress. 671. (i) 2 Bac. Abr. Ev. (F). 1 Phil. Ev. 467. (k) 6 Barn. & Ald. 606. 2 Taunt. 140. (t) Bull. N. P.171. 4 Camp. 84. (Z) 8 Taunt. 62. 38 Brod. & Bing. 139. (w) 1 Barn. & Ald. 19. 6 Moore, 487. (v) 1 Moo. & Mal. 176. (m) i: 8 er as (ew) 1 Phil. Ev, ed. 1839, 464. (nm) 1 Barn. ol. : OHAP, 1] EVIDENCE. 413 that the testimony of such witness is the best evidence of which the na- ture of the case admits; as he is supposed to know more of the facts at- tending the execution than others.(z) Besides; the subscribing witness is agreed upon by the parties, at the time, as the only witness to prove the instrument(y) Where there are several subscribing witnesses it suffices to call one of them.(z) Where a witness saw the execution of an instrument by the grantor, and the signature of other persons as wit- nesses thereto, but did not subscribe his own name as a witness to the execution, at the time, nor until after the commencement of the trial, it was held that he could not prove the execution, until the non-production of the other subscribing witnesses was accounted fora) If a person acknowledges the execution of a deed toa witness, who thereupon with his assent attests it, no matter, it seems, how long after the execution, such witness is within the general rule and must be called.(b) The evidence of the attesting witnesses is equally necessary though the issue be only as to the date, and not the existence of the deed.(c) The rule is not confined to deeds or instruments under seal, but applies equally to all written instruments which are attested.(d) It is said by Mr. Phillipps, thatthe rule requiring the testimony of the attesting witness, is so strictly observed that an acknowledgment of the obligor himself, admitting that he executed a bond, and even an admis- sion by the defendant, in an answer to a bill in chancery, will not dis- pense with the testimony of the subscribing witness.(e) And that the rule is the same whether the deed is an existing instrument or cancelled, or whether it is the foundation of the action or comes in collaterally as part of the evidence in the cause.(f) ‘This rule, however, has been re- laxed in this state, as to certain instruments not under seal. Thus, a promissory note was allowed to be proved by the acknowledgment of the maker, against whom it was sought to be established, without calling the subscribing witness.(g¢) But it is questionable whether the rule estab- lished by’ this case extends to any other than negotiable paper.(h) With respect to sealed instruments, the doctrine laid down by Mr. Phil- lipps has been steadily adhered to in this state; and an acknowledgment by the party of his having executed such an instrument, will not supersede the necessity of calling the subscribing witness.(?) Attesting witness—when dispensed with.| In some cases, the attend- (z) Cowen & Hill’sN.to Phil. Ev.1261. — (@) 1 Phil. Ev. 465. (y) Id.ib. 2 Wend.576. 33Binn.194, = (e) Id. ib, s 6, 8. 4 Monroe, 39. (f) Id.ib, See 1 South. Rep. 105. 1 (2) Peake’s Ey. 103. 1 Esp. 891. 5 Green, 226, Litt. Sel. Cas. 462. Cowen, 385. 8 Pick. 143. (g) 2 John. 451, (a) 2 Wend.575. See 11 Mass. R. 309. (4) Cowen & Hill’s Notes to Phil. Ev. (b) 8 Wash. O. C. Rep. 32,42. 9Cow- 1268. 8 John, 478. 16id.202. 2 Wend. en, 94,118. 1 Green, 228. 576. ce) 2 Stark. 284, (2 8 John. 477. 2 Wend. 575. ©) EVIDENCE. [Boox vim. 414 ance of the attesting witness is dispensed with, and evidence of his hand- writing admitted ; as where he is proved to be dead ;(&) or blind ;(2) or insane ;(77) or infamous ;(7) or to have become interested since the exe- cution ;(0) or that he is in a foreign country, or not amenable to the pro- cess of the superior courts ;(p) or where he can not, after diligent search, be found ;(q) and strict proof is required that such search has been dili- gent.(r) But proof of circumstances which raise a strong presumption that the witness has left the country, have been deemed sufficient.(s) When the attendance of the subscribing witness is dispensed with, the execution of the instrument is proved by proving his hand-writing, with some evidence of his identity; but it is not necessary to prove the hand- writing of the party himself; though he executed only by his mark.(¢) Where there is no attesting witness, or, (which is the same thing,) where he had no knowledge of the execution ;(u) or where a fictitious name is inserted ;(v) or where the attesting witness was interested at the time of the execution, (unless the party objecting had a knowledge of his intention and requested him to attest ;)(w) or subsequently becomes so and continues so at the trial ;(z) or where he has put his name as a sub- scribing witness without the knowledge or consent of parties ;(y) in all these cases the execution may be proved by proving the hand-writing of the party, or by a person who was present at the execution ;(z) or by proof of an admission by the party that he had executed that deed.(a) Hand-writing may be proved by a witness who has seen the party write, or who has been in the habit of corresponding with him ;(6) and where a letter is addressed to a person by a name which he acknowl- edges in his answer, by subscribing it with the same name, it is considered as prima facie evidence that the hand-writing is his.(c) In general, to prove the hand-writing of a person, any witness may be called who has, in either of the modes which the law recognizes as legitimate, ac- quired such a knowledge of the general character, of the party’s hand- writing as will enable him to swear to his belief that the hand-writing in question is the hand-writing of that person.(d) (z) 12 Mod. 607. (1) 1 Ld. Raym. 734. (m) 8 Camp. 283. (n) 2 Str. 833. (0) 2 Esp. 697. Cowen & Hill’s Notes to Phil. Ev. 1265. (p) 2 East, 250. (q) Id. 183. (7) 4 Bing. 264. (s) 1 Phil. Ev. 453. Matt, Dig. 140. 8 Car. & Payne, 555. (t) Matt. Dig. 140. 8 Car. & Payne, 155. 1 Moo. & Malk. 176. (a) 2 Camp. 635. (v) Peake’s Rep. 28. (w) 3 Camp. 196. (a) 6 T. R. 371. (y) 3 Camp. 2382. a Matt. Dig. 141. Com. Dig. Ev. ee 2 Chit, Burn, 58. (b) Bull. N. P. 236. 1 Wm. Bl. 384. (c) 2 Bing. 179. 9 Moore, 844. 2 Car. & Payne, 21. See Cowen & Hill’s Notes to Phil. Ev. 1824. (d) 2 Stark. Ev. 872, 6th Am. ed. Cowen & Bulls Notes to Phil. Ev. 1821. 2 Esp. 714 oHaP. 11] EVIDENCE. A15 A witness who speaks of the hand-writing from having seen the person write, is competent, though he never saw him write but once(e) But he should have seen the person write in the ordinary course of business, or at least when he had no motive for disguising his hand.( f) Where hand-writing is sought to be proved by means of a correspon- dence, it is essential that the identity of the correspondent whose letters have been received, with the party whose hand-writing is to be proved, should be established, either by the witness who received the letters, or by other reasonable evidence.(g) So hand-writing may be proved by a witness who, though he has seen no written correspondence of the party, is able to testify from other authentic papers received or examined by him in the course of business ;(/) e. g. notes purporting to have been signed by the alledged writer and afterwards paid by him; the payment being a full admission that he had made and signed them.(¢) So where an officer of a bank stated that he knew the person’s hand-writing from the circumstance of having his bank book and having seen his checks, which were received and paid in the ordinary course of business.(/) But mere comparison of hand-writing, by which is meant the actual comparison of the paper in dispute with another paper acknowledged to be genuine, in order to ascertain whether both were written by the same person, is not, in general, allowable.(/) But though witnesses can not be permitted to compare two papers and give their opinion to the jury, as the result of such comparison merely, yet the jury, under certain limita- tions, have been allowed to assist their judgment in this way.(m) In re- cent English cases the doctrine is thus laid down—that the court or jury may compare two documents together, when properly in evidence, and from that comparison form a judgment upon the genuineness of the hand- writing.(z} But the document with which the comparison is made must be one already in evidence in the case, and not produced merely for the purpose of the comparison.(o) And it seems that where comparison has been allowed to be made, even by the jury, it has been admitted only in aid and corroboration of other proof.(p) (e) 1 Phil. Ev. 484, and notes. (f) See 1 Esp. Rep. 14. 1 Nev. & Per. 32. (m) Cowen & Hill’s Notes to Phil. Ev. 1826. 1 Esp. Rep. 351. But see 9 Cow- en, 94, 4 City Hall Ree. 119. (g) 2 Stark. Ev. 372, 6th Am. ed. (A) 2 Sohn. Ca. 214. 1 McCord, 278. 2N. Hamp. R. 481. 11 Curry’s Lou, R. 94. (a) 19 John. 134, 6. (k) 4 City Hall Rec. 52. (2) 1 Phil. Ev, 490, and Cowen & Hill’s Notes, 1825, 6. 2 Stark. Ev. 373, 6th Am. ed. 4Car.&P.1. 2 id. 477. 2 John. 211. 9 Cowen, 94. (n) Id. ib. 1 Cromp. & Jer. 47. 1 Moo. & Rob. 188. 1 Nev. & P. 4. (0) Id. 1827. 1 Moo. & Rob. 184, n. Roscoe’s Or. Ev. 168. 7 Car. & P. 548, 596. 5 Adol. & Ellis, 514. (p) 8 N. Hamp. Rep.47. 1 Dana, 179. 5 Binn. 340, 9. 10 Seg. & Rawle, 110. 8 Watts, 321. A416 EVIDENCE, [Boox vin. A witness who has seen a person write, and yet retains no distinct im- pression of the hand-writing, may be allowed to refresh his memory by looking at the paper which he saw written and which he has kept in his possession, and may then declare his opinion as to the genuineness of the paper in question.(q) When the antiquity of a writing purporting to bear a person’s signa- ture makes it impossible for a witness to swear that he has ever seen the party write, it has been held sufficient that the witness should have become acquainted with his manner of signing his name, by inspecting other ancient writings which bear the same signature, provided those ancient writings have been treated and regularly preserved as authentic documents. A witness may therefore be asked whether he has inspect- ed such ancient writings in order to acquire a knowledge of the charac- ter of the hand-writing ; and then whether he believes the writing in question to be of the same character.(r) If evidence by comparison is properly admitted in such cases, to prove the genuineness of a signature, the same kind of evidence must also be admissible to prove that the sig- nature is not genuine.(s) Where the signature to be proved was by a mark, held that it might be proved by inspection, by a witness who spoke to having seen the party make her mark, and to some peculiarity in it.(¢) Mr. Phillipps observes, that where the genuineness of a signature is questioned, the most satisfactory evidence to disprove the writing and prove it forged, is the testimony of the supposed writer himself, provided he is not an incompetent witness. Next to his evidence is the informa- tion of persons who have seen him write or been in the habit of corres- ponding with him.(z) In this passage Mr. Phillipps seems to make some distinction between proving and disproving hand-writing. In the former case the supposed writer need not be called in the first instance ; but in the latter he appears to doubt whether, in criminal cases espe- cially, his testimony is not to be regarded as the best evidence, and there- fore indispensable. Other writers, however, deny that there is any difference. Mr. Starkie says, “the objection that secondary evidence is substituted for the best, does not apply in either instance, since there is not such a distinction between one man’s knowledge of his own hand- writing, and the knowledge of another, on the same subject, as consti- tutes the former evidence of a superior degree to the latter.(v) And it (q) 1 Phil. Ev. 491. 5 Jobn, 144. 6 () 1 Phil. Ev. 492. Rand. 316. 1 Nev. & Per. 51. (t) 1 Moo. & Mal. 516. (r) Id. ib. Roscoe’s Or. Ev. 163. 2 (uw) 1 Phil. Ev. 492. Stark. Ev. 6th Am. ed. 375. 1 Leigh, (v) 2 Stark. on Ev. 6th Am. ed. 339. 222. 8 Wend. 426. 15id.111. Anth. See also Roscoe’s Cr. Ev.5,6. Gresley’s N.P.105. 2 McCord, 260. 14Serg.& Eg. Ev. 189. Cowen & Hill’s Notes, Rawle, 372. 6 Peters, 767. 1882, OHAP, 11] EVIDENCE. AIT seems to be well settled that in the first instance, and in order to prove hand-writing merely, it is not necessary to call the supposed writer; but other persons acquainted with his hand-writing will be allowed to testify, without excusing the absence of the writer himself.(w) ‘Thus, on an in- ‘dictment for passing counterfeit bills it is not necessary to call the presi- dent and cashier of the bank to prove the bills counterfeit ;(7) nor is it necessary, in order to disprove the signatures of the bank officers, in such case, to call persons who have actually seen them write.(y) It is suffi- cient to call witnesses who have an acquaintance with the hand-writing of the bank officers from a general familiarity with the bills of the bank,(z) or from corresponding with such officers.(a). Proof of Wills.| To prove a demise of lands, the will itself must be produced.(b) If the will is lost, the register book, or ledger book,(e) or an examined copy, or if there be no such copy, parol evidence, may be received as secondary evidence of its contents, but not the probated) To prove a will in a court of law, one of the witnesses who can speak to all the requisites of the attestation is sufficient.(e) But on an issue out of chancery, all should be called.( /) The facts to be proved by the subscribing witnesses are, that the it sor signed the will, or that another person signed it in his presence and ‘by his express direction, and that the witness and another person attest- ed and subscribed it in the presence of the testator.(g) The revised statutes require that every last will and testament shall be executed and attested as follows: 1. It shall be subscribed by the testator at the end of the will; 2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses; 3. The testator, at the time of making such subscription, or of acknowledging the same, shall declare the instrument to be his last will and testament ; A. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator; 5. Each attesting witness is to write opposite his name, his place of residence, under a penalty, though the omission will not vitiate the will. And the person who signs the testator’s name, by his direction, must be a subscribing witness.(h) These facts must of course all be proved by the subscribing witness, -(w) See the cases collected in Cowen ‘& Hill’s Notes, p. 13832, note 918. (z) 5 Ham. Ohio Rep. 5, 7 2N, Hamp. Rep. 480. 5 id. 367. 2 Leigh, 745,701. 6 Serg. & Rawle, 568. (y) 2 N. Hamp. Rep. 280. 2 Pick. 47. 1D. Chip..295. 9 Conn. Rep. 249, (2) 2 Bai. 44, 5°N. Hamp. Rep. 367. 2 Leigh, 745. #3 (a) 5 Ham. Ohio Rep. 5, 7. 6 Serg. & Rawle, 568. 1 Whee. Cr. Ca. 548. (6) Bull. N. P. 246. (¢) 1 Ld. Raym. 781. 1 Phil. Ev, 478. (d) 2 Camp. 389. (e) Bull. N. P. 264. (f) 1 Cooper, 136. (g) 1 Phil. Ev. 497. (h) 2B. 8. 68, § 40, 41. 1P. Wms. 741. 418 EVIDENCE. [Book vm. in order to establish the validity of a will of real estate. As regards wills of personalty, we have already seen that the mere production of the probate, under the seal of the proper court, is in general conclusive, and will suffice without further proof.(z) A witness interested at the time of examination, is not competent to prove that he was not so at the time when he attested.(/) But the witness becoming incompetent afterwards, will not vitiate the will; but the will may be proved by the other attesting witnesses, or by showing his hand-writing, or by other secondary evidence.(2) And where the at- testing witness has become incompetent, the party may resort directly to other proof.(m) The competency of the witnesses must be considered with reference to the time of attestation.(7) If a subscribing witness is abroad, his hand-writing may be proved in the case of a will, in the same manner as that of an absent witness to a deed.(o) The fact being once established which lets in the proof of hand- writing, a single witness may prove the hand-writing of all(p) The hand-writing of all the witnesses must be proved, unless such proof be shown to be beyond the reach of the party.(q) If a subscribing witness should deny the execution of the will, he may be contradicted, as to that fact, by another subscribing witness. And even if they all swear that the will was not duly executed, the devisee would be allowed to go into circumstantial evidence to prove the due execution.(r) But where the witnesses either so deny or fail to prove their attestation, the counter proof must be very clear to support the will.(s) It is a general rule, that a paper appearing, on its face, to be an origi- nal will thirty years old, may be received without the usual proof by witnesses, or accounting for their absence, or showing their or the testa- tor’s hand-writing.(¢) In such a case of apparent age, the law draws the inference that the ordinary proof is all lost, and lets in such grounds of presumption as are more remote, but of a more enduring character. This presumption is conclusive ; and though the witnesses appear to be alive and within reach of process, that will not exclude the inferior proof.(z) The will which comes to prove itself, however, must appear on its face to have been regularly executed.(v) But among the marks of regularity, it is not essential that the attestation clause should mention the formalities of execution ; as that the witnesses subscribed in the pres- ence of the testator.(w) (i) Ante, p. 404. Rep. Temp. Hardw. (r) 1 Phil. Ev. 502. 4 Wend. 277, 283. 108. Gilb. Ev. 1 Const. Rep, 836. (k) 2 Dana, 448. (s) 1 Const. R. 336. 7 Har. & John. 42. (2) 4 Dev. 501. (t) 1 Phil. Ev. 508. Cowen & Hill’s (m) 8 id. 855. Notes, 1356. (n) 1 Phil. Ev. 494. (w) 8 Barn. & Oress. 22. 3 Car. & P. (0) Id. 502. 1 McCord, 74. 4 Yeates, 845 402. 4 Wend. 277, 282, 38 John, 292. (p) 2 Bay, 187. 1 McCord, 74. (v) 11 Wend. 608. (g) 5 Cowen, 221. (w) 4 id. 282. OHAP. 1] EVIDENCE. A19 CHAPTER IIL Parol Evidence. 1, IN WHAT CASES ADMISSIBLE. 2. CoMPETENOY OF WITNESSES. 3. CREDIBILITY OF WITNESSES. 4, EXAMINATION OF WITNESSES. 5. CoMPELLING ATTENDANCE OF WITNESSES. 6. THEIR FEES AND EXPENSES. , PRIVILEGE OF WITNESSES FROM ARREST. 1. IN WHAT CASES ADMISSIBLE. Parov evidence is inferior to written evidence, and can not, in general, be received instead of, nor be adduced in contradiction to written evi- dence ; though it tend to show the real intention of the parties ;(a) nor to show the invariable usage of trade ;(b) or custom of the country ;(c) in opposition to the terms of a written instrument. But a latent ambi- guity may be explained; that is, where upon the face of the instrument every thing seems right and clear till the proof of some fact renders the meaning uncertain; and then the law permits the doubt to be removed by evidence of alike kind ; as where one devised to her cousin C. J. and there were two of that name.(d) So, where from the terms of a deed the intention as to its nature is equivocal, evidence is admissible to show the intent and also that some act was done further than that stated in the deed, though forming part of the same transaction.(e) So, to show that a written contract, purporting to be made between A. and B., was in fact made by B. as agent for a third person.(f) But a patent ambi- guity, viz. that which is apparent on the face of the instrument, can not be so explained.(¢’) Parol evidence can not be admitted to contradict the terms of a deed; as to show that a lessee is to pay a given sum to the ground landlord, where the lease stipulates for the payment of a sum certain to the les- sor.(h) Nor to alter the legal construction of an instrument ;(i) as where no mention is made in an agreement when it is to take effect, the law adds the time, viz. immediately,and parol evidence is not admissible (a) 5 ea iB i as rein ee 1 Phil, Ev. 542. b) 6T. R. 320. att. Dig. 123. ey 2 Barn. & Ald. 746. (4) Peake’s Ev. 122. d) Peake’s Ev. 112. (4) 3 Camp. 426. 5 Barn. & Cress, 108, (c) 8T.R.879. 1 Phil. Ev, 544, 1 Maule & Sel. 21, 147. 420 EVIDENOE. [Boox vim. to show the contrary.(¢) Where no consideration is expressed in an in- strument it seems doubtful whether any can be proved.(/) In a settle- ment case parol evidence was admitted to show that the consideration was £30, instead of £28 as expressed in the conveyance.(m) Parol evi- dence of usage or custom is often admissible to explain the meaning of parties when not definitively expressed on the face of the written instru- ment ;(7) and especially in mercantile contracts, to show the sense in which, according to the usage and custom of merchants, the contract was made.(o) So, the construction of ancient charters, deeds, &c. may be asserted by parol evidence of usage.(p) And such evidence is always admissible to prove a fraud.(q) As to the cases in which parol evidence may be received as secondary evidence of a written instrument, where the written instrument is proved to have been lost or destroyed, or in possession of the opposite party, see post, Ch. IV. Secondary Evidence. 2. CoMPETENCY OF WITNESSES. There are two kinds of exceptions to witnesses ; to their competency and to their credibility. Objections to the competency of a witness go to prove that he can not be sworn at all, on account of some inherent inca- pacity or defect ; exceptions to the credit of a witness are such as do not at all disable him from being sworn, but merely affect the degree of be- lief which the jury will give to his evidence.(r) Thus in the case of kindred, no relationship except that of husband and wife, can disqualify aman from being examined ; though it may induce such a suspicion of partiality as greatly to lessen the value of his evidence.(s) So where a person admits himself to have sworn falsely on the same affair, and at- tributes it to the persuasion of the defendant, such an admission does not render the witness incompetent, though it may evince him to be wholly unworthy of credit.(¢) In many cases a person may be credible where he is not competent, and competent where he is not credible.(z) It is the province of the cowré to determine whether a witness is com- petent or the evidence is admissible. And whatever antecedent facts are necessary to be ascertained for the purpose of deciding the question of competency or admissibility of evidence, as for example, whether a child understands the nature of an oath—or whether the confession of a prisoner was voluntary—or whether declarations offered in evidence as (2) 8 Dow. & Ry. 548. 5 Barn. & (p) Matt. Dig. 123. Cress. 108, 8. C. (g) Id. ib. 3 Barn. & Cress. 6238. 8 (2) See 1 Rep. 176, a. 1 Ves. 128. 8 T,R.147. 2 Peer Wms. 203. Bing. 119. 6 id. 34. 3T. BR. 474. (r) 1 Ohit. Or. L. 588, 9. (m) 3 T.R. 474. (s) 2 Hale, 276. * (mn) Palm. 211. Dougl. 201. 2 B.& (¢) 11 East, 309. Ald. 746, (wv) 1 Burr. 417, (0) See 2 Salk, 443. OHAP, 111.] EVIDENOE. 421 dying declarations were made under the immediate apprehension of death—these and other facts of the same kind are to be determined by the court and not by the jury.(v) The general rule is that all persons are competent to give evidence. Incompetency is the exception, and may arise either from 1. Want of discretion ; 2. Defect of religious belief; 3. From interest; 4. From rela- tionship ; 5. From infamy; 6. From privileged communications. 1st. Incompetency from want of discretion.| Inability to understand the obligations of an oath is the first objection to the competency of a witness which we shall notice. For this reason a person insane can not be admitted to be sworn while he is in that condition.(w) But he may, if he sufficiently recover his understanding, in a lucid interval.(z) A per- son deaf and dumb from his birth, and wo understands the meaning of signs and has a due sense of moral obligation, may be examined; anda person accustomed to converse with him may be sworn to interpret the tokens he uses in his replies.(y) Or, if the witness is able, he may write his answers.(z) A person in a state of intoxication is inadmissible, on the ground of a want of discretion.(a) An infant of any age may be a witness, if he appears sufficiently to understand the nature and moral obligation of an oath; for the compe- tency of infants depends not so much upon age as understanding.(b) And therefore a child under seven years of age has been examined upon oath, when he appeared to understand its nature.(c) And the testimony of an infant of seven years, corroborated by circumstances, has been held