Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University V And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDJWAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF9219.3.W31 A manual of criminal law, including the m 3 1924 020 150 110 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 9240201 501 1 A MANUAL CEIMIJSTAL LAW, INCLUDING THE MODE OP PROCEDURE BY WHICH IT IS ENFORCED. ESPECIALLY DESIGNED FOR .THE USB OF STUDENTS. EMORY WASHBURN, LL. D., AUTHOR OP "a treatise UPON THE AMERICAN LAW OF REAL PROPERTY," ETC. EDITED, WITH NOTES, BY MARSHALL B. EWELL, PROFESSOR IN UNION COLLEGE OF LAW, CHICAGO, AND AUTHOR OF "a TREATISE ON THE LAW OF FIXTURES," ETC. CHICAGO : CALLAGHAN & COMPANY. 1878. Entered accordiiigTS Act of Congress, in the year 1878, by EMORY WASHBDBN. In the Office of ihe Librarian of Congress, at Washington. BTEREOTIPED AND PUINTED BY THE CHICAGO I.BOAL NEWS 00. AUTHOE'S PEEFAOE. The purpose and intent in preparing the treatise which is here offered, was to place in the hands of students of law an elementary outline of the crimi- nal law, together ^th the iliode of procedure by which the sai5je\s e^orcedj^an a brief and intelli- gible fonrf, with'those^partj^ eliminated which in- volve, on the one hand, theoretical and philosophical discussions and distinctions, and on the other, the i-efined and technical distinctions to which questions growing out of the criminal law have given rise. The object at which it aims is to present, in an in- telligible4brm, so miich of the familiar and well settled principles- of these departments of the law as sliall prepare the mind of the student for taking up the entire subject in detail, by showing in ad- vance the topics embraced in it, and the relations they hold to each other. If it shall have accom- plished what it was designed to do, it may serve the student the pui'poses of an outline map of the country he is to travel over, showing him the points to which his attention should be dirscted, and the [iii] IV AUTHORS PREFACE. relation of tlie objects to each other, wliich he is to study and examine. The mode in which it has been sought to accomplish this purpose, has been to describe, in the first place, the principal crimes known to the law, as well as the principle upon which their character for criminality rests, and then to take up and desci'ibe, step by step, the processes by which prosecutions for offenses are begun, and carried on to final judgment. To do this, involves the inquiry as to the proper functionaries and courts by whom these are carried on, including magistrates, ofiicers, jurors, the form of complaints and indict- ments, the service of official precepts, the impanel- ing of juries, and the rules to be observed in the trials of causes. In connection with these, the student should become somewhat familiar with the incidents of these trials, the distinctive provinces of jurisdiction of courts and juries, the modes of correcting errors and mistakes in the administration of either, and the rights of parties and their coun- sel in the conduct of causes, and the revision of the judgments which may be rendered therein. As the readiest means of accomplishing this end, the present treatise assumes to illustrate these various matters by tracing a criminal prosecution from its incipient stage, a complaint before a magistrate, to its final judgment and sentence, treat- AtlTHOE S PREFACE. V ing eacli of its several stages in such a manner as to present the more prominent topics of inquiry which are likely to arise in the practical application of the rules of law and pi;actice applicable to such cases. The plan of the work disclaims anything like the comprehension or completeness of the larger treat- ises which are already familiar to the profession. It is an outline only, and pretends to no higher place. What it does aim at, is to give a student a general view of what composes the system of crimi- nal law and procedure, within a convenient space — ■ , introductory to a study of these in detail, as leisure and opportunity may oifer. The study of the criminal law necessarily involves a good deal of de- tail which requires special, and more or less, elabo- rate research, which is called for in the preparation of particular cases, rather than the storing up these in memory by a course of systematic reading. The frequent citation of the work of Mr. Chitty upon the various topics treated of herein, indicates what becomes obvious, as it proceeds, that the plan of the present treatise has been borrowed from his far more elaborate "Practical Treatise on the Criminal Law." Free use, too, has been made of the treatises of Dr. Wharton and of Mr. Bishop, whose authority is too well established to be ques- VI AUTHORS PEEFACE, tioned, while the older works of Foster, Hale and Hawkins have not been ignored, and the later English treatises on criminal law, as well as Mr. Greenleaf s work on Evidence, have been referred to, at times, as tests of what is to be accepted as the modern doctrines of the English and American law. These, together with tlie reports of decided cases, have been the sources of what is here laid down as elementary law, and if its scope may seem limited, it has aimed to be accurate and reliable, so far as it covers the ground it is intended to occupy. Emoet Washburn. Cambridge, 1877. EDITOE^S PEEFAOE. The scope and purpose of this work are sufficiently state'd in the author's preface. The manuscript of the woi'k, as it was left by the learned author, was in substantially the same fonn as it appears in the ensuing pages; and that it was substantially com- l)lete, and in the form intended by the author, will, it is believed, appear from an examination of the work. The only changes not indicated in the text and notes, consist in the correction of mere verbal inaccuracies and errors in citations. Where any additions have been made to the text, the new mat- ter has been inclosed within brackets, thus: [ ]. Additions to the notes have been indicated in the same manner, except where they consisted merely in the citation of additional authorities, in which case they have not always been distinguished from those cited by the author. The aim of the editor has not been to make an exhaustive citation of [vii] viii editor's preface. authorities upon any of the points stated, but merely to give such additional references to re- ported cases and statutes, as should make the work more useful to students of law, for whose use the work is especially designed. Marshall D. Ewell. Union College of Law, Chicago, • March 11, 1878. OOI^TENTS. CHAPTEE I. PAGB Elementary Peinciples of Ceiminal Law, . 1-18 CHAPTER II. Ceimes and theie Classification, . . . 19-103 Affray, 25 Arson, 25 Assault, and Battery, 27 Barratry, 28 Champerty, 29 Maintenance, 31 Bribery, 33 Burglary, . 33 Cheats, 37 False Pretenses, 37 Conspiracy, 41 Counterfeiting, 44 Embezzlement, 47 Forcible Entry and Detainer, ... 51 Forgery, 53 Larceny, 56 Receiving Stolen Goods, 66 Libel, 66 [ix] X CONTENTS. PAGE Malicious Mischief, ^2 Murder, '<'3 Manslaughter, SO Nuisance, ^^> Perjury, "^"^ Snhornation of Perjurv, '^'2 ' Eiots, Routs, Unlawful Assemblies, . 98 Eobherj, 96 Treason, US Accessories, 101, 1(->2 Limitations, 10:^ Attempts, 102 CIIAPTEE III. Ceiminal PEOCEin'iJK, lO-i-268 I. — Complaints before Examining Mag- istrates, and Proceedings thereon, 104-118 II. — Indictments and Informations, and Proceedings thereon Prior to the Trial, 118-205 Grand Juries, 120 Arraignment and Plea, . . 127, 191 Pequisites of Indictments, .... 133 Separate Counts — Joinder of Offenses, I.jS Joinder of Defendants, 160 Accessories, 101, 162 Indictments upon Statutes, .... 164 Matters of Description and Surplusage, 169 Amendments, ITU CONTENTS. XI PAGE How one Indicted is held to Answer — Forfeiture of Tveco^nizance, . . . 170 Eemed)' of tlie Bail, 172 Capias, 173 Arrest, 174 Itequisitions — Extradition, . . . . 185 Prisoner's right to Copy of Indictment and Counsel, . 187 Eight to Call, Witnesses, . . . 189 List of Jurors and "Witnesses, . 190 Presence of Accused, 11)(.» Arraignment and Plea, .... 127, 191 Once in Jeopardy, 195 Pardon, 20;5 Nol. Pros., 204 Not Guilty, ,. . 205 III.— The Trial and its Incidents, . . 205-255 Separate Trials, 205 Competency of Defendants as "Wit- nesses, 208 Election upon which Count to Proceed, 209 Impaneling the Jury — Challenges, . 210 Oath of the Jury, 217 Jury as Judges of the Law, . . .218, 244 Heading of Indictment, 219 Talesmen, 219 Yiew 219 Proceedings upon the Ti'ial — Criminal Evidence, 220 Argument of Counsel — Right of Jury to render a General Yerdict, . . . 244 XU CONTENTS. PAGE Publication of Proceedings — Con- tempts, 24fi Charge to the Jury, 248 Verdict, 250 Custody of the Jury — Effect of Sepa- ration, 252 Discharge of the Jury, 254 Custody of Jury, 255 Effect of General Verdict of Guilty where some of the Counts are bad . 255 IV. — Proceedings Subsequent to the Ver- dict, 256-264 Motion for ISTew Trial, 256 Peview upon Exceptions to Pulings of Judge, 258 Motions in Arrest of Judgment, . . 258 Benefit of Clergy 260 Sentence, 260 Writ of Error, 263 v.- — Criminal Procedure in the Federal Courts, 264-267 VI.— Impeachment, 267,268 OASES OITED. PAGE Adams v. People 139 Alden v. Patterson 33 Alderman v. French 68, 70 Allen V. Martin 182, 183 Anderson v. Dunn 247 V. Radcliff ' .30 Andrews v. The People 250 Attorney General v. Bulpit 242 Aubert v. Maze 8 Austin p. Culpepper 68 Aylesworth v. The People 116 Barden v. Crocher 139 Barnard v. Bartlett 182 Barnes v. Harris 238 Batthews v. Galindo 235 Baxter v. The People 12, 102 Beamon v. Ellice 242 Belli). Parrar 62 V. Mallory 94 V. State 202 Benson v. Monson & Brimfleld Mfg. Co. ... 23 Bergen v. The People 190 Bill V. The People 249 Bixby V. The State 206, 207, 212 Blatch V. Archer 181 Bloss V. Tobey 26, 135 Bodwell V. Osgood 72 Bolun V. People 159 Booth V. Commonwealth 156, 157 [xiii] XIV CASES CITED. PACB Boston, &c., R. R. r. Dana 2 Brant t-. Fowler . 255 Brennan v. The People .... 12, 102 Brister r. The State 213 Brobston i'. Cahill . 230 Brooks r. Commonwealth . 178 V. Montague .... 69 Brown v. Croome . 69 i>. Commonwealth 134, 165, 255 V. The People .... 85, 172 Bull V. Loveland . . . t . . 243 Burdett V. Abbott . 247 Burk V. State . 156 Burrell i\ Phillips . 253 Bushel's Case . 218 Carleton v. Commonwealth . . .15 5, 156, 157, 209 Carmody v. The People .... . 167 Case r. Johnson . 247 Chase p. The People . 20 Chess, r. The State . 46 Chicago & N. W. R'wy Co. p. Peacock . 23 Chicago, Bur. & Quin. R. R. Co. r. Carter . 168 Chicago Dock Co. v. Foster . 62 Chilicothe F. R. & B. Co. v. Jameson . 238 Clai-k V. Keliher . 53 r. Binney . 67 Clemmens v. Conrad .... . 243 Clemmer v. The People .... . 165 Coatea v. The People .... 12, 102, 160 Cobb c. Lucas . 142 Commonwealth v. Abbott . 215 V. Adams 131, 1(52, 164 V. Andrews . . 02, 6 1, 162, 198, 204 ('. Anthes . , . 215, 218, 245 r. Ashley .... . 165 V. Atwood . 170 V. Austin .... . 214 V. Ayer .... . 53 V. Bailey .... . 148 CASES CITED. XV PAGE Commonwealth v. Baldwin 54 V. Bal-in g . . 26 V. Battea . . 182 V. Bai'low . 12 V. Barnard . 140 V. Beaman 59, 65, 1-25 r. Bean . 166 V. Blanding . 68, 69, 245 V. Blood . . 107 V. Bond . 47 V. Bonner 24, 68 V. Bosworth . 197, 226 V. Bpwen . . 76, 103 V. Bolkora . 166 V. Brady . . 91 V Brown . 158 V. Brickett . 172 V. Briggs . 204 V. Bulman . 146 V. Butterick 48, 60 V. Buzzell . 2:34 V. Cain . 155, 156 ■V. Call . . S8, 246 V. Carey . 176, 177 V. Chace . 59 V. Chapman 3, 10, 66 V. Child . 249 i: Clapp 67, 72 V. Cliiford 96, 97 V. Cooley 9, 180 r. Costello . 158 V. Collberg . . 28 V. Costley . 77, 251 V. Crotty . 142, 180 V. Cummings . 140 V. Cunningham . 203 V. Dana . 103 V. Dascom . 193, 203 V. Davidson . 40 XVI CASES CITED. Commonwealth v. Davis V. Douglass V. Drake V. Brew V. Drum V. Dudley ». Eastman V. Eaton V. Eddy ». Field V. Foster . V. FuUer V. Gibbs 1). Gillespie 1). Goddard V. Goodenough V. Goodhue V. Green V. Griffin V. Haley V. Halstat V. Harmon V. Harrington V. Harris V. Hawkins V. Hay V. Hearsay V. Heath V. Heraey fj. Hill . V. Hills . V. Hinds V. Holby V. Holden c. Holmes V. Hope . V. Houghton V. Hoyt V. Horton PAGB 29, 135 90, 92, 93 . 239 8, 39, 160 . 159 . 52 . 209 154, 155 . 20 180, 181 ■ . 106 . 46 6 . 156 193, 203 202, 205 . 199 . 257 149, 164 . 53 . 91 . 148 8, 145 165, 166 . 79 48, 49, 50 259 20 147 2, 130, 233 156, 158 5, 132, 133 134 64 67, 148, 154, 159 148 165 131 72, 55, CASES CITED. XVU PAGE Commonwealth v. Hunt ... 42, 43, 44, 134 V. Hussey . 150, 197 V. Irwin . 182 V. Jamea . 150, 206, 213 V. Jennings . 168 V. Johnson . 173 V. Knapp . 6, 101, 160, 163, 191, 213, 220 224, 22 5, 226, 227, 239. V. Kimball 21. 86 V. Kin^ . 6, 48, 49, 50, 164 V. Ladd . . 55 V. Lavery . 152 V. Leach . . 17, 106 V. Lee . 176 V. Lewis . . 141 V. Libby . . 50 V. Locke . . 191 V. Mahon . . 170 V. Marsh . . 208 V. Maxwell 149, 168 •0. Merrill . 192, 193 V. Merrifleld . 50, 160 V. McCool . 253 V. McCuUoch . . 29 V. McGahey 177, 183 V. McKie . 79 V. McLanghlin 177, 179 V. McNeill . 172 V. McPike . 224 V. Morse 152, 167 V. Mortimer . 200 V. Newburyport Brio ge' . 23 V. Newell . 36 v. North Brookfield 137, J40 V. Old Colony R. R. . 85 V. O'Malley . 49 V. Park . . 220 V. Parker . . 77 V. Parmenter . . 148 XVlll CASES CITED. Common-wealth v. Pease . V. Peck v. Pemberton V. Peo'ple . V. PerkiiiB V. Peters . V. Phillips V. Pollard . V. Porter . V. Pray V. Price V. Purehaae t). Quinn . V. Rand . V. Randal V. Ray ■0. Richards V. Robinson V. Roby . 52, 159, 202, 251 V. Rogers . V. Rumford Chem. Works V. Runnels V- Sacket V. Sawtelle V. Silsbee V. Simpson V. Shanks V. Shattuok u. Shedd V. Smart V. Smith V. Snelling V. Springfield V. Squire V. Stark V. State V. Stearns V. Stebbins 207, 195, PAGE . 13 . 236 . 75 . 160 107, 142 . 199 107, 108 90, 93 . 244 135, 167 . 226 254, 355 . 139 63, 109 . 28 53, 54, 160 150 208, 209, 210 198, 199, 201 201 255 21, 213 9, 86 . 94 . 228 . 150 6 . 48 . 235 51, 52 . 44 . 50 58, 85, 125, 152 68, 69 . 140 11, 159, 166, 199 . 166 . 164 48, 49 . 172 CASES CITED. XIX PAGE Commonwealth v. Stephenson 54 V. Stevenson . 36 ■c. Stevens 148 V. Stewart 62 V. Strause 49 V. SymoncTs, 154 v. Taylor 148 V. Tarbox 148 V. Thompson 206 V. Thurber 167 V. Tilton 131, 132 V. Tobin 178, 183 V. Tuck 146, ] 54, 1 55, 159, 168, 16 8, 204, 209 V. Twombley . 213 V. Upton 86 V. Uprichard . 64 V. Wade . 20( ), 201, 204 V. Walton . 191 V. Warren 17, 37, 38 V. Webster . 7 3, 213, 230 V. Welsh . 165 V. Wilcox . 109 V. WiUard . 243 V. Williams 6, 230 V. Wood . 120 V. Wright . 148 1). WyniR,n . 48 V. York 68, 79 Coates r. People . 1 2, 102, 160 Cobb V. Lucas . 142 Cochran r. Stewart , 62 Conkwright v. People 227 Conraddy v. People 185 Cook r. Hill 72 Crandall v. Dawson . 93 Cross V. People 226 Danforth v. Streeter . 30 DeBost V. Beresford . J • 67 Dennis v. People . 36 XX CASES CITED. Dexter r. Spear Dickenson v. Dmstia . Dodds V. Board . Dodge n. People Donahoe v. Shed Dougherty r. People . Dougherty v. Commonwealth Dunn V. People . Durfee v. Jones . Dutell V. State . Earp ;:. Lee Ellis V. Kimball Ellis t'. People . Emerson v. Baloh Estes V. Carter . Pawcett V. Osbom Pellowe's Case . Petrow B.'Merriweather Pifty Associates v. Howland Pisher r. People Pitz Williams' Case Planagan v. People Possler V. Schriber Foster's Case Poster V. Pierce Foster v. Hall . Pox V. State of Ohio Gardner v. People Gates V. People . Goltra V. Wolcott Gray v. People . Grainger v. Hill Greschia v. People Green v. Commonwealth Guenther v. Whiteacre Hall V. Ashby . Hall V. Roche Halton V. Robinson . Hamilton v. People . PAGE 67 248 175 260 179 94 260 226 62 125 85, 88 67 230 181 9 62 251 31 52 218, 249 135, 186 20, 21 . 237 . Ill . 226 237, 238 45, 46 125, 126 214 238 226 174 85 132 118 30, 31 180 238 112, 226, 239 CASES CITED. XXI Handcock !\ Baker Hanscom v. Hanscom Harding's Case . Harlan i\ People Hawkins v. Stats Haynes' Case HiU V. State Hoch V. People . HoUey v. Mix . Holmes v. Jennison Holmes (ex parte) Hope V. Commonwealth Hopldns V. Commonwealtl: Hooker i\ State . Hopps V. People Horton v. Horton Hoskins v. Tarrance . Housh V. People Hubbard v. Mace Hm-d i\ People . Hutchinson i\ Birch . Hyatt V. Adams Iowa V. Brandt . Jackson v. State Jennings v. Commonwealth Johnson r. People John -on p. State Joselyn v. Commonwealth Jupirtz V. People Jumpertz v. People Kane v. People . Kelly V. Drew . Kelley r. State . Kelley v. People Kellogg V. State Kendal v. May . Kennedy v. Brown Kennedy v. People Kerwin r. Hill . 155, i; i6, 15 230, PAGE 175 233 17 46 206 60 38 10 176 187 187 165 165 161, 214 20, 227 253 58 108 183 83 183 2 121 58 9 206 226 , 209, 255 . 227 253, 254 156, 157 235 260 126 40 232 33 12, 102 . 230 XXll CASES CITED. Key V. Vattier . Kibs c. People . King V. Mawbey Kindred r. Stitt Langdon {ex parte) Lathrop v. Amherst Banli Lee V. Gansel Leindtcker r. Wa'dron Lsqueat v. People Lewis r. Bell Lewis V. Welch . Lindsay v. People Low's Case Long's Case Lynch V. People Marsh v. Smith Martin v. People Matter of Jerry Irwin Mattison p. State Mask V. State . Maton V. People McCreary v. Commonwealth McCue V. Commonwealth McCatcheon r. People McGowan v. State Mclntyre i>. People . McKinney )'. People . McLain v. State McMalian v. Bowe McNaghten's Case McNamee i-. People Mead r. City of Boston Meader v. Stone Meister v. People Merchants Bank v. Cook Merwin v. People Metzker v. People Michigan Cent. R. R. Co. v. PhilUps Miner v. People . . . . 29, L59 188, PAGE 9 , 30 49 91 175 24S 30, 31 , 32 184 237 168 31 8 226 125, 126 136 168 175 , 206, 207 118 4f , 46 161 206, 212 253 260 165 216 250 , 253, 254 2 3 31 20, 21 262 26 52 2, 6 10 143 149 168 62 208 CASES CITED. XXIH PAGE Minet v. Morgan 239 MoMer v. People 165, 264 Moody V. Rowley- . 230 Moore p. State of Illinois 99 Morris v. Brnckley 249 Morrison v. State 227 Morrisey v. People 64 Morrell v. People 39, 90 Morrow r. Wood 28 Mowiy r. Chase 174 MuUinix v. People 159 Murphy r. People 80 Myers v. People 167 Nash V. State . 190 Newkirk v. Cone Nias V. N. & E. R. R. Co. 239 NichoUs V. Ingersol . 172 Nomaque r. People . 12 5, 251 Nolan V. People 36 O'Connel v. Queen 158 Ohio & M. R. R. Co. i-. KeiT 62 Omxhund v. Baker . 234 Ortwin v. Commonwealth 20 Pardee i>. Smith 112 Pate r. People . 230 Patten v. People 83 Pearce v. Atwood 179, 181 People V. Babcock . 37, 38 V. Bill . . 208 V. Barker 2.37 V. Barret 119 V. Cage . 201 V. Doyle . 226 V. Douglass 253 V. Garbutt 20 V. Goodwin 201 V. Holbrook . 228 V. Howell 207 V. Keys . 214 XXIV CASES CITED. PAGE People V. Liscomb 158 ■e. Lynch 99, 108 V. Maloney 60 V. McKinney 91 V. Ransom , . . 253 ■V. Rathbun 250 V. Spooner 230 V. Whitson 159, 170, 263 V. Wilson 247 V. Williams 64 Peri w. People . . _ 80 Petrie v. People 248 Pierce v. State 214 Pichell V. Watson 32 Podree v. Mc Williams 242 Pollard V. People 90 Pond V. People - . . 83, 85 Putnam v. Wadley 230 Rainey v. People 126 RadcKff V. Barton 183 Rafferty v. People 77, 81. 179 Ray V. State 226 Regina v. Ewington 89 V. Downing 59 V. Frost 213 V. Goddard . . , 195 V. Hill 232 V. Railway 23 Rex V. Berry I94. V. Bourne . . . 264 V. Clement 246 ■"■ Colby 242 V. Crowhurst 1^5 V. Dean St. Asaph 245 V. Davidson 247 V. Dyson- . 130, 194 V. Dowlin 219 V. Parrington I49 V. Forsyth 152 CASES CITED. XXV Rex V. Gibson . V. Granger V. Hall V. Halloway V. Jackson V. Jervis ■u. Kinnersley V. Phillips V. Price V. Pritohard V. Johnson V. Rudd t\ Smith V. Sudbury V. Turner V. Vaughan V, Whitehead V. Woodfall Rice V. People Richardson v. People Richa,rdson r-. Newoomb Rickets V. Solway Roach V. People Rohan v. Sawin Rollins V. Ames Ropp )'. Barber Rouse V. Siate Russell V. People Schooffler v. State Schnier v. People Sesemon v. State Shannon ». People Simons v. Gratz Simpson v. Lamb Smith V. Donnelly V. State Stanley v. Jones Stack p. People State V. Allen PAGE 192, 195 129, 193 97 151 39 164 161 206 ?2 194 195 225 208 161 168 33 135 69 153 190, 231 230 170 83 176 216 251 45 263, 264 206. 212 218 46 12, 102 240 30 175 9 30 159 167 XXVI CASES CITED. PAGE State V. Antonio 46 V. Bartlett 6, 64 V. Bielby . 167 V. Buck . 152 V. Clerasns, . 226 r. Parr . 129, 193 V. Puller . 1S8 I. Gigher . 206 V. Great Milk Co. . 28 V. Gummer . 167 V. Harden . 251 V. Harris . 151 ( . Hodgk'ns . . 199 v. Howard . 226 (. Hunter . 206 r. Kay . 253 V. Little • . 203 V. Lynch . 99 V. Martin . 198 V. Marvin . 206 «'. McPherson . 46 V. McCord . 198 r. Mooney . 203 V. Nash . 206 V. Nelson . 154 I. Noble . 170 V. Patterson 79, 83, 85 V. Prescott . 253 V. Shoemaker . . 45 V. Soper 206, 207 V. Smith . 182 V. Taylor . . . 69 r. Underwood . 64 V. Vance . 83 V. Wall . . 216 V. Williamson . 137 V. Wilson . 254 Stewart V. Jessup . 139 Stearns v. Sampson 1 . 53 CASES CITED. XXVH PAGE Stetson V, Parker 110 St. Louis A. & C. R. R. Co. r. Dalby . 2:i Story V. People .... 246, 247 Stratton r. Commonwealth 134, ISr, Streeter v. People . 87 Thomas v. Sorrell 8 Thompson r. Reynolds 29 Thurston v. Percival 30 r. Moore 46 V. Whitney 233 Topham's Case 6;) Trial of British Soldiers . ir. TuUey v. Commonwealth . 165 Turns v. Commonwealth . 12.-) United States v. Batchelder 167 V. Conner 266 V. Coolidge . 9 V. EUiott 163 V. Gilbert . 19 4, 266 V. Harding . 266 V. Hudson 9 V. Macomb . 266 V. Marchant 20 S, 207 V. Marigold 46 Tan Dusen u. People 89 Van Wyck v. Mcintosh 230 Vinton v. Peck . 230 Waddy r. Thompson 57 Wakely v. Hart 176 Wallis V. Mease 59 Walsh V. People 227 Ware c. .Tudah . 151 Wai-riner v. People . 165 Weakly v. Hall . . '. 3 Welden v. Bureh 243 Webster's Case . . 125 Wheeler r. Lynch . 54 White V. People . 206, 2'j8 Wilbur V. Flood . 243 XXVlll CASES CITED, PAGE Willis V. Watson 31 Williams v. Prothero 31 Williams v. Spencer . 184 Wilson i). Abrams 255 Wilmarth v. Burt . 179 Wilmons r. Bank of Illinois 264 Winsor i'. Queen 201 Winnesheik Ins. Co. v. Schnellcr 216 Wonson V. Sayward .... 60, 144 Wonson v. Queen 2.54 Wood V. Downes 30 Wood r. People 90 Wood V. Smith 6S Wood V. Thornby 237 Wrecklege v. State . 167 Wright V. Meek 30 Yates V. Lansing 247 Yundt V. People 126, 188 Zschocke v. People ' 49 TEXT BOOKS, STATUTES, ETC., CITED. PAGE Abbott U. S. Courts Practice 265, 266 Albany Law Journal 185, 194 Amos' Science of Law 2, 7 American Jurist 187, 189, 236, 244 Law Register 40, 226, 268 Law Review 137 ■ Reports 77, 143, 149 Angell & Ames on Corporations 23 Arohibold's Criminal Practice and Pleadings . 11, 151, 209 Bannister on Moral Insanity 22 Barrington's Statutes 10, 134 Bishop's 'Criminal Law, 3, 6, 7, 9, 10, 12, 13, 14, 19, 22, 23, 24, 25, 26, 28, 29, 31, 32, 33, 34, 35, 36, 88, 39, 40, 41, 43, 44, , 46, 47, 48, 49, 50, 51, 52, 55, 56, 57, 58, 59, 60, 61, 63, 64, 65, 66, 67, 69, 70, 72, 73, 75, 76, 87, 89, 90, 96, 97, 101, 102, 103, 163, 196. Bishop's Criminal Procedure, 95, 107, 109, 119, 121, 125, 126, 127, 128, 130, 131, 137, 1^, 139, 140, 141, 142, 143, 145, 146, 147, 149, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 169, 170, 172, 174, 176, 177, 180, 181, 183, 184, 185, 190, 192, 195, 205, 207, 212, 213, 214, 215, 216, 217, 218, 219, 221', 225, 226, 228, 245, 249, 252, 253, 258, 259, 260, 262, 263, 264. Bishop's Statutory Crimes 10 Blackstone's Commentaries, 2, 3, 4, 6, 7, 8, 10, 12, 13, 14, 22, 25, 26, 27, 28, 32, 33, 34, 35, 36, 48, 49, 51, 53, 54, 55, 56, 57, 58, 59, 60, -61, 62, 63, 65, 70, 75, 76, 77, 78, 80, 82, 85, 86, 88, 89, 90, 91, 99, 100, 120, 130, 131,. 132, 134, 1-38, [xxix] XXX TEXT BOOKS, ETC., CITED. PAGE 174, 175, 176, 178, 183, 184, 188, 189, 212, 213, 214, 216, 248. Broom & Hadley's Commentaries, 3, 7, 14, 18, 19, 21, 22, 27, 28, 33, 35, 36, 37. Breese (III. Rep.) 125, 251 Burn's Justice 105 Carpenter's Mental Physiology 21 Chitty's Criminal Law, 6, 11, 12, 13, 43, 44, 51, 52, -58, 59, 74, 76, 77, 78, 89, 90, 91, 94, 95, 96, 97, 102, 107, 109, 110, 111, 112, 114, 117, 119, 120, 121, 122, 124, 129, 130, 131, 132, 133, 134, 135, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 151, 152, 'l53, 154, 155, 156, 157, 160, 161, 162, 163, 164, 165, 167, 168, 169, 170, 172, 173, 175, 176, 177, 178, 180, 181, 182, 183, 188, 189, 190, 191, 192, 193, 194, 195, 197, 198, 199, 200, 202, 203, 204, 205, 207, 208, 209, 212, 213, 214, 215, 216, 217, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 246, 248, 251, 252, 253, 254, 255, 257, 258, 259, 261, 262, 264. Chitty on Pleading 136 Chicago Journal Nervous and Mental Diseases . . 22 Chicago Legal News 49, 203 Clark & Finnelly Rep 157 Coke on Littleton 255 Coke, Institutes, . 33, 34, 58, 74, 77, 89, 90, 91, 94, 96, 142 Corayn's Digest 105, 119, 121 Cooley's Constitutional Limitations, 17, 18, 46, 64, 69, 70, 72, 93, 108, 189, 195, 196, 2.33, 243, 247, 261. Crown Circuit Companion, 1.34, 135, 138, 143, 144, 145, 149, 153, 173, 209. Dane's Abridgment . . 105, 174, 178, 213, 215, 217 Deuteronomy 4 Deacon's Criminal Law 88 East's Pleas of the Crown, 25, 26, 27, -34, 35, 36, 53, 54, 55, 56, 62, 63, 75, 80, 81, 83, 84, 96, 97, 144, 147, 148, 149, 152, 155, 160, 202. East's Criminal Law 26, 37, 38, 39, 74, 75, 76, 97, 153, 184 Eden's Penal Law 7, 188, 190, 191 Edinburg Review 16 TEXT BOOKS, ETC., CITED. xxxi PAGE Ewell's Leading Cases 20, 21 Ewell on Fixtures 58, 59 Foster on Criminal Law, 74, 82, 83, 84, 97, 162, 164, 181, 182 Georgia Revised Code 58 Greenleaf on Evidence, 42, 44, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 67, 68, 70, 71, 72, 74, 77. 81, 82, 85, 86, 88, 89, 90, 91, 92, 93, 95, 96, 97, 98, 100, 101, 102, 126, 147, 170, 222, 223, 224, 228, 229, 230, 202, 233, 234, 235, 236, 238, 239, 240, 241, 242, 243, 250. Hale's Pleas of the Crown, 5, 22, 32, 58, 61, 62, 63, 74, 75, 76, 77, 80, 81, 82, 83, 84, 96, 100, 111, 133, 137, 138, 140, 141, 142, 143, 144, 145, 149, 1.52, 160, 162, 175, 177, 178, 182, 183, 185, 192, 213, 217, 219. Hargi-ave's State Trials 189, 223 Hawkins' Pleas of the Crown, 8, 22, 25, 27, 29, 33, 44, 51, 52, 88, 92, 94, 95, 165, 180, 182, 183, 185. Iowa Code, 11, 26, 27, 31, 33, 38, 45, 47, 55, 56, 60, 65, 66, 67, 69, 70, 72, 73, 78, 87, 88, 92, 98, 100, 102, 106, 107, 109, 110, 112, 113, 117, 141, 206, 212. Iowa Revised Laws 11 Illinois Constitution, 69, 70, 93, 119, 120, 189, 190, 204, 261, 262. Illinois Revised Statutes, 2, 7, 11, 12, 13, 14, 17,* 19, 22, 24, 25, 26, 27, 28, 29, 32, 33, 34, .38, 40, 48, 45, 47, 48, 49, 51, 54, 55, 56, 57, 58, 59, 60, 64, 65, 66, 67, 69, 70, 71, 72, 73, 76, 77, 78, 79, 80, 82, 84, 85, 87, 88 92, 94, 96, 98, 100, 102, 103, 106, 107, 108, 109, 110, 111, 112, 116, 117, 118, 120, 121, 122, 123, 125, 126, 130, 131, 132, 183, 136, 141, 143, 1.53, 161, 165, 172, 178, 175, 177, 181, 187, 188, 189, 191, 194, 208, 212, 214, 217, 218, 222, 234, 236, 240. 244, 245, 249, 250, 251, 255, 257, 258, 260, 261, 262, 263, 264. Indiana Revised Laws 9 Jacobs' Law Dictionary . . - ' . . .10, 192 Jones', Sir William, Works 122 Kame's Historical Law Tracts 5 Krafft Ebiug, Gerichtlicher Psychopathologie] ... 21 Law Review (London) .... 15, 113, 157 Law Reporter 232, 289 Maudsley. Physiology and Pathology of the Mind . . 22 XXXll TEXT BOOKS, ETC., CITED. PAGE Massachusetts Bill of Rights, 12, 17, 139, 189. 190, 223, 231, 261. Massachusetts Constitution .... 93, 98, 204 Massachusetts General Statutes, 2, 11, 12, 13, 23, 25, 26, 27, 28, 38, 34, 36, 37, 38, 45, 47, 48, 51, 54, 55, 56, 58, 60, 65, 66, 70, 71, 72, 73, 74, 75, 78, 81, 82, 89, 92, 94, 96, 97, 98, 100, 102, 103, 105, 106, 107, 109, 110, 111, 113, 115, 116, 117, 119, 120, 121, 122, 123, 126, 129, 131, 138, 139, 143, 147, 153, 154, 159, 162, 163, 169, 172, 173, 177, 178, 180, 181, 188, 189, 190, 191, 194, 199, 200, 208, 211, 212, 214, 215, 216, 217, 218, 219, 220, 231, 233, 234, 236, 245, 249, 257, 258, 259, 262, 264. May's Constitutional Histoiy 189 Michigan Compiled Laws, 11, 12, 26, 27, 30, 31, 33, 38, 45, 47, 51, 54, 55, 56, 60, 64, 65, 66, 73, 74, 78, 88, 94, 96, 98, 102, 103, 106, 108, 109, 110, 111, 112, 113, 116, 117, 119, 131, 141, 143, 153, 169, 208, 234, 236, 240, 262. Michigan Constitution . . 69, 70, 72. 98, 100, 233, 245 Michigan Session Laws 48 Michigan Territorial Laws 17 Moore's Criminal Law, 7, 11, 13, 19. 22, 24, 26, 29, 32, .39, 43, 46, 49, 58, 63, 68, 69, 78, 80, 82, 89, 90, 93, 96, 97, 107, 108, 117, 121, 125, 126, 127, 134, 135, 136, 138, 140, 141, 144, 145,* 146, 149, 150, 152, 153, 154, 155, 156, 157, 158, 160, 161, 165, 169, 172, 175, 180, 181, 182, 185, 188, 190, 192, 193, 197, 205, 209, 213, 214, 215, 216, 217, 219, 221, 222, 224, 227, 231, 242, 250, 251, 253, 254, 258, 259^ 261, 263. Morel Traite des Maladies Mentales (1860) ... 22 New York Constitution . . . .69, 70, 72, 119, 120 New York Revised Statutes, 7, 11, 13, 26, 33, 51, 55, 56, 58, 60, 64, 65, 66, 69, 70, 73, 74, 78„ 88, 92, 98, 102, 103, 106, 108, 109, 110, 111, 112, 117, 129, 131, 217. Petersdorff on Bail 18, 172 Phillips on Evidence 243 Prichard on Insanity 22 Puterbaugh's Pleading and Practice . . . .18' Ray's Medical Jurisprudence of Insanity ... 22 Reeve's History 195 Roscoe's Criminal Evidence . 135, 151, 162, 164, 223, 238 TEXT BOOKS, ETC., CITED. XXXlll Russell on Crimes and Misdemeanors, 8, 9, 10, 29, 32, 67, 68, 69, 70, 71, 91, 103, 185. Reports, Term Reports, Vermont Pickering's Allen's Greenleaf's Croke's Cushing's . Salmon's Review State Tri els . Selfridge Trial Report Shakespeare .... Solicitor's Journal Southern Law Leview Statutes 24 and 25 Victoria Statutes, William IV. (6 and 7) Starkie on Evidence Starkie on Slander Stephen's Digest of Criminal Law Terms de la Ley Thrnpp's La,w Tracts Tiffany's Criminal Law, 7, 11. 19, 22, 91, 107, 108, 112, 113, 117, 118, Townshend on Slander and Libel United States Constitution, 12, 45, 119, 186, 189, 190, 195, 261, 262, 267, 268. United States Statutes .... 105, 265, 266 Washburn's Judicial History of Massachusetts . . 131 Washburn's Real Property . . . . 31, 58 Wharton on Criminal Law, 8, 9, 10, 11, 12, 19, 21, 22, 23, 24, 25, 26, 28, 29, 32, 33, 34, 35, .36, 37, 38, 40, 41, 46, 48, 49, 51, 52, 53, 55, 56, 58. 59, 60. 61, 62, 63, 64, 65, 66, 67, 68, 72, 78, 75, 76, 78, 80, 81, 82, 83, 86, 87, 88, 90, 91, 92, 93, 95, 96, 99, 100, 102, 103, 155, 157, 159, 160, 161, 164, 185, 195, 196, 199, 201, 205, 222, 224, 244, 253, 254, 257, 259. Williams on Executors . . . . .60 Wood on Nuisances 85, 86, 87 Wright's Law of Tenures 10 C 210, 219 . 250 . 196 . 132 . 251 . 176 . 223, 227 . 82 . 191 . 16 . 159 . 27 . 189 . 236 . 70 . 16 . 110 5 i, 23. 24, 29, 78, 80, 89, 90, , 119, 141^ 205, 230, 240. , . 68 MANUAL or CRIMINAL LAW. CHAPTEE I. ELEMENTARY PRINCIPLES OF CRIMINAL LAW. Ikt treating of Criminal Law, the distinction is to be kept in mind wliich prevails between public and private wrongs, wliicb may become the subjects of animadversion by the courts. The purposes of judi- cial process in respect to the latter, are to obtain recompense or satisfaction for the party who has been thereby injured; while, as to the former, such proceedings have reference to the prevention of such wrongs rather than obtaining, thereby, compensation for the injury done. To bring it within the latter category, the wrong must be one of a public nature in its character, or made sticli by reason of some statute declaring it to be an offense, for the com- mission of which the guilty party is to suffer a pre- scribed penalty, in which the party injured has no other interest than any citizen in the community. ]^or are his rights to recover satisfaction for his A CRIMINAL LAW. personal injuries, thereby occasioned, limited or impaired by this liability of the wrong-doer to a public prosecution.^ To bring an act thus within the cognizance of the criminal law, it must be a wrong done in which the public as a community are interested, by reason of its being a breach or violation of some public right or duty.^ This gives rise to the different forms of procedure by which it is sought to reach the party who has committed a wrong, when it partakes of the char- acter of both a public and private injury. In the one, the body politic, through its representative, the government, is the actor or plaintiff; in the other, the injured party. ]^or is the judgment in one process affected by that rendered in the other. It is competent for the government, if it sees fit, to bend the forms of public process to serve the cause of private redress, where the injury complained of has been caused by persons acting under a power created by the government, as is the case in Massa- chusetts where death has been caused by the negli- gence of any servants or agents of a corporation. In such cases a penalty may be recovered of the cor- poration by indictment for tlie benefit of the widow and children of the deceased.^ No wrong, however, is to be considered a crime so as to come within the cognizance of criminal law, ' Boston, &c., R. R. «. Dana, 1 Gray, 100; Hyatt v. Adams. 16 Mich. 189; Meister i=. The People, 31 id. 103; Rev. Stat., lU., 1874, 395, § 293. " 4 Black. Com. 5. »Gen. Stat, c. 63, § 97, 98; Amos, Science of Law, ^5. ELEMENTARY PRINCIPLES. 6 unless the same, if committed, is in violation of some public law, and this may consist of an act done, if forbidden, or an omission to do it, if re- quired, as the case may be.^ By law as here spoken of is intended the common or unwritten law, as well as that declared in the form of written statutes.^ Before proceeding to analyze the constituent ele- ments of all crimes, and to classify them according to the order in which they are generally treated of, it may be well to recall some of the changes through which the criminal law in this respect has passed, in becoming conformed to the improved condition of civil society. Long within the liistoric period of the race, many of the wrongs which are now taken cognizance of as crimes against the public law, were held to be within the proper scope of personal satisfaction and redress, and were left to the injured party to seek these on his own behalf. The doctrine of personal revenge for personal injuries prevailed, at a certain stage of civilization, among all the early nations in Europe, as well as Asia. JSTot only was ' 4 Black. Cora. 5; 1 Bish. C. L. (4th ed.), § 532; Common- wealth V. Sha tu 'k, 4 Cusli. 143. 2 Commonwealth r. Chapman, 13 Met. 69-71; 2 Br. & Had. Com. (Wait's ed.), 332, n. It is not easy to reconcile this with the declaration of the Bill of Rights in the Constitution of Massachusetts, Art. 10, " the people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent," when it is remembered how often it happens that a principle is laid down, for the first time, as com- ing within the common law, by a divided court, and is accepted thereafter as such be"cause a major part of its judges had the prerogative of declaring it to be law. 4 CEIMINAL LAW. this right of private revenge universally recognized, but it vs^as made a point of honor for the injured j)arty, or, in the case of his death, for his family relations, to exercise it even to the taking of the life of the offender. It was to guard against mistake or too hasty action in carrying out this principle, that altars and cities of refuge were provided, at or within which one who had caused the death of an- other might be safe from violence, till the circum- stances imder which this had occurred could be inquired into. By the laws pf Moses if he was found to be innocent of guilty intention, he was suffered to escape, but, otherwise, he was delivered up to " the avenger of blood " or the next relations of the man slain, " that he may die." ^ The first step in the pi'ogress of reform from such a barbarous law, was by relieving the relations of one who had been slain, from their obligation to take up his quarrel, and revenge his death; and the next by making it honorable to accept a pecuniary sat- isfaction for personal wrongs, and then compelling him to accept it, if offered, and to forego the ren- dering of evil for evil, which had once been the only means of redress for injuries done. The early laws of the Saxons, coming down to the time of William, have numerous provisions for the payment of weregild,^ ov compensations for such injuries, ii'om the taking of life to the dislocation of a finger. A still more important step was the inflicting fines upon offenders, to be paid to the king, in addition • 19 Deut., 10-13. « 4 Black. Com. 188. ELEMENTARY PRINCIPLES. O to this compensation to the injured party, whereby the king, for the. first time, acquired an interest in the prosecutions for oifenses accompanied by breaches of the peace. A Saxon's house was held peculiarly sacred from acts of violence, and the king, acting upon this hint, as the people became more civilized, proceeded to impose a fine for his own use upon any one breaking the peace within the king's house, and next for' doing this within a prescribed distance around his house or courts. He then extended this to the king's highway, and, at last, to his whole kingdom, taking upon himself the infliction of whatever penalty was incurred by the breaking of the king's peace, wherever it took place, and leaving the injured party to recover com- pensation for the damages he may have sustained, by means of a civil action in his own name in the courts of the realm. And in this way, we have the origin of the phrases uniformly used in English in- dictments, for example, " in the peace of God and our Lord the King," and " against the peace of our Lord the King," and the like, which, witli proper modifi- cations, have been adopted into our American forms.^ In England, there being no public prosecutor, the party injured by the commission of a crime, is the proper prosecutor therefor, but in the king's name, while in the United States, these jjrosecu- tions are, except in their initiation in some cases, the proper business of public oflficers, who conduct ' Karnes's L. Tracts, 30, 37, 38, 40 ; 1 Hale's P. C. 8 ; Thrupp's Tracts, 121-124. 6 CEIMINAL LAW. the same in the name and behalf of the people, whose peace is assumed to have been violated.^ The violation of a duty or privilege, if of a pub- lic nature, created or imposed by statute, is, in itself, a crime, and a subject of indictment, although the statute may not prescribe any punishment for such violation.^ In order, therefore, that a given act should constitute a crime, it must be so held by the common law or declared to be such by statute, or be a violation of some duty or privilege created by statute, or it must be something which is ex- pressly prohibited by some statute.* Although the act done may come within the cat- egory of crimes as above described, in order that it should be such in fact, it is necessary that it should be accompanied by certain qualities and capacities on the part of the one who does it. They are mentioned here by the way of defining the con- stituents of crime, but will be treated of more at length hereafter. In the first place, the act must be done with an intent on the part of the one doing it to commit a wrong. They both must concur; the will must 1 1 Bish. C. L. (4th ed.), § 530. [As to when the pubhc prosecutor may be allowed the assis- tance of, or be represented by, counsel employed by private par- ties, see Commonwealth v. Knapp, 10 Pick. 477 ; Common- wealth i\ Williams, 2 Cush. 682 ; Commonwealth v. Gibbs, 4 CTray, 146 ; Commonwealth v. King, 8 Gray, 501 ; Meister r. The People, 31 Mich. 99 ; State i\ Bartlett, 55 Me. 200.] ' 1 Bish. C. L. (4th ed.), §§ 187, 535 ; Commonwealth r. Sils- bee, 9 Mass. 417 ; 1 Chitty C. L. 162. » 1 Black. (Sharsw. cd.J 57. ELEMENTARY PEII^CIPLES. 7 unite -witli tte act.' The act may be one of omis- sion to perform a duty resultinp^ from criminal neg- ligence on the part of ttie one upon whom it de- volved.^ This implies a sufficient capacity on the part of the one doing the act to understand the nature of the act he is doing, and to know that, in doing it, he is violating the law. To this end, he must be of competent age and of sufficient under- standing. If of too tender an age, or a too weak or insane state of mind to come within these classes, they are held to want that intent which makes them amenable to the criminal law.^ And every man is presumed to intend the legal consequences of what he voluntarily does.* But if of sufficient age and understanding to act with deliberate intent, it will be no defense that he did not know the criminal char- acter of the act done, since every man is presumed to know the laws of the country in which he dwells, or is doing business. It is otherwise in respect to ignorance or mistake in matters of fact.' In the next place, the act must be a voluntary one. It otherwise wants the requisite intent.* '4 Black. Com. 21; Eden's Pen. Law, 88, Rev. Stat. Ill 1874, 391, § 280. ^ Br. & Had. Com. (Wait's ed.) 360. See Rev. Stat. 111. 1874, 894, § 280. s 1 Bish. Cr. L. § 375, et seq; 1 Br. & Had. Com. (Wait's ed.) 340, 342; Rev. Stat. HI. 1874, 394, §282, etseq.; Rev. Stat. N. Y., pt. 4. ch. 1, tit. 7, § 2. * Commonwealth v. Call, 21 Pick. 522. »4 Black. Com. 27; 1 Bish. C. L. § 294 et seq.; 1 Br. & Had. Com. (Wait's ed.) 348; Moore's Cr. Law, §§ 11, 12; Tiff. Cr. Law, 26. "4 Black. Com. 27; Amos' Science of Law, 238, 245; Rev. Stat. 111. 1874, 395, § 289. 8 CRIMINAL LAW. In classifying crimes, the first division seems to be into such as are mal.; 1 Bish. C. L. §35, BOte; Merchinils Bank r. Cook, 4 Cuah. 41 1. ■■4 Black. Cora. 95, 97; .laoob L. Die., Felony; 1 Bish. C. L. 8 615; 1 Whart. Cr. L. § 2; Wright, Ten. 45, n'; Barring. Sta':. 276. ELEMENTARY PKINCIPLES. 11 substantially, is the case in [Illinois, Iowa, Miclii- gan,J New York, and Virginia.^ These terms. Felonies and Misdemeanors, were not in themselves indicative, at common law, of the relative grades of crime in i-espect to their magni- tude or the depravity of the act, the stealing of a shilling, for example, being a felony, while perjnry was classed among misdemeanors. But the dis- tinction is still important to be observed in many respects. Thus it is essential to the conviction of one charged with a felony that the indictment should allege the act to have been done " feloniously'." If a man is charged in an indictment with " stealing " a horse, he would only be convicted of a trespass unless it were charged to have been " feloniously " done.^ If the act charged be in itself a misde- meanor only, the alleging it to have been done fel- oniously is surplusage, and of no effect.^ 'Gen. St. c. 168, § 1 ; Key. Stat. 111. 1874, 394, § 277; Rev. Stat. N. Y. pt. 4, oh. 2, tit. 7, § 30 ; 2 Coiiip. Laws, Mich., 1871, § 7820 ; Rev. Laws Iowa, 1860, § 4129 ; Code of Iowa, 1873, p. 642, § 4104 ; 1 Whart. C. L., § 2 ; Tiff. Cr. L. 724. 2 1 Chitty C. L. 242 ; Arch C. P. 46 ; 1 Whart. Cr. L. § .399 ef Keq ; Moore's Cr. L. p. .550, § 790 ; p. 22-5, note 6 ; p. 272, notes 2, 4 ; p. 296, note 8 ; p. 312, note 3 ; p. 320, note 3 ; p. .321, note 4 ; p. 332, 'note 2 ; p. 340, note 2 ; p. 411, note 2 ; p. 447, note 1 ; p. 389, note 6 ; p. 412, note 4. By Statute in Massachusetts the omission of the word " fel- oniously " in an indictment, if the act done be a felony, is of no effect. Gen. St. c. 168, S 2. [By statute in Michigan the term " feloniously," when used in any statute, is to be construed as synonymous with "crim- inally." Comp. Laws, 1871, § 7821.] ^Commonwealth v. Squire, 1 Met., 260; 1 Whart. Cr. L. § 400 ; Moore's Cr. L. p. 550, § 790. 12 CRIMINAL LAW. Tliis distincitioii between felonies and misde- meanors is recognized by the Constitution as well as Statutes of Massachusetts. So it is in the Con- stitution of the United States.' In applying it, practically, it is only of felonies that accessories are predicated, by which are meant, siich as aid in the commission of the offense charged, either before or after the act is done. In misde- meanors, all who engage in the commission of the act, or in procuring it to be done, are held to be jjrincipals, and may be prosecuted accordingly.^ But, in treason there are no accessories, at least in respect to causing or procuring it to be committed, though, if the accessory be after the act done, it seems he would be treated and tried as such, and not as principal.^ Another distinction between felonies and misde- meanors consists in the right which one Avho has suffered by the misdemeanor of another, has, in some cases, to settle with the offender, and receive compensation for the injury he has sustained, where- 'Mass. Bill of Eights. Art. 25; Gen. Stat. c. 168, § 1; U. S. Const., Art. 4, § 2. See, also, the authorities on the subject dted in the preceding notes. ' 1 Ghitty, C. L. 261; 1 Whart. Cr. L. §• 1.31; Commonwealth V. Barlow, 4 Mass. 440; 1 Bish. C. L. § 685. [ The Statute of Il- linois ( Rev. Stat. 1874, 393, § 274 ) makes all accessories at or before the fact, principals. See B.axter v. The People, 3 Gilm, 368; Brennan v. The People, 15 111., 511 ; Kennedy r. ThePeople, 49 id. 488; Coates r. The People, 12 id. 304. So, in Michigan, 2 Comp. Laws, 1871, § 79.34. See Shannon r. People, 5 Mich. 71.] 8 4 Black. Com. 35; 1 Whart. Cr. L. § 131; 1 Bish. C. L. §S C81, 682. ELEMENTAEY PRINCIPLES. 13 as no one has a riglit to compound whatever is a felony, hy accepting a compensation under an agreement not to prosecute the ofi'ender therefor, and if lie does, he is himself guilty of a crime by such composition.* But the right of composition does not extend to all misdemeanors. The rule as given by statute in Massachtisetts, extends to " as- saults and batteries or other misdemeanors, for which the party injured may have a remedy by civil ac- tion," with a few prescribed exceptions.^ A distinction was made at common law between such felonies as were with and such as were without "benefit of clergy," which is another form of dis- tinguishing between such as were punishable capi- tally and such as were not. The number of capital oifenses at different periods was frightfully large. The number as given by Blackstone as being capi- tal without the benefit of clergy, was one hundred and sixty, made so by act of Parliament.^ There were classes of offenses, however, m the early history of the criminal jiirisprudence of Eng- land, the cognizance and trial of which, if charged upon a priest, the church claimed to the exclusion of the judicial court of the realm. This was con- ceded by the latter, so that a " plea of clergy " was 1 Commonwealth. ?;. Pease, 16 Mass. 92; 1 Bish. C. L. § 713; 4 Black. 138; 1 Chitty, C. L. 4. [The compounding of any criminal oifense is prohibited by sta':ute in llhnois, Rev. Stat. 1874, 358, § 43; Moore's Cr. L. § 24.3, et seq. See, also. Rev. Stat. N. Y. pt. 4, ch. 1, tit. 6, § 12.] ■' 1 Bish. C. L. § 713, and note; Gen. Stat. c. 171, § 2S. » 4 Black. 18. 14 CRIMINAL LAW. an effectual bar to proceedings under an ordinary indictment. As tlie clergy, at that time, were possessed of what little learning there was, it was taken to he sufficient evidence that a prisoner charged with an offense was in orders, if he could read. Tliis in time became a practical farce, and to prevent a repetition of it in individual cases, the defendant who claimed the benefit of clergy was burned in the hand to identify him as having once taken it, if he should be again charged with a simi- lar crime. Even this became in time a matter of form, but punishments less than capital were applied when there were convictions for what had been clergyable offenses, so that felonies with or without benefit of clergy became a distinction be- tween such as were or were not capital offenses.^ This plea of " benefit of clergy" has, at times, been recognized in the United States as a part of the common law, though now generally abolished both in England and in this country by statute. Cases to that effect are cited from North and South Carolina, Pennsylvania, Minnesota and Indiana.^ The privilege was effectually claimed in Massachu- setts upon the trial of the British soldiers in Boston in 1770, where, upon a charge of murder, the jury rendered a verdict of manslaughter, Avhereupon the prisoners " prayed tlie benefit of clergy, which was 1 4 BlPck, 365-374. »2Bt. & Had. Com. (Wait's ed.) 630, n. [See 1 Bish. Cr. L. § 938, for the American cases on this subject. The benefit of clergy, appeals of felony and trials by battle are abolished by statute in Illinois. Rev. Stat. 1874, 410, § 429.] ELEMENT AKY PRINCIPLES. 15 allowed them, and they were each of them burnt in the hand in open court, and discharged." ' This benefit of clergy was abolished in England in 1827, .by Sir Robert Peele's act, and in 1837 two hundred crimes ceased by statute to be felonies without ben- efit of clergy, whereby only some five or six capital oflfenses were retained.^ The change in this respect in England cannot be better measured than by the fact that dnricg the reign of Henry VIII. the num- ber of public executions was 72,000. The change in Massachusetts is shown by the fact that while in 1650 there were seventeen capital ofi'enses, includ- ing the returning into the colony by a Quaker who had been banislied, murder in the first degree is the only capital offense which i-emains on her stat- ute book. In view of the conviction upon the minds of many living under the common law, which has been growing since the days of Bentham, of the need of prescribing for a community what acts shall be pun- ishable as crimes, the subject of a criminal code deserves a single word, if for no other reason than to state, briefly, what has already been done in that direction. Fi-ance adopted such a code in 1810, containing four hundred and eighty-four articles, in speaking of which Mr. Sanfbrd in his re- port upon the general codes of Europe says, " a single manual for a justice of the peace (Burns, in England,) contains one hundred times the nutn- ^ Trial of the British soldiers, etc., 143. ' 1 Law Rev. (Loud.) 448. 16 CRIMINAL LAW. ber of pages employed to express all the laws of the penal code of France.^ This code has been adopted in Italj^, Sicilj, Hol- land, Belgium, The Ehine Provinces, Poland and Switzerland. And Bavaria, Austria and Prussia have also adopted criminal codes. Mr. Livingston prepared his penal code for Louisiana in 1820, but it has never been adopted as a law.- Such codes have been framed and reported by com- missioners appointed for the purpose in Massachu- setts and ITew York, but no further action has been taken in the matter, nor is there any proper code of criminal law in force in any part of the United States.^ In speaking of the progress which has been made in the improvement of the criminal law in Eng- land, it may be proper to mention, although it may be necessary to refer to the subject again, the sub- stitution of Eno;lish for the Latin as the lanfruaffe of indictments, in 1733 ; the right to persons charged with felonies to have their witnesses called and testify under oath, which was established in 1702, and the right of persons charged with felonies to be heard by counsel, which was partially con- ceded in 1693, but not fully till 1837. ' p. 1'24. ^Edinburgh Rev. No. 258, p. 184. [' See the observations of Sir James Pitzjames Stephens on the subject of penal codes, in the introduction to his Digest of the Criminal La.w of England, which work the author states was undertaken to exemplify the possibility and convenience of cod- ifying the criminal law. See, also, an article upon the subject, " Codes, Digests and Treatises," in 21 Solicitors' Journal, (Oct. 13, 1877), p. 911.] ELEMENTARY PEINCIPLES. 17 Many of what were imprpvemeTits in the English criminal law, were a part of the American law from tlie first, either by adopting the provisions of the English, statutes as a part of the common law here, or by giving tliem the form of statutes by the colo- nial legislatures. Such English statutes as were applicable to the wants and condition of the early settlers of these colonies, were adopted as a part of their common law.' Such was the case in the mat- ter of making use of the English language in law proceedings, the admission of witnesses to testify under oath, and the privilege of employing counsel." Anotlier classification of crimes may be incident- ally mentioned here, which is such as are bailable and such as are not. It is sufiicient, for the present, to say that the term "bail," applies to cases where one is arrested upon a criminal process, and, not wishing to be committed to prison, procures some one or more persons to become responsible to the government in a sum of money to be paid if the person arrested shall fail to surrender himself in. ^ Commonwealth v. Warren, 6 Mass. 72; Commonwealth v. Leach, 1 Mass. 60; Harding's Case, 1 Maine, 25. ■ [As to what English statutes (being prior to the fourth year of James the First) are of force in Illinois, see Rev. Stat. 1874, 269, §1. In Michigan it was enacted, in the year 1810, that no Eng- lish statute should be of any force within the territory. 1 Ter. Laws (ed. of 1871) pp. 210, 900. See, generally, Cooley's Const. Lim. *23, 24 and notes.] ° These were deemed of sufficient importance to find a place in the Bill of Rights in the Constitution of Massachusetts. Art. 12. 18 CKIMINAL LAW. court for trial at the time fixed for the same. The right to be thus relieved from imprisonment when arrested, is incident to all crimes except such as are punishable capitally. And it is a provision of the English statute, as vfell as of the State and Federal Constitutions, that " excessive bail " in such cases shall not be required.^ If bail in such cases is re- fused, or excessive bail is required, the party thereby suffering has a remedy under the process of habeas corpus? ^ 1 Br. & Had. Com, *160; 4 id. *393 and note; Cooky's Const. Lim. *310. ' Petersdorf, BaU, 518; Puterbaugh's PL & Pr., 716. CRIMES AND THEIR CLASSIFICATION. 19 CHAPTEE II. OF CRIMES AND THEIR CLASSinCATION. Before attempting to enumerate tlie crimes of wliicli the courts take cognizance, it seems proper to consider what persons are, by law, deemed capable of committing crimes, and sucb as are exempt from responsibility for acts done, wliich would otherwise constitute crimes. If an infant be under the age of seven years, he is held to be incapable of committing a crime punishable by law. If he is of the age of fourteen, which, in law, is held to the age of discretion, he is presumed to be of capacity to commit any crime. Between the ages of seven and fourteen, whether an infant is to be held of sufficient capacity to re- spond for crime, depends upon the evidence in each particular case, it being for the jury to find whether the person charged had, at the time of committing the act, a guilty knowledge that he was doing wrong. The burden of proof to show this is on the govern- jnent. The legal presumption is against his capacity.* Another ground upon which persons are held to be incapable of committing criminal acts, is the ' 1 Wharf. C. L. §§ 58, 59; 1 Bish. C. L. § 368; 4 Br. & Had. 17, 18, n; TifF. C. L. 4; Moore's Cr. L. § 4. [In Illi- nois an infant, undpr the age of ten years cannot be found guilty of any crime or misdemeanor. Rev. Stat. 1874, 394, § 283.1 20 CRIMINAL LAW. want of ability to distinguish between right and wrong, by reason of idiocy or insanity. From the want of any staudai-d by which to ap- ply tliis test, as in the case of an infant, few sub- jects have been so prolific of difiiculty in the administration of the criminal law, as that of insan- ity. Every one who has arrived at years of discre- tion is presumed to be of sound mind, until the contrary is proved,' and if he sets up a plea of in- sanity the burden of establishing it is upon him.^ The language of the Court in one case is : " It must be so great as entirely to destroy his perception of right and wrong, and it is not until that perception is thus destroyed that he ceases to be responsible." ^ ['See Swell's Lead. Cases, 716, 718, 719, and cases cited; McNaghten's case, 10 CI. & Tin. 200.] [" See the cases in support of this proposition collected in Ewell's Lead. Cases, 719. Another class of cases lays down what, in view of the pre- sumption of the innocence of the accused, seems to be the more reasonable rule — that sanity being the normal condition of the mind, " they [the prosecution] are at liberty to rest upon the pre- sumption of sanity until proof of the contrary condition is given by the defense. But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh, and pass upon it with the understanding that, although the initiative in presenting the evidence is taken by the defense, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt." People v. Garbutt, 17 Mich. 23; Hopps v. The People, 31. 111. 385; Chase v. The People, 40 id. 352. See the cases collected in Swell's Lead. Cases, 719.] " Flanagan i'. People, 52 N. Y. 467; Ortwin v. Common- wealth, 76 Penn. St. 414; Commonwealth v. Heath, 11 Gray, 304; Commonwealth v. Eddy, 7 Gray, 584. See, also, McNagh- ten's case, supra; Hopps v. People, 31 III. 385, CRIMES AND THEIR CLASSIFICATION. 21 The capacity to distinguish between right and wrong here spoken of, has reference to the particular act complained of, since it is a familiar fact that men may be partially insane, or insane upon some sub- jects and sane in respect to others.* Questions have arisen, in respect to which the authorities seem to be somewhat conilicting, upon which party is the burden of proof, if, upon the evidence offered of the prisoner's insanity, there is a reasonable doubt of his sanity in the mind of the jury. The weight of authority seems to be in favor of holding the government to the proof in such cases that he was sane, since criminal intent is one of the essential elements of crime to be established by the government.^ The defense of moral insanity has often been raised in the courts, and, althoiigh strongly advo- cated by writers upon medical jurisprudence, it has not generally found much favor in the minds of courts or juries, where the evidence shows a mere morbid, wicked, or depraved propensity of the will, while the general powers of the mind remain in their normal activity.^ •1 Whart. C. L. §§ 15, 16; Commonwealth v. Rogers, 7 Met. 502-504; McNaghten's case, 10 CI. & Fin. 200. See, also. Swell's Lead. Cases, 660, et seg. ^Commonwealth v. Kimball, 24 Pick. 373,374; 1 Whart. C. L. §§ 711, 55; 2 Br. & Had. Com. (Wait's ed.) 342-3, and the American cases cited in the note, covering several of the points above stated. See note 2, p. 20. 3 2 Br. & Had. Com. {Wait's ed.) 343, note ; Flanagan v. People, 62 N. Y. 467. [See Carpenter's Mental Physiology, § 555, et seq ; Krafft Ebing, Gerichtlicher Psychopathologie, p. 155, et seq ; Eay'3 22 CRIMINAL LAW. It matters not in its bearing upon the responsi- bility of one couimitting a criminal act, if insane, liow he becomes so, even thongh it be in conse- quence of habitual intoxication, provided it be not a case of voluntary intoxication as distinguished from settled insanity, or intoxication procured by the fraud or stratagem of another.' But if a state of temporary insanity follows as the immediate re- sult of drinking to intoxication, the man voluntarily drinking is criminally amenable for what he does under the influence of the drink taken.^ Married women are of capacity to commit crimes, but if they do so in the presence of their husbands, they are presumed to have acted under their coer- cion, and are thereby excused.^ There are some misdemeanors for the commission of which a mar- ried woman would not be excused, althougfli done in her husband's presence, such as keeping a brothel, and uttering counterfeit coin/ Med, Jur. of Insanity, 209, 292 ; Morel Traite des Maladies Mentales, 1860, p. 542 ; Prichard on Insanity, (ed. 1833,) p. 14 ; Maudsley, Physiology and Pathology of the Mind, (ed. 1867,) p. 311 ; Bannister on Moral Insanity, Chicago Journ., Nerv. and Ment. Disease, Oct., 1877, for a medical view of the question.] 1 2 Br. & Had. Com. (Wait's ed.) 346. note ; 1 Whart. C. L. § 32 ; Moore Or. L. § 7 ; Tiflf. Cr. L. 18, 19. 2 1 Bish. C. L. § 400 ; Moore Cr. L. § 7 ; Tiff. Cr. L. 18 ; Rev. Stat. 111. 1874, 395, § 291. '4 Black. 22, 28; 1 Bish. C. L. § 357, et seq., who does not ex- cept, as many writers do, treason and murder, from the offenses for committing which they would be excused; 1 Whart. Cr. L. § 71, et seq., who also takes the same view; 1 Hale P. C. 47. [See Rev. Stat. III. 1874, 395, § 288, modifying the common law rule.] *4 Black. 29; 1 Hawk. P. C. 2, 3; 8 Car. & P. 19. CRIMES AND THEIR CLASSIFICATION. 23 The capacity of corporations to commit criminal acts is an artificial one only, and created by statute requiring them to perform certain prescribed duties. For a breach of these they are liable to be in- dicted and lined. But they cannot be indicted for the commission of an act, the criminality of which depends upon a scienter and intent, nor can they for^ crimes implying personal violence, like riots, assaults and the like, nor from breaches of morality implj'- ing a corrupt mind.' But where a crime or misde- meanor has been committed under color of corporate authority, or when a corporation clearly transcends its authority, and does acts amounting to trespass on other's lands, the individuals who cause the act to be done, and not the corporation, are responsible for what is doue.^ In England and many of the States the law, in defining crimes, distinguishes between the degrees of criminality attached to their commission, and the punishment to be inflicted therefor.^ ■ 1 Whart. Or. L. § 85 et seq.; 1 Bish. Cr. L. § 417, et seq.; Commonwealth r. Newburyport Bridge, 8 Pick. 42; kng. & Ames, Corp. §394-6; Reg. v. Railway, &o., 9 Ad. & EI. N. S. 314; Reg. u. Railway, &c., 3 Ad. & El. N. S. 228; Benson v. Mon- son & Brimiield Mg. Co. 9 Met. 562; Mass. Gen. Stat, c. 63, §§ 97, 93. [An action of trespass for an assault and battery will, however, lie against a corporation. St. Louis, A. & C. R. R. Co. V. Dalby, 19 111. 353; Chicago & N. M^ Rwy. Co. v. Pea- cock, 48 id. 253"'] •■^ State V. Great Milk Co. 20 Maine, 41 ; Ang. & Ames. Corp. § 894. ' In Massachusetts this only applies to murder. Gen. St. c. 160, §§ 1, 2 ; 1 Whart. C. L. §§ 112, 116. See also TiflF. Cr. L. 24 CKIMINAL LAW. The element of malice enters into most of acts which are punishable as crimes, but it does not necessarily imply what is understood to be meant by the term in the popular sense, hatred and ill will, but only the willful doing of an unlawful act.' As the present work is designed to embody, for ready reference by the student, the elementary prin- ciples only of the criminal law, as they are applied in practice, it has not been thought necessary to do more in describing or defining what the law takes cognizance of as crimes, thaii to borrow such out- lines as are found in most of the accredited treatises upon criminal law. Nor will it be necessary to attempt to enumerate all these, since the purposes at which it aims are rather to give an idea of the forms of process and modes of prosecution by which crimes are made cognizable by the courts, than to point out the distinctive characteristics of the dif- ferent classes into which they are divided. For convenience they will be mentioned mainly in their alphabetical order, rather than their relative magni- tude or importance, or what would be a more sys- tematic arrangement, into crimes against the sov- ereignty of the State, against the person, against property, against the course of public justice, and the like. In enumerating statute otFenses, such as are 810, 811. Mr. Wharton has collected the statutes of the sev- eral Stales upon this point. 2 AVhart. 0. L. §§ 1075, 1082. 1 Commonwealth v. Bonner, 9 Met. 410; 1 Bish. C. L. § 429; Tiff. Cr. L. 814. [See Rev. Stat. 111. 1874, 374, § 140, for a definition of malice in cases of mm-der. See Moore Cr. L. §§ 321, 333, et seq.] CRIMES AND THEIR CLASSIFICATION. 25 declared to be such by the statutes of Massachusetts are mentioned by way of example, since there is not space for all the States. Affray consists in two or more persons fighting together in a public place, to the terror of the peo- ple. If the fighting be of a nature calculated to excite terror in the minds of reasonable men, it is sufficient, although no actual terror is proved. If m.ore than two persons are thus engaged, it may bring the act within the category of riots, which will be spoken of hereafter.' There is also a class of offenses which are re- garded as such, for the same reason that aifrays are indictable, such as going around with dangerous weapons without reasonable cause of appjehension of an assault or other injury, engaging in a duel, and the like.^ Arson is defined to be " the malicious and willful burning the house or out-house of anothei- man." It was a felony at common law and formei'ly was punishable capitally.^ By these authorities it is held that by " house " is meant not only a dwelling house of another, but all out-houses that are parcel thereof, though not contiguous thereto, nor under 1 4 Black. 145; 1 Whart. Cr. L. § 2494; 2 Bish. C. L. § 1, et seq.; Hawk. P. C. c. 63, §1; Rev. Stat. lU. 1874, .S90, § 250; Mass. Gen. Stat, c 169, § 14. 2 Gen. Stat. Mass. c. 169 § 15; Whart Cr. L. § 2496;lBish. Or. L. § 540; 2 Bisli. C. L. § 312, et seq. ^ 4 Black. 219; East. P. C. 1015; 2 Whart. 0. L. § 1658; 2 Bish. Cr. L. § 8. 26 CRIMINAL LAW. the same use, as barns and stal)les. So, it would be arson of anotlier's house if one willfully sets fire to liis own house whereby that of the other is burned.' There must be an actual burning of the building or some part of it, but it is not necessary that it or any part of it should be wholly consumed.^ It is not an oifense to burn one's own dwellinjj house, unless it be in the occupation of another under a lease, in which case it would be, or unless it be done to defraud an insurance office,' or it was so contiguous to the house of another as to burn it, but the burning of a house by the tenant who holds a lease of it, is not arson by the common law.^ The burnins: of one's own house or that of an- 14 Black. 321; 2 Whart. Cr. L. § 1667; East. P. C. 492, 1020, 1031. Mass. Gen. St. c. 161, § 1, speaks of burning the dwelling house or any building adjoining such dwelling house, changing the common law in this respect. [See also Rev. Stat. 111. 1874, 354, § 13; 2 Comp. Laws Mich. 1871, § 7552-7554; Rev. Stat. N. Y. pt. 4, ch. 1, tit. 1, § 9; Code of Iowa, 1873, p. 603, §§ ^880, 3881, for statutory modifications of the crime of arson.] In Massachusetts the burning must be of a dwelling house, and to bring it within the meaning of that term, it must be a place of the residence of the party named, and must be inhabited and occupied at the time, and some one must then live in it. Commonwealth v. Baring, 10 Cush. 478. 2 East. P. C. 1020; Moore Cr. L. §'449; 2 Whart. Cr.L. § 1659; Mead v. City of Boston, 3 Cush. 407. PMass. Gen. Stat. c. 161, § 7 ; Rev. Stat. 111. 1874, 354, § 14 ; 2 Comp. Laws Mich. 1871, § 7560 ; Code Iowa, 1873, p 604, § 38S8 ; Rev. Stat. N. Y. pt. 4, ch. 1, tit. 3, § 5. At common law arson cannot be committed by a man upon his own house even if insured. 2 Bish. C. L. § 12.] *2 Whart. C. L. § 1664 ; Bloss v. Tobey, 2 Pick. 320 ; East. P. C. 1031 ; 2 Bish. C L. § 13 ; East. C. L. 1026. CRIMES AND THEIR CLASSIFICATION. 27 other, with intent to injure the insurer thereof, is made a felony by statute in Massachusetts, [as well as in some other States.] ' Assault and Battery. These are mentioned to- gether because, although there may be an assault which is not accompanied by a battery, every bat- tery implies an assault as an essential element of the crime. The one is an attempt or oifer to beat another, without touching him, the other is an un- • lawful beating of another, and the least touching of another's person willfully or in aiiger is a battery.^ An attempt to commit a battery which would constitute an assault, must be a possible one, if not prevented by some cause otlier than t!ie incapacity attending the act itself. Thus to point a loaded gun at a man who is within its range, or striking at liim while within his reach, would be an assault; but it would not be such if the distance was too great to reach his person. To constitute an assault, there must be the commencement of an act which, 'Gen. St. 0. 161, §7. See also Bast. P. C. 1028, 1031, and note 3, ante, p. 26. By the statute of Massachusetts, it is made a felony to maliciously burn a church, court house, college, store, or any other building, of a class enumerated in the statute, and the burning of barns, stacks of hay, boards, timbers and the like, is punished by imprisonment or fine, [and the same rule has been prescribed by statute in other States.] Gen. St. c. 161, §§ 4, 5. See also Stat. 24 and 25, Vict. c. 97 ; 2Br. & Had. Com. (Wait's ed.) 504 ; Eev. Stat. 111. 1874, 35 1, § 13 ; 2 Comp. Laws Mich. 1871, § 7554 ; Code of Iowa, 1873, i>. 604, § 3882. ■' Hawk. P. C. c. 62, §§ 1, 2; 3 Black. 120; 2 Br. & Had. Com. (Wait's ed.) 109, note; ib. 492, 493, note. 28 CRIMINAL LAW. if not prevented, would produce a battery.' If, in attempting to strike another, he comes so near as to create reasonable apprehension of immediate vio- lence, it would be an assault although he failed to reach lum.^ The force in the cases supposed, must be unlaw- fully exercised to constitute the offense, for if done in defense of one's person or property, or by wn- avoidable accident, or in giving moderate correction by a parent, master or school teacher, to his child, apprentice or pupil, it does not constitute an offense.^ A lighting with fists is an assault and battery, though the parties agree thus to fight and have no ill will towards each other. There is a class of assaults which are aggravated by the intent with which they are committed, and are punished accordingly, such as assaults with an intent to commit murder, rape, and the like, which are more properly treated of in connexion with the offenses with which they are associated. If it be committed with an intent to commit a felony, it cannot be compounded by the parties, as may be done in ordinary cases of assault and battery.* Barratry is an offense at common law, and is so nearly allied to Champerty and Maintenance that '2 Br. and Had. Com. (Wait's ed.) 493 and note; 2 Whart. Cr. L. § 1244; Rev. Stat. 111. 1874, 355, § 20. •>■ 2 Bish. C. L. §§ 31, 32. '3 Black. 120; Commonwealth v. Randal, 4 Gray "38; 2 Whart. C. L. § 1259; 2 Bish. C. L. § 37; Morrow ». Wood, 22 Am. L. Reg. 694; Commonwealth*). CoUberg, 119 Mass. 350. *Mas3. Gen. Stat. c. 171 § 28. See ante, p. 13, note 1. CRIMES AND THEIR CLASSIFICATION, 29 they are treated of under the same head. They all relate to unlawfully stirring up and encouraging law suits, and lie within so narrow a compass as to require little more than the definitions as found in accredited works upon criminal law, to convey an idea of what the law is in respect to what consti- tutes their criminality. A harrator is deiined to be a common mover, exciter or maintainer of suits or quarrels in courts, in which he is not interested in his own right, and the number of those suits must be, at least, three, to render him amenable as a common barrator.* But this does not extend to attorneys for engaging in the management of suits for others.^ Champeetv is deiined to be the unlawful mainte- nance of a suit in consideration of some bargain to have part of the thing in dispute, or some prolit out of it.^ It takes its name from cam^pum jpartire, to divide the land.* It was forbidden by 3 Ed. 1 c. 25, but was also illegal at common law.^ 'IRnss. Cr. (G-reaTe's ed.) 266; Commonwealtli v. McCul- loch, 15 Mass. 229; Commonwealth v. Davis, 11 Mass. 434, 435; Hawk. P. C. c. 81, §§ 1, 3; 2 Bish. C. L. § 64; 2 Whart. C. L, § 2391; Tiff. Cr. L. 596; Moore Or. L. §§ 233, 242; Key. Stat. 111. 1874, 355, § 26. 5 Hawk. P. C. c. 81, § 4. 'Hawk. P. C. c. 84, § 1; 2 Bish. Cr. L. § 131: Thompson v. Reynolds, 73 111. 11; Lathrop v. Amherst Bank, 9 Met. 490. *1 Russ. Cr. (Greave's ed.) 259; Thompson v. Reynolds, 73 111. 11; 2 Whart. C. L. §2804. ^ Lathrop v. Amherst Bank, sup. [ It is a misdemeanor at common law, and punishable in Illinois as such. Thompson v. Reynolds, 73 111. 11, explain- 30 CRIMINAL LAW. It is not essential to the commission of the ofi'ense that one who maintains the suit should do it at his own expense, and, on the other hand, it wonld not be champerty if the party have a remote or con- tingent interest in the subject litigated, or stand in near affinity to the one in whose behalf the suit is prosecuted.^ Although it would be champerty in an attorney to purchase the subject matter of a suit pendente lite, it would not be to accept an assignment of it by the way of security.^ In a case in Massachusetts an attorney was em- ployed to collect a large debt for a client in the State of ]S"ew York, for which he was to receive ten per cent, of what he collected. The attorney ren- dered valuable and important services in prosecuting the suit, and claimed to recover therefor either the percentage or compensation for his services. But the court held the contract as to the percentage void for champerty, but that he might claim a reasonable compensation for services rendered.^ A contract to share in a matter in dispute in court for furnishingev- idence in the case, was held to be void for champerty.* ing Newkirk v. Cone, 18 111. 449. In Iowa, Ohio and Vermont it is not, as it seems, a criminal offense. Key v. Vattier, 1 Ohio .58; Hall». Ashby, 9 id. 96; Weakly r. Hall, 13 id. 167; Wright r. Meek, 3 G. Greene, 472; Danforth r. Streeter, 28 Vt. 490. See. also, 2 Comp. Laws, Mich. 1871, § 7427.] ^ Lathrop v. Amherst Bank, sup. ^ Anderson r. Radcliff, E. B. & E. 816; Simpson v. Lamb, 7 E. & B. 84; Wood c Downes, 18 Ves. 120. 'Thurston v. Percival, 1 Pick. 41-5; Lathrop v. Amherst Bank, sup. * Stanley v. Jones, 7 Bing. -369. CRIMES AND THEIR CLASSIFICATION. 31 Under this head is included the buying and sell- ing pretended titles to lands, which was early for- bidden by statute. Among these was the 32 Hen. 8, c. 9, which forbids it, " unless the seller, his an- cestors, or they by whom lie claims, have been in possession of the same or of the reversion or re- mainder thereof" And iu this lies the origin of the law which prevails in every State, where it has not been changed by statute, that a deed of land of which the grantor is then disseized, is void.^ The deed in such cases being void, a right of action re- mains in the grantor to recover the seizin, and the grantee may bring it in the name of the grantor for his own benefit.^ And this doctrine extends to all cases of assign- ment of unnegotiable clioses in action. With the exception of bills" of exchange, which were negotia- i)le by the custom of merchants, none others were negotiable, until promissory notes, if of the requi- site form, were made so by the statute of Anne. But the assignee might sue the proraissor in the name of the principal to the use of the assignee.' Maintenance is an " officious intermeddling in a suit that no way belongs to one, by maintaining or 1 3 Wash. Real. Prop-. (4tli ed.) -329; 2 Bish. Cr. L. § 136, et seq. Contra, in Ohio, lUinois, Michigan and Iowa; Hall v. Ash- by, 9 Ohio, 96; Willis v. Watson, 4 Scam. 54; Fetrow v. Mer- riwether, 53 111. 275; 2 Comp. Laws, Mich. 1871, § 4209; Code of Iowa, 1873, p. 357, § 1932. i^McMahan v. Bowe, 114 Mass. 144; 3 Wash. Real Prop. (4th ed.) 329; WiUiams v. Protheroe, 5 Bing. 309. '2 Bish. C. L. § 134; Lewis v. BeU, 17 How. 616; Lathropf. Amherst Bank, sup. 32 CEIMINAL LAW. assisting either party with money or otherwise, to prosecute or defend it." ^ The law of maintenance is much less stringent than formerly, and if one has an interest in a suit, present or contingent, like that of a reversioner or heir apparent, he may aid in carrying it on or de- fending it. So may he assist a near kinsman, ser- vant or poor neighbor in a suit, though, it is said, he may not furnish money for the purpose to any more remote kin tlien a father or son. Nor is it unlawful to give or lend money to one to aid him in accomplishing a lawful end byla^vful means.^ But where one stirred up a pauper to commence and prosecute a suit without a reasonable and probable cause, it was held to be an oiFense at common law, and he was responsible to the party sued.' The foregoing cases and authorities so far as they relate to what counsellors and attorneys at law may lawfully do, in commencing and carrying on suits for others, seem to sustain these propositions, viz: They may not stir up or encourage suits which are known to be without reasonable cause, nor agree to share with a suitor in what he can recover in a suit. And if the suitor agrees to pay him a certain per- centage of what is gained in a suit, the contract is void, though he might recover a reasonable com- '4 Black. 134: Hawk. P. C. c. 83, § 1; 1 Russ. Cr. (Greave's ed.) 254; Rev. Stat. lU. 355, § 27; Moore, Cr. L § 238. ' 4 Black. 1.34; 1 Russ. Cr. (Greave's ed.) 255, 256, 257; 2 Bish. C. L. 122, et seq.; Lathrop v. Amhei-st Bank. sup. See, also, 2 Whart. Cr. L. § 2804. ' 1 Russ. Cr. (Greave's ed.) 255, note; PicheU v. Watson, 8 M. & W. 691. CRIMES AND THEIK CLASSIFICATION. 33 pensation for his services. It is not only his right but his duty to use all reasonable and lawful means in prosecuting the claim of his client. But in Eng- land, unlike the law in this country, a barrister can- not sue for or recover for services rendered in the pros- ecution of a suit for §, client, however meritorious.' Beibeey, like champerty and maintenance, is an offense against public justice, and consists in a judge or any other person concerned in the administration of justice, taking an undue reward to influence his conduct in his oflice.^ Another definition is the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done.^ And it seems to be equally a crime to give and receive, and the attempt by offering a bribe is a complete offense, whether received or not.* BuEGLAEY is defined by Coke as the breaking and entering a mansion house by night, with intent to commit a felony.^ 1 Kennedy v. Brown, 13 C. B. N. S. 677; Alden v. Patter- son, 5 John. Ch. 48. 2 4 Black. 139; Hawk. P. C. c. 67, § 2. " 2 Bish. C. L. §■ 85. -* 4 Black. (Shars. or Cooley's ed.) 139, note; 2 Bish. C. L. § 85, note: 2 Whart. C. L. § 2814; Rex v. Vaughan, 4 Burr. 2500-1; 3 Inst. 147; 2 Br. & Had. (Wait's ed.) 434, note; Mass. Gen. St. c. 163, §9; [Rev. Stat. 111. 1874, 356, §31; 2 Comp. Laws Mich. 1871, §§ 7659, 7660; Code of Iowa, 1873, p. 613, §§ 3939, 3940; Rev. Stat. N. Y. pt. 4, ch. 1,'tit. 4. art. 2, §§ 9, 10.] 53 Inst. c. 63; Hawk. P. C. c. 38, § 1; 2 Whart. C. L. § 1531; 2 Bish. Cr. L. § 90 34 CRIMINAL LAW. Tlie meaniug of night time, at common law, is when it is too dark to discern a man's face.^ By the Massachusetts statute night time is defined to be between an hour after sundown, and an hour before Sim rising.^ The place broken must be occupied as a dwelling, in order to have the act of breakino- and enterino- burglary. But a temporary absence from the house by its inmates, during which it is entered, does not relieve the act from being burglary. If a tenant has hii-ed a house and moved a portion of his goods into the same, but has never lodged in it, the break- ing into it, in that condition, would not be burglary. But the mere casual sleeping in a building, as by a servant in a barn or warehouse to guard it, would not make it a dwellinoj house. A singrle room like a chamber in a college, or inn of court, in which the occupant is accustomed to lodge and sleep, is con- sidered the dwelling house of the occupant, and the subject of burglary.^ So, if one has partially completed a house, and a person has slept in it to guard it, but the owner has not moved in or slept in it, it is not a dwelling house. But if a house be occupied by the wife, guest or servants of the owner, breaking and enter- ing it would be burglary as to such owner, as would ' 4 Black. 224; East, P. C. 509. 2 Gen. Stat. c. 172, § 13. [By the act of April 10, 1877 (Sess. Laws, p. 85,) the Rev. Stat, of 111. 1874, 367, § 36, were amended by omitting the words "in the night time."] 'East, P. C. 491, § 505; 3 Inst. 64, 65; 2 Whart. C. L. § 1568; 2Bi8h, Cr. L. § 108. . CRIMES AND THEIR CLASSIFICATIOJST. 35 be the case if the chamber of a guest at an inn were broken. If the owner let the entire building to separate lodgers, and does not occupy any part of it as a dwelling house, the breaking and entering would not be burglary as to him, but as to the lodger whose room was entered it would be. But if the owner occupied any part as a dwelling himself, it would be burglary as to him alone, and not as to the lodgers. And if two families occupy separate parts of the same house, and one part is broken into, it is burglary as to the occupant of that part.' If there be a shop or out-house connected with a dwelling house, under the same roof, a breaking into one of these is a burglary, although there be no connecting passage between them. But if they are not under the same roof, nor within the same curtilage, or fence enclosing both, it would not be burglary to break into such shop or out-building. But it is said it would be, if they were parts of the same curtilage and inclosed by a common fence. The stat. of 7 Geo. 4, c. 29, requires, in such cases, a communication with the dwelling house immediate or by a covered and enclosed passage.^ As to the breaking, it may be an outer door or 'East, P. C. 498, 500, 505-6; 4 Black. (Shars.ed.) 224, note; 2 Bish. C. L. §§ 106-108. [ See 2 Whart. Cr. L. § 1568, where it is stated that it makes I no difference ( in cases where the residence of the lodger is permanent ) that the owner occupies an apartment in the same building.] ■' East, P. C. 493 ; 1 Bish. C. L. (4th ed.) § 302 ; 2 Whart. Cr. L. § 1557. See 2 Br. & Had. Com. (Wait's ed.) 511, note of American cases. 36 CRIMINAL LAW. window. If tlie outer door or window through which the entry be made be open, and the one enter- ing open an inner door to commit a felony, it would be burglary. So, if one like a servant who is in a house, breaks or opens a closed door into a room in the house, to commit a fe]on3',it would be burglary. So, it would be to enter a house by the chimney, or by admission gained by fraud. Turning a key, raising a latch, or opening a window, would be a sufficient breaking, if followed by an entry into the house or room.^ Breaking a twine netting fastened before an open window is a sufficient breaking.^ By the statute of Anne, if one who has commit- ted a felony in a house, break out, in the night time, it is declared a burglary'. As to what constitutes an entry, it is sufficient if any part of the body be within the house, as thrust- ing in a hand or foot, or putting in a hook to steal goods from the house*. If the breaking and entry be to commit a mis- demeanor only, it is not burglary.' Entering a dwelling house in the night time without breaking, if with a felonious intent, or 1 Bast, P. C. 485-488 ; 4 Black. 226, and note ; 2 Bish. Cr. L. § 91 ; 2 Whart. Cr. L. § 1532, et seq. ^ Commonwealth r. Stevenson, 8 Pick. 354. [See also Nolan v. The People, 22 Mich. 229 ; Dennis v. The People, 27 Mich. 151, raising a transom window.] ' East. P. C. 489 ; 2 Whart. Cr. L. § 1546. See also Mass. Gen. St. c. 161, § 10. *East, P. C. 490; 4 Black. 226, and note; 2 Br. & Had. Com. (Wait's ed.) 511, note; 2 Bish. Cr. L. § 92. ^East, P. C. 509; 2 Bish. Cr. L. § 110; 2 Whart. Cr. L. § 1601; Commonwealth v. Newell, 7 Mass. 247. CKIMES AND THEIR CLASSIFICATIOlSr. 37 breaking and entering in the day time a building or ship to commit a felony, the owner or any per- son being lawfully therein and put in fear thereby, is made burglary by statute in Massachusetts/ Cheats, or cheating, which comes within the cat- egory of crimes, by the common law, must be dis- tinguished from private cheats which are effected by mere false promises to pay, or lying as to the quality of an article sold, and the like. It must be accomplished by fraud, and of such a nature as is calculated to be of public injury in its bearing and effect, and to deceive people in general. It is de- fined as consisting in the fraudulent obtaining the property of another by any deceitful and illegal practice or tok,en short of felony, which affects or may affect the public.^ " Gross fraud or cheat at common law " is spoken of as a distinctive offense by the statute of Massa- chusetts, and punished as such. Bat the same stat- ute, in another section, subjects to imprisonment as a crime the obtaining from another any property or his signature to any instrument the false making of which would be forgery, by a false pretense or by a privy or false token.^ Under the head of cheats, therefore, will be included the offense of obtaining goods by false pretense. 'Gen. Stat. c. 161, § 13. For statutes of other States, see Wharfc. C. L. (6th ed.), §§ 1511-1530. 2 East. Or. L. 816-818; 2 Br. & Had, Com. (Wait's ed.) 466, note; Commonwealth v. Warren, 6 Mass. 72; People v. Babcock, 7 John. 201. » Gen. St. c. 161, §§ 54, 58. 38 CEIMINAL LAW. Cheating by use of false weights, or false meas- ures is indictable at common law. So, if done by false tokens, which were some real visible m.arks or things, such as a key or ring, made use of before the general use of written orders, to indicate that the person possessing it may be trusted as coming from the owner of such token.^ But obtaining goods by false pretenses is not an offense at common law.^ It is held to be indictable as a cheat to induce an illiterate person to execute a deed to his prejudice by reading it to him in different words from such as are written in it.' Both English and American statutes now make it indictable to obtain property of another by false pretenses, although no false token or symbol is em- ployed. Bnt in either case, to constitate a crime the person sustaining loss must have been induced by the false token or pretense to part with some right or thing of value, and be thereby defrauded.'' ' Commonwealth v. Warren, 6 Mass. 72; East, C. L. 826-7; People V. Babcock, 7 John. 204. See 1 Bish. Cr. L. § 671. 2 Commonwealth v. Call, 21 Pick. 520. ' 2 Bish. C. L. {4th ed.) §§ 154, 158; Hill v. the State, 1 Yerg. 76, a promissory note. The statute of Massachusetts punishes as a cheat the selling and conveying land which is incumbered or under an attach- ment without disclosing the fact to the purchaser if known to to the vendor. Gen. Stat. c. 161, §§ 59, 60. * 2 Bish. C. L. (4th ed.) §§157, 457; id. (6th ed.) §415; Com- monwealth ». Drew, 19 Pick. 182, 183; Commonwealth ». Call, 21 Pick. 520. [See some of the statutes upon the subject in 2 Whart. C. L. § 2068, et seq.; Rev. Stat. 111. 1874, 366, § 96, et seq.; Code of Iowa, 1873, 636, § 4073; 2 Comp. Laws Mich. 1871, § 7590.] CRIMES AND THEIK CLASSIFICATION. 39 And such pretense must be a representation of some past event or existing fact or circumstance' calculated to mislead a person, or throw him off his guard, which is not true; and this must be known to the one making it, and must be made with a fraudulent intent. It reqiiires some artifice, some de- ceptive contrivance. It does not regard naked lies as false pretenses. The false pretense may be made in any way in which ideas may be comuiunicated by one person to another. Words are not essential. But the drawing of a check upon a bank in which the drawer has no funds, and presenting it to the bank whicli paid it, is hot an indictable false pre- tense, although intended to defraud the bank. Nor did it make any difference that it was drawn in a false and assumed name, if the name had no influ- ence in inducing the bank to pay the check. But if he had paid the check to a third party, knowing he had no funds, and that it would not be paid, it might have been a false pretense within the statute, although he made no oral declaration in respect to it.^ If the party alleged to be defrauded has the means in his hands of protecting himself against being deceived, and neglects to use them, the law will not interfere by way of indictment. So, if the pretense be absurd or irrational.* ' Bish. C. L. § 415. ''Commonwealth v. Drew, 19 Pick. 179; Rex v. Jackson, 3 Camp. 370. 'Commonwealths. Drew, 19 Pick. 185; East, C. L. 828. [See, however, 2 Bish. C.L. §§433, 436; Moore Cr. L. § 592, as to shallow pretenses, calculated, however, to mislead a weak mind.] 40 CRIMINAL LAW. Among the acts wliicli have been held to be false pretenses within the statute, is the passing as good a bill of a broken bank, known to be such by the payer, or any other worthless bill known to be such by the one who pays it.^ Where one obtained a loan by fraud, and the lender delivered certain bank bills upon sncia loan, without expecting the same bills to be returned, it was held not to be larceny in the borrower, but the obtaining money by false pretenses.^ [So, a knowingly false representation, whereby one gains a credit, that he, or the firm of which he is a member, owes only a certain sum, or is pecu- niarily sound, or is worth a certain amount of money, is a false pretense.] ' But the representation, to be criminal, must be more than an expression of opinion. A mere opin- ion is not a false pretense.^ The falsity of the pretenses must be proved, which were material in inducing a credit to be given or a sale of property to be made on the part of the per- son alleged to have been defrauded.' ' 2 Bish. C. L. {4th ed.) § 426. ■■'Kellogg V. The State, 26 Ohio St. 1.5; 24 Am. L. Reg. 499. ' [2 Bish. Cr. L. § 437; 2 Whart. Cr. L. § 208-5, ei. seq. By statute in Illinois (Rev. Stat. 1874, 366, § 97) such false repre- sentation is required to have been made in writing, and signed by the party making it. For further illustrations of false pre- tenses, see 2 Bish. Cr. L, §§ 41-5, 437, et seq; 2 Whart, C. L. § 2092, et. seq.] • 2 Bish. C. L. (4th ed.) .5.32, 433; id. (6th ed.) § 454. * Commonwealth v. Davidson, 1 Cush. 43. [As an absolute negative is generally incapable of proof, it will be sufficient for the prosecution to approximate to such neg- CKIMES AND THEIE CLASSIFICATION. 41 To establish the criminality of a false pretense, so as to bring it within the statute, [it must have been a pretense of some existing or past fact] ;' it must have been [linowingly false'' and] made with an intent to defraud;^ it must have been the means by which the party making it obtained property or credit;* it must have been believed by the party who gave credit to it, or parted with his property;^ and it must have been the cause of his parting with his property or his giving credit." Conspiracy is defined by the commissioners ap- pointed to report a penal code for Massachusetts, to be '' a malicious and fraudulent combination, con- federation, association, agreement and mutual \m- dertaking or concerting together of two or more to commit any crime or instigate any one thereto, or charge any one therewith, or to do what plainly and directly tends to excite to or occasion a crime, or what is obviously and directly injurious to an- other." Numerous cases are cited by them giving instances and examples wherein the various divis- ions of this general definition are illustrated, but which are too numerous to be referred to in detail. The definition of conspiracy, as given by Mr. Green- ative, and it will suffice to show a strong probability of falsity. 2 Whart. Cr. L. § 2110.] MBish. Cr.L.§415. ' 2 Bish. Cr. L. §§ 417, 471. 3 2 Bish. Cr. L. § 471. ^ 2 Bish. Cr. L. § 460. ' 2 Bish. Cr. L. § 462. «2Bish. Cr.L.§461. 42 CRIMINAL LAW. leaf, is substantially the same as given above, though not quite so much in detail.' In § 90 of the volume cited, Mr. Greenleaf has collected a great variety of cases, illustrating the definition he has given, to which reference may be had for the requisite authorities. Among these may be mentioned a conspiracy or combination to per- petrate an oifense which is already punishable by law. If, however, it be to commit a felony which is carried into effect, it is merged in the felony. But if it were to commit a misdemeanor, the con- spiracy would not be merged in it, if peqjetrated. Another would be, to injure a third party by charg- ing him with a crime, or any other act tending to disgrace and injure him, or to extort money from him, or to defraud him of his property, or to ruin his reputation, trade or profession. Another would be, to obstruct, pervert or defeat the course of pub- lic justice, such as dissuading a witness from attend- ing court, or giving evidence, or procuring false testimony, or publishing a libel, or a hand-bill with intent to influence the jurors who are to try a cause, or procure certain persons to be placed on a jury .2 It would be an indictable conspiracy to combine to do many acts, the doing of which would not, in themselves, be indictable, as to destroy the reputa- tion of an individual by verbal calumny. The difiiculty in defining the offense is in making it broad enough to include all cases which are punish- ' 3 Greenl. Ev. § 89; Commonwealth v. Hunt, 4 Met. 111. 'SGreen. Ev. §90. CRIMES AND THEIR CLASSIFICATION. 43 able as conspiracies, without including acts which are not punishable.' ■ The indictment in Commonwealth v. Hunt was for a conspiracy of workmen not to work for any employer who should employ workmen not mem- bers of their association. The prosecution failed from a defective indictment. But the court held in the course of their opinion, that such combination would not be a criminal conspiracy unless it con- templated the doing an unlawful aeb, though it need not be an act which was indictable in itself. If, for example, it was a combination to break a contract then existing, as by a immber of men in the em- ployment of a farmer under a contract for a period not yet expired, to quit his service unless he raised their wages, it would be an unlawful conspiracy, although a leaving his service by any one of them would on\j subject him to a civil action in damages.^ The essence of the crime of conspiracy is the unlawful agreement and combination of the par- ties. It is not necessary to its consummation that any act should be done to carry it into eifeet. And on the other hand, if an unlawful act is proved to have been done by one or more of several persons, it would not constitute a conspiracy unless such conspiracy be charged in the indictment and unless » Commonwealth v. Hunt, 4 Met. 123; 3 Chit. C. L. 1139, 1140. [See Rev. Stat. 111. 1874, 358 §§ 45, 46; Moore Cr. L. § 659, et seq.] 'i 3 Chit. C. L. 1139; 2Bish. C. L. (4th ed.), § 225; id. [(6th ed.), § 230. See Rev. Stat. 111., 1874, 376, §§ 158, 159; Moore Cr. L.,§§ 258,661.] 44 CRIMINAL LAW. it was done in pursuance of an unlawful combina- tion to do it. The doing of the act is but evidence of tlie conspiracy.' So, there may be an unlawful conspiracy, though it be to do a lawful act by unlaw- ful means.^ As a conspiracy consists in an unlawful combina- tion of two or move persons, if two or more are joined in one indictment, and all but one are ac- quitted, the indictment fails as to him. But if one of two persons named in the indictment die before trial, it does not aifect the prosecution against the survivor. So, one may be indicted alone by aver- ring his conspiring with persons unknown, and if the conspiracy is established by proof, he may be convicted.* If a conspiracy be established by proof, the acts and declarations of any of the conspirators done in pursuance of the unlawful combination, are received as evidence against his co-conspirators.'' CouNTEEFEiTiNG, whcH applied to the current coin of the State, is embraced in the same chapter of the statute of Massachusetts with forgery and offenses against the currency. By that statute, if one " coun- terfeits " any gold or silver coin current by law or 13 Greenl. Ev. § 91; 3 Chit. C. L. 1140; Commonwealtli r. Shedd, 7 Cush. 515; Commonwealtli v. Hunt, 4 Met. 132; 2 Bish. C. L. (4thed.)§191. 'Greenl. Ev. § 95. '3 Greenl. Ev. § 97; [2 Bish. C. L. (6th ed.) § 187, et seq. A conspiracy cannot be committed by a husband and his wife alone on account of their legal unity. 2 Bish. C. L. § 187; 1 Hawk. P. C. (Curw. ed.) 448, § 8.] * 3 Greenl. Ev. § 94. CRIMES AND THEIE CLASSIFICATION. 45 iisage within this State, or has in his .possession at the same time a certain nnmber of pieces of false money or coin counterfeited in the similitude of any gold or silver coin current as aforesaid, knowing the same to be false and counterfeit, and with, in- tent to utter or pass the same as true, he shall be punished, etc.^ It has been gravely questioned whetlier, as by the Constitvition of the United States, States are prohib- ited to coin money, or make anything but gold and silver coin a tender, and the power to do this, and regulate the values of foreign coin, was thereby given to the United States, it is within the power of a State to punisb the counterfeiting of this, it being an offense against the sovereignty of the United States, both by the Constitution and statute of the United States.^ The act of the United States of 1825, c. 65, punishes any person who shall falsely make, forge, or counterfeit any coin in the resemblance or similitude of the gold or silver coin which has been or hereafter may be coined at the mint of the United States, or in the resernblance or similitude of any foreign gold or silver coin, which now is, or hereafter may be, made current in the United States. But the Court of Massachusetts have held that having counterfeit coin in his pos- 'Gen. State. 162, §§ 14, 15. [There are similar statutes in Illinois, Michigan and Iowa. Rev. Stat. 111. 1874, 368, §§ 111, 112: Comp. Laws Mich. 1871, § 7645 ; Code of Iowa, 187!:!, p. 611, § 3925.] 2U. S. Const. Art. 1, §§ 8-10 ; Pox v. State of Ohio, 5 How. 410 ; Mattison v. The State, 3 Mo. 421 ; The State v. Shoe- maker, 7 id. 177 ; Rouse v. The State, 4 Geo. 136. 4G CRIMINAL LAW. session, with intent to nttertlie same as true, was an offense cognizable by the State Courts, for one rea- son', because it was an offense within that State, be- fore the adoption of the Oi^nstitution of the United States, and the power to make and enforce sucli statute has never been denied by any competent tribunal.^ [And according to the weight of au- tliority, the States may constitutionally punish the counterfeiting of coin, as well as the passing of counterfeit money, notwithstanding such acts are also offenses against the United States.^] As such an offense would be clearly in violation of the United States law, for which the party guilty of it would be liable to indictment in the Federal Courts, the danger of a double conviction by a State and Federal Court for the same offense, is avoided by the well settled principle that in such cases the court which first takes cognizance of the offense re- tains it to the exclusion of any other court.' Tlie coin mentioned in the statute, the counter- feiting or having which in possession, is declared 1 Commonwealth v. Fuller, 8 Met. 313. The court cite the lol- 1 owing cases sustaining the right of States to punish such acts: Cbess V. State, 1 Blackf. 198; State v. Antonio, 2 Const. R. (S. C.) 776. And to these may be added: Sesemon r. 3tate,3 Head. 26; State v. McPherson, 9 Iowa, 53, 55. But it was held other- wise in Missouri, Mattison v. The State, 3 Mo. 421. Cases are also cited where States exercised the jurisdiction without any question being raised. See Moore Cr. L. § 574. [■' Fox V. State of Ohio, 5 How. 410, 435; United States v. Marigold, 9 id. 560; Harlan v. The People, 1 Doug. Mich. 207; 1 Bish. C. L. § 178; 2 id.'/§ 285; Cooley Const. Lim. 18; Moore C. L. § 574: 2 Whart. C. L. § 1500.] 'Thurston v. Moore, 5 Wheat. 31. CRIMES AND THEIR CLASSIFICATION. 47 an offense, must be such as is current by law in this State. Therefore the having in possession a coun- terfeit gold coin in similitude of one issued by the State of California, which by the constitution can not coin money, was held not to be within the statute.' The knowingly uttering of counterfeit coin being a false token, would, however, as it seems, be indict- able as a cheat at common law in the State Courts.^ But as there is no criminal common law under the United States, the act complained of must come within the provisions of some statute to be indict- able in the United States .Court.' The Statute of Massachusetts makes it an indict- able offense to make any instrument designed for making counterfeit coin, or knowingly to have such instrument in his possession, with intent to use the same in coining such money. [Similar statutes also exist in other States.*] Embezzlement is declared by the Massachusetts statute to be simple larceny, but it is treated as a distinct offense. The language of the statute is " whoever embezzles or fraudulently converts to his ' Commonwealth v. Bond, 1 Gray, 584. [The Statute of lilinois (Rev. Stat. 1874, .368, § 111) prohibits the counterfeiting of " any species of gold or silver coin, current by law or usage in this State, or any foreign State or country."] i* 2 Bisb. C. L. (4th ed.) § 273; id. (6th ed.) §§ 286, 287. » 2 Bish. C. L. (4th ed.) § 263; id, (6th ed.) § 281. *Mass. Gen. Stat. c. 163, § 17; Rev. Stat. 111. 1874, 368 § 113; 2 Comp. Laws, Mich. 1871, § 7648; Code of Iowa, 1873, p. 611, § 3924. 48 CRIMISTAL LAW. own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods, or property delivered to him which may be the the subject of larceny," etc' But it does not in- tend to merge the crime of embezzlement in that of larceny.^ This is followed by clauses declaring what persons are subject to indictment for embez- zlement, which embrace some who woiild not have been liable under previous statutes.^ The crime of embezzlement by bringing it within the category of larceny, was made such by statute to meet the case of unlawfully converting the prop- erty of another, where no trespass has been com- mitted (which, by the common law, is essential to constitute a larceny), and also to embrace certain breaches of trust which were not indictable at the common law.^ When, therefore, the offender has the qualified property and actual possession of the goods at the time of the alleged embezzlement, it would not be larceny at common law.* Yet if the person who converts the specific prop- ' Gen. St. c. 161, § 25. [The Illinois statute contains a sim- ilar provision. Rev. Stat. 1874, 362, § 74. See, also, Sess. Laws Mich. 1875, p. 140.] ''Commonwealth v. Simpson, 9 Met. 142; Commonwealth V. King, 9 Cush. 287; 2 Bish. C. L. (4th ed.) § .332; ib. (6th ed.) §327. '§§ 37-41; Commonwealth ». Wyman, 8 Met' 259; Com- monwealths. Steams, 2 Met., 346; Commonwealth v. Hays, 14 Gray, 64; Commonwealth v. Butteriek, 100 Mass. 11. * 2 Bish. C. L. (4th ed.)§ 326; 2 Whart. C. L. § 1905; Com- monwealth V. Steams, 2 Met. 345; Commonwealth v. Hays, 14 Gray, 63-64. » 2 Cooley's Black. 230; note. CRIMES AND THEIR CLASSIFICATION. 4^ erty of another, had possession of it for a special purpose, as a servant to carry from his master to the house of a friend, or a sum of money to be counted, or obtained possession by fraud with intent to steal it at the time of receiving it, it would be considered ^g^ a larceny in the one making the conversion, since the owner never parted with the property in the goods, > nor lost the constructive possession thereof. "^ To constitute embezzlement, the one converting the goods or money of another, must, when doing it, sustain a fiduciary relation in respect to the same with the owner, and, in so doing, must be guilty of a breach of trust.^ But if an auctioneer sells goods for cash, and fails to pay it over to the owner of the goods, it is not embezzlement, since his duty was to sell the goods, and the money received was his till he paid it over; he might mix it with his own, or deposit it in bank in his own name, and his use of it would not be embezzling another's money.^ The same principle applies to commission merchants,* attorneys' and collectors of bills for a newspaper ■2 Wharfc. C. L. §§1843, 1908; Commonwealth v. King, 9 Cush. 287, 288; Kibs v. The People, 81 111. 599; 8 Chicago Legal News, 335; 2 Cooley's Black. 229, 230, note; Common- wealth V. Stearns, 2 Met. 347; Commonwealth v. O'Malley, 97 Mass. 586; Moore Cr. L. 496. '^ Commonwealth ». Straus, 2 Met., 345; Commonwealth v. Hays, 14 Gray, 64. See 2 Bish. C. L. § 352. ' Commonwealth v. Straus, 2 Met. 348. [See Zschocke v. The People, 62 111. 127, where a constable sold goods levied on by him, at private sale, and converted the proceeds to his owa use.] *See Rev Stat. lU. 1874,. 363, § 78. 5 See id. §79. 4 50 CRIMINAL LAW. establishment; to use the money so collected is not embezzlement.^ By the statute cited (§ 41), carriers and all per- sons entrusted with property, who fraudulently con- vert the same, are liable for embezzling the same. Under this, it was held that if a servant, upon a check drawn by his master, and sent by him to the bank, obtain bills therefor, and fraudulently convert them, it would be embezzlement and not larceny.^ But if one pays another money by mistake, and the re- ceiver converts the same to his own use, it was held not such an entrusting and violation of a trust as to come within the category of embezzle- ment.* An indictment for embezzlement must not only aver an entrusting of the goods with the party charged, but the purposes for which this was done, and must state the specific property alleged to have been embezzled, properly described.* Embezzling several articles at the same time, may be treated as so many distinct acts of embezzlement. Where one received from another a note to get it discounted at a bank, and fraudulently procured it to be discoimted on his own account, it was held to be an embezzlement of the note.' ' Commonwealth v. Libbey, 11 Met. 65. 2 Commonwealth*. King, 9 Cush. 288; 2 Bish. C. L. (4th ed.) §352. ' Commonwealth ». Hays, 14 Gray, 62, 65; 2 Bish. Cr. L. (4th ed.) § 346; id. (6th ed.) 355. * Commonwealth v. Smart, 6 Gray, 15; Commonwealth v. Merrifleld, 4 Met. 468. 'Commonwealth f. Butterick, 100 Mass. 9. CRIMES ANB THEIR CLASSIFICATION. 51 FoEoiBLE Entey AND Detainee. By the Mass- achusetts statute, persons are forbidden to make an entry into lands or tenements except in cases where their entry is allowed by law, and in such case they shall not enter with force. [Similar statutes are also in force in other states.]' But an unlawful •entry made upon another's land with technical force, constitutes- a trespass ; but if not accompanied with other acts of force or violence, would not be an in- dictable offense.^ There are early English statutes against Forcible Entries, such as that of 5 Rich. II. st. 1, c. 8, and 8 Hen. 6, ch. 9. But it is held to be an indictable offense, both by statute and the common law.^ In order to sustain an indictment for a forcible entry, the entry must be accompanied by circumstances tending to excite terror in thp owner, and to pre- vent him from maintaining his right. There must be at least some apparent violence or some unusual trespass, or the parties attended with an unusual number of people, some menaces or other acts giv- ing reasonable cause to fear that the party making the forcible entry will do some bodily hurt to those in possession, if they do not give up the same. It is the existence of such facts and circumstances con- nected with the entry, that removes it from the class 1 Gen. Stat. Mass. c. 137, § 1; Rev. Stat. HI. 1874, 335, § 1; 2 Comp. Laws, Mich. 1871, § 6695; Rev. Stat. N. Y. pt. 3, ch. 8, tit. 10, §1. 2 Commonwealth v. Shattuck, 4 Gush. 143;2Bish. G. L. (4th dd.) § 479; Hawk. P. C. ch. 64, § 25. 'Commonwealth v. Shattuck, sup. 144; 4 Cooley's Black. 148, note; 3 Chitty C. L. 1136; 2 Whart. Or. L. § 2014. 52 CEIMINAL LAW. of cases of civil injury.* The terror may be excited and the forcible entry made by a single person.^ ' The entry, to bring it within the law against forcible entry and detainer, must be made under a claim to the premises entered or sought to be en- tered by force. And if one having lawful posses- sion of premises puts another in as keeper of the same, like a servant during his absence, who should resist his entry upon his return, it would not subject him to indictment for forcible entry if he broke in and regained possession by force, though it might not justify creating a riot to accomplish his purpose.^ A forcible detainer is where a man who has en- tered peaceably, maintains his position by force, as if he threatens to do bodily harm to any one who shall attempt to enter, or uses a larger quantity of arms than is usual for protection, or assembles a crowd of persons to repel the approach of others.* Forcible detainer was made an offense by statute, by act of 8 Hen. VI. ch. 9.= Although as a general proposition, one upon 'Fifty Associates v. Howland, 5 Cush. 218; Meader v. Stone, 7 Met. 151; Commonwealth v. Shattuck, sup; Commonwealth V. Roby, 4 Allen, 819; 3 Chitty C. L. 1135; Hawk. P. C. ch. 64, §26. 2 2Bi3h. C. L. (4th ed.) § 481; Hawk. P. C. ch. 64, § 29. '2 Bish. C. L. (4th ed.) § 483. See Hawk. P. C. c. 64, § 32; 2 Whart. C. L. § 2039. * 3 Chit. C. L. 1135 and note ; Commonwealth v. Dudley, 10 Mass. 409 ; 2 Bish C. L. (4th ed.) § 486 ; Whart. C. L. §§ 2040, 2041. »3 Chit. C. L. 1136. CRIMES AND THEIR CLASSIFICATION. 53 wliom another has committed an act which is in- dictable, may have a civil action for the recovery of damages thereby sustained, it does not seem to hold good in tlie case of making a forcible entry, if in making it he exercises his right to regain possession wrongfully withheld from liim, as when his tenant at will continues to hold premises after notice to quit. He may be liable to indictment for commit- ting a breach of the peace by the manner in which he has exercised his right ; and yet, if in so doing he made use of no more force than was necessary to expel the person wrongfully in possession, he would not be liable in an action in damages for expelling him, though done with force.' FoEGEET is an offense both by statute and the common law, and is defined to be the fraudu- lent making or alteration of a writing to the preju^ dice of another man's right, and it may be com- mitted of any writing which, if genuine, would operate as the foundation of another man's liability, or the evidence of his rights, such as a letter of recommendation of a person as a man of prop- ertj' and pecuniary responsibility, an order for the delivery of goods, a receipt, or a railway pass, as well as a bill of exchange or other express con- tract.^ ' Commonwealth v. Haley, 4 Allen, 318 ; 1 Wash. Real. Prop. (4th ed.) 621-627 ; Stearns v. Sampson, 59 Me. 568 ; Clark V. Keliher, 107 Mass. 409. ^3 Greenl. Ev. §§ 102, 108; 2 Whart. C. L. § 1418; 4 Cooley's Black. 247, and note; East, P. C. 852, 917, 923; Com- monwealth V. Ray, 3 Gray, 446; Commonwealth v. Ayer, 3 54 CEIMIIfAL LAW. Forgery may be committed by counterfeiting an instmment wholly printed or engraved, and on which there is no written signature personally made by the one to be bound, if it be printed or engraved, as in case of a railroad ticket.' It is not necessary that the resemblance of the forged instrument to the genuine should be exact. If it be sufficiently alike to be calculated to deceive with the exercise of ordinary care and diligence, it will bring it within the crime of forgery.' If one signs the names of fictitious parties to a note, there being no such parties, though done for the purpose of fraud, he would not be liable for forgery. As where A. signed a note A and B, and represented that B was a partner, when there was no such person, though it was a fraud, it was held not to be forgery.^ It is not enough that one signs a false and forged paper, unless it be of such a character as to defraud or deceive one if used for that purpose. If it falsely affirms, as a fact, a matter which, if true, Cush. 152; CJommonwealth ij. Baldwine, 101 Mass. 198; Mass. Gen. Stat. c. 162, § 1. See also Rev. Stat. III. 1874. 367, § 105; 2 Comp. Laws Mich. 1871, § 7631. 1 Commonwealth v. Ray, 3 Gray, 447; Wheeler v. Lynch, 1 Allen, 402. [Railroad tickets and passes are expressly mentioned in the Illinois statute. Rev. Stat. 1874, 367, § 105.] « East, P. C. 858; 4 Cooley's Black. 247, note; Common- wealth V. Stephenson, 11 Cush. 481; 3 Greenl. Ev. § 105. ' Commonwealth v. Baldwin, 11 Gray, 197 ; 4 Cooley's Black 247, note. [This is made a substantive offense by statute in Illinois. Rev. Stat. 1874, 368, § 107.] CRIMES AND THEIR CLASSIFICATION. 55 would apparently be of no significance or impor- tance, it would not constitute the crime of forgery.^ The essence of the crime is an intent to defraud. The writing another's name would not be a forgery if no one could be injured thereby, though it is not necessary in order to create the offense that any one should have been actually defrauded by it. Thus it is not forgery to fabricate a will of land having but two witnesses, when the law requires three.^ It is not necessary to present or deliver the forged paper to any one as genuine to constitute the crime of forgery.' An alteration of an instrument, in order to con- stitute the crime of forgery, must be in some ma- terial thing. Adding a word to it, which the law would supply, does not alter tlie legal effect of the instrument and would not amount to forgery.* It is also made punishable as forgery by statute to make, alter, or counterfeit a public record or cer- tificate of any clerk or register of any court or pub- lic oflace, where such certificate may be received as legal proof.* Uttering and publishing a false and forged paper, knowing it to be such, is punishable at common law 1 Commonwealth v. Hinds, 101 Mass. 209 ; East, P. C. 860. "4 Cooky's Black. 247, note; 3 Greenl. Ev. § 103; East, P. C. 953. 8 Commonwealth v. Ladd, 15 Mass. 527. ^ 2 Bish. C. L. (4th ed.) § 538 ; 2 Whart. C. L. § 1438. 5 Mass. Gen. Stat. c. 162, § 1; Rev. Stat. lU. 1874, 367, § 105; 2 Comp. Laws, Mich, 1871, § 7631; Code of Iowa, 1873, 609, § 3917; Rev. Stat. N. Y. pt. 4ch. 1, tit. 3, § 25; 4Cooley's Black. 247. 56 CRIMINAL LAW. as forgery, provided some fraud is perpetrated there- by. And such uttering by one knowing it to be false, is punished by statute as forgery.^ By utter- ing is meant, offering to another with an intent to have the thing offered accepted.^ The making, altering, forging or counterfeiting bank bills, or having them in his possession with intent to pass them as true, knowing them to be forged, are made substantive offenses by statute in Massachusetts, [and also in other States.'] The sim- ilitude of the forged to the genuine bills need not be exact. It would be sufficient if they be prima facie fitted to pass as true.^ Laeceny, as defined by East (and his definition is adopted by Mr. Greenleaf ), is " the fraudulent and wrongful taking and carrjdng away by any person of the mere personal goods of another from any place, with a felonious intent to convert them to his, the taker's, own use and make them his own property, without the consent of the owner." ' This defines simple larceny, whereas tliere are classes of mixed or compound larceny where the taking is accompanied by circumstances of aggravation, such '3 Greenl. Ev.'§ 103; Masa. Gen. Stat. c. 162, § 2; Rev. Stat. Ul. 1874, 367, § 105; 2Comp. Laws Mich. 1871, § 7632; Code of Iowa, 1873, 610, § 3918; Rev. Stat. N. Y. pt 4. ch. 1, tit. 3, § 39; 4 Cooley'a Black. 247, note. n Bish. C. L. (4th ed. )§ 321. 'Gen Stat. Mass. c. 162, §3-6; Rev. Stat. 111. 1874,367, § 106; 2 Cnmp. Laws, Mich. 1871, § 7634; Code of Iowa, 1873, 610, § 3920, *2Bish. C. L. (4tli ed.) § 551. 'East P. C. 624; 3 Greenl. Ev. § 150; 2Whart. C.L.§1750. CRIMES AND THEIR CLASSIFICATION. 57 as stealing from the person or in a dwelling house, which are of a higher nature than a simple larceny, and must be charged accordingly.^ A larceny includes a trespass,'^ and necessarily implies an actual taking from the owner's possession against his will, of goods in which he has a prop- erty general or special. And the general property in goods draws after it the legal possession, though in the custody of a servant or agent, while the qualified property of a bailee, is a sufficient owner- ship as against a wrong doer.^ Hence, if the goods are in the hands of a bailor by the owner's consent, and he fraudulently con- verts them to his own use, it would not be larceny, because no trespass has been committed. But if the possession have been gained with a felonious in- tent by fraud and deceit, or by threats or duress, it would be otherwise. So, if the bailment be ter- minated before the act of larceny is committed by the wrongful act of the bailor, it would be larceny. As where a carrier broke open a box which he was carrying, and took the goods therein with a felonious intent, it was held to be larceny. But if he sells the entire package in its original state, it would bring it within the crime of embezzlement and not larceny.* ' 4 Black. Com. 229; 3 Greenl. Ev. § 152. See Rev. Stat. TU. 1874, 377, § 167. 2 2Bish. Cr. L. (6thed.)§835. '3 Greenl. Ev. § 161; 4 Cooley's Black. 230, note. *3 Greenl. Bv. § 162; 4 Cooley's Black 230, note; 2Bish. C. L. (6fch ed.) §§ 833, 834; Exparte Waddy Thompson, 24 Am. 58 CKIMUSTAL LAW. Tlie tiling taken must be of the personal goods of another. Things real, or such as " savour of the realty," are not the subjects of larceny at the com- mon law. The severing them and carrying them away, at the same time by one continued act, though an act of trespass, would not be larceny. But if severed at one time, and carried away at another and different time, it would become larceny, because by such severance they become personal chattels. But now, by statute, the stealing [of fixtures] fruit from orchards, vegetables from gardens, or trees or shrubs growing, and the like, is made larceny.^ The thing taken must be of some value, or it is not the subject of larceny, and value must be averred of the thing taken, in the indictment or it will be bad.^ As property cannot be predicated of animals yer-o? nattm'w, they are not the subjects of larceny un- less reclaimed or dead. But if reclaimed or con- fined, and may serve for food, as deer confined in a L. Reg. 522, taking goods by fraudulent replevin may be larceny; 1 Hale's. P. C. 507; 3 Inst. 108. > 4 Black. Com. 232, 233; 2 Whart. C. L. § 1753; Ewellon Fixtures, 449, etseq^.; Mass. Gen. Stat. c. 161, §25; Rev. Stat. N. Y. pt. 4, ch. 1 tit. 3. § 70; Rev. Stat. 111. 1874, 378, §§ 173, 175; Rev. Code of Geo. § 2194; 3 Chit. C. L. 929; 3 Greenl. Ev. § 163; 2 Bish. C. L. (4th ed.) § 796, statute of South Carolina. [The rule of the common law has been held not to apply to chattels only constructively annexed to the realty. Ewell on Fixtures, 451 ; Jackson v. State, 11 Ohio St. 104; Hoskins v. Tarrance, SBlackf. 417.] *3Chit. C. L. 929; Hope v. Commonwealth, 9 Met. 134; Commonwealth v. Smith, 1 Mass. 245; Moore's Cr. L. § 507; 2 Whart. C. L. §§ 1837, 1838. CRIMES AND THEIR CLASSIFICATION. 69 park, whicli may be taken at pleasure, or fish in a trunk, or bees in a hive, or doves in a, dove-cote, or pigeon house, or in the nest before they are able to fly, and under the care of the owner, it would be larceny to take them if done feloniously.' The flesh or carcasses of wild or domestic ani- mals which have been killed, if of value, are the subjects of larceny. So are domesticated animals, if of any value for food or production, such as neat cattle, sheep, swine, poultry and the like. And a proper distinction is to be made in framing an in- dictment, between the larceny of a living animal and the flesh of a dead one.'' It seems to be con- ceded by writers upon the criminal law, that the 1 4 Black. Com. 235; 2Bish. C. L. (4th ed.) § 786, 789; 3 Chit. C. L. 930; 2 Whart. Or. L. §§ 1754, 1755; Commonwealth p. Chace, 9 Pick. 15, which was a case for steaUng tame doves, in which the Court say, "perhaps when feeding on the grounds of the proprietor^ or nesting on his barn, or other buildings, if killed by a strajiger, the owner may have trespass, and if the purpose be to consume them as food, a;nd they are killed or caught or carried away from the enclosure of the owner, the act would be laiceny," otherwise it would not be. See Rev. Stat. 111. 1874, 377, § 171. [Wild bees are not the subject of larceny while remaining in the tree where they hived. Wallis v. Mease, 3 Binn. 546. See Ewell on Fixtures, 243, and cases cited. Oysters planted in public waters, if not planted where oysters grow naturally, and if the spot is designated by stakes or otherwise so they can be readily distinguished from others in the same waters, are the subject of larceny State v. Taylor, 27 N. J, Law, 117. See, also, Reg. v. Downing, 23 L. T. N. S. 398.] H Black. Com. 236 ; 2 Whart. C. L. § 1755 ; 3 Greenl. Bv. § 163 ; 2 Bish. C. L. (4th ed.) §§ 786, 787; Commonwealths. Beaman, 8 Gray, 497. 60 CKIMINAL LAW. stealing of such domesticated animals as dogs, cats and the like, which do not serve for food, is not larceny at common law. In Massachusetts [and Illinois] it is made larceny by statute to take, with felonious intent, any beast or bird ordinarily kept in a state of confinement.* The article taken must be the property of some person, known or unknown, in order to its being larceny to take it, and when one stole clothing from the body of one who had been drowned, it was held to be the property of his administrators, and to be so described in the indictment.^ Choses in action, like bonds, notes and bills, are not subjects of larceny at common law, but are made so by statute both in England and our own country.* It would be larceny in one thief to steal goods 1 4 Black. 236 ; 2 Bish. C. L. (4th ed.) § 787 ; 2 Whart. C. L. § 1755 ; Gen. Stat. c. 161, § 30 ; Eev. Stat. 111. 1874, 377, § 171. [If such animals are taxed, they are subjects of larceny. 2 Whart. C. L. § 1755 ; People v. Maloney, 1 Park. C. C. 593.] « 2 Bish. C. L. (4th ed.) § 800 ; Wonson v. Sayward, 13 Pick. 404. [The propBrty of a winding sheet and coffin remains in the executor, or other person who was at the charge of the funeral, and who had property therein «rhen the dead body was wrapped therewith and inclosed therein ; and a stealing of such thing is a felony. Hayne's Case, 12 Co. 113 ; Wms. Bxrs. (2d ed.) 505 ; 2 Whart. C. L. § 1823.] »2 Whart. C. L. § 1757 ; 2 Bish. C. L. (4th ed.) § 767 ; Mass. Gen. Stat. c. 161, § 18; Rev. Stat. 111. 1874, 377, § 167 ; 2 Comp. Laws, Mich. 1871, § 7569; Rev. Stat. N. Y. pfc. 4, oh. 1, tit. 3, § 68 ; Code of Iowa, 1873, 606, § 3902. CRIMES AND THEIR CLASSIFICATION. 61 from another who had himself stolen them. And a man may commit larceny by stealing his own goods in possession of another, though his servant, if done with a felonious intent.^ To constitute larceny of goods, there must be a taking and removing them with a felonious intent. The removing must be actual from the place which the thing occupied, and it must be severed from the possession or custody of the owner, and come into pos- session of the thief. Thus, setting a bag of grain on end, but not raising it from the place it occupied, would not be a taking; if it had been raised from the floor, but the thief was prevented from carrying it away, it would be. So, taking an article from the counter of a store which was fastened to it by a string which remained unbroken, or, where a purse at- tached to a bunch of keys was snatched from the owner's pocket, but the keys remained in the pocket, it would not be larceny, there being no sepa- ration of the article from the owner's possession.^ As there must be a trespass committed to consti- tute a larceny, if the owner voluntarily parts with possession of his goods to another, no subsequent wrongful conversion would change the taking into larceny. Thus, if one hires a horse and then sells him before the time of the hiring has expired, it would not be larceny, unless he, intending to sell 1 2 Bish. C. L. (4th ed.) §§ 794, 801; 1 Hale P. C. 507; 4 Cooley's Black. 231, note; 2 Whart. C. L. §§ 1807, 1808, 1822, 1831. 2 3 Greenl. Ev. §§ 154, 155; 2 Bish. C. L. (4th ed.) § 804; 2 Whart. C. L. § 1810; 4 Cooley's Black. 231, note. 62 CKIMINAI- LAW. and convert the horse to his own use, resorted to hiring as a means of obtaining possession of it, and the owner only intended to part with possession by the way of hire.' But if tlie owner voluntarily parts with possession of goods upon sale, although it be by reason of false pretenses, the property will so far pass that a bona fide purchaser will hold them against the vendor.^ If one finds 'goods which have been lost and does not know to whom they belong, and converts them to his own use, it would not be larceny. But if, knowing whose they are, he converts them, it seems that it would be. So, where one left his pocket book upon the counter in another's store who con- verted it to his own use.' So, where one to whom a bureau was delivered to be repaired, opened a secret drawer in it and took out a sum of money, it was held to be larceny.* Stealing food, even to relieve hunger, is larceny .° Mere taking property and using it, is not larceny, though it be by an act of trespass, unless it be done > 2 Bish. C. L. (4th ed.)§ 847; East's P. C. 672; 2 Whart. C. L. § 1847; 4 Oooley's Black. 230 note. ■^ Cochran v. Stewart, 21 Minn. 435. See, also. Fawcett v. Osbom, 32 111. 411; Bell v. Farrar, 41 id. 400; Chicago Dock Co. V. Foster, 48 id. 507; Ohio & M. R. R. Co. v. Kerr, 49 id. 458; Mich. Cent. R. R. Co. v. Phillips, 60 id. 190; 2 Whart. C. L. § 1850. »2 Bish. C. L. (4th ed.) §§ 858, 860, 861; 2 Whai-t. C. L. § 1792; East's P. C. 664; 3 Greenl. Ev. § 159; 4 Cooley's Black. 231, note. * 3 Greenl. Ev. § 159; 2 Whart. C. L. § 1793. See Durfee v. Jones, 16 Alb. L. J. 368. 'IHale. P. C.54. CRIMES AND THEIR CLASSIFICATION. 63 with a felonioas intent to make it his own, or con- vert it to his own use as property ; as where one took another's plough and used it and returned it, or took another's horse and rode it and tlien abandoned it or returned it to the place from which he took it, or took them under a claim of title.^ Although the owner of property loses the actual possession of it by the larceny of another, he does not lose his property in the article stolen, and the law draws the possession to the property; so that if the thief takes the goods in one county and carries them into another, in the same State, he may be in- dicted in the latter county for having stolen the articles there. It is, as to the owner, a felonious tak- ing of his goods in the latter county, so that he may be indicted in either.^ So, it has been held in some of the States that if one steals property in one State and brings it into another, he may be indicted in the latter State ; but it has been held otherwise in other of the States. The States where this right is maintained, as given in Commonwealth v. Uprichard, are Massachusetts, Maryland, Ohio, Yermont, and Connecticut, and Mr. Bishop adds Maine and Mississippi. But it is denied in Pennsylvania, North Carolina, Tennesse, New Jersey, Indiana, and Louisiana. Bj statute such person is made liable in the State to which he 1 1 Hale P. C. 509 ; 4 Black. 232 ; 2 Whart. C. L. §§ 1772, 1773 ; 2 Bish. C. L. (4fcli ed.) §§ 864, 868 ; 3 Greenl. Ev. § 167. 2 Commonwealth v. Rand, 7 Met. 476 ; East, P. C. 771 ; 1 Bish. C. L. (4th ed.) § 109 ; Moore, C. L. p. 340, note 1, §§ 505, 762. 64 CKIMINAL LAW. brings tlie goods, in New York, Alabama, [Illinois, Michigan, and] Missouri/ But, if the goods liave been stolen in a foreign jurisdiction, and brought into the State, the courts of Massachusetts hold that it would not be larceny here, while Maine holds that it would be. In the case in Massachusetts the taking was in Nova Sco- tia, and the goods were brought to Boston.^ But, if one steals a live animal in one State, and kills it there, and then brings it, in that condition, into an- other State, the charge of larceny in the latter State must conform to the condition of the animal after it had been killed. Thus, to allege that one had stolen a turkey in the second State, would imply a live one; and if killed before brought into it, the 1 Rev. Stat. 111. 1874, 407, § 399 ; Rev. Stat. N. T. pt. 4, ch. 1, tit. 7, § 4 ; 2 Comp. Laws Mich. 1871, § 7606 ; Common- wealth V, Uprichard, 3 Gray, 484 ; Commonwealth v. Andrews, 2 Mass. 14 ; 1 Whart. C. L. § 2104 ; 2 id. § 1816 ; 1 Bish. C. L. (4th ed.) 109. The Massachusetts doctrine was reattirmed by the Court in Commonwealth v. Holden, 9 Gray, 7, although Thomas, J., gave an able and elaborate opinion to the con- trary. [See Morrissey v. People, 11 Mich. 327, in which the Court were equally divided as to whether the State could lawfully pro- vide for the punishment in Michigan of persons who, having committed larceny in a foreign country, bring the stolen property into the State. In People v. Williams, 24 Mich. 156, where the larceny was committed in another State, the power was sustained. See also Cooley's Const. Lim. *128, and note.] ' Commonwealth v. Uprichard, 3 Gray, 434; State v. Under- wood, 49 Mama, 181; 1 Bish. C. L. (4th ed.) § 109; State v. Bart- lett, 11 Verm, 650, sustaining the doctrine of Maine. See note 1, supt'a. CRIMES AND THEIR CLASSIFICATION. 65 indictment would be bad in not describing the arti- cle stolen as a dead turkey.' There is no distinction in Massachusetts between grand and petit larceny as classes of offenses, nor is it retained in England. But the extent of the pun- ishment is made to depend somewhat upon the value of the property stolen.^ But the distinction between "simple and compound larceny" is retained; the one being larceny of goods without any circum- stances of aggravation; the other being aggravated by the circumstance of place, or the mode of per- petrating it, as stealing in a dwelling house, or from the person, and the like, but not so far as to constitute burglary or robbery, which constitute a higher class of offenses than larceny. The distinction between simple and compound larceny is made by statute.' By statute in Massachusetts [and Michigan] if any one is convicted of three [distinct] larcenies, either as principal or accessory [before the fact], at the same term of the court, he is to be adjudged a " common and notorious thief," and is subjected to a much severer punishment than for single acts of larceny.* ' Commonwealth v. Beaman, 8 Grvay, 497; 2 Whart. C. L. § 1813. 2 Gen. Stat. c. 161, § 18; 1 Bish. C. L. (4fch ed.) §§ 621, 622. See Rev. Stat. 111. 1874, 377, § 168; Rev. Stat. N. Y. pt. 4, ch_ 1, tit. 3, § 65; 2 Comp. Laws Mich. 1871, § 7669; Code of Iowa,' 1873, 606, § 3902. 'Black. Com. 239; 2 Bish. C. L. (4th ed.) § 881; Rev. Stat. N. Y. pt. 4, ch. 1, tit. 3, §§ 66, 67; Mass. Gen. Stat. c. 161, § 14-17; Code of Iowa, 1873, §§ 3903-3905; 2 Comp. Laws, Mich. 1871, §§7566-7568, 7620, stealing- from car detained by accident. *Mass. Gen. St. c. 161, § 22; 2 Comp. Laws, Mich. § 7570. 66 crimijstal law. Receiving Stolen Goods. This oifense, tliongh once considered as the act of an accessory to the crime of larceny, is now treated as a substantive crime in itself, and may be punished, although the principal thief may not have been convicted.' To constitute the oft'ense, the receiver must know them to have be^n stolen, nor does it matter what his motives in receiving them were; it need not be personal gain or benefit. And the receiving must be from the one who committed the larceny, and not from some one who had previously received them from the thief. The statute covers buying, receiving or aiding in concealing stolen goods.^ A husband may be indicted as a receiver of goods stolen by his wife in his absence.^ [But a convic- tion cannot be had against the wife for receiving goods stolen by her husband.]* Libel. Though no statute in Massachusetts has ever declaimed a libel an indictable offense, it is such by the common law.* It has been found difficult to define it with precision, but its criminality will ' 1 Bish. C. L. (4th ed.) § 638; 2 do. § 1092; Mass. Gen. Stat. c. 161, §§ 41, 45, including the receiving of embezzled goods; Rev. Stat. Ill, 1874, 388, §§ 2.39, 241; Rev. Stat. N. Y. pt. 4, ch. 1, tit. 3, § 73; 2 Comp. Laws Mich. 1871, § 7:51; Code of Iowa, 1873, 608, § 3911. ' 2 Bish. C. L. (4th ed.) §§ 1098, 1095; Ma-ss. Gen. Stat. c. 161, § 43; 2 Comp. Laws Mich. 1871, § 7551; Code of Iowa, 1873, 608, § 3911; Rev. Stat. Ill, 1874, 288, § 239. ' 2 Bish. C. L. (4th ed.) § 1095 a; 2 Whart. C. L. § 1896. * 2 Whart. C. L. § 1896. "Commonwealth v. Chapman, 13 Met. 68; 2 Whart. C. L. § 2535. CRIMES AND THEIR CLASSIFICATION, 67 be found to consist in its tendency to cause a com- mission of crimes by others, or corrupting the morals of others, or instigating sedition against the - government.^ It is defined by one writer, when it affects indi- viduals, as "a malicious defamation expressed in printing, or writing, or signs, or pictures, tending to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby expose him to public contempt and ridicule."^ As defined by Story, J., it is any publication, the tendency of which is to degrade or injure another person, or to bring him into contempt, ridicule or hatred, or wliich accuses him of an act odious or disgraceful in society."^ To constitute an indictable offense, the publica- cation of the libelous charge must be other than by word spoken. These, though actionable, are not the subjects of an indictment.^ The publication may be in various ways, by writing, printing, signs or pictures, caricatures, and the like, such as exhibit- ing a pillory or gallows'. Upon the matter of pub- lication, it would be suflicient to address the libel in ' 1 Bist. C. L. (4tb ed.) § 665; 2 Bish. C. L. § 898. ^ 1 Russ. C. (Greave's ed.) 321; Commonwealth v. Clapp, 4 Mass. 168; Commonwealth v. Holmes, 17 Mass. 336; 3 Greenl. Ev. § 164; Rev. Stat. 111. 1874, p. 378, § 177; Code of Iowa, 1873, 641, § 4097. ' Dexter v_ Spear, 4 Mason, 15; Clark v. Binney, 2 Pick. 115. *Russ. Cr. (Greave's ed.) 343. See, however, 2 Whart. C. L. § 2541. ^ Ellis v. Kimball, 16 Pick. 132, a lithograph caricature; 3 Greenl. Ev. § 165; De Bost v. Beresford, 2 Comp. 511, a paint- 68 CEIMINAL LAW. the form of a letter, if it reach the person libeled ; or a letter to the wife of a person libeled, or the delivery of a letter to a party to be opened in another county, would be a publication where it was delivered, and if opened in the other county it would be a publication ia either. And one who procures another to publish a libel is as guilty of publication as if done by himself.* So, print- ing a libel in a newspaper in one State which circulates in another, is a publication in the latter State.^ Ordinarily the publisher of a newspaper is re- sponsible for the publication of a libel in his paper, although done by his servant unknown to him. So, with the sale of a libelous print in a shop by a servant.^ Although there must be malice in a writing and publication to constitute a libel, it is not necessary to show that it was done with hatred or ill will, since, in law, malice is a wrongful and unlawful purpose, or the willful doing of an injurious act without a lawful excuse.* If in its character a pub- ing; Austin v. Culpepper, Skin. 127, representation of a pillory; 2 Whart. C. L. §§ 2536, 2541a. ' 1 Ru88. Cr. (Greave's ed.) 356, 365; 3 Greenl. Ev. § 169- 173; Wood ». Smith, 2 Bing. 749. ^Commonwealth v. Blanding, 3 Pick. 311. " Buss. C. (Greave's ed.) 357; 3 Greenl. Ev. § 170; 2 Whart. C. L. § 2583. * Alderman v. French, 1 Pick. 7; Commonwealth v. York, 9 Met. 104; Commonwealths. Bonner, 9 Met. 412; Commonwealth V. SnelL'ng, 15 Pick. 340; Townshend on Slander and Libel, 139, § 90; Moore, C. L. § 733. See 2 Whart. C. L. § 2582. CRIMES AND THEIR CLASSIFICATION. 69 lication is libelous, the law presumes malice and it need not be proved.' In order to have a publication criminally libel- ous by its reflection upon the dead, it would seem to be necessary that tliere should be persons living who, as family friends of the dead, would thereby be stirred up to the commission of a breach of the peace to avenge the injury.^ So, if one repeats a fact found in history, supposing it to be true, it would not be a libel, as where a minister in preach- ing, drew an illustration from Fox's Martyrs, of the manner in which the Lord had caused the death of one G. as a persecutor, who happened to be present and heard the sermon.* Although in the case of criminal prosecutions, there was much in the common law to justify the soundness of the dogma, " the greater the truth, the greater the libel," — and such the law now is in many of the States, where the publication is not justifiable by having been made from proper mo- tives^, if made from good motives and justifiable ends, and if it is true, it is a complete defense by [Constitution or] statute in all the States, and sub- stantially so in England.* ' Commonwealth ». Blanding, supra.; Commonwealth v. Snelling, sup.; Brown v. Croome, 2 Stark, 297; 1 Russ. C. 368; Rex v. Woodfall, 5 Burr, 2667; Moore, C. L. § 733. " Topham's case, 4 Term. 126; 2 Bish. C. L. (4th ed.) § 925. 'Brooke. Montague, Cro. Jac. 91. [* Cooley's Const. Lim. * 464; Const. 111. 1870, Art. 2, § 4; Rev. Stat. 111. 378, § 179; Const. Mich. Art. 6, § 25; Const. N. Y. Art. 1, § 8; Rev. Stat. N. Y. pt. 1, ch. 4, § 21; Code of Iowa; 1873, 641, § 4099.] 70 CRIMINAL LAW. It was stoutly maintained by the English courts that whether a publication, under a given state of facts, was libelous or not, was a question of law for the courts to determine, and that the province of the jury was limited to the fact of the publication and the truth of the inuendo, without taking the motives of the defendant in making it into con- sideration. This led to the famous controversy be- tween Mr. Erskine and the court, in the case of the Dean of St. Asaph, which resulted in Fox's Bill in Parliament, giving juries a right to render a general or special verdict as they should see fit, declaring him guilty or not guilty in view of all the facts, or to report the facts, and leave it to the court to say whether they constituted the gravamen of tlie crime charged.^ In a civil action for slander or libel, truth forms a complete answer to plaintiff's declaration.^ Independent of statute provisions, the fact that what is published is true, is no defense in a trial upon an indictment for a libel, unless there be a justifiable cause for the publication. Thus, for ex- ample, the exposure of family troubles, the faults '1 Russ. Cr. (Greave's ed.) 323; 4 Cooley's Black. 151, note; 3 Greenl. Ev. § 176; Cooley's Const. Lim. *462; Alder- man i\ French, 1 Pick. 6. [See Rev. Slat. 111. 1874, p. 411, § 431; Code of Iowa, 1873, 641, § 4102; Const. N. Y. Art. 1, § 8; Rev. Stat. N. T. pt. 1, ch. 4, § 21; Const. Mich. Art. 6, § 25.] 2 Stark, on Slander, 289; 2 Bish. C. L. (4th ed.) § 909; Cooley's Const. Lim. *464; 2 Greenl. Ev. § 425; Mass. Gen. Stat, c, 129, § 77, unless mah'ce is proved; see Rev. Stat. 111. 1874, 992, § 3; Const. 111. 1870, Art. 2, § 4. CKIMES AND THEIE CLASSIFICATION. 71 of childhood long forgotten, and' the like, tending to give pain to the party or bring him into disgrace, are not jnstiiiable.^ The English Stat. 6 and 7 Yict. c. 96, allows the truth to be given in evidence in defense in a trial for a libel, " provided it is for the public benefit that such matter should be published." ^ In Massachu- setts the truth may be given in evidence upon a trial for a libel, " unless on the trial, malicious in- tention is proved." ^ In several of the States, some by their constitu- tions, and some by statute, the truth is made a jus- tification for publishing what is charged as a libel. But Mr. Greenleaf suggests that this ought to apply to libels defamatory of the person and not to scan- dalous libels of a more general character. The States adopting this doctrine, as given, are: Ver- mont, Maryland, North Carolina, Tennessee, Ar- kansas, and Illinois* with some qualifications. In other States, in order to have the 'truth a justifica- tion, the publication must be matter which is proper for public information, while others require that it 1 Russ. Cr. (Greave's ed. ) 323. ^Greenl. Ev. § 176; 1 Russ. Cr. .323. = Gen. Stat. 0.172, § 11; c. 129, § 77. [* By the Revised Statutes of Illinois of 1845, (Criminal Code, § 120,) "in all prosecutions for a libel, the truth thereof may be g-iven in evidence in justification, except libels tending to blacken the memory of the dead, or expose the natural defects of the living." But by the Constitution of 1870, Art. 2, § 4, and Rev. Stat. 1874, p. 378, § 179, it is provided that "in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a suflBcient defense."] 72 CKIMIlsrAL LAW. stonld be published from good motives and justifi- able ends, so that, with some limitations, the truth may justify the publication of what might other- wise be punishable as a libel.' The statute of Massachusetts, moreover, gives juries in trials for libels, as well as for other crimes, a right to return a general verdict, or a special one, at their election, [and the same rule has been prescribed by constitution or statute in other States.]^ There are some matters, the publication of which is not punishable, although it may affect others, being what are called privileged communications. Among these are fair and true statements of pro- ceedings in courts of justice, or by legislative as- semblies, and communications made in good faith respecting candidates for ofiice, to those who are to act upon their election or appointment, such as ministers of congregations, teachers of schools, and the like.^ Malicious Mischief is defined to be " the willful destruction of some article of personal property from actual ill will or resentment towards its owner." ^ 1 Greenl. Ev. § 177, and nofe. ^Gen. Stat. Mass. o. 173, § 15; 3 Greenl. Ev. 179, note; [Cool- ey's Const. Lim. 460; Rev. Stat. lU. 1874, 411. § 431 ; Code of Iowa 1873, 641, § 4102; Const. N. Y. Art. 1, § 8; >.onst. Mich. Art. 6 § 25.] 'Cook V. Hill. 3 Sandf. 350; Cooley's Const. lim. *425, 4:31; 2 Bish. C. L. (4th ed.) § 906-908; 3 Whart. C.L. §§ 2569, 2573; Bodwell V. Osgood, 3 Pick. 376; Commonwealth v. Clapp, 4 Mass. 163. *2Bish.C. L. (4thed.)§955. CRIMES AND THEIR CLASSIFICATION. 73 It covers a numerous class of wrongful acts, and is an oifense both at common law and by statxite. Mr. Wharton has collected the statutes of the several States upon the subject, and treats also of the offense at the common law.^ Trespasses to real estate, maliciouslj' done, are, by- statute, included within the offenses of malicious mischief. Some of the offenses mentioned in the Massachusetts statute upon the subject, which are mentioned here by the way of example, are the breaking down or removing the boundary monuments of towns or lots of lands, destroying mile-stones or guide-boards, destroying lamps, and the like, injur- ing or defacing school-houses or churches, breaking down dams, gates, flumes or flashboards, drawing off the waters of mill ponds, killing and maiming horses, cattle, and the like, cutting down trees or girdling or injuring fruit or ornamenta,l trees, and the like.^ Homicide, Muedee, Manslaughtee. Homicide is the general term for all acts of taking life com- mitted by one man upon another, but as, in some cases, this may be justifiable or excusable, reliev- ing it thereby from criminality, it is only when it is feloniously done that the law takes cognizance of it as a crime. And felonious homicides are di- ' 2 Whart. C. L. §§ 1943-2012. See also 2 Bish. C. L. (4th ed.) §§ 955-966. 2 Mass. Gen. Stat. c. 161, § 67-85. See, also, Rev. Stat. 111. 1874, 379, § 186, et seq.; 2 Comp. Laws. Mich. 1871, § 7596, et seq.; Code of Iowa, 1873, § 3977 et seq.; Rev. Stat. N. Y. pt. 4, oh. 1, tit. 6, § 62. 74 CRIMINAL LAW. vided into two classes, of whicli it is proposed now to treat in their order, Murder and Manslaughter.* Murder, as defined by East, is " the voluntary killing any person (which extends not to infants in ventre sa mere^ under the king's peace, of malice pre- joense or aforethought, either express or implied by law." He adds that tlie sense of this word "malice" is not confined to a particular ill will to the deceased only, but is intended to denote an action flowing from a wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in theni the plain indica- tions of a heart regardless of social duty, and fatally bent on mischief. And therefore malice is implied from any deliberate, cruel act against another, how- ever sudden.^ As has already been stated, there are degrees in the crime of murder recognized by the statutes of some, if not all, the States. Those of Massachu- setts, Maine, Permsylvania,^ New Hampshire, Ohio, Virginia, New York,* New Jersey, Alabama, and Tennessee, make two degrees. Such also is the law of Michigan.^ Its bearing is chiefly, if not wholly, upon the degree of punishment to which the offender is subjected. In Massachusetts, murder in the flrst degree is limited to acts committed with '3 Chit. C. L. 723: 1 Hale, P. C. 424; 3 Greenl. Ey. § 114, 115, 118, 119; East, C. L. 198, 214; Co. 3d Inst. 54. 2 East, C. L. 214, 215; Foster, C. L. 138. ^Actof April22, 1794, §2. ' Rev. Stat. N. Y. (6th ed. Bank's and Bros.) pt. 4, ch. 1, tit. 1, §§ 4, 5, Act of May 29, 1873. 6 Comp. Laws, Mich. 1871, §§ 7510, 7511. CKIMES AND THEIE CLASSIFICATION. 7o deliberately premeditated malice aforethought, or in the commission of or attempt to commit any crime punishable with death or imprisoninent for life, or committed with extreme atrocity or cruelty; and is punishable with death. If it is of the second degree, it is punishable by imprisonment for life.^ So, murder committed in an attempt to commit a crime punishable by imprisonment for life, would be in the first degree, although the punishment for such attempted crime was one which might be punished by imprisonment for life or by a lighter one, at the discretion of the Court.^ At common law, if one commit a homicide while attempting to commit a felony, it would be murder, although wholly unintentional, as shooting at an- other's fowls in order to steal them, and killing a man whom he did not see.^ So, if with intent to murder A, one strikes or fires at him and misses him, but kills B, it would be murder of B. Or if one lays poison for a man intending to kill him, and an- other takes it by mistake, and dies, it would be murder.^ The distinction now made between the cases above supposed is, if the homicide results from an attempt to commit an offense punishable with death or imprisonment for life, it would, [un- der the Massachusetts statute,] be murder [in the ' Mass. Gen. Stat. c. 160, §§ 1, 4, 5. See the statutes col- lected and considered in 2 Whart. C. L. (6th ed.) §§ 1075-1080; 2 Bish. C. L. (4th ed.) § 745; id. (6th ed.) § 723. 2 Commonwealth v. Pemberton, 118 Mass. 36. 5 East, P. C. 255. *East, C. L. 230; 1 Hale P. C. 431; 4 Black. Com. 201; 2 "Whart. C. L. § 965. 76 CKIMINAL LAW. lirst degree]. If tlie crime attempted, be of a lower degree, it would be murder in the second degree.^ It seems to be murder, if one kills another by his wrongful act, however the killing be effected. It may be b}' exposing an infant or impotent person to the weather, by starving him, by blows, by poisoning, and the like.'' It is not necessary that the one who kills another should have any special malice towards him; thus, if one throws a heavy timber from a roof into a crowded street, or shoots into a crowd, intending to kill some one, and causes the death of a person, it is murder; it is a sufficient indication of general mal- ice, though the man killed be a stranger to him.* Counseling a man to commit suicide, and being present at the act done, would be murder.* So, killing another at his solicitation and request, is murder.' If one inflicts a wound upon another not in itself fatal, but it becomes so from the manner in which it is treated, it is not murder. But, if the wound is a fatal one if not attended to medically, and such attention is not given, and the wounded man dies, ^ [See this subject considered with reference to the statutes of the different States, in 2 Wharfc. C. L. § 1081, 1107; 2 Bish. C. L. {6th ed.) § 723, et seq.] n Hale's P. C. 431, 432; 4 Black. Com. 196; 3 Chit. C. L. 725. [See Rev. Stat. 111. 1874, 374, § 140; id. 374, § 13, murder by arson; id. 387, § 226, murder by perjury.] 'East, C. L. 231; 2 Whart. C. L. § 967. * Commonwealth v. Bowen, 13 Mass. 359. *4 Cooley's Black. 189, note. CEIMES AND THEIR CLASSIFICATION. 77 i t would be murder. In the one case, death is not caused by the wound ; in the other it is.^ If one, in resisting an oflBcer in tlie execution of a lawful process of arrest, kills him, it is murder. But, if the process be defective so as to make its service illegal, it would be only manslaughter, [unless the evidence shows previous or expi'ess malice.^ If, however, it appears that the slayer was actuated by previous or express malice, the killing would be murder, notwithstanding the illegality of the at- tempted arrest.^] If death does not follow within a year and a day from the time of inflicting the wound, or doing the act which causes it, the law presumes it was not occasioned thereby, and does not bring it within the category of murder.* If the blow of which the person dies be inflicted in one county, or the shot which wounds is fired in that county, and he dies in another, the person inflicting it or discharging the gun may be tried in either.^ The law as above stated, is enacted as a statute in Massachusetts [and Michigan,] and the same rule is applied where the blow is given in an- ' 1 Hale P. C. 428; Commonwealtli v. CostleV, 118, Mass. 27. ^Rafferty v. People, 69 lU. Ill; s. c. 72 111. 37; 18 Am. Rep. 606. ' Rafferty v. The People, supra. * 3 Inst. 47, 53; Rev. Stat. 111. 1874, 374, § 147. If the stroke be given on the first day of January the year ends on the thirty- first of the next December. Commonwealth v. Paxker, 2 Pick. 558. ^3 Greenl. Bv. § 143. and note; Commonwealth v. Parker, 2 Pick. 558; 3 Chit. C. L. 733; 1 do. 191; 4 Black. Com. 303; Commonwealth v. Costley, 118 Mass. 16, 26. 78 CRIMINAL LAW. other State or on the high seas, but the death occurs within the State.' If one kills another ia a duel, it is murder, by statute in Massachusetts [Michigan, New York, Illinois and Iowa]. If the challenge be given in the State, but the place of the duel and the giving of the wound be within another jurisdiction, it is made punishable as murder within the State, if the death takes place there." And [in Massachusetts and Michigan] the second in such a duel is made liable as accessory before the fact to the crime of murder.' No statute of limitations bars an indictment for murder in Massachusetts.* [The same rule applies in New York, Michigan, Illinois, Iowa, and prob- ably in other States.] ^ It was formerly held that if the killing be proved, it was so far a presumption of malice in the party ■ Mass. Gen. Stat. c. 171, § 18, 19; Comp. Laws Mich. 1874, § 7909. See Rev. Stat. 111. 1874, 407, § 398; Code of Iowa, 1873, 643, § 4159; Tiff. Cr. L. 352; Moore, C. L. §§ 347, 348, 759-761. HCooley's Black. 198, note; 3 CMtty, C. L. 728; Mass. Gen. Stat. c. 160, § 9; Rev. Stat. 111. 1874, 361, § 68; 2 Comp. Laws, Mich. 1871, § 7513; Rev. Stat N. Y. pt. 4, ch. 1, tit. 1, § 6; Code Iowa, 1873, § 4158. 3 Mass. Gen. Stat. c. 160, § 10; 2 Comp. Laws, Mich. 1871, § 7514. [In Illinois and New York, the second also is deemed guilty of murder. Rev. Stat. 1874, 861, § 68. See, also, Code of Iowa, 1873, § 4158, Rev. Stat, of N. Y. pt. 4, ch. 1, tit. 1, § 6.] * Gen. Stat. c. 171, § 20. [5 Rev. Stat. N. Y. pt. 4, ch. 2, tit. 4, § 37; 2 Comp. Laws, Mich. 1871i § 7896; Code of Iowa, 1873, § 4165; Rev. Stat. 111. 1874, 398, § 313; 1 Whart. C. L. § 436, et s«2.J CRIMES AND THEIR CLASSIFICATION. 79 committing it, as to throw the burden of excuse or justification on the defendant. But such is not held to be the law now; the burden of showing malice is on the government, and if it is left doubt- ful, the doubt is to avail the defendant. But in speaking of what would be satisfactory evidence of malice, it is said in Commonwealth v. Webster, " where the fact of killing is proved by satisfactory evidence, and there are no circumstances disclosed tending to show justification or excuse, there is nothing to rebut the natural presumption of malice." In a subsequent case of Commonwealtli v. McKie, it is said, " it is conceded that the burden is not shifted by proof of a voluntary killing, where there is excuse or justification apparent on the proof offered in support of the prosecution, or arising out of the circumstances attending the homicide." And in another case the chief justice instructed the jury that " if the jury, upon all the circumstances, are satisfied beyond a reasonable doubt, that it was done with malice, they will return a verdict of murder, otherwise they will find the defendant guilty of manslaughter.* 'Commonwealth v. York, 9 Met. 91; Commonwealth v. Webster, 5 Cush. 305; Commonwealth r. MoKie, 1 Gray, 65; Commonwealths. Hawkins, 3 Gray, 466; State v. Patterson, 45 Verm. 308, 314. [The Revised Statutes of IlUnois (Rev. Stat. 1845, 156, § 27; id. 1874, p.' 374, § 140,) lay down the rule that "malice shall be impUed where ho considerable provocation appears, or where all the circumstances of the killing show an abandoned and malignant heart;" and (Rev. Stat. 1845, 157, §40; id. 1874, 376, § 155), that "the killing being proved, the burden of 80 CRIMINAL LAW. Manslaughter is distinguished from murder by being done without malice, either express or im- plied, as where the homicide is voluntary but upon a sudden heat, or involuntarily but in the commis- sion of some unlawful act.' One of the cases given of involuntary homicide being held manslaughter, is carelessly driving over a child in the street, and causing its death. ^ Every killing in hot blood is not within the cate- gory of manslaughter. Such would be a case (where the killing would not be reduced to manslaughter), if caused merely by words of slighting, disdain or contumely.^ But if one commits an assault upon the other, accompanied with circumstances of in- dignity, like pulling his nose, and this is imme- diately followed by a blow causing death, it would proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide." In Murphy v. The People, 37 111. 448, the rule is laid down that proof that the prisoner inflicted the mortal wound, raises, in the absence of justifying ormitigating circumstances, a presumption of malice, and devolves on the prisoner the burden of proof of matter in justification or mitigation. In Peri r. The People, 65 111. 18, the rule is stated to be, that in the absence of ap- parent well-founded danger of great bodily harm, or such provo- cation as is calculated to excite irresistible passion, the law will imply malice. See, also, Moore, C. L. §§ 334, 335, and cases cited; Tiff. C. L. 815; 1 Whart. C. L. §§ 709-712.] 14 Black. Com. 191; East, P. C. 232; IHale, P. C. 466, 472; Rev. Stat. 111. 1874, 374, § 143; Moore, Cr. L. § 369. ^ 1 Hale, P. C. 476. n Hale, P. C. 456; 2 Whart. C. L. § 970; East, P. C. 233. CRIMES AND THEIK CLASSIFICATION. 81 be only manslaughter. But this would not be so held, if the death be caused by the use of a deadly weapon, or by brutal violence.' To reduce a homicide from murder to manslaugh- ter in the cases supposed, the act must follow so soon after the insult offered as not to lea,ve time for the blood to cool. If done for purposes of punish- ment or revenge, it would be murder, though origi- nally excited by insult.^ If, as has been before stated, one till an officer who is executing a legal process in a lawful manner, it will be murder. But if it be not a legal process, or be executed out of his jurisdiction, it will be no more than manslaughter. So, if he undertake to arrest another without disclosing his being an offi- cer, and the other resists, and in so doing kills the officer.^ While homicide committed under the circum- stances above described may be either murder or manslaughter, it may be committed so as not to be criminal in its nature, as when it is excusable or justifiable. If one violently assaults another so that the lat- ter cannot save his life, if he " gives back," and he kills his assailant, he is excused for so doing. But ordinarily the party assaulted must, before he takes the assailant's life, have retreated to the wall or " fly as far as he may to avoid the violence of the assault, lEast, P. C. 233-235, 252; 2 Whart. C. L. § 971. 2 East, P. C. 251, 252; 2 Whart. C. L. § 984. > 1 Hale's P. C. 458; East, P. C. 237; RafFerty v. People, 69' 111. Ill; s. c. 72 id. 37; 3 Greenl. Ev. § 123. ^ 6 82 CEIMINAL LAW. before lie turns upon his assailant." * The language of Foster on this point is: "The otlier circumstance necessary to be proved in a jilea of self-defense is, that the fact was done from mere necessity and to avoid immediate death." ^ In the trial of Selfridge in Boston in 1806, Parker, J., instructed tlie jury as follows: 1. "A man who in the lawful pursuit of his business is attacked by another under circum- stances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill his assailant, provided he uses all the means in his power, otherwise, to save his own life or prevent the intended harm, such as retreating as far as he can or disabling his adversary without kill- ing him, if it be in his power. 2. When the attack upon him is so sudden, fierce and violent that a retreat would not diminish but increase his danger, lie may instantly kill his adversary withoiit retreat- ing at all. 3. When from the nature of the attack there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing the assailant will be excusable homicide, although it should afterward appear that no felony was intended.^ '1 Hale, P. C. 481, 482; Foster, C. L. 273; 3 Greenl. Ev. § 116; 4 Black. Com. 184, and note; 2 Whart. C. L. §§ 1020, 1026, in which Selfridge's trial is discussed and the point of de- fense in that case considered. [The subject is regulated hy statute in IlHnois. Rev. Stat. 1874, 375, § 149; Moore, C. L. § 349, et seq.} ^ Poster, C. L. 278. s Selfridge Trial Report, 100. [If t)ae defendant was assaulted by the one slain, in such a CRIMES AND THEIR CLASSIFICATION. 83 But the principle does not extend to cases of at- tempting to commit a felony upon another, which is not accompanied with force, as attempting to pick one's pocket.' But it extends to tlje protecting of each other by- parent and child, husband and wife, and master and servant, by killing the assailant, in the same way as if the attack were made upon the party him- seU? It would not justify or excuse one in taking the life of another to prevent a trespass upon his land, such as taking fruit growing thereon and the like. One may justify the beating of another in defense of his property, but not in taking his life.^ If a woman in resisting an attempt to ravish her, kills the man who makes the attempt, it is a justiii- able homicide. So, if the one who kills him be husband or father of the woman.* The rule as to the right of one to take life in way as to induce in him a reasonable and well-grounded belief that he w^as actually in danger of losing his life, or suffering great bodily hami, he was, when acting under such apprehen- sion, justified in defending himself, whether the danger was real or only apparent. Actual and positive danger is not indispen- sable to justify self defense. Roach v. The People, 77 111. 25, and cases there cited; Pond v. The People, 8 Mich, 150; Hurd V. The People, 25 Mich. 405.] ' 1 Hale, P. C. 488; East, P. C. 273. ''aWhart. C. L. § 1024; 1 Hale, P. C. 484; Pond v. The People, 8 Mich. 150. See, also. Patten v. The People, 18 id. 314. 2 2 Whart. C. L. § 1025; 1 Hale, P. C. 485, 486; State v. Pat- terson, 45 Verm. 320; State ». Vance, 17 Iowa, 138. * 1 Hale, P. C. 485; Poster, C. L, 274. 84 CRIMINAL LAW. defense of his person, habitation, or property, is stated by East to be that a man may repel force by force, against one who " manifestly intends or en- deavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, bur- glary, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adver- sary until he has secured himself from all danger: and if he kill him in so doing, it is called justifiable self-defense." * The court of Vermont examined, at considerable length, under what circumstances a man may kill another in defense of his house or his estate. " 'No assaiilt, however violent, will justify killing the assailant under a plea of necessity, unless there be a manifestation of a felonious intent. If it were to be assumed that the defense might legiti- mately claim that there was an assault on the house with the intent either of taking the life of the re- spondent or doing him great bodily harm, the respondent would be justified in using a deadly weapon, if it should be necessary, in order to pre- vent the perpetration of such crime, or if, under the existing circumstances attending the emergency, the respondent had reason to believe, and was warranted in believing, and in fact did believe, that it was necessary in order to prevent the commission of such a crime. In case the purpose of the assailant was to take life or inflict great bodily harm, and the object of his attack upon the house was to get access to the inmates occupying the same for such ' East, P. C. 271 272; Foster, C. L. 273; IHale, P. C. 493. See Rev. Stat. 111. 1874, 375, §148. CKIMES AND THEIR CLASSIFICATION. 85 purpose, the same means might lawfully be used to prevent him from breaking in as might be used to prevent him from making the principal assault upon the person in case the parties met face to face in any other place. In either case the point of justi- fication is, that such use of fatal means was neces- sary in order to the riglitful, effectual protection of the respondent or his family from the threatened or impending peril." ' ISTuiSAiircE, as a public offense, is defined to be the doing of a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the common good requires.'' If the annoyance is to a single individual, though he may have a civil action for the damages thereby occasioned, it would not be an indictable act. It must be a common or public nuisance.^ Under this head are included obstructions to high- ways, bridges, and public rivers, or a failure to re- pair a highway, where the law imposes it as a duty.* So, the doing, causing, occasioning, promoting, main-j taining, or continuing what is noisome and offen- ' State V. PatterBon, 45 Verm. 308-24. See, also, Pond v. The People, 8 Mich. 150; Rev. Stat. 111. 1874, 375, § 148; Brown V. The People, 39 111. 407; Gresohia^. The People, 53 III. 295. ^4 Black Com. 167 ; 3 Greenl. Ev. § 184 ; Wood on Nui- sances, p. 25, § 17 ; Earp v. Lee, 71 111. 194. 'lb. ; Commonwealth v. Smith, 6 Cush. 81 ; Earp v. Lee, sup. *4 Cooley's Black. 167, note; 3 Greenl. Ev. § 185; Com- monwealth V. Old Colony R. R. 4 Gray, 93. See Rev. Stat. 111. 1874, 385, § 221, for an enumeration of public nuisances in Illinois. 86 CRIMINAL LAW. si%"e, or annoying, or vexatious, or plainly hurtful to tlie public, or is a public outrage against common decency or common morality, or tends plainly and directly to the corruption of the morals, honesty and goqd habits of the people, the same being done without authority or justification by law/ Among the cases given as examples in the books, are offen- sive trades in settled neighborhoods, carrying a per- son infected with a contagious disease through a frequented street, making or keeping gunpowder in or near a frequented place, making great noises in the street at night, keeping a disorderly house, or house of ill fame, and being a common scold.^ These and other like acts are common law offenses, nor is the common law superseded by their being made statute offenses.' No length of time will legitimatize a public nuisance, nor will any one be authorized to con- tinue what creates a nuisance to a neighborhood, although the neighborhood has grown up sinc^ the cause of the nuisance was first established, at which time it was not a nuisance.* There is a statute in Massachusetts declaring ' 3 Greenl. Ev. § 184, from the report of Massachusetts Com- missioners on Criminal Law. * See 2 Whart. C. L. § 2391, and cases there cited; Wood on Nuisances, p. 52, § 57. ^Greenl. Ev. § 184; 4 Cooley's Black. 168 ; Commonwealth r. Rumford Chem. Works, 16 Gray, 231 ; Commonwealth v. Kim- ball, 7 Gray, 328 ; Wood on Nuisances, 33, et seq. " Commonwealth v. Upton, 6 Gray, 473 ; 2 Whart. C. L. § 2367 ; Wood on Nuisances, p. 27, §§ 18, 19 ; id. p. 83, § 80 ; 3 Greenl. Ev. § 187, note of cases. CRIMES AND THEIE, CLASSIFICATIOX. 87 many things nuisances which are such at the common law, giving the Mayor and Aldermen of a city, or Selectmen of towns, authority to abate them, and imposing fines or imprisonment for keeping or maintaining a common nuisance/ [In Massachu- setts, Illinois, and several of the other States, build- ings used for the illegal keeping or sale of intoxi- cating liquors are bj' statute declared to be common nuisances.^] It is stated that if a dog becomes ferocious and dangerous to the pul)lic, he is therefore a public nuisance, and any one may kill him.' And, as a general proposition, any one may abate a public nuisance, provided, in so doing, he do not commit a breach of the peace.* 1 Gen. Stat. c. 87. See Rev. Stat. 111. 1874, 885, §221 ; Code of Iowa, 1873, § 4089. ^ Mass. Gen. Stat. c. 87, § 6; Rev. Stat. 111. 1874, 439, § 7; Streeter r. The People, 69 III. 595; Code Iowa, 1873, § 1543. 3 1 Bish. C. L. {4th ed.) § 1034, and note. * 1 Bish. C. L. (4th ed.) § 1035 ; 2 Wharfc. C. L. § 2377. [See, however. Wood on Nuisances, p. 747, § 729, etseq., where, after an elahorate review of the authorities, the rule is laid down, that a private person may not, under any circum- stances, of his own motion, abate a strictly public nuisance, (that is, one that affects public rights merely, and does not dam- age one individual member of the community more than an- other ; principal among which are nuisances merely aifeoting the morals of the community, and arising from the improper, immoral, indecent and unlawful acts of a person), and that the offense is one that can only be reached by indictment or by pro- ceedings in equity at the suit of the people by its proper officers ; but that any person who sustains a special injury or damage from a public nuisance to an extent that will support an action at law, may abate the same of his own motion, doing no more damage 88 CEIMINAI; LAW. Peejuet is not only an offense declared to be such by statute, but is one at common law, and indictable as such in cases not covered and pro- vided for by statute. It is defined by the Massachusetts statute in almost the same words as writers upon criminal law have described it at the common law. " Whoever, being required by law to take an oath or affirmation, willfully swears or affirms falsely in regard to any matter or thing respecting which such oath or affirmation is required, shall be deemed guilty of perjury." Mr. Deacon describes it as " the crime of willful, false swearing to any matter of fact material to the issue or point in question, when a lawful oath is administered in some judical proceed- ing." ^ To bring the act of false swearing within the cate- gory of perjury at common law, the oath must be taken before some court of justice having power to administer it, or before some magistrate or proper officer invested with a similar authority, in some proceeding relative to a civil suit or criminal pros- ecution. And it is essential to the crime that the officer administering the oath should have authority to administer it, and that it should be administered than is necessary to protect his rights and prevent a recurrence of damage from the nuisance abated. See also Earp v. Lee, 71. 111. 193 ; 2 Whart. C. L. § 2377.] 13 Greenl. Ev. § 188 ; Gen. Stat. Mass. c. 163, § 2 ; Deac. C. L. 998 ; Hawk. P. C. c. 69, § 1 ; 4 Cooley's Black. 136, and note ; Rev. Stat. N. Y. pt. 4, ch. 1, tit. 4, § 1; Code of Iowa, 1873, § 3936; 2 Comp. Laws Mich. 1871, § 7654; Rev. Stat. III. 1874, 387, § 225. CRIMES AND THEIR CLASSIFICATION. 89 in a course of justice. This does not include an oath of office.' Coke defines an "oath" as being an "affirmation," and both terms are used in the Massacliusetts stat- ute. But it is apprehended that this was done to cover the cases where tlie ])arty declines to adopt the common law form of an oath in testifying and chooses to "affirm" the truth of what he testifies.^ The oath must be administered by some officer or tribunal in the hearing of a matter over which he or it has jurisdiction and is acting. This excludes extra-judicial oaths, and oaths administered by judges or officers acting out of their jurisdiction.' Thus, where commissioners in bankruptcy having adjudicated A to be a bankrupt, examined B upon oath as to his assets, and B was indicted for perjury in such examination, and it turned out that the debts due from A were not sufficient to subject him to tlie bankruptcy process, it was held not to be perjiiry, inasmuch as the commissioners had no jurisdiction of the case.* It is sufficient that the form of the oath taken is by a mode usually practiced.'' U Cooley'a Black. 137, and note; 2 Bish. C. L. (4th ed.) § 990; Morrell v. the People, 32 111. 499; VanDusen v. The People, 78 111. 645; Moore, G. L. § 692; Tiff. C. L. 849. »3d Inst. 164; Gen. Stat. c. 131, §§ 10, 11, [Both terms are also also used in the statutes of Iowa, Illinois and New York, above cited.] '2 Bish. C. L. (4th ed.) § 984, 991, 992; 3d Inst. 165; 2 Chit.- C. L. (Perkins' ed.) 303, note. See, also, VanDusen v. The People, 78 111. 645; Tiff. C. L. 849. *Reg. V. Bwington, 1 Car. & Marsh. 319. 53 Greenl. Ev. § 192; 2 Chit. C. L. 309. 90 CRIMINAL I-AW. Another element in tlie crime of perjury is tliat the false testimony given should be material to the issue or question in controvei'sy. It is often diffi- cult to discriminate between what is, and what is not material. But the degree of materiality is of no importance; for, if it tends to prove the mat- ter in hand, it is enough, though it be but circum- stantial, or form a link in a chain of testimony.^ Thus, to swear to the character of a witness is ma- terial. But it is not necessary to constitute perjury that the testimony should be believed, or obtain any credit." It is not enough that the testimony given should be false to constitute perjury, but it must be cor- ruptly and willfully so; for a man may honestly state as true what is in fact false. And an oath is willful when taken with deliberation, and not through surprise, or inadvertency, or mistake of the true state of the question.' A man may commit perjury in testifying to what is true, if he does not know the facts of which he testifies, and corruptly states that to be true which ■3(1 Inst. 166; 3 Greenl. Ev. §195; 2 Chit. C. L. 305; Commonwealth t. Pollard, 12 Met. 230; Wood i: The People, 59 N. Y. 117; Pollard v. The People, 69 111. 148; Morrell v. The People, 32 lU. 499; 2 Bish. C. L. (4th ed.) § 9-54; Moore, 0. L. § 696; Tiff. C. L. 850. . 2 2 Chit. C. L. 306; 3 Greenl. Ev. § 196; 4 Cooley's Black 137, note; Hoch v. The People, 3 Mich. 557; Pollard v. The People, 69 111. 148. '2Biah. C. L. (4th ed.) § 1007; Moore C. L. § 701; Tiff. C. L. 851; 3 Whart. C. L. §§ 2199, 2200; Pollard r. Tlie People, 69 111. 148; Commonwealth r. Douglass, 5 Met. 244. See 1 Bish. C. L. § 421, for definition of " wiUful." CRIMES AND THEFE CLASSIFICATION. 91 he believes to be otherwise, or does not know whether it is true or not.' As where a witness tes- tified to being present when a certain contract was made between A and B, the making of which was the point at issue, and described the place at which it was made, but he 'in fact knew nothing of tlie matter, it was held to be perjury, although, in fact, the contract was made.^ In order to convict a witness of perjury, he must state that of which he testiHes, positively and abso- lutely, and not by the way of supposition or belief; and where he stated it to be to the best of his opinion, it would not sustain a charge of perjury. And it is in this way it is generally impossible to convict one of perjury who testifies as an expert, as such testimony is ordinarily given in the form of opinion or belief. But it is not a subterfuge which saves him, if in fact he do not believe what he tes- tifies that he believes. In such case the question is not whether the thing is true, but whether, when he said he believed it to be true, he did not so believe. If such be the case, it would be perjury, notwith- standing the form under which the falsehood was sought to be covered.' 'King V. Mawbey, 6 Term. 637, by Lawrence, J.; Common- wealth V. Halstat, 2 Law Rep. 179; 3 Whart. G. L. § 2001; 2 Chit. C. L, 203; 3 Inst. 166; 3 Russ. C. (Greave's Ed.) 2; 3 Greenl. Ev. § 200. 2 People V. McKinney, 3 Park. C. R. 510. ' Commonwealth v. Brady, 5 Gray, 78; 2 Cliitty. C. L. (Perk. ed.)305, note; 3 Whart. C. L. § 2201; 3 Russ. C. (Greave's ed.) 2; 2 Bish. C. L. (4th ed.) 1001; 3 Greenl. Ev. § 200; 4 Cooley's Black. 137, note. 92 CRIMINAL LAW. Stibornation of Perjury is the instigation or procuring or persuading another to commit per- jury, and is punishable at common law, as well as by statute. Nor is it necessary, in order to consti- tute the crime of subornation, that the party insti- gated should actually take a false oath/ Nor would it be subornation of perjury to call a witness who it is known will swear falsely, if the one calling him has done nothing to induce him to do so. So, if he call the witness to testify to what is not true, believ- ing the witness will so testify, it will not sustain the charge of subornation, unless he knew the wit- ness would willfully testify to a fact which he knew to be false, because the witness might testify to what was not true under a mistake.^ It requires more evidence than the testimony of a single witness to convict one of the charge of perjury, but one is sufficient upon a trial for subor- [^ In 1 Hawkins' Pleas of the Crown (8th Lond. ed. by Cur- wood), on page 435, it is said that " subornation of perjury, by the common law, seems to be an offense in procuring a man to take a false oath amounting to peijmy, who actually takes such oath." He also states that it seems clear "that if the person incited to take such an oath do not actually take it, the person by whom he was so incited is not guilty of subornation of per- jury; yet it is certain that he is liable to be punished," etc. See, also, 2 Whart. C. L. §§ 2285, 2287; Gen. Stat. Mass. ch. 163, § 4; Rev. Stat. 111. 1874, 387, § 228; 2 Comp. Laws Mich. 1871, § 7656; Rev. Stat. N. Y. pt. 4, c. 1, tit. 4, § 8; Code of Iowa, 1873, § 3938.] »3 Greenl. Ev. § 188; 2 Whart. C. L. § 2284; Common- wealth V. Douglass, 5 Met. 244, 245. Subornation of perjury is put upon the same ground as peq'ury in the matter of pun- ishment in Massachusetts. Gen. St. c. 163, § 3. CRIMES AND THEIR CLASSIFICATION. 93 nation of perjury.^ [As to perjury, the rule is now stated to be that the adverse testimony of one wit- ness with corroborating circumstances sufficient to destroy the equilibrium and overcome the presump- tion of innocence, will suffice to warrq,nt a con- viction.^ But it is only to prove the falsity of the matter testified, that more evidence than that of a single witness is required; the testimony of one witness alone is sufficient to prove all the other allegations of the indictment.] ^ Riots, Eottts, Unlawful Assemblies. Tliese are modifications of the offense of numbers assembling together under circumstances to create terror and disturbance in the people, depending upon the num- bers engaged, the purposes of coming together and the extent to which such purposes are carried in accomplishing them. So long as people come together in an. orderly and peaceable manner to consult upon the public good, they are only exercising a right secured to them by the Bill of Bights.^ It is only when the assembling together is done in such a manner as strikes terror, or tends to strike terror in others, that it becomes unlawful. Three are sufficient in number to constitute a riot or a rout; and, whether ^ Commonwealth v. Douglass, sup. ^Crandall ». Dawson, 1 Gilm. 559; 2 Whart. C. L. § 2276a; Moore, C L. § 699. 'Moore, Cr. L. § 700; 3 Greenl. Ev. § 198; Commonwealth V. Pollard, 12 Met. 225. *Mass. Const, pfc. 1, § 19; Const. lU. Art. 2, § 17. See, also, Cooley's Const. Lim. 349. 94 CRIMINAL LAW. it is the one or the other, dei^ends upon doing the act in whole or in part for which they come to- gether, or the mere advance made toward it witliout actually doing uny act. The first would be a riot, the other a rout. If they merely come together, and then part without doing the act, or making any motion towards it, it is an unlawful assembly. But the number mentioned in the statutes of Massa- chusetts, [Michigan and Illinois] as constituting an unlawful assembly to be dispersed by civil officers, if armed with clubs or dangerous weapons, is twelve ; if unarmed, thirty or more, provided they are un- lawfully, riotously or tumultuously assembled, though three might be an unlawful assembly at common law.' A riot is defined to be a tumultuous disturbance of the peace by three persons or more assembling together, of their own authority, with an intent mutually to assist one another against any one who shall oppose them, and afterward putting their de- sign into execution in a terrific and violent manner, whether the object in question be lawful or other- wise.^ ' The distinction between a riot, rout and unlaw- •Gen. Stat. Mass. c. 164, § 1; 2 Comp. Laws, Mich. 1871, § 7681; Rev. Stat. 111. 1874, :!90, § 253; Commonwealth r. Run- nels, 10 Mass. 520; .3 Inst. 176; 2 Chit. C. L. 486. The English riot act mentions twelve persons. ' Hawk. P. C. (8 Lond. ed.) p. 513, b. I. c. 28, § 1; 2 Chitty, C. L. 490, note. [By the statute of Illinois two persons only are requisite. Rev. Stat. 1874, 390, § 249. See Dougherty r. The People, 4 Scam. 179; Bell v. Mallory, 61 III. 167.] CRIMES AND THEIR CLASSIFICATION. 95 fill assembly seems to be as above stated; in tlie first there is actual violence; in the second there is an endeavor to commit it; in the third there is neither violence committed, nor an endeavor made toward it.^ If they come together for a lawful pur- pose, and, after assembling they form themselves into parties, with, promises of mutual assistance, and actually make an affray, the assembly becomes a riot; or, if after coming together, the assembly con- federate to do an unlawful act, and do any act of violence in a tumultuous manner, it would be a riot.^ A distinction is to be made between riots which relate to objects of a private nature, and a resist- ance to government, which partakes of the character of treason or insurrection.^ If the evidence fails to show that three persons were engaged in what is charged as a riot, the pros- ecution fails, since less than that number cannot commit the crime.* But it would be sufficient, if one is indicted for a riot with three or more persons unknown ; and if a riot consisting of more than three is proved, and that the accused took part in it, the jury may convict the defendant.* 12 Chitty, C. L. 490, note; Hawk. P. C. sup. § 1, 8, 9. 'SGreenl. Ev. §218. i^SGreenLEv. §220. * 3 Greenl. Ev. § 217; Hawk. P. C. b. 2 c. 47, § 8; 2 Wharf. C. L. § 2483. 5 2 Chit. C. L. 490, note; 1 Wharfc. C. L. § 431; 3 id, § 2483. [It would seem to be sufficient if one was indicted for a riot with two or more persons unknown, since only three persons are nec- essary to constitute the offense. See the authorities above cited . and 2 Bish. Or. Proc .§ 998.] 96 CKIMINAL LAW. It is not necessary that the thing intended to be accomplished, should be unlawful in itself, if the manner of doing it' be turbulent or calculated to excite terror.' If one joins in a riot after it has begun, he will be liable in the same way as if he had instigated it.^ There are statute provisions in England and this country for suppressing riots and dispersing unlaw- ful assemblies." EoBBEEY, by the common law, is larceny from the person, accompanied by violence or putting in fear. There must be something taken.* To constitute a taking, the propertymust have passed into the possession of the offender. Snatch- ing an ear ring from a lady's ear so that the ear is torn in the operation is robbery, though it is dropped into the hair and is found there by the owner.' But cutting a bag fastened to a person's girdle, which falls upon the ground, but is not act- ually taken hold of by the assailant, is not a taking which siistains the charge of robbery.' If one who 1 2 Biah. C. L. (4th ed.) § 1101; 2 Whart. C. L. § 2478; 2 Chit. C. L. (Perkins' ed.) 490, note; Rev. Stat. Ul. 1874. 390, § 249. 2 2 Whart. C. L. § 2480. ' See Gen. Stat. Mass. c. 164, §§ 1, et seq.; 2 Comp. Laws Mich. 1871, § 7681; Rev. Stat. 111. 1874, 390, § 253. * Commonwealth t>. Clifford, 8 Cush. 215; East, P. C. 783; 3 Chitty, C. L. 800; Rev. Stat. 111. 18S4, 390, § 246. 53 Chit. C. L. 802; 3 Greenl. Ev. § 225; Moore, 0. L. § 545; Commonwealth v. Clifford, sup. «3 Inst. 69; 3 Greenl. Ev. § 225; 1 Hale, P. 0. 533; Moore, C. L. § 545. CRIMES AND THEIR CLASSIFICATION. 97 is the owner of an article which another has unlaw- fully taken from him, re-takes it by force, it is not robbery.^ Stealing from the person, such as picking dne's pocket, is not robbery, unless done with violence or putting in fear. So, snatching an article from the hands of the owner suddenly is not robbery, unless it is attached to his person or clothes, as a watch from the pocket, which was secured by a chain around the owner's neck, which the thief broke in taking it.^ Taking articles from the presence of the owner by violence, or putting in fear, is robbery, though they are articles which cannot be attached to his person, such as cattle, horses and the like, or from a desk which the owner is induced to open through fear or by violence.^ It does not seem to be necessary to show that the one robbed was ptit in fear, if actual violence were shown to have been applied in the taking.* The statute of Massachusetts makes a marked distinction in the degree of punishment, between robberies committed by those armed with dangerous weapons, and those not thus armed.' In the first iRex V. Hall, 3 C. & P. 409; Commonwealth v. Clifford, 8 Gush. 215. ^ 3 Grgenl. Ev. § 239; 3 Chit. C. L. 804-805; East, C. L. 701, 702. «2 Bish. C. L. (4th ed.) § 1117, note; East, P. C. 707; Moore, C. L. § 550. *Foster, C. L. 128, 129. See Moore, C. L. § 549; Tiff. C. L. 907. « [Gen. Stat. Mass. c. 160, § 22-23. So, in Illinois, Michigan 7 98 CJIIMINAL LAW. case, piitting in fear is not declared to be a part of the offense; in the second it is.' Treason. Although this is described by Black- stone as " the highest civil crime which any man can possibly commit," from its being a political offense, and since, if carried out into a successful revolution, it may lose its criminality and become a matter of commendation and praise, it lacks the instinctive odium and aversion in the public estimation with which many crimes of less magnitude are regarded. It is defined by the Constimtion of the United States to " consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." ^ The statute of Massachusetts makes use of the same language, except in describing it as treason against this Commonwealth, and the same is true of the other States.^ As this is an offense against the sovereign power in a State, a question was made and gravely con- troverted, whether there could be treason against a State, as distinguished from the United States. But the point seems to be settled that there may be, upon the ground that there are two sovereignties within and Iowa. Rev. Stat. 111. 390, § 246; 2 Comp. Laws, Mich. 1871, § 7524, 7526; Code Iowa, 1873, §3858-3860.] 'Gen. Stat. Mass. c. 160, § 22-25. See, also, 2 Comp. Laws. Mich. 1871, §§ 7524, 7526. ' Art. 3. § 3, cl. 1. ' Gen. Stat. Mass. c. 159, § 1; Rev. Stat. 111. 1874, 392, § 264; Const. Mich. Art. 6, § 30; Code, Iowa, 1873, § 3845; Rev. Stat. N. y. pt. 4, c. 1, tit. 1, § 1; 3 Greenl. Ev. § 237. CEIMES AND THEIR CLASSIFICATION. 99 the same territory, to both of which the citizen owes allegiance, and for a treasonable violation of either he would be liable in the courts of each respectively. The distinction is laid down by Durfee, C. J., in the case of Dorr: " If the blow be aimed at the internal and municipal regulations or institutions of the State, without any design to disturb it in the discharge of any of its functions under the Consti- tution of the United States, it is treason against the State only." But, if upon the application of a State to the Government of the United States to protect it against invasion or domestic violence, a party should make war upon the forces sent by the United States for this purpose, what was at first treason against the State may grow into a crime against the United States.' But a State court can take no cognizance of an act of treason against the United States, though done within the limits of such State.^ The definition given by the Constitution and statutes above referred to excliides what is called petit treason in England and sundry other acts which are made treason there by statute. An in- surrection or rising of any body of people within the United States to attain or effect by force or vio- lence any object of a great public nature, or of a public concern, is a levying war against the United States. Such would be a rising to resist the execution 1 Moore v. State of Illinois, 14 How. 20; 3 Whart. C. L. §§ 2774, 2769; People v. Lynch, 11 John. 652, 553; 4 Cooley's Black. 84, note. ^ People V. Lynch, sup. 100 CRIMirrAL LAW. of a statute of the United States. Military weapons are not necessary to the levying of war; numbers and other instruments may be sufficient. But if the assembling be for a priva;te purpose, though the people be armed, it would not be treason, although it might constitute a riot.* Adhering to the enemy, within the meaning of the Constitution, may be the doing of any overt act done with that intent, and tending to that end, such as furnishing him with provisions, intelligence, or munitions of war, or the like.^ In order to establish the proof of treason, both the statutes of England and this country require at least two witnesses of some overt act, and the Constitution of the United States and the laws of some of the States require two witnesses to the same act, and it is not sufficient to have one witness to one act and a second to another.* There are no accessories to treason ; all who par- take in it are principals.* As to the persons who may be guilty of treason 1 4 Cooley's Black. 81, 83, 84, note; 3 Greenl. Ev. § 242, and note, opinion of Curtis, J. '3 Greenl. Ev. § 244; 2 Whart. C. L. § 2732; 2 Bish. C. L. (4th ed.) § 1207. » 3 Greenl. Ev. § 246; Mass. Gen. Stat. c. 159, § 4. [In Michigan and Iowa no person can be convicted of treason " unless upon the testimony of two witnesses to the same overt act, or on confession in open court.'' Const. Mich. Art. 6, § 30; Code, Iowa, 1873, § 3847. In Illinois the statute provides that " any person being thereof duly convicted of open deed, by two or more witnesses, or voluntary confession in open court, shall suffer," &c. Rev. Stat. 392, § 264.] ' 3 Greenl. Ev. § 245; 1 Hale, P. C. 238, 234, 237. 613. CRIMES AND THEIR CLASSIFICATION. 101 in this country, it includes aliens and citizens. If aliens reside here and enjoy the protection of our laws, they may commit treason by co-operating either with rebels or foreign enemies.* AccESSOEiES. As has been before remarked, to the commission of some crimes there may be accesso- ries, while all who take part in the^ commission of others are regarded as principals, whether they are present at the commission or not. The distinction between principals and accessories is this: To be a principal one must be present at the commission of the act, aiding and abetting in the perpetration of it; that is, assenting to it. It would be a being present, if the person, by agreement with the chief perpetrator, is in a situation in which he might render assistance in some manner to the commis- sion of the oifense.^ Accessories may be such before or after the fact. The first is where being absent at the time of the felony committed, one procures, counsels or commands another to commit a felony. This he may do through a third person. The acces- sory must instigate and incite the principal to the act.^ Accessories after the fact are such as knowing a felony to have been committed by another, re- lieve or assist the felon, or voluntarily and inten- • 2 Bish. C. L. (4th ed.) § 1208. ^S Greenl. Ev..§ 40; Commonwealth 3 Whart. C. L. § 2696, 2702; 1 Bish. C. L. {4tk ed.) § 659. 1 Russ. C. (Greave's ed.) 46. ii Gen. Stat. Mass. c. 168, § 8; Rev. Stat. 111. 1874, 393 § 278; 2 Comp.Laws, Mich. 1871, § 7813; Rev. Stat. N. Y.pt.4, c. 1, tit. 7, § 3. 'IRuss. C. (Greave's ed.) 47, n.; 3 Whart. C. L. § 2697, Commonwealth v. Bowen, 13 Mass. 359; 1 Bish. C. L. (4th ed.) §689. * Commonwealth v. Dana, 2 Met. 840, 342; Gen. Stat. Mass. c. 162, § 8, 17; Rev. Stat. 111. 1874, 379, § 182; 2 Comp. Laws, Mich. 1871, § 7736. 104 CEIMINAI; LAW. CHAPTER III. CRIMINAL PROCEDURE. I. OOMPLAINTS BEFORE EXAMINING 5L4.GISTEATES AND PEOCEEDINGS THEEEON. Theee are two modes of originating process against persons suspected or charged with the com- mission of a criminal act : one by a complaint made before an examining magistrate who is authorized to arrest the person charged, and examine into the truth of the charge for the purpose of inflicting upon him the punishment prescribed by law, if the offense is within the jurisdiction of the magistrate, or of holding him by bail or imprisonment to an- swer at a higher tribunal; the other by a complaint made directly to the grand jury who are to pass upon it by returning an indictment, if they believe the charge well founded, against the party com- plained of, upon which a process is issued, by wliicli the one who is indicted is arrested and held to an- swer to the charge therein contained. For the present the inquiry will be limited to complaints made before magistrates. It the first place the magistrates liere referred to are such as answer to those who, in England, are known as Justices of the Peace. This is a very ancient office, having been created as early as the CBIMINAL PEOCEDXJEE. 105 stat. 1 Ed. III. c. 16.' In most, if not all, of the States there is an officer or magistrate answering in most, if not all, respects to justices of the peace, having power to receive complaints and issne process in criminal matters. Under the United States laws, these officers are called commissioners.^ Under the Colony Charter of Massachusetts the office of justice of the peace was not known for many years; but under the Province Charter and ever since, it has been a well-defined office, though other offices have now been clothed with similar powers, as in case of Police Courts, Trial Justices, and District Courts, under the various statutes creating them.^ And although the principal part of their jurisdiction in criminal matters has been transferred to these other tribunals, the original term of justice of the peace will be retained in this treatise as representing the magistrate who has cognizance of the primary measures for prose- cuting criminal offenses. For the forms or modes ' Com. Dig. Justice of the Peace. It is related by Miss Strickland (Queens of England, 5 vol. 278 p.), that Queen Mary made Lady Berkley a justice of the peace for Gloucestershire, and Lady Rous of the quorum for Suffolk, and that she sat with the other justices at assizes " cincta gladio." There will be no occasion for the purposes of this work to discriminate be- tween these two classes of magistrates. [By stats. 13 Rich. II. st. 1, c. 7. and2 Hen. V. st. 2, o. 1, it was provided that the justices should be made, within the counties, of the most suflScient knights, esquires and gentle- men of the law. .S Burn's Justice, 990.] 2 Stat. 1842, c. 188, § 1. " 6 Dane, Abr. 412; Gen. Stat. c. 120, §§ 32, 36; id. c. 116, § 12; id. c. 169, § 1; Acts of 1869, c. 415. 106 CRIMINAL LAW. of proceeding, moreover, reference will ordinarily be made to tliose in use in MassacLusetts, which will be found to correspond in most respects to the requirements of the common law, unless specifically noticed.' For the purposes of arrest, examination and com- mitting or binding over for trial for offenses of every kind, however high or aggravated, justices of the peace may receive complaints and issue warrants, but may not proceed to punish any offense except such as are by statute brought within their juris- diction.^ Without stopping to consider in what cases a magistrate may issue a warrant to arrest a person for crime without a previous formal complaint, both the statute and the common law contemplate a proper and formal complaint as the first step in a criminal proceeding before a magistrate. This complaint is a statement under oath signed by some person competent to make it of the name of the party charged, the place of the commission of the offense, and a full, plain, substantial and formal de- scription of the offense charged, with a reasonable degree of certainty. It sliould also contain an averment of the time of the alleged commission, though, if it be prior to the filing of the complaint, it will ordinarily be sufficient, unless time enters 'Commonwealth i. Leach, 1 Mass. 59; Commonwealth r. Foster, 1 Mass. 488. •■'Gen. Stat. Mass. c. 120, § 45; Rev. Stat. 111. 1874, 401, § 347; 2 Comp. Laws, Mich. 1871, § 7843; Rev. Stat. N. T. pt. 4, ch. 2, tit. 2, § 1; Code, Iowa, 1873, § 4108. CRIMINAL PROCEDURE. 107 into the nature of the offense charged.' But wliat are the requisite averments in a criminal coiii- phiint will be more fully considered when the sub- ject of indictments is treated of further in the work. If the name of the party intended to be charged, be unknown, he may be otherwise described so as to identify him.^ If the person on whom the offense was committed is unknown, it would be sufficient to so aver in the complaint. But if he is known, he mnst be named or the complaint would be bad.^ As to how far it is necessary to a valid complaint that it should positively charge the commission of an offense, the rule seems to be this : If the offense is within the jurisdiction of the magistrate to tr}' and render judgment thereon, it must be directly and positively charged to have been committed by the party named. But if the complaint be for an offense where the magistrate may only examine and commit, or admit to bail for hearing in a higher court, it will be sufficient that the complaint avers that he has probable cause to suspect that the ac- cused has committed the offense.* '1 Chit. C. L. (Perk, ed.) 34, and note, 39, 226, 227; Com- monwealth V. Phillips, 16 Pick. 214; Commonwealth v. Perk- ins, IPick. 388; Gen. Stat. Mass. c. 170, § 10; Rev, Stat. 111. 1874, 401, § 348; Code of Iowa, 1873, § 4185; Commonwealth v. Blood, 4 Gray, 32; 1 Bish. Crim. Proc. § 718, 720; Moore, C. L. § 44; Tiff. C. L. 39. ^1 Chit. C. L. 39; Tiff. C. L. 40: Rev. Stat. 111. 1874, 401, § 350: Moore, C. L. p. 35, note 6. » Commonwealth v. Blood, 4 Gray, 33; 1 Chit. C. L. 216-217; Tiff. C. L. 41. * Commonwealth v. Phillips, 16 Pick. 214, 215. See Rev. 108 CEIMIKAL LAW. When the complaint is for the purpose of obtain- ing a search warrant, it is sufficient to aver the commission of the felony, and that the complainant has cause to suspect, and does suspect, that the prop- erty is secreted in the place to be searched.' By the statute of Massachusetts upon a complaint being made to a magistrate, it is for him to " reduce the complaint to writing," after examining upon oath the complainant and any witnesses produced by him, and cause the same to be subscribed by the complainant.^ But so far as rediicing it to writing is concerned, this is undoubtedly directory, and it may be done by the complainant himself, or any third person. And if made upon oath before a mag- istrate, it then becomes his duty, if he is satisfied that the offense has been committed, to issue a war- rant under his hand and seal, reciting the substance of the accusation, requiring the officer to forthwith take the person named, and bring him before the Stat. lU. 1874, 401, § 348; Moore, C. L. § 44; Housh i: The People, 75 111. 487. •Commonwealth v. Phillips, 16 Pick. 214. [See Moore, C. L. § 135, etseq.; Rev. Stat. 111. 1874, 404. § 372; Tiff. Cr. Law, 278. The facts and circumstances inducing complainant's be- lief, should also be stated, and they must be sufiBcient to show that there is probable cause for such belief. Cooley's Const. Lim. § 304; Tiff. C. L. 278; Moore, C. L.p. 100.] *[The statute of 111. (Rev. Stat. 1874, 401, § 348) also requires the complaint to be sworn to by complainant, as well as subscribed. The statutes of Michigan (2 Comp. Laws, 1871, § 7844) and New York (Rev. Stat. pt. 4, c. 2, tit. 2, § 2,) require the magistrate to "examine on oath the complainant, and wit- nesses who may be produced by him," but does not require the examination to be taken down in writing. See People v. Lynch, 29 Mich. 278.] CEIMINAL PROCEDURE. 109 justice who issues it, or some other magistrate of the county, to be dealt with according to law.* The warrant usually directs the officer who serves it, to summon the persons named as witnesses to be examined as to the matters cliarged therein, to ap- pear before the magistrate to whom he retiirns the same, at the hearing to give evidence on the ex- amination. The proceedings thus far are to be had in the county in which the oifense is committed, with cer- tain exceptions, one of which is, if the act com- plained of be done near the boundary line between two counties, in England within five hundred yards,^ in Massachusetts one hundred rods,' it may be prose- cuted in either.^ So, if the act of striking or poisoning be done in one county, and death follow in another, the party may be indicted or complained of in either county. So, if one steals goods in one county and carries them into another county, as has been before stated, he may be complained of in either .° This prescribed locality within which criminal pnkeedings must be commenced and prosecuted is called the venue, being the place from which some ' Gen. Stat. Mass. c. 170, § 10, Commonwealth v. Wilcox, 1 Cush. 504, 505; 1 Chit. C. L. (Perk. ed. ) 38 and note, 39; 1 Bii. Cr. Proc. §§ 217, 218. See Rev. Stat 111. 401, § 849; 2Comp. Laws, Mich. 1871, § 7845; Code, Iowa, 1873; § 4186; R. S. N. Y. pt. 4, 0. 2, tit. 2, § 3. 2 So in Iowa. Code, Iowa, 1873, § 4160. 'So in Michigan and Illinois. 2 Comp. Laws, 1871, § 7808; Rev. Stat. 111. 1874. 406, § 396. n Chit. C. L. 184; Gen. Stat. Mass. c. 171, § 17. " 1 Chit. C. L. (Perk, ed.) 179, 180, note; Gen. Stat. Mass. c 171, § 18; Commonwealth v. Rand, 7 Met. 476; ante p. 63, note. 110 CRIMINAL LAW. of the jury must come who are to try the case.' But it does not include the place within which the process for arresting the party charged may be served. That may be done at any place within the State. And in Massachusetts an officer of one county may serve a warrant for arresting a party charged in another county and bring him before the court or magistrate issuing it. In England this purpose is accomplished by having the warrant " backed" or indorsed by a magistrate of the county in which the warrant is to be served.^ What an arrest is, how, when and where it may be made, will be treated of hereafter; but for the present assuming it to have been made, the officer brings the party before the magistrate who issued the warrant, or in the States where this is allowed, before some other magistrate with the warrant with a proper certificate of service made thereon, with a proper certificate of summons having been made upon the witnesses, when, if no sufficient cause of delay is interposed, the examination is com- menced.^ ' Termes de la Ley, Venue or Visne. « Gen. St. Mass. c. 170, § 11; Rev. Stat. 111. 1874, 401, § .35?; 2Comp. Laws Mich. 1871, § 7846; Code, Iowa, 1873, § 4190; Rev. Stat. N. Y. pt. 4, c. 2, tit. 2, § 4; 1 Chit. C. L. 45. 'When "other magistrate" is mentioned, it must be a magistrate competent to hear and try the case. Thus, where, as in Massachusetts, " trial justices" only could hear and try com- plaints for criminal offenses, though justices of the peace might receive them and issue warrants thereon, but could not try them, such warrant must be returned before a trial justice, or a magistrate competent to hear- and try it. Stetson v. Parker, 7 Cush. 564. CRIMUiTAL PEOCEDURE. Ill It should be remarked that althougli the officer shall have delivered to the magistrate the warrant by virtue of vphich he has arrested the accused, when he has once taken him into custody and brought him before the magistrate, he is still considered to be in the custody of the officer until he is either discharged, bailed or committed to prison. And, it seems, the officer may, for his protection, retain possession of the warrant, and only return to the justice what he has done under it, though it is apprehended that the usual mode is to deliver the warrant with the return to the magistrate.^ After the officer has brought the party whom he has arrested before a magistrate, for trial or exam- ination, the magistrate is allowed a reasonable time for this purpose before making his final decision. In England the delay is from three days to three days, during which the magistrate may commit the accused by a mittimus. In Massachusetts the mag- istrate may adjourn an examination for not exceed- ing ten days, and, in the meantime, require the accused to recognize for his appearance, if the oifense is a bailable one, which will be hereafter explained, or commit him to prison.^ 1 1 Chit. C. L. 60. See Foster's case, 5 Co. 59; 2 Hale P. G. 120. [The statutes of some of the States provide in terms that the warrant, with a proper return indorsed thereon, shall be deliv- ered to the magistrate. Gen. Stat. Mass. c. 170, § 16; Rev. Stat. N. Y. pt. 4, c. 2, tit. 2, § 12; 2 Gomp. Laws Mich. 1871, § 7851; Rev. Stat. 111. 1874, 402, § 355.] 2 1 Chittf, C. L. 74; Gen. St. Mass. c. 170, § 17; [Rev. Stat. 111. 1874, 402, § 356. In Michigan the statute (2 Comp. Laws, 1871, § 7852) allows.an adjournment from time to time as may 112 CKIMIIfAL LA.W. As to tlie mode of examination of a party accused, tliat by the English law differs in many important respects from the American. Thus, in England the accused has no right to have the presence and aid of counsel during such examination. But he has a right to be present while the witnesses called against him are testifying, and cross-examine them. In Massachusetts the accused may employ counsel to aid him in conducting the examination, and in both the accused may produce witnesses, who shall be examined under oath. In England the accused is examined by the magistrate, but not on oath, and his examination is taken in writing and is signed by him, but he is not obliged to answer ' so as to accuse himself, unless it be voluntarily done. This examination may be used in evidence against the accused. In examining the witnesses against the accused, only one is allowed to be present at the same time. In Massachusetts the magistrate may, if he sees fit, exclude a\l the witnesses except the one testifying, during the examination.'' But no provision is made for examining the party accused, except that now by statute he may testify as a wit- ness if he requests it.' be necessary. See Pardee ». Smith, 27 Mich. 43; Hamilton ». The People, 29 id. 176; Tiff. C. L, 89. In Iowa, (Code 1873, § 4230, ) no examination can be adjourned for a longer period than 30 days.] 1 So in New York. R. S. pt. 4, c. 2, tit. 2, § 14. [' So in niinoia, Iowa, Michigan, and New York. Rev. Stat. 111. 1874, 402, § 361; 2 Comp. Laws Mich. 187'l, § 7857; Code, Iowa, 1873, § 4239; Rev. Stat. N. Y. pt. 4, c. 2, tit. 2, § 18.] ' 1 Chit. C. L. (Perk, ed.) 74-87, notes; Rev. Stat. Dl. 1874, CRIMINAL PROCEDURE. 113 Under the system in use in this country these examinations become in effect trials of the issue of guilty or not guilty, by the raao;istrate, unless, as is not infrequently the case, if the charge is of a grave character, the defendant waives a full examination and recognizes for his apj)earance at a higher court. If upon this trial the magistrate iinds the accused guilty, and the offense is one within his jurisdiction, lie proceeds to j)ronounce sentence, from which the defendant may appeal ; or, if tlie offense transcends the jurisdiction of the magistrate, he proceeds to require him to recognize for his appearance at the liigher coi^rt^or be committed to jail to await pro- ceedings in the higher court. The ordinary judgment and sentence in cases cognizable by the magistrate, if the accused is 410, § 426; Gen. Stat. Mass. c. 170, § 20-22; Stat. Mass. 1870, c. 393; Code Iowa, 1873, § 4237. [In Michigan the prisoner may make a statement (not under oath) and may be cross-examined upon such state- ment. 2 Comp. Laws, 1871, § 5967; Tiff. C. L. 101, and cases cited.] The contrast between the mode of examining parties accused of crimes in our own country and the continental States of Europe deserve a passing remark. In France, for example, if one suspected of crime is arrested, he is at once shut up in prison until the proper magi.strate is ready to examine him. No bail is allowed. This sometimes is as long as ten days, during which time he can hold no communication with hia friends. If, upon his examination, the magistrate is in doubt whether to discharge him or not, his detention may be con- tinued months. His > examination consists of written interro- gations, which he is obliged to answer, which are artfully de- signed to lead him to convict himself, while the prisoner has no- right to the aid of counsel. 23 Law Rev. 265, 347. 8 114 CRIMINAL LAAV. found guilty, i.s that lie shall pay a tine, or that he shall be iuijirisoned for a definite jieriod ; or, as is sometimes done, pay a tine or he imprisoned; and if the sentence be imprisonment, or if a tine, and the defendant neglects or refuses to pay it, the mag- istrate makes out and delivers to the officer a war- rant under liis hand and seal, called a mtttit/ius, com- manding him to commit the defendant to prison, and commanding the keeper to receive and detain him in prison, according to the precept in said warrant. In case the order of the magistrate is that the defendant recognize for his apjjearance at the higher court, and he fails to do so, or if the offense with which lie is charged is not bailable, the magistrate makes out and delivers to the officer a like m/'tti- mus. This vilttimus the officer delivers with the ]->risoner to the prison keeper, with his return of his doings thereon, and this is the authority by ■which he holds the prisoner in ciistody. Tliis mittimus should be in the name of the Commonwealth or the People, as the usage of tlie State may be, and should state the name or de- scription of the party to be committed, the (jffense with which the defendant is charget twelve of them shall agree to the finding. Rev. Stat. 111. 1874, 408, § 407.] *1 Chit. C. L. 300, 32:i; Commonwealth c. Wood, 2 Cush. 1-51; Geu. St. Mass. c. 171, § 1. See next note, sKpni. In CEIMINAL PROCEDURE. 121 tue of a precept from tiie court called a '■'■venire \ facias^'' addressed to the proper ofldcer, to be exe- cuted in the mode pointed out bj the statute of the \ State, requiring them to attend the court at a pre- \ scribed time, and a return of the names thus sum- moned is made to the court, from wliich a list of \the persons to serve as such is made by the clerk of the court preparatory to their being impaneled.' , If a grand jury is not drawn and returned by a j^roper officer no indictment found by them would le good, and, if found, would be set aside on motion oi the prisoner, 2 Tlie mode of impaneling a grand jury is sub- stantially the same in England and this country. The clerk of the court makes out an alphabetical list jf the names returned, and these are called and swor;i. In England the foreman is first sworn and then lie rest of the panel,' three at a time. In Mas- sachu\etts the two first on the list are first swoi-n, and tlwn the rest in such sections as the court may direct, 'hough it is generally regulated by usage.* The c^th administered to grand jurors indicates pretty filly the duty they are to perform, and in Massachissetts is in the following words, (which is some States \less number then twenty-three may be summoned, but it requir4 the concurrence of twelve at least to find a bill of inclictment\ 1 Bish. Grim. Proc. § 854. iSee Gen. Jtat. Mass. o. 171; Rev. Stat. 111. 1874, 631, § 9. 2 Iowa u. BrVclt, 9 West. Jur. 587; Com. Dig. Indict. A. S :e Moore, C. Lis 774. [' In Illinois, \rst the foreman and then the other jurors. Rev. Stat. 1874, Gk, § 18.] * 1 Chit. C. L. k, 313; Gen. Stat. Mass. c. 171, § 5. 122 CEIMIXAL LAW. substantially like the one taken in England, and is borrowed in effect from the form required bj the law of Ethelred,) that they " will diligently inquire and true presentment make of all such matters and things as should be gi\'en them in charge ; tlie commonwealth's counsel, their fellows', and their (iwn, they will keep secret ; tliey shall present nc man for envy, hatred, or malice, neither shall the;" leave any man unpresented for love, fear, favo% affection, or hope of reward ; but they shall pie- sent things truly, as they come to their knowled,:^e, according to the best of their understanding.'' The old English form was that " they would accuse Djne whom they believed innocent, nor conceal any wlom they thought guilty." ' Instead of repeating this oath at length to each of the sections, they are simply sworn to wet and truly keep the oath which has been administered to their fellows who have been first sworn. Wlaen this has been done it is customary for the court to instruct the jury by what is called <. charge, as to their duties. In England tliese chages take a pretty wide range, having " reference to local objects, events, discussions, and conce'ns " — and were formerly much more extended in tlis country than they now are.^ The jury tlien retire under the charge of an offi- cer appointed for that purpose and duV sworn.^ In 1 Crown L. C. 6, 481; 8 Sir Wm. Jones' Works, 58; Gen. Stat. Mass. c. 171, § 5; Rev. Stat. 111. 1874,334, § 18. « 1 Chit. C. L. 012. ' See Rev.Stat. 111. 1874, 407, § 403; Genitat. Mass. c. 171,§ 7. CRIMINAL PROCEDUrvE. 123 Massachusetts the first biisiness of a grand jury is to choose a foreman ' and clei-k, and to retuni tlie name of the foreman to the cleric of the court to be recorded. Thej are then ready to receive com- plaints and act thereon. In England, where there is no pnblic prosecuting officer, the person prosecuting an offender either draws, or procures some one to draw, a bill of in- dictment, setting forth, with all due particularity, the offense intended to be charged, which lie lays before the grand jury, with a list of the witnesses to be examined thereon ; and if twelve of these are reasonably satisfied that the charge is sustained by the proof offered, they indorse thei-eon " a true bill," and the same is then ready to be returned into court. If they are not thus satisfied, they indorse thereon " not a true bill," ^ or " not found," formerly '■'■ ignoramus ^^ and no further action is had thereon. The jury then return these bills to the court and their function is completed. In some of the Eng- lish courts there is an officer called " the Clerk of the Grand' Juries," who attends before the jury and conducts the examination of the witnesses, and the pi-osecutor is not allowed to be present. In other of their courts the prosectitor is allowed to be present and conduct the examination on the part of the ' [Gen. Stat. Mass. c. 171, § 7. The court appoints tlie fore- man in Illinois. Rev. Stat. 1874, 624, § 17.] [2 Rev. Stat. HI. 1874, 634, § 17, where in either case such indorsement is required to be subscribed by the foreman. Where a true bill is found and returned into court, the names of the witnesses upon whose evidence it was found are also re- quired to be noted thereon.] 124 CRIMINAL LAW. crown. The witnesses are generally limited to such as are named upon the complaint or bill of indict- ment, though the jury are at liberty to seek other information upon the points which they are to con- sider. And it may be repeated that the same pro- ceedings are had before the grand jury whether the complaint originates there or preliminary measures have been taken before a magistrate.' The witnesses who are to be called before the grand jury are compellable to appear by a subpoena requiring their attendance, and, if after due notice to appear, any witness fails to obey the subpoena, a process of attachment, so-called, may be issued by the court, upon which he may be arrested and brought before the court. So, if he has been rec- ognized before the magistrate for his appearance at the court, and fails to appear, he may be ar- rested by order of the court and compelled to attend. Xor is a jury at liberty to lind a bill upon the testi- mony of a witness not under oath; and, if they receive such evidence, the indictment may be quashed.'' The witnesses when called are sworn in open court.^ The proceedings before grand juries in this coun- try differ somewhat from those in England, though substantially the same. In the first place, tliere is a piiblic prosecuting officer, tlirougli whom all (jriginal complaints are brought to the attention of the jury. He calls the witnesses and examines them ' 1 Chit. C. L. 315-318, 322-325. 2 1 Chit, C. L. (Perk, ed.) 319, and note; ib. 320, 322. » 1 Chit. C L. 322. CRIMINAL PE.OCEDUKE. 125 in the presence and hearing of the jury, and explains the nature of the offense charged. After this hear- ing the jury proceed to vote upon the question of the guilt of the accused, at which the prosecuting officer is not present. If twelve at least vote in the affirmative, this officer then draws up a formal in- dictment, instead of its being previously prepared as in England, which the foreman signs, certifying it to be a true bill.^ In Maine, [Illinois and Iowa], it would be fatal, if the foreman omitted to certify it to be a true bill; but in Massachusetts and some other States such omission would not be material, and if he sign it, certifying it to be a true bill, it legally imports that it has been found by at least twelve grand jurors.^ Ordinarily the prosecuting officer countersigns the bill of indictment when found; but it is not necessary for him to state for what district he is acting, and in some States he may omit his signa- ture altogether; in others it is required to give the bill validity.* The foreman of the grand jury is authorized to administer an oath to the witnesses called before 1 See Rev. Stat. 111. 1874, 634, § 17; Beecher's Breese, 145, note. ^ Low's Case, 4 Greenl. 453; Webster's Case, 5 Greenl. 432; Nomaque «. The People, Breese, 109, (Beecher's ed.) 145, and note; Gardiner !-. The People, 3 Scam. 83; Dutell u. The State, 4 G.' Greene, 125; Commonwealth v. Smyth, 11 Cush. 473; Turns v. Commonwealth, 6 Met. 224, 238; 1 Bish. Crim^ Proo. §§ 698, 700, and note; Moore, C. L. § 811. 'Commonwealth v. Beaman, 8 Gray, 499; 1 Bish. Grim. Proc. § 702, and cases cited. 126 CEIMINAL LAW. them/ or tliis may be done by the prosecuting offi- cer; and a list of these witnesses is to be returned by the foreman to the clerk of the court.^ When a grand jurj^ shall have completed the in- fjuiries before them, and found one or more indict- ments upon complaints l)rought before them, they return into court with the bills thus foimd, and the foreman hands thena to the clerk of the court, who enters them as a part of the records of the court, and they are thereupon discharged, unless their term of service extends beyond the term at which they make their presentments.^ Although the right to inquire of grand jurors as to what takes place in the jury room, is exceedingly limited and restricted, it is competent to require them to testify whether twelve of the panel united in finding any bill returned by them; but they ma}' not be inquired of how any one of the panel voted upon the question.* I So iri Illinois also. Rev. Stat. 1874, 634, § 17. 2 Gen. St. c. 171, § 9; 1 Bish. Crim. Proc. § 868. [In Illinois the names of the witnesses upon whose evidence the indictment is found, are required to be noted on the indict- ment. Rev. Stat. 1874. 634, § 17; Moore, C. L. § 811, et seq.} 3 4 Gree'nl. 444. [Before the accused can be tried upon an indictment, the record must show that it was returned in open court. Gardiner V. The People, 3 Scam. 83; s. c. 20 111. 430; K-Uey v. The Peo- ple, 39 III. 157; Rainey t'. The People, 3 Gilm. 71; Ayle.sworth r. The People, 65 111.301; Yundtr.The People, id. 373; Moore, C'. L. § 815. As to recording indictments, see Rev. Stat. 111. 409, § 413.] * Low's Case, 4 Greenl. 440; 1 Bish. Crim. Proc. §857. See Rev. Stat. III. 1874, 408, § 412. CEIMINAL rSOOEDURE. 127 Arraignment and Plea. As soon as an indict- ment has been returned by the grand jury and iiled in court, the matter is in suificient forwardness to arraign the party therein cliargedto answer to the .same, if he is in custody, or is present in court upon his recognizance. And the prosecuting officer often detains the grand jury after making a return of tlieir indictments, until siich of the persons therein cliarged as are in custody, are arraigned and called to plead to the indictment, so that, if any of them pleads in abatement to the process for a misnomer, he can indict him again under his true name with- out causing delay thereby in the business of the court. The arraignment of a prisoner to answer to an indictment consists in his being brought in, in custody of an officer, unless at large upon his recog- nizance, in which case he is voluntarily present, when the clerk calls him by name, directs him to stand and hearken to an indictment found against him by the grand inqiiest of the county. If the charge is a capital one, he is directed to hold up his hand. The indictment is then read to him in a deliberate and intelligible manner; and he is then inquired of what he has to say to the indictment, is he guilty or or not guilty F While this is being done the prisoner is freed from any cliains or fetters, if he had any on when brought into court.^ If he intends to take advantage of any defect in the pro- ceedings, or any reason why he should not be tried upon the chai-ge contained in the indictment, he is ' 1 Bish. Cr. Proc. §§ 728, 729; Moore, C'. L. § 835. '^See Bish. Cr. Proc. §731. 128 CRIMINAL LAW. to take tlie objection before answering to it by a general denial of bis guilt. Thus, if he denies the jurisdiction of the court, or that he is indicted by his true name, or relies upon a former conviction or acquittal of the same charge, he takes the objection before he admits or denies the charge by pleading guilty or not guilty; for, by so doing, he waives these objections, except that of jurisdiction, whicli is still open to him by a motion in arrest of judg- ment, to be explained hereafter. The form and mode of taking these objections by plea will be considered in their proper place. They are mentioned here to indicate tlie order in which a pai'ty charged in an indictment is to take objection to his being put upon trial. Another mode may also be mentioned in this connection which is ap- plied where there is some supposed fatal defect in the charge contained in the indictment or in the mode of stating it This is done by what is called a demurrer, which denies the sutficiency of the in- dictment, even if the facts as stated are true, to con- vict the defendant of the crime charged; as for ex- ample, as given in Blackstone, indicting a man for feloniously stealing a greyhound, which is an ani- mal in which no valuable property can be had.^ If, however, there is a radical defect in charging what constitutes a crime, it may be taken advantage of by arrest of judgment as well as demurrer.^ A plea of misnomer is one in abatement; one of former acquittal or conviction is a special plea in 'SeelBish. Cr. Proc. §741. »Ib. CRIMINAL PEOCEDTJRE. 129 bar; and if the truth of snch plea is denied, and a jury is called to pass upon the issue, and the verdict is against the prisoner, the judgment that follows is, in case the charge be one of felony, that the pris- oner respondeat ouster, he should answer over or again to the charge. If the crime charged be a misdemeanor only, the judgment is as if the pris- oner had pleaded guilty, or final against him, with some exceptions which will be mentioned hereafter. The same is true of a judgment upon demurrer against the prisoner; if the offense charged be felony, he is at liberty to plead over, or a new plea, but otherwise, if it be a misdemeanor, with few exceptions. While, as will be stated, general pleas in bar, or a general denial of guilt, are made orally, those in abatement and special pleas in bar and demurrers, are ordinarily required to be in writing, and in many cases sustained by the oath of the party, in order to be received by the court, to prevent prison- ers from interposing groundless obstacles in the way of proceedings in court.^ The authorities upon which these several propositions rest will be more fully stated when the several pleas above mentioned are treated of later in the work. If no objection by way of plea in abatement, demurrer or special plea, in bar is to be made, the prisoner when arraigned and called upbn to answer to the charge, does this orally, by saying guilty,. »Gen. Stat. Mass. c. 171, § 31; 1 Chit. C. L. 436; Rex r. Granger, 3 Burr. 1617; State v. Farr, 12 Rich. 24; Rev. Stat. N. Y. pt. 4, c. 2, tit. 4, § 75. 130 CKIMINAL LAW. or not guilty.* Tf the latter, it is deemed to be the general issue by which he puts himself upon the country for trial, or in other words, submits the question of his guilt to the finding of a jury.^ If the prisoner be deaf and dumb, an interpreter is appointed by the Court, who, being duly sworn, interprets and explains the purport of the indict- ment, and the prisoner's plea thereto.^ The same course would be adopted if the prisoner were a for- eigner unacquainted with our language. If the prisoner stands mute, that is, refuses to plead to the indictment, the law of this country is difierent from the common law, and from what it formerly was here. By the common law, if he did this obstinately, after a due caxition by the Court, he was subjected to a kind of torture, consisting of laying him upon his back, and then heaping heavy weights upon him till he either consented to plead 'SeeRev. Stat. ni. 410, §423. 2 1 Chit. C. L. 417; 1 Bish. Cr. Pro. §§ 743, 799. The form of doing this and the minutes of the clerk of the fact prepara- tory to his making up the record of the case, while the Latin language was in use in court proceedings, gave rise in a some- what curious manner to what is now a familiar word in our language. The clerk minuted upon the back of the indictment the prisoner's plea non cul, and the reply of the representative of the government that he is guilty, "cul," and that he is ready to prove it, "prit," -which he read to the prisoner and then asked him how he would be tried, the conclusion being "cul — prit" — " how will you be tried?" from which the un- initiated supposed it was a term of reproach addressed to the prisoner. 1 Chit. C. L. 416; 4 Black. Com. 889. 'Commonwealth v. Hill, 14 Mass. 207; 1 Chit. C. L. 417; Rex V. Dyson, 7 C. & P. 805. CRIMINAL PROCEDURE. 131 or was crushed to death.' In Massachusetts, if a person refuses to plead to an indictment, or does not confess it to be true, the Court treats it as a plea of not guilty, and proceeds with the trial as if such plea had been duly recorded. The prisoner need not be asked how he will be tried. ^ The effect of a plea of guilty is to confess the truth of the facts recited in the indictment, and inasmuch as the prisoner may, in most cases, be sued in a civil action for the injury any one may suifer by his criminal act, he often is willing to save the prosecution the trouble of proving his guilt, if he can so plead as to avoid confessing the truth of that of which he is charged so that it can be be used against him elsewhere. The mode of doing this which the courts sometimes allow, is by what is called nolo contendere, in which he says he will not contend with the Commonwealth or State according to the form of the indictment. It is limited to misdemeanors, and can only be received upon the discretion of the Court; and in some cases, by the Massachusetts statute, it requires the assent of the prosecutor.' 1 4 Black. Com. 324, 827. This was once applied in the case of Giles Corey, by the Court appointed to try the witches in Salem, in 1692. Wash Jud. Hist. 142. ^Gen. St. Mass. c. 171, § 29; Rev. Stat. 111. 1874, 410, § 425 2 Comp. Laws, Mich. 1871, § 7907; Rev. Stat. N. Y. pt. 4, ch 2, tit. 4, § 74; 4 Cooley's Black. 324, note. n Bish. Cr. Proc. § 802, 803; 1 Chit. C. L. 431; Common- wealth V. Tilton, 8 Met. 233; Commonwealth v. Horton, 9 Pick 207; Commonwealth v. Adams, 6 Gray, 359. 132. CKIMINAL LAW. If to tlie indictment the prisoner answers that lie is guilty, his confession is recorded and forms the basis of the judgment, which the Court thereupon renders against him. But this does not prevent his moving in arrest of judgment, if the indictment does not charge an indictable offense. Tlie judg- ment of conviction in a criminal case is included in the sentence.' But in Massachusetts the Court will not receive a plea of guilty to an indictment for murder until after a full advisement of the pris- oner of the consequences of such a plea.^ Although in Massachusetts tliere are two degrees of murder, and' the indictment charges the offense generally and the jury are required to distinguish in their verdict whether they find the defendant guilty in the first or second degree, where there is a trial upon a plea of not guilty, yet if to such an indictment the defendant pleads guilty in general terms, it will be accepted and recorded as a plea of guilty of murder in the first degree, and judgment will be rendered thereon accordingly.' A plea of guilty confesses all the facts charged in the indictment, together with the intent therein 11 Chit. C. L. 416; Green v. Commonwealth, 9 Allen, 165; Commonwealth v. Tilton, sup.; Commonwealth v. Hinds, 101 , Mass. 209. 'Commonwealth t. Battes, 1 Mass. 95; 4 Black. Com. 328. [In Illinois it is enacted (Rev. Stat. 1874, 410, § 424,) that " in aU cases where the party pleads 'guilty,' such plea shall not be entered until the Court shall have fuUy explained to the ac- cused the consequences of entering such plea," &c.] 'Green v. Commonwealth, 12 Allen, 155; Opinion, &c., 9 AUen 585. CRIMINAL PEOCEDUHE. 133 charged, and is a waiver of all merely technical and formal objections. But, if the facts thus admitted do not constitute a crime against the law, there can be no valid judgment upon such a plea.' In England the courts will not give judgment immediately in a capital case upon a plea of guilty, and four days are allowed to Hie a motion in arrest of judgment, if there are so many before tlie close of the term. They often advise the defend- ant to withdraw the plea of guilty and put himself upon trial. ^ Requisites of Indictments. Before considering the steps in proceedings in criminal cases, which follow the finding and return of the indictment, by which the party therein cha'rged is brought in to answer to the same, it is necessary to enter more at large into the requisites of a good and sutiicient in- dictment, limiting the inquiry in the first place to such as apply to all indictments without regard to the particular offense intended to be charged. It is defined to be " a plain, brief and certain nar- rative of an offense committed by any person and of those necessary circumstances that concur to ascer- tain the fact and its nature."^ The importance of ' Commonwealth v. Hinds, 101 Mass. 210. [In Illinois it is provided by statute (Rev. Stat. 1874, 410, § 424,) that " in all cases where the Court possesses any discretion as to the extent of the punishment, it shall be the duty of the Court to examine witnesses fis to the aggravation and mitiga- tion of the offense."] " 1 Chit. C. L. 429. 2 1 Chit. C. L. 168; 2 Hale's P. C. 169. 134 CEIMIN^AL LAW. tliis being done with sufficient accuracy in the form in which it is presented will be obvious when it is re- membered that there was originally no amendment allowed, as in civil proceedings, since the statutes of jeofails do not extend to criminal proceedings.^ Broad powers of amending indictments have been, granted by statute iu England.^ Another thing is to be bonie in mind, that, inas- much as tlie recitals in tlie preamble and close of an indictment, such as " unlawfully and deceitfully designing and intending," &c., " to the great dam- age," and the like, are not traversable, they cannot aid an imperfect averment of the facts constituting the description of the offense.^ In the first place, the indictment must charge the offense, including all the facts and circumstances coristituting it, with as much certainty as the na- ture of the case will admit.* If tlie charge is obtaining goods by false pre- tenses, it must state what these pretenses were. If it charge the felonious taking of another's goods, it must state what they were. If it charge the steal- ing of goods without alleging it to have been done feloniously, it would not charge the offense of lar- ' Barring. Stat. 220; Brown v. Commonwealth, 8 Mass. 6-5; Cro. C. Conip. 44; Moore, C. L. § 818, and cases there cited. In Massachusetts amendments may be made in indictments for selling spirituous liquor. Commonwealth r. Holbv, 3 Gray, 458. ' Cooley'a Black. .307, note. 'Commonwealth v. Hunt, 4 Met. 128. * Stratton »>. Commonwealth, 10 Met. 220; 1 Chit. C. L. 171, •22S; Moore, C. L. § 783. CKIMINAL PEOCEDURE. 135 ceil}'. So, if it charges stealing sheep without stating the number, it would be bad.^ The indictment must charge the facts and cir- cumstances which constitute the crime, and a state- ment of the legal result only, would be bad.'' So, if an act becomes unlawful by reason of circum- stances and relations with which it is cont\ected, it is necessary to set forth these as well as the act complained of. But if the otfense consists not in a single act, but a series of single acts in continued succession, the indictment may charge the offense without stating in detail the various distinct acts which go to make the general criminality of the defendant. Of tliis class are common barrators, common scolds or brawlers, common sellers of liquor, and the like, to constitute which at least three several acts must be ])roved, though courts will require the prosecution to file a spccitication of the acts upon which a conviction will be sought.' The charge, moreover, must be direct and posi- tive; if in the disjunctive, as that he forged or caused to be forged, or by the way of a recital, as with a " whereas," it would be bad."* ' 1 Chit. C. L. 171, 228, 230; Cr. Cir. Comp. 37; FitzWil- liams' case, Cro. Jac. 20. n Chit. C. L. 228; Stratton v. Common vsrealth, 10 Met. 220. ' 1 Chit. C. L. 228, 231; Stratton v. Commonwealth, 10 Met. 220; Commonwealth v. Pray, 13 Pick. 359; Commonwealth v. Davis, 11 Pick. 432; Bloss v. Tobey, 2 Pick. 320, burning one"s own house no crime, unless intended to defraud an insurance company, or the hke. * 1 Chit. C. L. 231 ; Cr. Cr. Comp. 40, 41 ; Moore, C. L. §§ 784, 788; Rex v. Crowhurst, 2 Ld. Raym. 1363; Rex v. Whitehead,, 1 Salk. 371. 136 CKIMINAL I-AW. Attempts have been made by writers iipon crimi- nal procedure to define the degree of certainty with which averments should be made in framing an in- dictment, which fail to convey to common minds any distinct conception of what is intended. Thus, it is said " an indictment ought to be certain td every intent without any intendment to the con- trary." Chitty says of accusations and indict- ments, the degree of certainty required is " certainty to a certain intent in general." ' But, as the pur- poses of this accuracy and precision are in the first place to apprise the party charged, of the ofi"ense laid against him, and in the second place to have the record show, if he is indicted a second time, that he has once been held to answer to it, the rule as laid down in the Bill of Rights in the Constitu- tion of Massachusetts would seem to furnish a rea- sonably satisfactory rule in such case, where it is said, " no subject shall be held to answer for any crime or ofli'ense, until the same is fully and plainly, substantially and formally, described to him."'^ It may, perhaps, aid in defining what it is neces- sary to aver in framing an indictment, to state that ' Long's case, Cro. Eliz. 490, a specimen of an indictment in Latin; FitzWilliam's case, Cro. Jac. 20; Chit. Plead. 237. '§12. [It is provided by statute in Illinois (Rev. Stat. 1874, 40'', §408) that "every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury." See, however, Mooi'e, C. L. §§ 782, 783, and cases cited in note.] CRIMINAL PKOCEDUEE. 137 it must rest altogether upon what it contains within itself ; and unless that clearly and directly charges a crime known to and punishable by the law, it is fatally defective. The inquiry, therefore, always is, can everything which is clearly alleged and set forth in an indictment be true, and yet the defend- ant be not guilty of the Crime charged ? If it can, the defect is incurable, except by a new indictment. Thus, where an indictment [against the town of E.] alleged that a highway lay from a certain point in the town of A. to a certain point in the town of B., and that the inhabitants permitted a certain part of it to be out of repair and unsafe, it was held to be fatally defective, inasmuch as it did not aver that the part which was unsafe was within the town of B. All that was averred might be true, and yet the town of B. not guilty of any neglect of dnty.' Mere verbal errors, like misspelling a word, would not avoid an indictment, unless it, the error, was in describing the instrument forged, or the like. And where the allegation was that the prisoner took the goods alleged- to be stolen from the '■'■ possion " of the owner, it was held not to be a ground for arrest- ing judgment after a verdict.^ But, if it is intended to charge a felony, the in- dictment must allege the act to have been done feloniousl3^ Such is the case with larceny, bur- glary, murder, etc. It is not enough to charge that the prisoner stole a horse, or broke a dwelling house, ' Commonwealth v. North Brookfield, 8 Pick. 463. 2 State V. WilliamsoE, 43 Texas, 500; 11 Am. L. Rev. 122; 2 Hale, P. C. 169; 1 Bish. Cr. Proc. §§ 348-354. 138 CBIMINAL LAW. or slew a man. But by the statute of Massachusetts the omission of " feloniously" is not important if the act charged be a felony.* Previous to 4 Geo. II. c. 26, indictments were in Latin, and, as stated by Hale, " it is of excellent use, because it being a fixed, regular language, it is not capable of so many changes and alterations as hap- pen in vulgar languages." And this, it will be re- membered, was true for a long period during which prisoners charged with felonies were not allowed the aid of counsel in the conduct of their cases. By the statute cited and that of 6 Geo. II. c. 14, (1731- 1733,) indictments were required to be in the Eng- lish language, in writing excluding figures and abbreviations, unless required in describing papers, and to be written in a legible hand.^ But this use of figures and abbreviations is allowed in several of the States in describing the year and date of the finding of the indictment or the term of the court.^ In treating of the matters of an indictment in de- tail, the first ppint to be considered is the venue or the county in which it must be found, and the trial upon it be had. The right in criminal prosecutions ' 1 Chit. C. L. 173; Cro. Cir. Comp. 37; 4 Black. 307; Cro. Jac. 20; Cro. EKz. 490; 1 Bish. Cr. Proc. § 534; Gen. St. Mass. c. 168, § 2; See Moore, C. L. §§ 789, 790. ^2 Hale, P. C. 169; 1 Chit. C. L. 175, 176; 1 Bish. Cr. Proc. §344. 'Chit. C. L. (Perk, ed.) 176, note. [Mr. Bishop in his work upon Criminal Procedure (Vol. 1, § 345,) expresses the opinion that, on the whole, the American doctrine is pretty plainly that figures are sufficient, though, where the subject is untouched by statute, there is some conflict upon the question.] CEIMINAL PROCEDURE. 139 of having the facts verified in tlie vicinity wliere tliey happen, is declared to be one of tlie greatest securities of the life, liberty and property of the citizen.^ The point aimed at by this rule is that crimes are to be tried and punished in the counties within which they are committed. In the sense of the law crimes are local. ^ Something has already been said of cases which occur where the act com- plained of has been of a continuous nature, and a part has occurred in one countj' and its consumma- tion in another, as the infliction of a blow or admin- istering poison in one county, and death ensuing in another.^ Such would be the case of a nuisance created in one county causing injury in another.^ Where the charge is of obtaining goods by false pretenses, and the making of the false pretense is in one State or county, and the goods thereby obtained in another, the indictment must be in the latter State or county.' There is less particularity in setting out the vill, parish, etc., in which the act of felony is alleged ' Mass. Bill of Rights, § 13. ' 1 Bish. Cr. Proc. § 49; 1 Chit. C L. 177; Commonwealth r. Quinn, 5 Gray, 480. In Alabama it it is not necessary to allege the place in which a crime was committed, though it is necessary to prove it to have been clone in the county in which the indictment is found. 1 Bish. Crim. Proc. § 385. 'Ante, p. — . * 1 Chit. C. L. 193^ Mass. Gen. Stat. c. 171, §§ 17-19; 1 Bish. Cr. Proc. § 59; Barden v. Crocher, 10 Pick. 383. 5 1 Chit. C. L. 191; Stewart v. Jessup, 51, Ind. 413; Adams r. People, 3 Denio, 190, 610, where the letter was written in Ohio and the money obtained in New York. 140 CKIMINAL LAW. to have been committed, in this country than in England. In Massachusetts the indictment for a capital felony names the town as well a's the county, but in lesser offenses less strictness is required, though the indictment must state that the act is committed within the county, directly or by explicit reference to the county.' Eut if more than one county be named, and the language of the indict- ment leaves it doubtful which of the two is meant, it would be bad.^ In England and in some of the States, the court, for satisfactory reasons, may change the venue, or place of trial, from that in which the indictment is found, to another coimty. In other States this is not allowed.' '1 Chit. C. L. 196; Commonwealtli v. Springfield, 7 Mass. 13; 2 Hale, P. C. 180; Commonwealth v. Barnard, 6 Gray, 488; Commonwealth v. Cummings, 6 Gray, 487. [It is stated by Mr. Bishop (1 Grim. Proc. §§ 370, 371,) that, although the safer way in most cases is to allege the particular town, neighborhood, vill or parish where the offense is com- mitted, yet the general rule in the United States is that it is not necessary to allege in the indictment the particular township or other like locality, within the county, where the offense was committed; and that it is sufficient simply to allege it to have been committed within the county. And such appears to be the rule. The exceptions to the rule and the cases upon the sub- ject will be found collected by Mr. Bishop in the notes to the sections cited, and those immediately following them. See, also, Moore, C. L. p. 36, note 3; p. 321 note 2; p. 452, note 5.] ^2 Hale, P. C. 180; 1 Bish. Cr. Proc. 379; Commonwealth V. North Brookfield, 8 Pick. 463. n Chit. C. L. (Perk ed.) 291, and note. Among the States where this may be done, are [Michigan,] New York, Alabama, Missouri, Virginia, Iowa, Illinois, Tennessee and Delaware. CEIMINAL PROCEDURE. 141 After reciting that the grand jnrors, under the name of the grand inquest, are such for the proper county, the indictment alleges that they "on their oaths present," whatever they intend to chai-ge, and this is repeated in respect to every averment in th^ indictment, however numerous; and this is done in the present tense, as something they then do.' Then follows the name of the person whom the grand jury intend to charge with the criminal act, and in this great pai-ticularity is required; first, in ascertaining and identifying the person to be arrest-' ed and held to answer; and second, to guard against the defendant being twice held for the same offense. By an early English statute not only was this re- quired, but " the estate, degree or mystery" of the person charged, as well as the town, place or ham- let in which he was " conversant." ^ But, as has before been said, if the prisoner proposes to take advantage of a mistake or defect in this particular, he must do it by plea in abatement; and if he pleads generally to the indictment, he waives the objection.^ It seems now to be settled that both the Christian and surname must be given, but a mere mistake in It is not allowed in Massachusetts or Vermont. 1 Bish. Cr. Proo. §§ 68, 69, and note; Rev. Stat. 111. 1874, 1095, § 18; Comp. Laws, Mich. 1871, § 4946; Code of Iowa, 1873, § 4368; Moore, C. L. § 858; TifF. C. L. 411. 1 1 Chit. C. L. (Perk, ed.) 202, note; 2 Hale, P. C. 168; 1 Bish. Cr. Pr. § 666. 2 1 Chitty, C. L. 203, 204. ' Ante, p. — ; Commonwealth v. Lewis, 1 Met. 152; 1 Chit. C. L. (Perk. ed. ) 203, note. 142 CRIMINAL LAW. spelling it, where tlie sound is the same, is not ma- terial.^ The appellation of junior, or 1st, or 2d, etc., annexed to a name, is no part of the name. And it is often said that the omission of a middle name or the initial by which it is indicated, is not mate- rial.^ But the safer way, and what has at times been held the only safe way, is to describe the party charged by his full name.' If the name of the party to be charged is not known, he may be indicted by such a description as will serve to identify the person intended, or by a fictitious name, with an averment that his real name is unknown. But in such case, there should be added some description which would identify and ascertain the person intended.* If the defendant pleads a misnomer the prosecu- tion may reply that he was known as well by one name as the other.' The stringency in requiring a designation of the person charged by his title, degree, trade, &c., which '■ 1 Chit. C. L. (Perk, ed.) 203, and note; 1 Bish. Cr. Proc. §§ 684, 688. ^ Commonwealth v. Perkins, 1 Pick. 388; Cobb v. Lucas, 1-5 Pick. 7; 1 Bish. Cr. Proc. § 683. « 1 Bish. Cr. Proc. §§ 683, 685. n Chit. C. L. 203; Commonwealth i'. Crottv, 10 Allen, 403; 1 Bish. Cr. Proc. § 680. ^2 Hale P. C. 238. In speaking of names. Coke, as upon everything else, is full of learning: "It is to be observed that surnosme is derived of sur {id est) super, and nosme (that is) nomen, quasi super tiomen, because it is superadded to the Christian name, which is \egal\ypra! nomen, in Latin, cognomen, quia conjunctum. nomen." 2 Inst. 666, upon the Statute of Hen. V. of Additions. CEIMINAL PEOCEDUKE. 143 once prevailed, has been much relaxed in this coun- try, though still retained in some of the States. In England amendments in this respect are now allowed.' When it is uncertain which of two Christian names is the true one, the difficulty may be avoided by alleging it with wlmt is called an alias dictus, that is such a name, otherwise called the other name, and if either is proved to be the true name, it is sufficient.^ As to the name of the person alleged to be in- jured, or whose property has been taken, or in rela- tion to whom some criminal act is charged in an indictment, the degree of precision and accuracy required is much more stringent than when confined to the defendant, and if a material mistake in this respect is made, it may be fatal even in arrest of judgment, if it appears upon the face of the pro- ceedings. And, if the person intended be known, it would be fatal to describe him as being unknown. In some cases initial letters are allowed instead of the full name.^ One reason for this strictness is to 'Chit. C. L. (Perk, ed.)' 205-210, note; Mass. Gen. St. c. 172, § 19; 1 Bish. Cr. Proo. §§ 674, 675. [By statute in Illinois no indictment shall be quashed for failure to state the occupation or place of residence of accused. Rev. Stat. 1874, 408, § 411. So, in Michigan. 2 Comp. Laws, 1871, § 7912.] 2 1 Bish. Cr. Pro. § 681; 1 Chit. C. L. (Pevk. ed.) 216, and note. = 1 Chit. C. L. (Perk, ed.) 213, 216, and note; 1 Bish. Crim. Proc. § 685; Cro. Cir. Comp. 86; 2 Hale, P. C. 181; Merwin t). People, 26 Mich. 298; 12 Am. Rep. 316. 144 CMMINAL LAW. protect the defendant from a second indictment for the same offense. But if the party be unknown and the defendant be convicted or acquitted, lie may defend against a second indictment by showing the fact of the identity of the party alleged to be in- jured, with the one intended in the former trial.' In this connection it should be borne in mind that, if one is charged with larceny, the indictment must state accurately the name of the owner whose goods have been taken. Thus, at common law, to allege that they were tlie goods and chattels of A. B., when it turns out that she is a feme covert, would be bad, because she cannot have goods inde- pendent of her husband. And if one robs a tomb or the body of a dead man by taking the shroud in which he is laid, or the clothes in which he is clad, the property in them is to be alleged to be in his executor or administrator, if he is known or can be found, otherwise the property should be alleged to be in a person unknown.^ Following the accredited forms of indictments, the next statement or recital in order, relates to the time, and the next the place, when and where the act charged to have been done, is alleged to have been committed. These are material allegations in an indictment.' There should be a time and place stated as to every traversable fact, though generally, 1 2 Hale, P. C. 181. ' 2 Hale, P. C. 181; Wonson v. Sayward, 13 Pick, 404; 3 Chit. C. L. 948; East, P. C. 652. »Cro. Cir. Comp. 34-36; 2 Hale, P. C. 174, 177, 180; Moore. C. L. § 792. CRIMINAL PEOCEDUKE. 145 when once done, it may be sufficient to refer to that by " then and there." And if tlie character of the act be affected by the hour of the day in wliich it happened, tlie same ought to be alleged, as in case of burglary it should be alleged to have been com- mitted in the night time of such a day.^ But un- less time and place be of the essence of the crime charged, it is rarely necessary to prove either as laid, provided it be shown that the act was done before the finding of the indictment, and in a place which is within tlie jurisdiction of the court.^ In homicide not only the time of the infliction of the blow should be averred, but that of the death.' And it may be proper to state the offense to have occurred on a certain day, and on certain other days between that and some other day named when the act is capable of being continued, as in cases of nuisance.^ If the offense charged derives its character from the place in which it was committed, it becomes of the essence of the crime, and must be proved as alleged; as in the case of lai'ceny in a dwelling nChit. C. L. (Perk, ed.) 217, 219, 220, note; Hale P. C. 179; Moore, C. L. § 793; 1 Bish. Cr. Proc, § 408. [By the Act of April 10, 1877, (Sess. Laws. p. 85), the Statute of Illinois relating to burglary was amended by omitting the words " in the night time."] = Hale, P. C. 179; Cro. Cir. Comp. 36; 1 Chit. C. L. (Perk, ed.) 224. note; 1 Bish. Cr. Proc. § 386, 387, 400; Commonwealth v. Harrington, 3 Pick. 29; Roscoe Ev. 101, 102. ' 1 Chit. C. L. 2 2. * 1 Bish. Cr. Pro. § 392-395; Moore, G. L. § 797. 10 146 CRIMINAL LAW. liouse, or burglary in breaking and entering a dwelbng house of such an one, which must be proved as laid. A variance in such case would be fatal.' An indictment for keeping a disorderly house, will, however, be sustained by showing that defendant did this while occupying a room in an- other's house.^ The next, and a most essential part of an indict- ment, consists of charging the commission of the offense for which the defendant is to be held and tried. The indictment should contain upon its face such a description of this offense that the defendant should know and be able clearly to understand what is charged against him, and the court and jury should know what the offense charged is, and what judg- ment the law pronounces for the offense as charged. It must charge the crime with certainty and pre- cision, and must contain a complete description of such facts and circumstances as will constitute the crime, and a statement of a legal i-esult is bad. All the facts constituting the offense should be set forth as particularly as the nature of the case will admit.^ Presumptions of law need not be stated, nor need such facts as the Court are bound ex-offioio to take notice of, such as public statutes (but not private ones), common law rights, general customs, divis- ions into counties, incorporation of towns, weights 1 1 Bish. Cr. Proc. § 573. ^Commonwealth v. Bulmr.n, 118 Mass. 456. » 1 Chit. C. L. 227, 228: Commonwealth v. Tuck, 20 Pick. •362; Moore, C. L. §§ 785, 787. CEIMINAL PEOCEDUKE. 147 and measures, and the almanac, which is a part of the law of the land.^ It should state facts and not conclusions of law resulting from such facts ; this is the business of the court. But if an act is criminal by reason of being done with an evil intent, this intent must be alleged and proved. And in some cases it must be proved as alleged, as for example, if in charging burglary the intent be alleged to have been to steal, this must be proved. So that, if it is doubtful as to the true intent with which it was done, it is often advisable to charge different intents in separate counts.^ But if the act be in itself unlawful, the intent need not be alleged, for the law presumes it.' If the offense intended to be charged consists of writing some paper, such as forging a note, sending a threatening letter, or publishing a libel, and the like, tlie indictment must set out the writing with entire accuracy, giving it verhatim,, and should either allege it to have been of the " tenor " follow- ing, which implies precise accuracy in the copy, or what would be equivalent " in these words," or " in the words and figures following." " Purport," on the other hand, means the sub- stance of the instrument, and where precision is required, it would not be sufficient to allege that 1 1 Chit. C. L. 231; 1 Gi'eenl. Ev. §§ 5, 6, 479. 2 1 CWt. C. L. 231, 233; 1 Bish. Cr. Proc. §§ 522, 523; East, P. C. 1124. ' 1 CMt. C. L. 233; Rex v. Farrington, Russ. & R. 207; 1 Bish. Cr. Proc. § 1060; Mass. Gen. St. c. 168, § 2; Common- wealth V. Hersey, 2 Allen, 179. 180. 148 CRIMINAL LAW. the writing was " to the effect," or " to the substance following :" ' But in stating a libel, it is only necessary to set forth so much of the matter as renders the offense complete, provided the part omitted does not in any way alter the sense of what is set out.^ In an in- dictment for having in possession or jjassing a coun- terfeit bank note, it is not necessary to set out the check, letter or ornamental devices, and the like, upon the margin.^ Xor is it necessary to set out an instrument which is in the defendant's hands, or, without the fault of the prosecution, cannot be pro- duced ; if this fact is stated in the indictment, it will be sufficient to give the same substantially, or by a proper description thereof. * Nor is it necessary to set out the words of an indecent paper, if its lan- guage is improper to be spread upon the record. In such case the indictment should state the reason for the omission, and only give a description of the book or pajjer.' An indictment for perjury would be an example of the sufficiency of an averment in an indictment '1 Chit. C. L. 234, 2.35; East, P. C. 1122, 1124, (threatening letter); ib. 975, (a forged instrument); Commonwealth D.Wright, 1 Gush. 63, (a case of libel wherein the case of Commonwealth v. Parmenter, 5 Pick. 279, is questioned if not overruled); Com- monwealth V. Harmon, 2 Gray, 291, (case of libel); Common- wealth r. Houghton, 8 Mass. 110, (forged banknotes.) ' 1 Chit. C. L. 2-')5; Commonwealth r. Harmon, sup. 'Commonwealth ?;. Taylor, 5 Cush. 605; Commonwealth p. Bailey, 1 Mass. 6'2; Commonwealth v. Stevens, 1 Mass. 203. * Commonwealth ». Houghton, 8 Mass, 110, 111. 'Commonwealth v. Holmes, 17 Mass. 336; Commonwealth r. Tarbox, 1 Cush. 72. CKIMINAL PROCEDURE. 149 of the words or testiinonj' constituting the perjury, being " of the purport," " effect " or " substance" following ; and one obvious reason for this would be the impossibility in ordinary cases of reciting the precise words made use of by the witness in giving his testimony,' unless the perjury consists of a written aflH.davit, in which case it would seem to be necessary to set it out according to the " tenor" and not to the " eifect" only.^ Whenever there is occasion to mention a number or quantity of articles collectively in an indictment, as in larceny of goods, or having counterfeit coins, it is necessary to state some certain number or quantity in figures or pounds, and the like, although it is not necessary to prove the same as laid. So, the character of the articles should be stated. It would not be sufficient to charge that the defendant stole sheep or cloth, or " the goods and chattels " of an- other; the number of sheep, or of yards of cloth, or the articles stolen, must be stated. So, charging a larceny of '' one hundred and thirty-five dollars," the goods, &c., of another, withont specifying what money it is, would be bad.^ In one case, where the indictment charged the stealing of '' sundry gold coins, current as money in this Commonwealth, of the aggi-egate value of twenty-nine dollars, but a ' 1 Chit. C. L. (Perk, ed.) 235, note; 2 Chit. C. L. (Perk, ed.) 310. and note; Cro. Cir. Comp. 357; 2 Bish. Cr. Proc. § 906. '2Bish. Cr. Proo. § 906. 3 2 Hale, P. C. 182; East, P. C. 777, 778; Commonwealth r. Griffin, 21 Pick. 526; Commonwealths. Maxwell, 2 Pick. 143; Merwin v. People, 26 Mich. 298; 12 Am. R. 316; 1 Chit. C. L. 236; Moore, C. L. p. 340, note 8. 150 CRIMINAL LAW. more pai'ticular description of wliicli the jurors can- not give," "andsundry bank bills, current as money, &c., of the aggregate value of thirty-three dollars, but a more particular description of which the jurors cannot give," it was held to be a sufficient specifica- cation of the articles charged to have been stolen.^ It is sufficient in describing the property taken or injured, which is made the subject of an indictment, to employ the same terms as are in general use for that purpose. As, for example, alleging a larceny of so many tons of barilla woiild be good, it being the name by which a certain kind of soda is known in the trade.^ So, it would be a good description of the thing stolen, to call it " a bank note " of such a value.^ But a material mistake in the term by which an article is described in the indictment would be fatal, and for one reason, because of the necessity of properly guarding against a second indictment for the same offense, by referring to the record of the previous trial. Thus, where the owner of the printed sheets of a book delivered them to a binder to be bound into volumes, and after he had done this, he embezzled them, it was held bad to charge him with having embezzled so many printed sheets of such a book. They no longer answered to that name.* Among the cases given in the books, where the question of variance under such indictments has been made, is one in Ohio, that charging stealing a 'Commonwealths. Sawtelle, 11 Gush. 142. See Common- wealth V. Hussey, 111 Mass. 4.34; Moore, C. L. p. 340, note 8. ' Commonwealth v. James, 1 Pick. 375. ' Commonwealth v. Richards, 1 Mass. 339. * Commonwealth v. Merrifield, 4 Met. 468. CRIMINAL PEOCEDURE. 151 "gray gelding," was not sustained by proving the taking of a " gray liorse." But where a declaration alleged the letting of a " horse" the Court lield that evidence of letting a ''mare" sustained the charge. A dead animal must be designated by the name by which it is usually called, as beef or pork, instead of an ox or swine.' But while it is important to de- scribe an article which is the subject matter of an indictment with proper accuracy, it is often advisa- ble to avoid unnecessary particularity in such de- scription, since the proof must follow the descrip- tion, and, if the allegation is larceny of a grey horse, proof of taking a black one would not sustain the charge. Mr. Roscoe refers to a case like that sup- posed, and mentions several others, such as where one took four live, tame turkeys in one county and killed them there, and then carried them into an- other county, where he was indicted for stealing four live turkeys, he was acquitted, they never having been alive in that county. He speaks, also, of the distinction between live and dead animals; if not alleged to be dead, they are presumed to be living, and must be proved to be so, to sustain the charge. So, the allegation of killing a mare is not sustained by proof of killing a colt, unless the gender is also proved.^ 1 Hooker v. State, 4 Ohio, 550; Ware v. Juda, 2 C. & P. 051; 1 Chit. C. L. 237; Roscoe, Ev. 94, 95. [A charge of stealing "one pair of boots" is not sustained by proof of the larceny if two mismated boots, being the right boot of two pairs. State v. Harris, 3 Harring. 559.] 2 Roscoe, Ev. 94-95; 2 Arch. Cr. Pr. & PL 348; Rex v. Hal- loway, 1 C. & P. 128. 162 CRIMINAL LAW. Another material allegation in respect to articles alleged to have been feloniously taken is that tiiey were the property of some one who is either known and must be named, or is alleged to be a person unknown, which will be sufficient if in fact the owner is unknown. But it will be sufficient if the property of the alleged owner in the article taken be a special one; though, if in possession of a ser- vant of the owner, it would not give him such a special property as to sustain a charge of larceny for taking the goods from his possession.^ Another allegation in respect to articles of prop- erty, for the taking of which an indictment is found, is that they are of some measurable value, since larceny cannot be predicated of what is nobody's property, or of no value.^ An example showing the necessity of care in this respect in framing an in- dictment was supplied in the following case : The indictment " alleged the larceny of three articles of the value of a certain sum. The jury found the defendant guilty of taking one of the three things, and not guilty as to the rest. It was held that no judgment could be rendered, for it Avas nowhere alleged that the thing taken was of any value ; the value alleged may have related to the other articles.^ 1 Commonwealth v. Morse, 14 Mass. 218; 2 Hale, P. C. 182; 3 Chit. C. L. 947, 948; East, P. C. 652; Moore. C. L. § 501. '' 3 Chit. C. L. 947; Commonwealth v. Smith, 1 Mass. 245; 2 Hale, P. C. 183. 'Hope V. Commonwealth, 9 M«t. 1-34; Commonwealth i. Lavery, 101 Mass. 207; Rex v. Forsyth, Russ. & R. 274. [See State v. Buck, 46 Me. 531, where it was held that if the jury found and in their verdict returned the value CRIMINAL PEOCEDUEE. 153 But it is not necessary that the value should be proved as alleged in the indictment.^ The allegation of vi et arrnis, in respect to acts done, which was required in most cases when framing an indictment at common law, is rendered unnecessary by the statutes of .Massachusetts, [Mich- igan and Illinois.^] The same is true as to its being alleged to be against the peace.' If a guilty knowledge is essential to constitute a crime, as in case of uttering a false and forged bond or counterfeit bill, or receiving stolen goods, the in- dictment must allege the act to have been done "knowingly," or '' well knowing," or words to that eifect. But such an allegation would not render it necessary to prove it, if the law did not otherwise require it; it would be rejected as surplusage.* Separate Counts — Joinder of Offenses. A ques- tion of great interest has been much agitated of late, how far it is competent in framing an indict- ment, to charge the same offense in different counts; or to charge different offenses in different counts of the same indictment; and, if this may be done, what is the effect if there be a general verdict of of the part stolen, judgment miglit be legally rendered upon the verdict, although the indictment stated only the collective value of all the a' tides alleged to have been stolen.] ' 1 Chit. C. L. 238. 2 Gen. Stat. Mass. 172, § 19; Rev. Stat. lU. 1874, 408, § 411; 2 Comp. Laws. Mich. 1871, § 7912. " Gen. Stat. Mass. c. 172. § 19; Cro. Cir. Comp. 42; Rice r. The People, 15 Mich. 17; 1 Chit. C. L. (Perk, ed.) 248, note. *1 Chit C. L. 241, and Perkin's note; Bast, C. L. 972; 1 Bish. Cr. Proc. § 504; Moore, C. L. § 791. 154 CEIMIJSTAL LAW. guilty, and a judgment thereon, and one of the counts should be held bad. The latter point was raised and decided in O'Connel's case, in the House of Lords, and the former one in the Court of Appeals of lievr York, in Tweed's case. It is laid down in the English books on criminal procedure, as an un- questioned right in a prosecutor to insert two or more counts in an indictment for the same offense, where it is uncertain whether the evidence will sus- tain the charge in one form or another, if the crime is of a complicated nature. " And no doubt can be now entertained that this course is as legal as it is advantageous, for it is even no objection, either upon demurrer or upon arrest of judgment, that separate offenses of the same nature are joined against the same defendant." ' But two distinct offenses cannot be charged in the same count.^ By statute in Massachusetts two or more couuts, describing different offenses, may be set forth in the same indictment, depending upon the same facts or transactions, provided the indictment contains an averment that the different counts therein are different descriptions of the same act.' But this is merely requiring that if the charges are in form for different offenses, but are intended to cover the same offense, it shall be so stated in the indictment. It ' 1 Chit. C. L. 248, 249; Moore, C. L. § 799, et seq. » 1 Chit. C. L. (Perk, ed.) 248, and note; State v. Nelson, 8 iST. H. 163; Commonwealth v. Holmes, 119 Mass. 198; 1 Bish. Cr. Proc. § 432; Commonwealth v. Eaton, 1.5 Pick. 274; Com- monwealth V. Symonds, 2 Mass. 164; Commonwealth v. Tuck, 20 Pick. 360. • 'Stat. 1861, c. 181. CKIMINAL PEOCEDUKE. 155 is not intended to change the law as to the charging diiferent offenses of the same nature, in different counts, in the same indictment.' But when two crimes are of the same nature and necessarily so connected that they may, and, when both are committed, must constitute but one offense, they should be included in one charge. Of this character, is breaking and entering with an intent to steal, and stealing, which is one offense, the intent being shown by the actual stealing." So, there are cases where the charge of a higher offense embraces the elements of a lower one, and a conviction may be had for the lower, although the higher charge is not sustained. As in a charge for murder, are included that of manslaughter, battery and assault; and the lower may be established though the higher one fails. So, a battery includes an assault, and may be cliarged as one offense.^ So, a felony by an act done to A, and one done to B, may be charged in one count, if they were done at the. same time, as stealing a cloak of A B and a coat of C B* ' Commonwealfb v. Cain, 102 Mass. 488. 'Commonwealth v. Tuck, 20 Pick. 360, 361; Josslyn». Com- monwealth, 6 Met. 288, 239; Commonwealth v. Hope, 22 Pick. 1, 7; East, P. C. 515, 516. ' 1 Bish. Cr. Proc. § 433; 1 Chit. C. L. (Perk ed.) 250, and note; Commonwealth v. Tuck, 20 Pick. 361, (burg-lary and stealing and conviction of stealing); Commonwealth v. Hope, 22 Pick. 1; Commonwealth ». Eaton, 15 Pick. 275; 1 Whart. C. L. § 616, 617; Moore, C. L. § 800. * Carleton v. Commonwealth, 5 Met. 533; 1 Bish. Cr. Proc. §437. 156 CKIMIlSrAL LAW. Still the question recurs whether and how far dis- tinct and independent crimes may be included in one indictment under separate and independent counts. If one is a felony and the other a misde- m^eanor, they may not be included in the same in- dictment.' The rule upon this point, as held in Massachusetts, is that several distinct substantive offenses may be included in the same indictment, where they are of the same general nature, and where the mode of trial and the nature of the pun- ishment are the same.^ A similar doctrine prevails in England, and New York and Pennsylvania.' If including two or more offenses in the same in- dictment tends in any case, from the nature of the charges, to perplex the defendant in preparing and conducting his defense, the Court, in its discretion, may require the prosecutor to elect on which of the counts he will bring the defendant to trial, or may quash the indictment.' If all the counts are good, there may be a gen- 11 Bish. Cr. Proo. 445. Otherwise in Maryland. 1 Chit. C. L. 254, note (Perk, ed.) citing Burk r. State, 2 H. & J. 426. See exception in New Jersey and in some other States, in § 446, 1 Bish. Cr. Proo. See Moore, C. L. § 800, and cases cited. ' Carlton v. Commonwealth, 5 Met. 534; Josslyn v. Common- wealth, 6 Met. 2.39; Commonwealth v. Hills, 10 Cush. 534; Commonwealth v. Cain, 102 Mass. 488; Booth v. Common- wealth, 5 Met. 535. ' 1 Chit. C. L. 249, note (Perk, ed.); Kane v. People, 8 Wend. 210, 211; Commonwealth v. Gillespie, 7 S. & R. 469. * Carlton v. Commonwealth, sup.; Moore, C. L. § 800, and cases cited; Commonwealth v. Cain, 102 Mass. 489. 1 Chit. C. L. 249, limits this to felonies, and ib. 253, 254, says it does not extend to misdemeanors. See also, Kane v. People, sup. CRIMINAL PEOCEDUEE. 157 eral judgment thereon, not exceeding the limit fixed by law for such oifenses. If one count is good and the others bad, and judgment is expressly upon and limited to the good one, the insertion of the bad count and verdict upon it has no ejffect. So, if there are several counts, some good and some bad, and tliere is a general judgment, and it do not ex- ceed the proper judgment for the good counts, the court will presume that it was rendered on the good counts alone.' In O'Connel's case, which was for conspiracy, there were eleven counts in the indict- ment, and a conviction and a general judgment and sentence upon all, and two of the counts were bad. Upon a writ of error to the House of Lords, in giv- ing their opinion upon the point, seven of the judges were against a reversal and two for, and when it came to a vote in the House of Lords, two were against and three for reversing, and it was accordingly reversed.^ Upon the point that different offenses may be charged in the same indictment, if done in separate counts, Mr. Wharton speaks of it as a matter of unquestioned right, which would not vitiate the in- dictment if the offenses charged were misdemean- ors.^ The same rule applies to felonies in Massa- ' Carlton v. Commonwealth, 5 Met. 534; Booth ». Common- wealth, 5 Met. 535; Josslyn v. Commonwealth, 6 Met. 240; Chit. C. L. (Perk, ed.) 246, and note; 1 Law Rev. (London) 330, 338; 3 Whart. C. L. § 3047; Kane v. People, 3 Wend. 363. 2 11 Clark & Pin. 15; 3 Whart. C. L. § 3047; 1 Law Rev. (London) 329-344. ' 1 AVhart. C. L. § 414. See, also, 1 Bish. Cr. Proc. § 452, note; Moore, C. L. § 801. 158 CRIMINAL LAW. chusetts.^ And two or more misdemeanoi's growing out of separate, and distinct transactions naay, ac- cording to the doctrine whicli appears to prevail everywhere, be joined in the same indictment when embraced in dift'erent counts.^ In Tweed's case there were two hundred and twenty counts in one indictment for misdemeanors, and a conviction upon fifty -five of tliem. The Court rendered a separate judgment and sentence upon each of these. After serving out one of them, he sued a haheas corpus, on tlie ground that all tlie judgments and sentences beyond the first were void, and the Court held them to be so, and dis- charged him. And a writer in 10 Am. Law Rev. 172, says: " It is a remarkable circumstance that throughout the whole of the judgment delivered- in Tweed's case, no authority is referred to which fur- nishes the slightest support to the doctrine there announced." The language of Allen, J., is, " There is no real or true warrant in this State for several and distinct judgments upon a single individual indictment in the law." ' ' Common weal til v. Hills, 10 Cush. 534. So, in Connecticut. State ).'. Fuller, 34 Conn. 280; 1 Bish. Cr. Proc. § 451. [It is settled law in Massachusetts that several otfenses may be charged in the same indictment when they are of the same general nature, and when the mode of trial and the nature of the punishment are the same. Commonwealth v. Costello, 120 Mass. 3-58; Commonwealth v. Brown, 121; id. 82, and cases cited.] ' 1 Bish. Cr. Pro. § 4-52, and cases cited; O'Connel v. Queen. 11 CI. & Fin. 155; Moor^, C. L. § 801. 'People ex rel. 1'weed v. Liscomb, 60 N. Y. 559, reported below in 3 Hun, 760; 6 N. Y. s. c. (T. & C.) 253. [In relation to the decision in this case, Mr. Bishop says that. CKIMINAL PEOOEJDUKE. 159 If there are counts in an indictment wliich can- not be properly joined, the difficulty may be ob- viated by taking a verdict only on the counts that can be joined; or the prosecution may enter a nol. pros, after a verdict, as to any count in the indict- ment, and take judgment on the good counts. But a defective indictment cannot be cured by a ver- dict.^ At common law one cannot be convicted of a misdemeanor upon an indictment for a felony, [and this rule has been adopted in Pennsylvania, Indiana, Tennessee and Maryland. In New York, New Jersey, Vermont,. Ohio, Nortli Carolina, South Carolina and Arkansas the rule has not been adopted]. By statute in Massachusetts, [although before the statute it was held otherwise], this may be done, if the misdemeanor be substantially em- braced in the original charge of felony.^ " In other Jocalities (tlian New York), where the common law prevails, to accept it would be to overturn what is fundamental and established in authority, and in principle is essential to the just administration of the criminal law." 3 South. Law Rev. (N. S.) 51. See, also. Stack v. The People, 80 111. 32; MuUinix e. The People, 76 id. 211; Martin v. The People, id. 499; The People V. Whitson, 74 id. 20; Bolun v. People, 73 id. 488.] 1 1 Whart. C. L. § 418; Commonwealth v. Tuck, 20 Pick. 361, 366; 1 Bish. Cr. Proc. § 406; Commonwealth v. Holmes, 119 Mass. 198. ^Commonwealtht). Roby, 12Piok, 506; 1 Whart. C. L. § 400; Gen. Stat. Mass. c. 172, § 16; Commonwealth v. Drum, 19 Pick. 480, upon a charge of rape, defendant may be convicted of an assault; Commonwealth ». Squire, 1 Met. 262, "felon- iously " may be rejected as surplusage, and judgment rendered for misdemeanor. 160 CRIMINAL LAW. Joinder of Defendants. In respect to joining two or more persons in the same indictment, it can rarely be made a ground of objection that one or more are omitted who were participators in the crime.^ All who engage in doing a criminal act may be jointly indicted for the same in the same count, the test being whether each, if tried by him- self, could be convicted of the crime charged.^ To charge two or more in the same indictment for a felony, they must have been present, aiding and abetting in the commission of the crime.' If two or more are present at the commission of a fel- ony, wliere one does the act, such as killing a person, and they are indicted together, it is not necessary that the proof should sustain the allegations as to the one who did the act. If A did it, B and C as- sisting, it may be alleged that B did it, A and C assisting, since all are equally principals.* If the offense charged be a misdemeanor, all who aided or promoted it, whether present at its com- mission or not, are principals, and may be indicted together jointly for the same.' Not only may one of two defendants, jointly in- dicted, be acquitted, and the other convicted and judgment rendered thereon; but where the offense 1 1 Bish. Or. Proo. § 463. n Bish. Cr.Proc. §467; 1 Wliart. C. L. § 429; 1 Chit. C. L. 267; 2 Hale, P. 0. 173. See, also, Moore, C. L. § 816. ' Commonwealth v. Knapp, 9 Pick. 517. n Chit. C. L. 260; East, P. C. 350; 2 Hale, P. C. 185; 2 Bish. Cr. Proc. § 3; Coates v. The People, 72 111. 303. * Commonwealth v. Drew, 3 Cush. 284; Commonwealth v, Ray, 3 Gray, 448. CRIMINAL PROCEDURE. 161 cliarsed contains within itself an offense of a lower grade, and two are indicted for committing it, one may be convicted of the higher, and the other of the lower, offense upon a joint trial.' But of some offenses there can be no joint com- mission by two or more persons, such as peijury, common scold, common barrator, and the like, and of course two cannot, in such case, be jointly indicted for the same offense.^ So, there are some crimes where the offense is charged against several in the same count, and if a part be acquitted it is fatal as to the others. Thus, for example, it requires tlie concurrence of three,' at least, to constitute a riot, and if that or a larger number are indicted by name, and the proof fails as to all but two, it will work an acquittal of these. Eut if the indictment charge certain persons as hav- ing committed it with many other persons, and there is proof of a riot by more than three, and that the persons named were engaged in it, it will be sufficient, though only one be indicted.^ But in these cases it is not necessary to join the rioters in one indictment; one may be arrested and tried be- fore the others have been.^ '1 Whart. C. L. § 434, 435; 1 Bish. Cr. Proc. § 1037; Mask V. State, 32 Misa. 405; 1 Chit. C. L. 270. n Chit. C. L. 268; 1 Bish. Cr. Proc. 470; Moore, C. L. § 817. [^ By statute in Illinois only two are required. Rev. Stat. 1874, 390, § 249,] * 1 Bish. Cr. Pro. §§ 994, 998; King v. Kinnersley, 1 Strange, 196; King v. Sudbury, 12 Mod. 262. ^ King V. Kinnersley, 1 Strange, 195; Moore, C. L. § 817. 11 162 CRIMINAL LAW. Accessories. In charging a defendant with being an accessory, it is usual to include liim in the same indictment as the principal, cliarging the principal in the first place in the same manner as if he were in- dicted alone, and then charging the accessory with aiding, abetting, etc., the principal in the commission of the offense, or with harboring him, etc., well know- ing that the principal had committed the act. But it need not aver how this aid or harboring was ren- dered.^ Or the accessory may be indicted separate- ly from the principal." By the common law, an accessory could not be tried or convicted until the principal had been con- victed. But now, both in England and Massachu- setts, he may be indicted and tried before the prin- cipal, or where the principal has escaped and eluded justice; and in some of the States accessories are practically treated as principals in the matter of trial.' The same rule prevails in most of the States.* As to the locality of the crime of being accessory and in what place he is to be tried, in England it is the county within which he .did the act which renders him chargeable, or where the principal is to be tried. But in Massachusetts it is the county within which the principal is triable.' ■ Chit. C. L. 272; 2 Hale, P. C. 222, 223; Commonwealtii v. Adams, 7 Gray, 44; Foster C. L. 365. ' Commonwealth ». Adams, sup. ' Roscoe Ev. 206; Commonwealth v. Andrews, 3 Mass. 126; Mass. Gen. Stat. c. 168, § 4. ^ 2 Bish. Cr. Proc. § 74, 13. See ante, p. — , note. « Chit. C. L. 274; 1 Bish. Cr. Proc. §§ 57, 58; Gen. St. c. -168, § 5. CEIMINAI; PEOCEDUEE. 163 In the trial of an accessory, wliere tlie principal has been convicted, the record of his conviction is received as evidence of the crime charged, the corpus delicti having been committed, and that it was committed by the principal ; and the burden of proving the contrary is thrown upon the de- fendant, although . he was not a party in the trial of the principal. But he may impeach the judgment against the principal by proving either that the crime had not been committed, or that the principal was not guilty, in the collateral hear- ing in respect to his own guilt. The judgment in such case would be conclusive as to the prin- cipal, but not as to the party charged as acces- sory.^ By the common law the receiving of stolen goods was considered as a being accessory to the principal act of stealing, and it was only a misdemeanor, imless the receiver harbored the thief.. But now it is made a substantive felony.^ And the same is the law in Massachusetts and the United States generally.^ In an indictment for tlie same, the charge is receiving the goods alleged to have been stolen, they having been "before then feloniously stolen," he, the defendant, "then and there well knowing the goods to have been feloniously stolen " ; ' 1 Chit. C. L. 273; 2 Bish Cr. Proc. § 12; Commonwealth v. Knapp, 10 Pick. 477, 484. But see King v. Turner, Moody, C. C. 349. •' 3 Chit. C. L. 953, 988; 2 Bish. C. L. (4th ed.) § 1092; 2 Bish. Cr. Proc. § 981. « Gen. Stat. c. 161, § 43; 2 Bish. Cr. L. (4th ed.) § 1092. 164 CRIMINAL LAW it need not name the thief, but if named it must be proved as alleged/ One may be charged in the same indictment by proper counts both as the princijial thief and as a receiver of stolen goods.'^ The principal thief and the receiver may be joined in the same indictment, or indicted sejjarately.* Indictrroents upon Statutes. Great particularity is often required in framing indictments upon stat- utes, since, if the offense is created by statute the indictment must be drawn upon the statute with proper averments. If it be upon a public statute, it need not be recited, for the Court is assumed to' know the terms of such statutes. But if it rests upon a private statute, it should be set out in the indictment. So that, if the facts recited in the in- dictment bring the charge within a public statute it will be sufficient; if these facts depend for this criminality upon a private statute, it must be set out as a part of the allegations in the indictment.* If a statute punishes an offense by its legal sig- nification, in drawing an indictment for it, it is suflScient to allege all the facts essential to consti- tute the crime; as when the statute punishes mur- der or burglary, it is sufficient to allege the facts 1 8 Chit. C. L. 959; Commonwealth v. State, 11 Gray, 63; Commonwealth v. King, 9 Gush. 287; Rex v. Jervis, 6 C. & P. 156. '^ Roscoe Ev. 812. ' Commonwealth v. Adams, 7 Gray, 44; Fost. C. L. 365. n Chit. C. L. 277; Whart. C. L. §§ 365, 366; Common- wealth V. Griffin, 21 Pick. 525. CRIMINAL PBOCEDURE. 166 whicli constitute murder or burglary at common law.* But if the statute describes the offense and what constitutes it, in charging its commission in an in- dictment it is sufficient to follow the words of the statute, because there is no occasion to allege any- thing more tlian what is charged by the words of the statute. Thus, in a prosecution under a statute prohibiting the "keeping a house of ill fame re- sorted to for the purpose of prostitution and lewd- ness," the words of the statute state the offense fully and with certainty; and in such cases the in- d,ietment only need to conclude " against the form of the statute in such case made and provided." ^ And as a general rule it is sufficient to describe an offense in an indictment in the words of the statute.^ If it is necessary to refer to the statute to describe the offense intended to be charged, the defect is not supplied by alleging the act to be done contra for- mam statuti^ If, in following the words of the statute, the in- ' Tulley V. Commonwealth, 4 Met. 358; 1 Chit. C. L. (Perk, ed.) 283, and note. ^ Common-Hrealth v. Ashley, 2 Gray, 356; 1 Hawk. P. C. c. 25, § 111; 1 Chit. C. L. 281; TxiWj v. Commonwealth, 4 Met. 358; Commonwealth v. Welsh, 7 Gray, 327; (Commonwealth V. Hoyt, 11 Gray, 463; Commonwealth r. Harris, 13 Allen, 539; Rev. Stat. 111. 1874,408, §408; Mohler v. The People, 24111. 26; McCutcheon v. The People, 69 id. 601; Moore, C. L. p. 36, note 5; Warriner «. The People, 74 111. 346; Clemmer u. The People, id. 361. ^ Hopkins v. Commonwealth. 3 Met. 46 j; and note 2, su- •pra. * Brown v. Commonwealth, 8 Mass. 65. 166 CBIMII^AL LAW. dictment does not necessarily describe the offense intended to be created, it would be bad unless it is followed by an averment which makes the act charged an offense. Thus, breaking the glass in any building, if maliciously done in the building of another, is punishable by statute. But merely alleging that the defendant broke the glass, is not enough ; for it might be true, and yet the glass form no part of the building, which is the offense intend- ed by the statute.^ So, the statute prohibits the knowingly or willfully digging up or removing a dead body; but as the reason was to prevent its be- ing done for purposes of dissection, the indictment must allege the intention, to bring the act within the statute. Following the words of the statute would not be sufficient.^ One great test in all these cases is the one before stated: * if every allegation may be taken to be true, and yet the defendant be guilty of no offense, then it is insufficient, although in the very words of the statute.* Thus, charging a licensed inn-holder with suffering persons to play at cards in his house, is bad for not averring it to be a house kept by him as an inn-holder.' So, charging one with having in his possession paper designed for forgery or coun- terfeiting bank notes, which is the offense described ^ Commonwealth v. Bean, 11 Cush. 414; Commonwealth v. Bean, 14 Gray, 54. ' Commonwealth v. Stark, 19 Pick, 306, 307. 'Page — . * Colnmonwealth v. Squire, 1 Met. 258; Commonwealth v. Harris, 13 Allen, 539; Commonwealth v. Tuck, 20 Pick. 363. ' Commonwealth v. Bolkom, 3 Pick. 123. CRIMINAL PEOCEDUEE, 167 in the statute, is bad for not averring the intent with which he had it' Where, in describing an oifense created by stat- ute, it makes use of technical terms, it is necessary to follow these in framing an indictment for the offense. But in general it will be sufficient to set forth the oifense with substantial certainty.^ Another example of its being insufficient in some cases in drawing an indictment to follow the terms ,of the statute, is in charging the defendant with presuming to be a retailer or seller of spirituous liquors, which is substantially the language of the statute. It must state how, when, where and the one to whom the sale was made, if known, or aver him to be unknown, if such be the case.* But when the crime consists of a series of acts which make one crime, as being a common barrator or common eeller of liquors, they need not be specially de- scribed.* Where in creating an offense, a statute contains provisos and exceptions by which in a certain condition of things certain persons are exempted from the effect of the statute, an important distinc- tion prevails as to the need of referring to this ' Common-wealth v. Morse, 2 Mass. 180. n Chitty, C. L. (Perk, ed.) 283, and note; United States v. Batchelder, 2 Gall. 15; Josslyn v. Commonwealth, 6 Met. 239. 'Commonwealth v. Thurber, 24 Pick. 374; State v. Allen, 32 Iowa, 491. See, however, contra, Wrocklege v. The State, 1 Iowa, 168; Carmady n. The People, 17 111. 159; Myers v. The People, 67 111. 504; State v. Bielby, 21 Wise. 204; State ■V. Gummer: 22 id. 441. * Commonwealth v. Pray, 13 Pick. 362. 168 CRIMINAL LAW. clause of exemption in framing an indictment for the oflFense, growing out of the place in the statute iu which it is found. If it is contained in the same section with tlie enacting clause, as, for example, prohibiting the selling of liquor to any person not a traveler or lodger, it is necessary in charging the offense to allege whatever is necessary to constitute it, and then negative that the person to whom sold was a lodger or traveler. If, how- ever, the clause excepting the cases when, or the persons to whom, the enacting clause does not ap- ply, is contained in a separate section, the indict- ment need not notice this. If a party who violates the enacting clause of the statute relies upon the exception as a justification or excuse, it is for him to set it up by way of defense.' [But when the exception is not stated in the enacting clause, other- wise than by merely referring to other provisions of the statute, it need not be negatived, unless neces- sary to a complete definition of the offense.] ^ In the absence of some statute to the contrary, it is necessary in framing an indictment for an offense which is created by statute, to allege that the matter charged is against the statute in such cases made and provided, contra formam statuti. And tbr- merly, if the indictment contained that averment, ' 1 Chit. C. L. (Perk, ed.) 2S4, and note; Commonwealth ; . Maxwell, 2 Pick. 141 ; Commonwealth r. Jennings, 121 Mass. 49; Commonwealth ('. Tuck, 20 Pick. 362; Chicago, B. & Q. R. R. Co. V. Carter, 20 III. 390; Metzker t. The People, 14 id. 101; Lequat v. The People, 11 id. 330; Lynch v. The People, 16 Mich. 476. ^Commonwealth v. Jennings, 121 Mass. 47. CRIMINAL PEOCEDUKE. 169 and it turned out that the indictment contained a good charge for an offense at common law, but was not declared to be such by any statute, it was bad, the proof not following the averment.' But now both in England and this country, the averment in such a case may be rejected as surplusage and judg- ment be rendered as at common law. And in Massachusetts no objection can be made to the want of such averment in any indictment ; and the same is true in some other of the States, though in most of them, as in England, if the offense is one strictly against a statute, it must be so alleged.^ If the indictment charges a crime with sufficient fullness and accuracy, but gives to it in the con- clusion a name that is technically wrong, it would still be a sufficient indictment.' Matters of Description and Surplusage. If an indictment, in setting out or describing a substan- tive part of a criminal charge, contains allegations which might have been omitted, it will still be necessary to prove them as alleged, or the indict- ment will fail; as for example, when the indictment alleges the larceny of a black horse and the proof shows the taking of a white one, or fails to prove a black one, when no allegation as to color was neces- sary. Such an allegation, if made, cannot be re- [1 Town of Paris v. The People, 27 Dl. 74. Mr. Bishop lays down the contrary doctrine. 1 Bish. Cr, Proc. § 601. J = 1 Chitty, C. L. (Perk, ed.) 289, 290, note; 1 Bish. Cr. Proc. § 602, et seq.; Mass. Gen. St. c. 172, § 19; 2 Mich. Comp. Laws, 1871, § 7912; Moore, C. L. p. 37, notes. ' United States v. ElUott, 3 Mason, 156. 170 CRIMINAL LAW. garded as surplusage.' But if the allegations are of matters which are not descriptive of the fact or degree of the crime nor material to the jurisdiction of the court, but are wholly disconnected with the circumstances which constitute the stated crime, they need not be proved and will be regarded as surplusage.^ Amendments. If indictments are defective, they are not amendable, except by some express statute; and where a capital indictment was defective but the defendant expressed a willingness to have it amended, the court refused to allow it to be done.^ In this respect indictments are unlike informations, which are always amendable.* How one indicted is held to answer — Forfeiti(^e of liecognizance. While anything like a complete exposition of the requisite elements of indictments in their application to the different crimes of which the law takes cognizance, would transcend the limits of an elementary work like the present, the attempt has been made to furnish an outline of the leading principles which are recognized by the courts in framing indictments, leaving the details of form to ' Commonwealth v. Atwood, 11 Mass. 94; 1 Bish. Cr. Proc. §§ 485, 486; 1 Greenl. Ev. § 65; Rickets v. Solway, 2 B. & Aid. 360; State v. Noble, 15 Maine, 477. " 1 Chit. C. L. (Perk, ed.) 295, and note; 1 Greenl. Ev. § 65 » Commonwealth v. Mahon, 16 Pick. 120. See 1 Bish. Cr. Proc. § 7ll, as to what States allow amendments. [Amend- ments in criminal cases are excepted out of the operation of the statute of amendments and jeofails. The People v. Whitson, 74 111. 23.] * 1 Chit. C. L. 847; 1 Bish. Cr. Proc. § 714. CKIMIIfAL PEOCEDUEE. 171 be supplied by a reference to any of the numerous standard treatises upon criminal procedure. The next stage of inquiry, therefore, is obviously by what means one who has been charged by the indictment of a grand jury with the commission of a crime, may be held to answer to the saipe, pre- paratory to a trial by which his guilt or innocence of the charge is to be established. If the party so charged is already in prison by virtue of a commitment by a magistrate, as has heretofore been explained, he is usually brought into court at once upon the indictment being filed, and arraigned and required to plead to it. If this plea be "guilty," the court usually proceeds to pass judgment and sentence upon him at once, unless there is some good cause for delay. If the plea be " not guilty," it is followed in due time by a trial of the issue by jury. If instead of being in prison the party indicted is at large upon, bail, he will, if he complies with the condition of his recognizance, be present in court and ready to plead to the indictment, when he will either be allowed to go at large upon a new rec- ognizance to await his trial, or be committed until that shall take place. The custom, therefore, is to have the party who has thus recognized, called by some oflBcer in open court to appear and answer to the indictment, and if he do not appear and answer, he is called and de- faulted, as it is called, and thereupon his surety or sureties in his recognizance, are called to bring the body of the principal into court; and if they fail 172 CRIMINAL LAW. so to do, the recognizance is forfeited, and the parties to it are liable for the penalty incurred thereby, in an action of debt, or a proceeding in conrt called a scire facias, which is sued out by the prosecuting officer, and is a civil action in the name of the Com- monwealth.' Sometimes the prosecution is content to enforce the forfeiture of the recognizance and proceed no further. But such payment and satisfaction are no discharge of the liability of the principal for the crime, and he may be arrested upon a capias issuing from the court, and brought in and compelled to answer as upon an original proceeding.^ Remedy of the Bail. Until the principal in a recognizance has been defaulted in the manner above stated, he is in theory of law in the custody of his bail or sureties in his recognizance, who maj' seize him at any time, by night or by day, or on the Sabbatli, and may for that purpose break the doors of the principal's house and commit him to the same jail to which he would have been committed if he had not obtained bail.' This could not be done in Massachusetts after the forfeiture of the recognizance, until provision for its being done was made by statute. And now the bail may surrender 'Commonwealths. McNeill, 19 Pick. 138; Commonwealth v. Stebbins, 4 Gray, 26. See Rev. Stat. 111. 1874, 397, § 310. '' Petersdorf on Bail, 516. ' Nicolla V. Ingersol, 7 John. 145, 155, 156; Commonwealth V. Brickefct, 8 Pick. 138; Brown v. The People, 26 lU. 31; 1 Chit. C. L. 104; Moore, C. L. §§ 119, 120; Petersdorf on Bail, 514; Mass. Stat. 1863, c. 59; 1 Bish. Cr. Proc. §§ 249, 250, note. CKIMINAL PEOCEDUEE. 173 his principal at any time before the commencement of an action of scire facias on the recognizance, to the jailor in the county in which the crime was com- mitted, by delivering with him a certified copy of the recognizance, in which case the principal shall be retained by the jailor with a right to furnish new bail. Or the bail may surrender their princi- pal in court at any time before final judgment in an action of scire facias upon the recognizance.^ Capias. If the proceedings against a party in- dicted be commenced by a complaint before the grand jury; or if, being under recognizance, he fails to appear at court, the next step in the process is the issuing of a capias, or writ from the court, bearing that name, directed to a proper officer, com- manding him to arrest the person charged in the ' indictment, and bring him before the court to answer to the indictment, if in session, or commit him to jail. This the officer serves by arresting the person named in the warrant, and if the court is not in session, committing him to the jail, unless he is prepared to recognize for his appearance at court, in which case the officer takes him before the proper magistrate, where he enters into such recog- nizance, and is discharged from custody, and the ofiicer makes return of his doings thereon, together with a certificate of the magistrate of his having taken such recognizance and the recognizance thus taken.^ ' Commonwealth v. Johnson, 3 Gush. 454; Gen. Stat. Mass. G. 170, §§41, 42; Stat. 1863, c. 59. 2 Cro. Cir. Comp. 9, 15; 1 Chit. C L. 339, 346, 347; Mass. Gen. St. c. 170, §§ 11, 12. See Rev. Stat. lU. 409, § 415. 174 CHIMIN AL LAW. Arrest. "What constitutes an arrest, and how and under what circumstances it may be made, present some of the most important and difficult questions which arise in determining what may he done under the forms of criminal proceedings, since from the jealous care of the law in protecting the person and households of its subjects, any unwarranted in- vasion of either of these, though done under the forms of law, is visited with severe and exemplary penalties. The first inquiry is, when, how and by whom an arrest may be made without a formal warrant or precept? In the first place, an arrest is the seizing or detain- ing the person of another in custody, and this is usually done by laying a hand upon liis person for that purpose, or having him within one's power, as being with him in a room and locking the door, declaring that he arrests him; or it may be done by the party voluntarily consenting to be held under arrest.^ One reason for ascertaining what consti- tutes an arrest is its bearing upon questions of alleged escape, and the right of recapture when such arrest has actually been made, even by the breaking of doors. Mere words cannot amount to an arrest.^ If one sees another commit a felony, or about committing a felony, he may arrest him with- out a warrant, and hold him, or give him into the > IBish. Cr. Proc. § 157; Grainger ». HiU, 4 Bing. N. C. 212; Mowiy V. Chase, 100 Mass. 85; 4 Black. Com. 289; Dane's Abr. c. 65, art. 2. ' Dane's Abr. c. 65, art. 2. CRIMINAL PEOCEDUEE. 175 custody of an officer, to prevent his escape or his commission of the crime, until he can be broughl before a magistrate who has cognizance of the oifense. But this does not extend to cases of mere misdemeanor/ And this, though to do so he lias to break the door of a dwelling house, and even, in some cases, to take life.^ So, if one knows that another has committed a felony, he may arrest him without a warrant, and, if necessary, call upon others to assist him, and de- liver him into the custody of an officer, or bring him before the proper magistrate.^ So, if a felony has been committed, and one have reasonable cause to suspect that another has committed it, he may arrest him as is above stated. But in this he acts upon his peril, for if there has been no felony com- mitted, he will not be justified in making the arrest. Nor can he justify breaking doors to make arrest '4 Cooky's Black. 292-3, and note; Handcooku. Baker, 2 B. & P. 262, 265; 1 Chit. C. L. 15; Kindred v. Stitt, 51 111. 407. [By statute in IlHnois, (Rev. Stat. 1874, p. 400, § 342), " an arrest may be made by an officer or by a private person without a warrant, for a criminal oflFense committed or attempted in his presence, and by an officer when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it." It is held in that State that a private person may arrest one committing a misdemeanor, without suing out a warrant or calling an officer. Smith i;. DonneUy, 66111. 464. See, also, Moore, C. L. § 62; Dodds V. Board, 43 111.-95; Marsh v. Smith, 49 111. 396; Kindred V. Stitt, supra.] nh;lh; 2 Hale, P. C. 77. »2Hale, P. C. 76; 1 Chit. C. L. LS. [See, however, as to the rule in IlUnois, the authorities cited m note, supra.] 176 CRIMINAL I/AW. upon probable suspicion.' The law upon this point is thus stated by the Massachusetts Court: "As to the right appertaining to private individuals to ar- rest without a warrant, it is a much more restricted authority, and is confined to cases of actual guilt of the party arrested, and the arrest can only be justi- fied by proving such guilt." But if a felony has been committed, an arrest may be made without a warrant.^ This, it will be perceived, greatly limits the right of private arrest from that stated by Hale, as above stated, and restricts it to cases of actual guilt, though the point was not raised in the case. Other American authorities seem to sustain the broader doctrine.' This power in a private person to arrest does not extend to the cases of a mere breach of the peace " after it is over." ■■ The extent of the authority of peacg officers to make arrests without warrants is much broader than that of individuals, while it includes the cases in which the latter may make them. In the language of the case above referred to,^" they are held tobejus- tified, if they act in making the arrest upon proba- ble and reasonable grounds for believing the party guilty of a felony." And whether there was a rea- '2 Hale, P. C. 78; 1 Chit. C. L. 15; 4 Cooley's Black. 293, note. See note 1, p. 175. ^ Rohan v. Sawin, 5 Cush. 285; Commonwealth t). Carey, 12 Gush. 251 ; Commonwealth v. Lee, 107 Mass. 207. n Bish. Cr. Proc. § 168, 181; 1 Chit. C. L. 15; Holleyt). Mix, 3 Wend. 350; Wakely r. Hart, 6 Binn. 316. . * Phimpg P. Ti-uU, 11 John, 487; 1 Chit. C. L. 15. 5 5 Cush. 285. CRIMINAL PROCEDURE. 177 sonable necessity for making the arrest to prevent the escape of the part}' charged with the felony, seems to be a matter within the officer's discretion, acting upon his official responsibility.' But a peace officer cannot arrest one without a warrant, who is only suspected of having committed a crime not a felony.^ If, however, a peace officer see a party committing a breach of the peace, he may arrest him and hold him until he can make complaint and have him arrested upon a warrant ; and this by statute is extended to justices of the peace, or any person whom the justice may require to arrest such offender and bring him before such justice.^ Many of the propositions which have been treated of to some extent above, are considered by the court of Pennsylvania in a case cited below, in which the Court say: " That on the commission of a felony a private person making fresh pursuit on reliable in- formation may arrest the felon, is the law not only of England but of this State ;" " upon probable suspicion, also, a private person may arrest the felon or other person so suspected. But upon sus- picion of felony only, he may not break open a house or kill the suspected person." " If a felony has in ' 1 Bish. Cr. Pro. §§ 173, 181; Commonwealtli v. McLaugh- lin, 12 Cush. 618; 1 Chit. C. L. 15. [See note 1, p. 175, ante, as to the rule in Illinois.] ' Commonwealth v. McLaughlin, S'up; Commonwealth v. Carey, sup; 1 Bish. Cr. Proc. §§ 181, 183. ' 1 Bish. Cr. Proc. § 183; Mass. Gen. Stat. c. 120, § 32, c. 163, § 17; Commonwealth v. McGahey, 11 Gray, 196. See, also,. Rev. Stat. 111. 1874, 400, § 343. 12 178 CRIMINAL LAW. fact been committed by the person arrested, the ar- rest may be justified by any person without war- rant, whether there is time to obtain one or not." " But if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified, if he acted upon information from another which he had reason to rely on." "Even when there is only probable cause of suspicion, a private person may without warrant, at his peril, make an arrest. I say at his peril, for nothing short of proving the felony will justify the arrest." ^ Where arrests have been made without a warrant, as above stated, the purpose is to detain the party in custody until a complaint can be made to a proper magistrate, and a warrant issued thereon, by which he may be arrested and held to answer to the same, as upon an original proceeding. And this must be done without unreasonable delay after such first ar- rest has been made. If made by a private person, it is the safer course to have the party arrested brought as soon as convenient before a magistrate for examination, though he may be delivered into the hands of an officer, or committed to jail for safe keeping.'' In entering upon the examination of how, and in what cases arrests may be made under legal process, ■ Brooks V. Commonwealth, 61 Penn. St. 358, citing Holly V. Mix, 3 Wend. 353. '2 Hale, P. C. 76, 77; 1 Chit. C. L. 59i Dane's Abr. c. 172, art. 9, § 23; 4 Cooley's Black. 295, and note; Mass. St. 1869. c. 415, § 42; Commonwealth v. Tobin, 108 Mass. 429. CKIMINAL PEOCEDURE. 179 it may be generally stated that any officer duly qualified to act as sucli, may execute a warrant ac- cording to the precept thereof, which is in proper form, and has been issued by a court or magistrate having jurisdiction of the subject matter of it. " As a general rule an officer is bound only to see that the process which he is called upon to execute, is in due and regular form, and issues from a court having jurisdiction of the subject." " It is not for him to inquire into the regularity of the proceedings of the court that issued the warrant.' But if the defect appears upon the face of the warrant, the officer is not bound to serve it, and if he does, he is a tres- passer.^ The importance of this is illustrated in the char- acter it gives to the act of killing an officer while serving a process, such killing being done in resist- ing service, by the party against whom the process is issued. If it be a valid warrant, served by a qualified officer, such killing would be murder. But if the arrest was unlawful, or the process defective in the form of it, or invalid on the face of it, or issued with an insufficient description of the defendant, or against the wrong person, or if the party have no knowledge of the officer's business, the killing would be reduced to the crime of manslaughter. Ajid one may resist being arrested upon a void warrant, by using so much force as is necessary, and an outsider may assist him so far as is necessary.^ ' Wamarth v. Burt, 7 Met. 259; Donahoe v. Shed, 8 Met. 328. ' Pearce v. Atwood, 13 Mass. 244. ^ Commonwealtli v. McLaughlin, 12 Cush. 618; Rafferty u. 180 CRIMINAL LAW. This leads to the inquiry, how far it is necessary such the officer in making the arrest should make known to the person arrested the authority by which, and the purpose for which it is made, by showing his precept. The language of the statute of Massa- chusetts upon the subject would, it is believed, be accepted as the law generally in this country: " Every person arrested by virtue of process, or taken into custody b}^ an officer in this State, has a right to know from the officer who arrests or claims to detain him, the true ground on wliich the arrest is made; and an officer who refuses to answer a ques- tion relative to the reason for such arrest, or answers such questions untruly, or assigns to the person arrested an untrue reason for the arrest, or neglects on request to exhibit to the person arrested, or any other person acting in his behalf, the precept by virtue' of which such arrest is made, shall be pun- ished," etc. And in applying this rule, it has been held that if the officer tells the party that he arrests him by a warrant, and he thereupon resists, or at- tempts to make escape, so that the officer has not a reasonable opportunity to exhibit his warrant, he is in no fault for not exhibiting it. He is not bound to do so till he has the party in safe custody.^ Warrants for any alleged crime may be issued and served on the-Sabbatli, except for the violation People, 69 111. Ill; s. c. 72 111. 37; 1 Chit. C. L. 44; Common- wealth V. Grotty, 10 Allen, 403. 'Gen. Stat. Mass. c. 158, § 1; Commonwealth v. Cooley, 6 Gray, 356; Commonwealth v. Field, 13 Mass. 323; 1 Chit. C. L. 51; Hawks P. C. b, 2, c. 13, §-28; Hall v. Roche, 8 Term, 188. See 1 Bish. Cr. Proc. §§ 190, 191; Moore, C. L. § 56. CRIMINAL PEOCEDUEE. 181 of the Lord's day.^ So they may be served in the night time, but in England, service upon the Sab- bath is limited to the cases of treason, felony and breach of the peace.^ In the service of a warrant the officer serving it may orally command the assistance of other per- sons, and an arrest made by his assistants Will be valid, though the officer retain the warrant and is not in sight at the time of its service, provided both he and his assistant are at the time engaged in the business of making the arrest ; it is the act o?" the officer in the eye of the law.' And if one who is commanded b}' an officer to aid in securing a criminal or keeping the peace, refuse or neglect so to do, he is liable to punishment therefor as a criminal act.* An interesting inquiry remains to be settled as to what length an officer may go in arresting a party named in a warrant which he may have in his hands, in the matter of breaking doors or taking life. In the first place, no man's lioiise is a sanctuary for anybody but himself and family.^ But where an officer breaks into another's house to arrest a 1 Pearce v. Atwood, 13 Mass. 347, 353. See 1 Bish. Cr. Proo. § 207; Rev. Stat. III. 1874, 401, § 344. nChit. C. L. 49, 343. [In Illinois "an arrest maybe made on any day, or at any time of the day or night. " Rev. Stat 1874, 401, § 344.] ' Blatch r. Archer, Comp. 63; Commonwealth v. Field, 13 Mass. 323; Moore, C. L. § 59. * Mass. Gen. St. c. 163, § 16; Rev. Stat. 111. 1874, 389, § 245. 5 Fost. C. L. 320; Emerson v. Balch, 2 Dane Abr. 651; 1 Chit. C. L. 57. 182 CRIMINAL LAW. felon, he must demand admission and give notice of the cause of such demand before breaking the door, and even then he does it at his peril ; for if the felon is not within the house, he would be a trespasser, though it is held in Massachusetts that he would be justified if he had reasonable grounds to believe he was in the house.' 'Nov is it a sanctuary from being broken by an officer who has a warrant to arrest the owner for a breach of the peace or a felony, if before breaking the door he demand an entrance, and make known that he has such warrant and is refused admission. Nor would the officer be liable for breaking the doors in such case, if the party against whom the warrant ran were rot in the house, if the ofiicer acted honafide under belief he was in it.^ Chitty sustains the doctrine as stated by Foster, but doubts the authority to break doors to arrest for a mere misdemeanor not accompanied with violence.^ But the doctrine as laid down by Hawkins, extends the right of breaking doors, " upon a capias grounded on an indictment for any trime whatsoever," " or even upon a warrant from a Justice of peace," "to compel a man to find sureties for the peace or good beliavior." And this is sustained by Chitty himself in cases of arrest upon an indictment.^ 1 2 Hale, P. C. 117; Commonwealth r. Irwin, 1 Allen, 589. 2 Foster C. L. 136, 320; Hawk. P. 0. b. 2 ch. 14, §§ 1-3; 2 Hale P. C. 117; State v. Smith, 1 N. H. 346; Allen v. Martin, 10 Wend. 300; Barnard v. Bartlett, 10 Gush. 503. » 1 Chit. C. L. 55. *Hawk. P. C. b. 2, c. 14, § 3; 1 Chitty C. L. 68; Moore C. L. § 55. [Mr. Bishop lays down the rule in the same terms as CKIMINAL PROCEDUEE. 183 Ilawtins also mentions as among the cases where doors may be broken after a demand of entrance, and notice to the parties within the liouse, of the cause why it is made, where one known to have committed treason or felony or to have given an- other a dangerous wound, is pursued either with or without a warrant by a constable or private person, and wherever a person is lawfully arrested for any cause, and afterwards escapes and shelters himself in a house, either his own or another's.' A constable may, without a warrant, enter a house whose doors are not fastened, in which there is a noise amounting to a breach of the peace, to arrest any person engaged in an afiray, or in committing an assault.'' The proposition seems to be true in all cases, that if an officer has once rightfully entered an outer door and finds an inner one fastened, he may, after demanding admission and making known the cause, break it open. And some of the cases hold that it may be done without making any demand of entry.* Chitty , "that in all oases, ' ' [as ■well before as after indictment, ] '.' doors may be broken open, if the offender cannot be other- wise taken, under warrant for treason, felony, suspicion of fel- ony, or actual breach of the peace, or to search for stolen goods. ' ' 1 Bish. Crim. Proc. § 200. He states, however, (ib. § 201,) that there seems no well founded authority for the extension of the riffht to misdemeanors unaccompanied by violence.] iHawk. P. C. b. 2, c. 14, §§ 7, 9; 1 Hale P. C. 459, 588; 4 Black. Com. 288; 1 Chit. C. L. 58, 61; Allen v. Martin, sup.; Commonwealth v. McGahey, 11 Gray, 194. ' Commonwealth v. Tobin, 108 Mass. 429. n Chitty, C. L. 59; 1 Hale, P. C. 458; Radcliff v. Barton, 3 B. & P. 223; Hubbard v. Mace, 17 John. 127; Hutchinson v. 184 CEIMINAL LAW. In Lee v. Gansel, the question was made if the doc- trine applied to tlie case of a lodger who occupies a room in another's house, and whether his private door is not as to him an outside door, as would be the case with rooms occupied by a tenant in such a building as an inn of court having a common outer door and passage way for access to all. And it was held that in the case of a lodger this latter doctrine would not apply. A graver question has often arisen, whether and how far an officer in attempting to make an arrest, is justified in taking the life of the party who resists or attempts to escape? East thus states the law upon this subject: " If a felony be committed, and the felon fly from justice, or a dangerous wound be given, it is the duty of every man to use his best endeavors for preventing an escape; and if in the pursuit the felon be killed, where he cannot be other- wise overtaken, the homicide is justifiable. This rule is not confined to those who are present so as to have ocular proof of the fact, or to those who first come to the knowledge of it ; for if in these cases fresh suit be made and a fortiori of hue and cry be levied, all who join in aid of those who began the pursuit are under the same protection of the law. The same rule holds if a felon, after arrest, break away as he is being carried to gaol, and liis pursuers cannot retake without killing him." ' Birch, 4 Taunt. 618, qualifying the necessity of demanding ad- mission; Williams u. Spencer, 5 John. 3o2, to the same effect. So, Lee v. Gansel, Cowp. 1, 7. 'East, C. L. 298; I Bish. Cr. Proc. § 169; 4 Black. 180; CRIMINAL PEOCEDtJRE. 185 Judge Cooley, in his note to 4 Black. 180, says : " If an oflBcer has a warrant against A, hy name, for felony, or if A be indicted of felony, if A, though innocent, flies or resists, and is killed by the officer or any other person aiding liim, during flight or resistance, the person so killing him is indemni- fied. And the officer, it seems, would be equally indemnified, though he had no warrant, if he acted on a charge of felony, and on reasonable suspicion, even though it should appear in the result that no felony had been committed." ' But no one can arrest another without a warrant, and, in order to prevent liis escape, take his life, unless he knows and can prove he has been guilty of the felony for which he had arrested him. But if one attempt to arrest another without a warrant for a misdemeanor, and he attempts to escape, he may not take life to prevent it.^ Requisitions — Extradition. It not unfrequently happens that the person to be arrested is witliout the jurisdiction of the courts of the State in which the offense was committed, but within some other of the States of the Union, and the question is, how can he be reached and brought within cogni- zance of the court that is to try him? This is pro- vided for in the Constitution of the United States Hawk. P. C, b. 1, oh. 28, § 11; 1 Hale, P. C. 488, 489, 490, 587; 2 Hale, P. C. 77; 2 Wharfc. C. L. § 1031. 1 1 Russ. C. 666; 1 Bish. Cr. Pvoc. § 160; 12 Alb. L. Jour. 245. ' Conraddy v. People, 5 Park. Cr. Rep. 235; 1 Bish. Cr. Proc. § 159; Moore, C. L. § 58. 186 CEIMINAL LAW. in these words : " A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." ' The manner in which the provision is carried into eifect is substantially as follows : Upon an appli- cation to the executive of a State in which the olfense has been committed, with proper evidence of the pendency of a criminal charge against a per- son, accompanied by satisfactory evidence that he is within another State, a warrant is issued under the seal of the Commonwealth and the signature of the executive, authorizing some person therein named to proceed to the State named and receive the person charged and bring him to the State in which he is to be tried, and with this a requisition addressed to the executive of the State in which he is expected to be found, setting forth the facts and copies of the proceedings under which he is to be tried, requesting him to issue a proper warrant to arrest the person charged, and to have him delivered to the 'agent who has been appointed to receive and remove him to the State in which he may be tried. If the executive addressed complies with this requi- sition, he issues a warrant to some proper ofiicer to arrest the person charged and deliver him to the agent of the executive making the requisition, who receives him and brings him back and surrenders 1 Art. 4, Sec. 2. CETMIlSrAL PKOCEDTJEE. 187 liim into the custody of tlie proper officers, to meet his trial.' It was sharply discussed for many years, for what offenses these requisitions might be made, as being within the category of " other crimes."^ . In Commonwealth of Kentucky v. Dennison, 21 How. 66, the Court held that it extended to every crime forbidden by the law of the State where the offense was committed, and that the Governor of the State on whom the requisition is made has no discretionary power to refuse to obey it. But it practically relieves liiin from being an involuntary catchpole to gratify a prosecutor in some distant State, if upon inquiry he finds such to be the case, by holding that there is no mode known to the law of coercing the Governor of a State to execute such a power. The matter of reaching persons charged in any of these States who are within the jurisdiction of a foreign government, depends upon treaties be- tween the United States and such government, which prescribe for what crimes extradition shall be made.' . ItigJit of prisoner to a copy of indictment and assistance of counsel. If it is assumed that in any of the modes above mentioned a party charged with a crime is arrested, preparatory to a trial thereon a question arises, what are his rights and privileges in 1 See Rev. Stat. 111. 1874, p. 545. 2 24 Am. Jur. 226-231. ' Holmes v. Jennison, 14 Peters, 540; Ex parte Holmes, 12 Verm. 630. 188 CEIMINAL LAW. preparing for liis defense? In this respect the law of England has been greatly ameliorated of late compared with its former strigency, and many im- provements have been introduced into our system of criminal procedure, upon that in use in England. By the common law one charged with treason or felony had no right to a copy of the indictment, although in Latin, except by special favor of tlie court. Nor can such copy be claimed of right now, except for offenses less than a felony, though gen- erally granted upon request; whereas, in this coun- try it is a right secured by the constitutions or statutes of the States.^ In Massachusetts if the grand jury return an indictment for a capital of- fense, a copy of it is served upon the party indicted as soon as may be, if he is in custody. And if he is indicted for an offense punishable by imprison- ment in the State's prison, he is entitled to a copy of it with all the indorsements thereon, free of charge.^ Not only is such a copy valuable to the prisoner in informing him of the nature of the charges which he is to answer, but it is often indispensable, if he intends to plead a former acquittal or convic- tion of the same offense with which he is now charged. When upon his arraignment for high treason, Algernon Sidney desired a copy of the indictment, ' 4 Cooley'g Black. 352, and note; 1 Chit. C. L. 175, 403, and Perkins' note; Eden Pen. Laws, 183; Rev. Stat. 111. 1874, 409, § 421; Moore, C. L. §§ 832, 835. See McKinney v. The People, 2 Gilm. 540; Yundt v. The People, 65 lU. 374, ' Gen. St, c. 171, §§ 22, 25. CEIMINAL PROCEDURE. 189 the Chief Justice of the Court answered: " We can- not grant it by law." He then said: " I desire you would please to give me counsel," to which the Chief Justice replied: "We cannot do it; if you assign us any particular point of law, if the Court think it such a point as may be worth debating, you shall have counsel. But if you ask for counsel for no other reason than because you ask it, we must not grant it." ' In this countrj' the right to employ counsel is guaranteed to every man charged with crirae.^ And the Court may, and practically always do assign counsel to aid a person charged with a capital case in conducting his trial.' It was always competent to employ the aid of counsel in the trial of any offense less than felony in England, and the privi- lege is now extended to all classes of offenses.* liight to call Witnesses. Another privilege of persons charged with felonies or other offenses, is now enjoyed both in England and this country, though denied by the common law in case of felonies, namely, that of calling witnesses in their behalf, and having them examined upon their trial upon oath.^ ' 3 Hargrave's State Trials, 796. ^U. S. Const. 6th Ameiidt; Const. lU. 1870, Act 2, § 9; Mass. Bm of Rights, Art. 12; Mass. Gen. Stat. c. 158, § 4; 4 Am. Jur. 18; Cooley's Const. Lim. 334. 5 Mass., Gen. Stat. o. 112, § 9; Rev. Stat. lU. 1874, 410, § 422; 4 Black. 355, and Cooley's note. * Chit. C. L. 409; 6 and 7 Wm. IV. c. 114; Cooley's Const. Lim. 332; 4 Cooley's Black. 865; May's Const. Hist. c. 18. 5 1 Chit. C. L. 615; Gen. St. Mass. c. 170, § 21. See Const, of 111. 1870, art. 2, § 9. 190 CEIMINAL LAW. And if the crime charged in an indictment is pun- ishable capitally or by imprisonment in State's prison, the defendant may have his witnesses snra- moned at the charge of the Commonwealth; and a like privilege is granted in England.' And if a witness for the defendant is out of this Common- wealth, the Court upon his application may, by pro- vision of a statute, grant a commission for taking his testimony by deposition. But this is confined to application of defendants, inasmuch as every one charged with crime has a right to meet the witness- es against him face to face.^ Presence of Accused. 'So person charged with felony can be put upon trial in his absence; but, if the offense charged be a smaller offense, he may by leave of Court, upon his request, be put upon trial in his absence, b}'^ attorney.' List of Jurors and Witnesses. Another privi- lege accorded to the accused, both in England and this country, if charged with a capital offense, is to have a list of the jurors furnished him from which the panel is to be made up, who are to try him, in order to enable him, by inquiry, to exercise his right of challenge intelligently, which right of chal- iQen. St. c. 171, § 24; Eden, Pen. Law, 154. « Gen. St. Mass. c. 171, §§ 32, 33; Mass. BUI of Rights, art. 12; Const. 111. 1870, art. 2, § 9; U. S. Const. 6th amend. See Richardson v. The People, 81 111. 173; Nash v. State, 2 G. Greene, 287; Bergen v. The People, 17 111. 426; Moore, C. L. § 881, et seq. ' Gen. Stat. c. 172, § 8. See 1 Chit. C. L. 411; 1 Bish. Or. Proc. § 265, et seq.; Moore, C. L. §§ 932, 933. CRIMIlsrAL PKOCEDTJKE. 191 lenge will hereafter be considered:' And in Massa- chusetts the accused party, in capital cases, has a right to be furnished with the names of the wit- nesses upon whose testimony the indictment against him was found. Biit it is limited to such as were examined before the grand jury.^ The custom once prevailed in the English courts, but is no longer tolerated, of putting in as evidence against the accused, the confessions and declarations of absent witnesses, though their personal attend- ance might be had.^ Arraignment and Plea. Recurring again to the arraignment of one who has been arrested and brought into court to answer to an indictment, upon the call of the clerk, he stands up and hears the indictment read to him, but is not required to hold up his hand except in a capital trial. He is then inquired of what he says to the indictment, guilty? or not guilty? If he wishes to interpose a dilatory plea, such as misnomer, and the like, he does it before answering generally, because by so '1 Chit. C. L. 404, and Perkin's note; Eden, Pen. Law, 153; Gen.St. c. 171, §24. [In Illinois "every person charged with treason, murder or other felonious crime, shall be furnished, previous to his arraign- ment, with a copy of the indictment, and a list of the jurors and witnesses. In all other cases he shall, at his request or the request of his counsel, be furnished with a copy of the indict- ment, and a list of the jurors and witnesses." Rev. Stat. 1874, 409, 421 ] ''Commonwealth v. Knapp, 9 Pick. 498; Commonwealth r. Lockej 14 Pick. 485; Commonwealth v. Walton, 17 Pick. 403. See, also, next note supra and Rev. Stat. 111. 1874, 634, § 17. 'Eden, Pen. Law, 196; Shakespeare, Hen. VIII. Act. 2. 192 CKTMINAL LAW. doing he wai^res these objections. So it is with a demurrer, if he wishes to oifer one.' A demurrer rests upon the ground that the mat- ters as set forth in the indictment, are not sufBcient to require the defendant to answer to the same, waiving the question of their being true, and this raises an issue which is tried and decided by the court. If decided in the defendant's favor, it stops the proceeding. If against him on the charge of a felony, the judgment usually is respondeat ouster. But as in most cases the objection raised by a de- murrer may be taken by arrest of judgment, it is not generally expedient to take the objection in that way. The defendant is just as safe in going to issue upon the facts. If the issue is against him, he may arrest the judgment; if in his favor, it wonld be a bar to any further action.^ If the offense charged be a misdemeanor, jxidgment upon demurrer against the defendant would be tanta- mount to an admission of the facts charged. But the courts may allow the defendant in such a case to withdraw his demurrer and plead to the indict- ment.^ A plea in abatement for misnomer, as well as a ^ 1 Chit. C. L. 423, 4-35; Commonwealth r. Merrill, 8 Allen, 545; 1 Bish. Cr. Proc. § 7.56. There was a dilatory plea known to the common law, of "sanctuary," so-called, of which there is an account in 3 P. Wms. 88, note. But it never was adopted . in this country, and was abolished in England in 1624. Jac. Law Diet. "Sanctuary." ^ See, however, post, " Once in jeopardy." n Chit. C. L. 439-444; Rex v. Gibson, 8 East, 112; 1 Bish. Cr. Proc. §§ 754-755; Commonwealth v. Merrill, 8 Allen, 545; Moore, C. L. § 845. But see Hawk. P. C. b. 2, c. 31, § 7. CEIMIlSrAL PKOCEDUBE. 193 special plea in bar of autrefois acquit or autrefois convict, if denied by the prosecution, may raise issues of fact to be decided by the jury; and the judgment thereon may in cases of misdemeanor be final and conclusive, if against the defendant, but in cases of felony that he resporideat ouster. If in favor of the defendant, it defeats the prosecution. The plea [of former acquittal or conviction] may be ore tenus} If the defendant pleads a former conviction or acquittal and a plea of not guilty, the first issue jiiust be tried by itself before that of not guilty, since they are distinct and independent pleas. The latter plea is not generally offered until the plea of former conviction or acquittal has been decided. Former acquittal or conviction should be specially pleaded and issue should be taken thereon in law or to the country.^ Formerly, vs'hen a party was arraigned upon a capital charge and had pleaded the general issue, the clerk inquired of him how he would be tried, to whicli he was accustomed to answer, " by God and the country," which was the same as by the jury. But as now thei-e is no other mode of trying such an issue, that inquiry is not made, and when ' 1 Chit. C. L. 450, 452; Commonwealth v. Merrill, 8 AUen, 548; Commonwealths. Goddard, 13 Mass. 460. [See State v. Farr, 12 Rich. 24; Rex v. Grainger, 3 Burr. 1617, to the point that pleas in abatement must be in writing and verified by aifidavit.] ^Commonwealth v. Merrill, 8 Allen, 546-548; Common- wealth u. Dascom, 111 Mass. 404. See Moore C. L. §§ 852, .854, 855. 13 194 CEIMINAL LAW. the defendant to a criminal charge pleads not guilty, it is understood that he thereby puts himself npon the country or jury for trial.' The course to be pursued if the defendant re- fuses to plead, or stands mute, has been already stated.^ So have the precautions which courts take in cases of pleas of guilty in capital cases, to guard against nn advised action by the party charged. But the plea of guilty when accepted, is an admis- sion of the truth of all the facts properly charged in the indictment.^ In addition to what has hereinbefore been stated as the rule of law in cases where the prisoner is deaf, it may be said that if there is no mode of holding communication with the party charged, so that he can understand the nature of the proceed- ings against him, the Court will suspend the pro- ceedings or discharge the prisoner altogether.* So, it may also be added that, though in strict- ness, if the verdict upon a plea in abatement is against the defendant, the judgment is conclusive, if it be a charge of misdemeanor, where the penalty which follows .such a conviction is severe, it is cus- tomary with the Court to permit the defendant to ' 1 Chit. C. L. 416, 417, and Perkins' note; United States v. Gibert,2 Sumner, 19; Gen. St. Mass. c. 171, § 29; Rev. Stat. 111. 1874, 410, § 423. 'Ante, p. — ' Chit. C. L. 428. As to the effect of the plea of nolo con- tendere, see ante, p. . *Rex V. Berry, 34 Law Times, 591; Rex v. Dyson, 7 C. & P. 305; Rex V. Pritchard, 7 C. & P. 303; 14 Alb. L. Jour. 198. .207. CRIMINAL PEOCEDURE, 195 replead and go to issue upon the general question of guilty or not guilty.^ Once in Jeopardy. The plea of autrefois acquit or convict rests on the ground that no man shall be twice put in jeopardy of life or limb, a protection which is guaranteed to every one by the Constitu- tion." But this protection it seems may be availed of in some cases where there has not been a pre- vious trial and acquittal or conviction. But where there has been such acquittal or conviction upon a trial had, there is no question of its being an eifectual bar to a second indictment for the same offense.'' Much discussion has been had as to when one charged with a crime may be said to have been put " in jeopardy " in respect to the same. This can- not be said to have been done until he shall have been put upon trial and a jury impaneled to try him. Up to that time the prosecution may nol. »1 Chit. C. L. 435; Rex v. Gibson, 8 East, 111; Rex v. John- son, 6 East, 602; Reg. v. Goddard. 2 Ld. Raym. 920. * Commonwealth v. Roby, 12 Pick. 502; United States Con- stitution, 5tliAmend't; Cooley's Const. Lini. 325. The expression of "life or limb" refers to the different modes of treatment which in the early history of the law were applied to treason and the higher felonies, and which was originally capital. But by a law of William I. capital punish- ments were abolished and dismemberment was substituted, such as cutting off the hands or feet or other members. This law was repealed in the time of Henry I. so far as restoring capital punishment in certain cases of larceny. Reeves' Hist. (4th ed.) 25. '1 Whart. C. L. § 573a, 573b; 1 Bish. Cri. Proc. § 821, 828; Cooley's Const. Lim. 325. 196 CEIMISTAL LAW. ]iros. the proceedings and begin again. But as soon as the jury has been impaneled, the prosecu- tion cannot enter a nol. pros, against the prisoner's consent ; and if it does, and the prisoner is discharged, it has the same effect as a trial and acquittal. And it seems that if there be a verdict of guilty, and the prosecution then enters a nol. pros, as to any couTit of the indictment, as it may do before judgment, it would be a bar to a second prosecution for the same offense.' , To sustain the objection of having been once put in jeopardy, it is necessary that it be upon a charge for the same offense. And that often raises a ques- tion of much difficulty where the offenses charged are known by distinctive names, as murder and manslaughter, larceny and receiving stolen goods, and the like. Thus in Commonwealth v. Roby, ^ the prisoner to a charge of murder pleaded a former conviction for a felonious assault with intent to kill the same person with whose death he was now charged, in which case, however, there had been no judgment or sentence upon the verdict. It was held that the two offenses were essentially distinct, and the conviction or acquittal of the one was no legal bar to an indictment for tlie other. But this, it will be perceived, presents a different question from an indictment for murder, and a conviction for a felonious assault. In another case, the prisoner was indicted for re- 1 Bish. C. L. § 858; 1 Whart. C. L. § 574, b.; Cooley's Const. Lim. 325. « 12 Pict. 496, 510. CEIMINAL PEOCEDUEE. 197 ceiving stolen goods, describing them, as so many yards of cloth. He pleaded a former conviction, bnt though he proved a former conviction for re- ceiving a quantity of goods described as so many yards of cloth, the Court lield that tlie former con- viction was no bar, tliough the goods in both cases might be the same; he must show them to be so.' In another case, the defendant was indicted for embezzling six hundred dollars in money. He pleaded a former acquittal by a m.unicipal court upon trial for the same offense, and the j^rosecutor demurred. And as the municipal court had cogni- zance only to the amount of fifty dollars, it was in- sisted that the defendant, could not have been in jeopardy as to any part of the excess beyond tlie fifty dollars. But the Court held that as the demur- rer of tiie prosecution admitted the offense to be the one tried by tlie municipal court, and as that court had cognizance of the offense to the extent of fifty dollars, it was an acquittal by a court having juris- diction, and was a bar.^ It is not enough that the offense charged in the second indictment is similar to that charged in the first. It must be identical, and this must appear by the record with the requisite [averments] to iden- tity the articles mentioned in each if described in the same general terms.* ' Commonwealth v. Sutherland, 109 Mass. 342. ' Commoawealth v. Bo.sworth, llfiMass. 200; Commonwealth V. Hussey, 111 kass. 434. ' 1 Chit. C. L. 459, 460; Commonwealth v. Sutherland, sup; Moore, C. L. § 855. 198 CRIMINAL LAW. If, however, the offense charged in one of the in- dictments embraces that charged in the other, as murder inchides manslaughter, a conviction or acquital of either is a bar to an indictment for the other.' So, where one upon an indictment for mur- der was convicted of manslaugliter, and he made a motion for a new trial, which was granted, it was held that his former acquittal of murder was a bar as to that part of the original charge, in atrial upon the same indictment.^ But if one commits two offenses of the same kind at the same time and is indicted for one of them and acquitted, it is no bar to an indictment for the other offense, as stealing articles of A and of B at the same time, or receiv- ing them, if stolen, in the same package.' The Massachusetts statute covers several of the questions which have been made as to the effect of a former acquittal or conviction. " jSTo person shall be held to answer on a second indictment for an offense of which he has been acquitted bj a jury upon the facts and merits; but such acquittal may be pleaded by him in bar of any subsequent prose- cution for the same offense, notwithstanding any defect in the form or substance of the indictment on which he was acquitted." " If a person on his trial is acquitted upon the ground of a variance be- tween the indictment and the proof, or upon an ' Chit. C. L. 455; Commonwealth v. Roby, 12 Met. 504. ' State V. Martin, 30 Wise. 216. A different rule was held in Kansas, and that a motion for a new trial waived the objec- tion of being twice in jeopardy. State v. McCord, 8 Kans. 232. ' 1 Chit. C. L. 457; Commonwealth v. Andrews, 2 Mass. 413. CEIMINAL PEOCEDUEE. 199 exception to the form or substance of the indict- ment^ he may be arraigned again on a new indict- ment, and tried and convicted for the same offense, notwithstanding such former acquittal." ' If by the common law one were arraigned upon an indictment which was insufficient in form or substance and no judgment could be rendered upon it, it was so far regarded as a nullity that the de- fendant was not considered as having been put in jeopardy, and could not plead it in bar to a new indictment? By statute in Massachusetts if one be indicted for felony and is acquitted of part of the charge and convicted of the residue, the court is authorized to render judgment upon such part as is substan- tially charged in the indictment, if it be an offense, although it be not a felony? If the court before whom the former trial took place had no jurisdiction of the offense, the acquit- tal or conviction cannot bq pleaded, as the defend- ant never was in jeopardy? Where the first trial failed by reason of material variances between the allegation in the indictment and the proof, it would be no bar to the second in- dictment, as where the indictment charges the de- ' Gen. St. c. 168, §§ 6, 7. « Commonwealth v. Roby, 12 Pick. 502; 1 Whart. C. L. § 587; People v. Barret, 1 John. 66; 1 Chit. C. L. (Perk, ed.) 455, note. ^Gen. St. Mass. o. 172, § 16; Commonwealth v. Squire, 1 Met. 262; Commonwealth i>. Goodhue, 2 Met. 193. ■• Commonwealth v. Peters, 12 Met. 390; Commonwealth v. Roby, 12 Pick. 302; State v. Hodgkins, 42 N. H. 474. 200 CKIMINAL LAW. fendant with stealing the goods of A, and the proof is that he took the goods of B.^ So, where the charge was for burning the barn of Josiah M., and the proof was that it was the barn of Josias M.} So, where defendant was tried upon the charge of burning the barn of N and G, but the proof nega- tived the ownership by G, and he was then indicted again for burning the barn of i^ and others, naming tlienr, to which he pleaded former acquittal; where- upon, the prosecution prayed oyer of the record and demurred to the plea, it was held that the offense charged was not the same as in the first, and he was required to plead to the indictment.^ The question whether and in what cases one can plead or take advantage of having been in jeopardy, in bar of a second indictment or a second trial for the same oifense charged in the first indictment, involves the inquiry as to the power of the Court to discharge the jury after they have been impaneled, before, returning a verdict, where it is done without or against the consent of the defendant. The power seems to be in a measure a discretionary power with the Court; but the cases where it has been exercised, are like the following: Where the jury have delib- erated without being able to agree, so long that tlie Court is satisfied they cannot agree, the Court may discharge them, and the defendant may be tried again for the same off'ense, even in capita] U Chit. C. L, (Perk, ed.) 455, and note.' See Gen. Stat. Mass. c. 158, §§ 6, 7, already quoted, ante. ' Commonwealth v. Mortimer, Virg. Cases, 325. « Commonwealth r. Wade, 17 Pick. 396. CRIMINAL PEOCEDUEE. 201 cases.' So, if by reason of sickness or sudden death of a juror, or sickness of the prisoner or a witness, or the prisoner absconds, or other ui-gent necessity, the progress of the trial is interrupted, the jury may be discharged, and a new one impaneled, and the prisoner again be put upon his trial.^ And yet, if the jury be discharged irregularly without sufficient cause, the defendant cannot be again tried, if he objects. In a capital case, in Cal- ifornia, the jury had been long deliberating, wlien the judge inquired of them if they were agreed, and ' they answered they were not, and could not agree. Without discharging the jury, he thereupon ad- journed the court without day, although there were two more days in the regular term, and it was held that the defendant could not be held to a second trial; whereas, if the term had expired, and the jury had thereby been discharged, it would have been otherwise.^ The following case may serve to illustrate further the effect of discharging a jury irregularly upon holding a defendant liable to a second trial. The defendant was cliarged with breaking and entei'ing with intent to steal and stealing, which in Alabamn is held to be charging two distinct felonies. But if charged in one count, only one judgment can be ' Commonwealth v. Purchase, 2 Pick. 521 ; People v. Good- win, 18 John. 187; Winsor v. Queen, L. R. 1 Q, B. 289. See, a? to different rules in this respect of the courts of the different States, 1 Whart. C. L. §,574-586. ' Commonwealth v. Roby, 12 Pick. 502, 503; Commonwealth V. Wade, 17 Pick. 399. » People V. Cage, 48 Cal. 323. 202 CRIMINAL LAW, awarded. If charged in separate counts, and a ver- dict of guilty be found as to tJie charge of burglary, but nothing is said of that of stealing, it would be tantamount to an acquittal of the charge of larceny. If, then, a new trial is granted upon an appeal by the defendant, he cannot be tried for the larceny, and if the jury find him guilty of larceny, and the court takes the case from them and saves them from deliberating upon the charge of burglary, the ver- dict as to the larceny is a nullity, and the taking the case from the jury without the consent of the de- fendant is a virtual acquittal of the charge of bur- '' glary.i The test given in one case of determining wheth- er the offense charged in the second indictment is the same as that of which the defendant was con- victed or acquitted in the first, is that unless the defendant could have been convicted upon the first indictment by proof of the facts contained in the second, an acquittal on the first would not be a bar to the second.' It may be added when considering the identity of crimes, that if one is charged as an accessory and tried and acquitted, it is no bar to an indictment against him as a principal.' , Such being the effect of a judgment of acquittal or conviction, upon a second charge for the same ' Bell V. State, 22 Am. L. Reg. 752. 2 Commonwealth o. Roby, 12 Pick. 504; East, P. C. 522; Commonwealtli v. Goodenough, Thach. C. C. 132; 1 Chit. C. L. 452. ' Commonwealth v. Roby, 12 Met. 504. CEIMINAL PKOCEDUEE. 203 offense, it is sometimes an object for one who lias been guilty of a crime to have his case brought be- fore some friendly tribunal where he shall escape by an acquittal or a favorable sentence. And there- fore cases have occurred where a friend has com- plained of another for assault and battery before a magistrate who, after a partial trial, has rendered a favorable judgment, and when he has been indicted lur the same offense he has pleaded this prior judg- ment in bar. Under such a plea, the inquiry is, whether the first judgment was obtained by fraud, or not ? If it was, it is treated as a nullity^ If, therefore, the magistrate had jurisdiction of the matter, and the defendant pleads the former judg- ment, to which the prosecution demurs, it will be a good and conclusive bar. The prosecution should reply fraud in order to meet the plea.^ A conviction or acquittal by one court would be a bar to any prosecution in another, if the first had jurisdiction of the party and subject matter, even though the first judgment is reversable upon error, provided it has not been actually reversed.^ Pardon. In England and some of the States, as is the case in the United States, it is competent for the executive to extend pardon to one who has ' Commonwealth ®. Cunningham, 13 Mass. 246; Common- wealth V. Goddard, 13 Mass. 456; State v. Little, 1 N. H. 256; Commonwealth v. Daseora, 111 Mass. 404. => 1 Chit. C. L. 458, and Perkins' note. [The subject of jurisdiction in its various phases, is exten- sively considered and the cases collected by Mr. A. M. Pence, in 8 Chicago Legal News. 62, 70. 78.] 204 CRIMINAL LAW. been guilty of an oifense, before trial. In Massa- chusetts, [Illinois], and some other States, this can only be done after conviction. In the former States therefore, there may be a special plea in bar of pardon.' Nol. pros. In view of the eifect of a plea of havinpf been once in jeopardy, upon a second indict- ment for the same offense, it may be proper to define more fully than has been done before, the rules which have been practically applied in cases where in order to avoid this effect the prosecution proposes to enter a nol. pros, before conviction. Where this is done before conviction, it is no bar to a second prosecution. It is often, therefore, an im- portant right on the part of the defendant to insist upon a verdict where the jury have been once im- paneled to try his case. Whether a nol. pros, shall be allowed, when ob- jection is made by the defendants, depends upon the Court, which, though it never orders it to be entered, sometimes permits it to be done, and at others, re- fuses.^ The rule seems now to be settled, as before stated, that after the cause is opened to the jury, tlie government has no right to prevent a verdict by in- terposing a nol. pros, without the defendant's con- sent.^ ' 1 Chit. C. L. 469; Mass. Const, c. 2, § 1, Art. 8; Const. 111. 1870, Art. .5, § 13. * Commonwealth v. Andrews, 2 Mass. 414; Commonwealth V. Wade, 17 Pick. 399. 'Commonwealths. Tuck, 20 Pick. 356; Commonwealth v. Briggs, 7 Pick. 179; Commonwealth v. Wade, 17 Pick. 395; 1 CEIMINAL PEOCEDURE. 205 Not Guilty. By the plea of "uot guilty" there is put in issue the whole suhstautial matter of cliarge contained in the indictment, including the doing of the act, the intention with which it was done, and the legal quality of the guilt to be deduced from the whole.' [Not only so, but -the defendant may also give in evidence under it, all matters of excuse and justification.] ^ III. THE TEIAL AND ITS INCIDENTS. After the pleadings are closed, and before the trial begins, there are several tilings to be considered on the part of the defendant, under certain circum- stances, and especially in such matters as address themselves to the discretion of the judge. In re- spect to these, there is no proper plea in abatement or in bar, nor any mode of limiting or restraining the act of the judge by any process of arresting judgment or reversing it by error. Separate Trials. One of these relates to separate trials, whei-e two or more are included in the same indictment. It is often embarrassing to one de- fendant to be associated with another in the same trial, and courts are accordingly appealed to, to per- mit a separate trial to be had. This is especially important in capital cases, where the prisoner, as will hereafter be stated, has a right peremptorily to Chit. 0. L. 480, Perkin's note; Commonwealtli v. Goodenough, Thach. C. C. 134; 1 Whart. C. L. § 513. 11 Chit. C. L.471. 2 1 Bish. Cr. Proc. § 799; Moore, 0. L. § 853; Tiff. C. L. 404, and the authorities tlierein cited. 206 CRIMINAL LAW. cliallenge a certain number of jurors, and it often happens that one of two prisoners indicted together, may challenge the very jurors whom the other might prefer to have upon the panel.^ But in all these cases, it is purely a matter of judicial discretion, whether a motion for a separate trial shall be granted or not,^ though as to cases involving the right of peremptory challenge, a difference in practice has prevailed. In the first place, if two are jointly indicted and tried for an offense which cannot be jointly com- mitted, it would be error; as where six were indicted together for perjury and four were convicted, judg- ment was arrested, because perjury cannot be the joint act of several.^ In New York the Court in one case say : " In all ' [The right of peremptory challenge is in no respect abridged or affected by a joint trial. Each prisoner can challenge the full number of jurors, without regard to what may be done by others. Martin ». The People, 15 111. 536; SchoefBer v. State, 3 Wise. 823; Bixbe v. The State, 6 Ohio, 41.] ' [See Commonwealth v. James, 99 Mass. 438; Common- wealth V. Thompson, 108 Mass. 461; Maton v. The People, 15 111. 537; Johnson ». The People, 22 111. 315; Bixbe v. The State, 6 Ohio, 41; Hawkins v. The State, 9 Ala. 137; United States r. Marchant, 12 Wheat. 480; State v. Nash, 7 Iowa, 348; State r. Marvin, 12 Iowa, 499; State v. Gigher, 23 Iowa, 318; State r. Hunter, 33 Iowa, 361 ; State v. Soper, 16 Me. 293. See, how- ever. White V. The People, 81 111. 333, cited post. By Section 4424, of the Iowa Code (1873), it is provided that " when two or more defendants are jointly indicted for felony, any defendant requiring it, may be tried separately. In other cases, defend- ants jointly indicted, may be tried separately or jointly, in the discretion of the Court."] ' King V. Phillips, 2 Strange, 921. CRIMINAI. PEOCEDUEE. 207 cases, at least where the right of peremptory chal- lenge does not exist, and two persons are indicted jointly, they may be tried jointly or separately, at the discretion of the Court. This is the settled practice both here and in England, and no objection to it exists sufficient to outweigh the public con- venience of the rule." ' The same doctrine was applied in capital cases in Maine and the Court of the -United States.'^ In the case of United States v. Marchant, the Court made no limitation in the exercise of this discretionary power in case of capital trials, although it might result in a peremptory challenge by one prisoner of a juror whom the other might prefer to sit on the trial; because the riglit of challenge is not given by the way of enabling the prisoner to choose who should be a juror, but to guard against any one serving upon the panel who is for any rea- son objectionable to the accused.'' So, it was held that it was no objection to a con- viction that the Court refused to two defendants, charged in the same indictment, separate trials, al- though by reason of it one of them was prevented from calling a witness which he might have done, if tried separately, though this objection no longer exists where parties may be witnesses in their own behalf.'' » People V. Howell, 4 John, 300: 1 Bish. Cr. Proc. § 1030. 2 State V. Soper, 16 Me. 293; United States v. Marchant, 12 Wheat. 480; 1 Chit. C. L. 267, and Perkins' note. 'See Bixbe v. State, 6 Ohio, 41; Martin v. The People, 15 111. 536. ' Commonwealth v. Robinson, 1 Gray, 555, where principal and accessory were indicted and tried together. 208 CRIMINAL LAW. [But in a case in Illinois, where two persons were indicted for murder, and both were tried by the same jury, and it appeared that many portions of the evidence competent as against one, were not, by reason of the peculiar circumstances surrounding the case, competent against the other, but still in eifect were very damaging to the party against whom such testimony was not competent,it was held that the defendants should have been given separate trials.^] Competency of Defendants as Witnesses. By the common law where several defendants are in- dicted together, one of them cannot become a wit- ness against the other, and this extended to the exclusion of the wife of one of these defendants.'' But by statute now in Massachusetts a person who is indicted may, if he please, testify as a witness upon his trial.' So may husband and wife be wit- nesses in respect to other matters than private con- versations with each other. But neither can be required to testify in the trial of a complaint or indictment' against the other.* If there is no evidence against one of two or more defendants upon a trial, in the judgment of 1 White V. The People, 81 111. 333. = 1 Chit. C. L. 595, 626; Commonwealth x\ Marsh, 10 Pick, 57, Commonwealth v, Robinson, sup; People r. Bill, 10 John. 95; State i>. Mooney, 1 Terger, 431 ; Rex v. Smith, 1 Mood. C. C. 289. See, also, Miner v. The People. 58 111. 59. P So, also, in Illinois. Rev. Stat. 1874, 410, § 426. In Mich- igan the defendant is at liberty to make a statement to the court or jury upon which he may be cross-examined. Comp, Laws, 1871, § 5976.] * Stat. Mass. 1870, § 393. CRIMINAL PEOCEDUBE. 209 tlie Court, the judge may iipon motion direct a ver- dict of acquittal to be returned by the jury, and he may then be admitted as a witness.^ But if there is any evidence against any defendant, it is discre- tionary with the Court whether it will allow his case to be passed upon by t]ie jury separately from that of the other defendants or submit all the cases to the jury at the same time, although "it is one of the peculiarities of the trial of an indictment against several persons, who are jointly charged with the commission of one and the same crime, that each is entitled to pursue and maintain for himself his own peculiar line of defense.'' ^ Election upon which count to proceed. A like principle is applied in those cases where an indict- ment contains several distinct charges which it is inconvenient or unsafe for the defendant to answer in one trial. The Court in such case may, on the defendant's motion, quash the indictment or require the prosecution to elect which of the charges it will pursue; and a motion to that effect may be made at any time before the case is given to the jury. But it appeals after all to the discretion of the judge, and if he refuses the motion, it is no ground for a new trial or arrest of judgment.* The course of ' 1 Chit. C. L. 626. ' Commonwealth v. Eastman, 1 Cush. 218; Commonwealth V. Robinson, 1 Gray, 560; 1 Chit. C. L. 627. » Archb. C. P. (Tth ed.) 55a; Cro. Cir. Comp. 41; Common- wealth V. Tuck, 20 Pick. 362; Josslyn v. Commonwealth, 6 Met. 239; Carlton v. Commonwealth, 5 Met. 534. See Moore, C. L. § 800, and cases cited. 14 210 CRIMINAL LAW. proceeding in England in these and similar cases is thus stated by BgLLEE, J., in Young v. The King: If it appear, before the defendant has pleaded, or the jury are charged, that the indictment contain- ing several counts charges separate offenses, it has been the practice of the judges to quash the indict- ment, lest the defendant should be embarrassed. If it is not discovered in time to do this, they may put the prosecutor to elect on which charge lie will pro- ceed. But these are no objections to the judgment, and it is wholly discretionary with the judge. So, where the evidence affects several persons different- ly, the judge selects the evidence applicable to each, and leaves their cases separately to the jury. In one case, where two were indicted and tried for a murder, and certain evidence against one was not admissible against the other, he summed up sepa- rately to the jury, and took a separate verdict against them. But all these are matters of discre- tion only, which judges exercise in order to give a prisoner a fair trial; [for when a verdict is given they are not the subject of any objection to the .record.] ' Impaneling the Jury — Challenges. The next step in criminal procedure, after disposing of these preliminary measures which stand in the way of proceeding with a trial, is to impanel a jury to try the issue which has been raised by the pleadings in the case. The mode of summoning a petit or trav- ■ erse jury, as juries are designated who are to pass '3 Term. 106; Commonwealth v. Robinson, 1 Gray, 561. CEIMINAL PROCEDURE. 211 upon these issues, varies in different States accord- ing to the provisions of their respective statutes, and it is not thought necessary to add anything to what has been said in respect to the issuing and service of a venire facias. If or is it important to point out the different modes by which the individ- uals are selected whose names are to be borne upon the panel of the particular jury in any case. In some States they are drawn from a box or re- volving wheel containing the names of all the jurors summoned. But in either form, as they are ascertained in succession, their names are called in the presence and hearing of the prisoner. This is preceded by a formal notice orally given to the prisoner, that he is now to be tried on the indict- ment found against him, and that the good men whom the clerk should call, are to pass between hiiu and the Commonwealth, and that if he would object to them, he must do so when they were called, and before they are sworn. And if the trial be a capital one, as the juror is called, he is directed to look upon the prisoner, and the prisoner is told to look upon the jnror. This is preliminary to exercising the right of challenge which the prisoner has a right to make, in some cases peremptorily, in others for cause, in the following manner: In the former case the prisoner, when directed to look upon the juror, pronounces the word " challenged," without any cause given. ^ By the common law peremptory challenges, that is objecting to a juror's serving upon a panel without • Mass. Stat. § 1873, c. 308. 212 CRIMINAL LAW. assigning any reason, was limited to capital trials, and might be exercised by the defendant to the number of thirty-five. But this has been variously altered by statutes, both in England and this country.' In Massachusetts the right of peremp- tory challenge is extended to capital cases and to such as involve imprisonment for life in the State's prison, and is limited to the number of twenty, so far as the defendant is concerned.^ And now by statute the prosecution may in such cases exercise this right of peremptory challenge of twenty-two jurors, and on the trial of any lesser offer.se it may challenge two jurors in like manner. But this was not allowed by the English statute.^ This right of peremptory challenge is a personal one, and if two are tried upon the same indictment, each has a right to exercise the privilege to its full extent, though in so doing he may exclude from the panel jurors whom the other party might wish to retain vipon it.^ 11 Chit. C. L. 535, and Perkins' note; 1 Bish. Cr. Proc. §§ 940, 94.3. « Gen. Stat. Mass. c. 172, § 4. [So, also, in Illinois, (Rev. Stat. 1874, 411, § 432,) and Iowa (Code, 1873, § 4413). In Illinois, where the offense may be punished by imprisonment for a tenn exceeding eighteen months, ten peremptory challenges are allowed the defendant, and in all other criminal trials, six. The prosecution- is entitled to the same number of peremptory challenges as the accused. Rev. Stat. 1874, 411, § 432.] 'Mass. St. 1875, c. 167. See 1 Bish. Cr. Proc. § 940, for other States; 4 Black. Com. 353. * United States w. Marchant, 12 Wheat. 480; Maton ti. The People, 15 111. 536; Bixbe v. The State, 6 Ohio, 41; Schoeffler CRIMINAL PKOOEDXJEE. 213 The right of peremptory challenge is limited to the trial of the main issue of guilty or not guilty, and does not extend to collateral issues in bar or in abatement.^ If the prisoner allows a juror to be sworn with- out interposing objection, it is too late to challenge him peremptorily; and, in an English case, it is held that this must be done before he begins to take the oath, or it will be too late.^ And it has been held that, if a prisoner would challenge a juror, he must do it before the juror has been in- quired of by the Court, as to his bias or prejudice or holding such opinions as would preclude him from finding any defendant guilty of an oft'ense punishable with death.^ In some cases, the Court will permit the prisoner to waive a challenge which he has made.* There is no limit to the number whom a prisoner may challenge as jurors for cause, if a good cause exists why they should not act in the trial of his case. Nor does the challenging for cause prevent the prisoner from peremptorily challenging the •r. State, 3 Wis. 823; 1 Chit. C. L. 509, and Perkins' note, 535 and note; Bristerr. State, 26 lla. 107; 7 Dane Abr. Cli. 221, Art. 4, § 5; 2 Hale, P. C. 268; Moore, C. L. § 919; Common- wealth V. James, 99 Mass. 440. 1 7 Dane, Abr. c. 221 , Art. 4, § 5; 2 Hale, P. C. 267; 1 Bish. Cr. Proo. § 942; 1 Chit. C. L. 535; 4 Cooley's Black. 352, note. '•' 1 Bish. Cr. Proo. § 945; Commonwealth ». Knapp, 10 Pick. 480; Reg D. Frost. 9 C. & P. 129; Moore, C. L. § 919. ^Commonwealth!!. Rogers, 7 Met. 500; Commonwealth [•. Webster, 5 Cush. 297. ■ * Commonwealth v. Twombly, 10 Pick. 480, note. 214 CEOIIXAL LAW. same juror if he fails to show cause why he should not act/ As the prisoner loses nothing in the way of his right to challenge a juror peremptorily, hy doing so for cause, it is obviously better to re- serve the former right, until after the question in respect to the latter has' been settled ; for, if he fails in his challenge for cause, he can still resort to his peremptory challenge. What shall be a sufficient cause why a juror should not act in a trial, is often a question of considerable difficulty. By statute in Massachusetts, if his opin- ions preclude him from finding a defendant guilty of an offense punishable with death, a juror is not permitted to sit upon a jury in a capital case;^ [and the rule may be laid down generally, that the fact that a juror holds opinions which would prevent hira from agreeing to a verdict of guilty in accord- ance with the law of the land, will disqualify him from serving on the jury.'J There is a cliallengs to the array which excepts to the whole panel by reason of some error or de- fect in making the return to the venire, which oc- ' 1 Chit. C. L. 54.5, and Perkins' note; 1 Bish. Cr. Proc. § 945, and note; Hooker v. State, 4 Ohio, 348; 4 Black. Com. 353; Mass. Stat. 1873, c. 317, § 1. 2 Gen. St. c. 172, § 5. [So, in Illinois in trials for murder it is a cause for chal- lenge, if the juror on being examined states that he has consci- entious scruples against capital punishmsnt, or that he is op- posed to the same. Rev. Stat. 1874, 411, § 433.] [« Gates V. The People, 14 111. 433; Pierce v. The State, 13 N. H. 536; People v. Keys, 5 Cal. 347; Commonwealth ». Aus- tin, 7 Gray, 51; 1 Bish. Cr. Proc. § 917; Moore, C. L. § 910.] CRIMINAL PEOCEDUEE. 215 curs too rarely in practice to be a subject of discus- sion here.* Tiie ordinary cliallengs for cause is upon the ground of soma presumed or actual partiality in the juror who is made the subject of objection.^ Tbe inquiry in such cases is whether "the juror stands indifferent between the parties to the issue." ' ! If one have several causes of challenge against a jiiror, lie shall make them and have them tried at one and the same time.' What are the general grounds upon which a juror may be objected to, are pretty fully expressed by the form of the oath which either party may move the Court to administer to the juror who is objected to, by the statutes of Massachusetts: 1. Whether he is related to either party; 2, or has any interest in the cause; 3, or has expressed or formed any opin- ion, or is sensible of any bias or prejudice therein. And after he has answered these inquiries it is com- petent for the party objecting to offer proof in sup- port of his objection. But this does not apply to opinions upon questions of pure law, unless such opinion is adverse to a conviction of the defendant independent of the evidence.' By statute in Massachusetts the Court hears the ' 1 Chit. C. L. 536. ' 1 Chit. C. L. 541, and Perkins' note. » 1 Chit. C. L. 549; 7 Dane, Abr. c. 221, art. 6, § 4. ■* Dane, Abr. sup. *Gen. Stat, c. 132, § 29; Commonwealth v. Abbott, 13 Met. 123; Commonwealth v. Austin, 7 Gray, 51; 1 Bish. Cr. Froc. § 917. [See generally as to disqualification by having formed an opinion, Moore, C. L. § 909, and cases cited.] 216 CRIMINAL LAW. evidence that maybe oifered as to whether tlie juror, who is challenged stands indifferent, and decides the issue.' But in England, 'New York and some other of the States this question is determined by what are called triers. The mode in which this is done is this: If the first juror called upon the panel is objected to, the Court appoints two indif- ferent persons to hear and try the matter. If they adjudge him indifferent, he is sworn; otherwise he is set aside. If the next one called is objected to, the juror who has been sworn becomes one of the triers. When two or more have been sworn, two of them are made the triers. And the triers may hear evidence and examine the juror himself upon whose comj^etency they are passing. In Tennessee [and I^ew Hampshire, and perhaps in other States,] the Court settles the question.^ By an early English statute, a foreigner, who is indicted and put upon trial, may insist upon having the jury, which is to pass upon his guilt, made up of an equal number of foreigners and citizens or denizens, and this has been adopted by some of the States, while in others it has never been applied.' But, to avail himself of this privilege, the de- fendant must claim it before the jury is sworn. Nor can he insist that the aliens who are to serve upon ' Gen. Stat. c. 132, § 29. n Chit. C. L. 540, and Perkins' note; 3 Black. Com. 363. [Rollins V. Ames, 2 N. H. 3o0; McGowan v. State, 9 Yerg. 184; State V. Wall. id. 347; Moore, C. L. § 914; Winnesheik Ins. Co. V. Sohneller, 60 111. 473.] n Bish. Cr. Proc. § 927; 1 Chit. C. L. 525. CEIMINAL PKOCEDUllE. 217 the jury, should be his own countrymen. The law of Massachusetts does not provide for impaneling foreigners in the trial of a foreigner. It is abolished in New York [and Illinois].' Oath of Jury. If no challenge is made, or, if made, it is not sustained, and the juror is not per- emptorily challenged, an oath is administered by the clerk of the court to such as are to serve upon the trial, the form of which serves to indicate the proper duty of jurors in criminal trials. It is sub- stantially the form which has been in use from the earliest period of the history of the English crimi- nal law, and has been universally adopted in the United States.^ The form is to "w,ell and truly try the issue between the Commonwealth and the defendant, according to their ( your ) evidence." And, if the trial be a capital one, the oath is to " well and truly try, and true deliverance make, between the Commonwealth and the prisoner at the bar, whom you shall have in charge, according to. your evidence." ^ There is a difference in phrase- 1 7 Dane, Abr. c. 221, Art. 6, § 2; 2 Hale, P. C. 271; 1 Chit. 0. L. 52.5, and Perkins' note; Rev. Stat. 111. 1874, 411, § 430; Rev. Stat. N, Y. pt. 3, ch. 7, tit. 4, § 176. » 1 Bish. Cr. Proc. § 983. = Geu. Stat. Mass. c. 172, § 6. [ The form of oath as laid down by Mr. Moore, in his work on Criminal Law, (§ 921), as administered in Illinois, is as fol- lows: " You, and each of you, do swear by the ever living God, (or 'you do solemnly, sincerely and truly, declare and aflRrm '), that you will well and truly try the issue, (' or issues,') between the people of the State of Illinois, and the prisoner at the bar, in the cause now in hearing, and a true verdict give according to law and evidence; unless discharged by the court."] 218 CRIMINAL LAW. ology between this oath and the one administered to jurors in civil cases, which closes with, " accord- ing to the law and evidence given you," instead of " according to your evidence." ^ Jury as Judges of the Lalv. From this and other considerations growing out of trials by jury under the constitution and laws of this Commonwealth, has arisen much discussion how far a jury in a criminal trial are at liberty to judge in matters of law as well as of fact in rendering their verdict. This right of " deciding in their discretion by a ijeneral verdict both the fact and the law involved in the issue," is expressly given them by statute.^ But in a case involving the inquiry, how far this statute is constitutional, a majority of the Court held that jurors had no right to determine ques- tions of law against the instructions of the Court, notwithstanding the authority given by statute.' The right of juries in criminal cases to form au independent judgment of the law involved in the trial has been variously held in this country, in some cases by the Constitution of the State, in others by statute, and in others by the opinions of the courts, as will be seen by a reference to the authority cited below.'' ' Commonwealth v. Antlies, 5 Gray, 275. ' Gen. Stat. Mass. c. 172, § 15. [So, also, in Illinois. Rev. Stat. 1874, 411, § 431 ; Schnier v. The People, 23 111. 17; Fisher v. The People, id. 283.] ' Commonwealth v. Anthes, 5 Gray, 185, in which the doc- trine of Bushel's case, Vaughn, 135, is examined, and that of * 1 Bish Cr. Proc. § 984, 985. .CRIMIlSrAL PROCEDUKE. 219 Reading of Indictment. As soon as tlie oath lias been administered to the jurj, the clerk charges them " to hearken to an indictment found against the prisoner," which he then reads to them, and liaving concluded the reading, he instructs them that " they are to try the issue between the Common- wealth and the prisoner at the bar; if he is guilty, they are to say so ; if he is not guilty, they are to say so, and no more." ' Talesmen. It sometimes Jiappens that by reason of challenges the panel of jurors returned to the court is exhausted before a full panel of twelve shall have been obtained for the trial of a criminal case, and in such cases it is competent for the Court to fill the same by calling upon the bystanders or other persons in the county, known as talesmen, not to exceed in any one jury live. These men are selected and returned by the sheriff or his deputy, or by some disinterested person appointed by the Court, and are to be such as are qualified as jurors and liable to be drawn as such.^ View. A motion is often made, before proceed- ing with a trial, after the jury has been sworn, for what is called " a view," where it is thought impor- tant for understanding the testimony which may be given in the case, that the jury should visit the lo- the Dean of St. Asaph's case, in •which Erskine yindicated the independence of the jury in such cases. 3 Term, 428, note. 1 King V. DowUn, 5 Term, 313; 1 Bish. Cr. Proo. § 960; 2 Hale, P. C. 64; Moore, C. L. § 980. ■' Mass. Gen. Stat. c. 132, §§ 27, 28; 1 Chit. C. L. 518. See, also, Rev. Stat. 111. 1874, 633, § 13. 220 CEIMINAL LAW. cality of the alleged crime, and look at such objects as either party may wish to call to their attention. By the common law this was never allowed in capital trials, but in England and Massachusetts courts may now permit it to be done upon the request of either of the parties.^ This is done by sending the jurors under charge of an officer and a' person selected to attend tliem on each side; but no evidence or discussion beyond pointing out the ob- jects to be viewed, is allowed in the presence of the jury while performing this service. Proceedings upon, the Trial — Criminal Evi- dence. "When the cause is ready for trial the pros- ecution opens by briefly stating to the jury the facts which it is proposed to show in support of the charges contained in the indictment, and the law applicable thereto, whereupon, he proceeds to call and examine his witnesses and read his written evidence, and the defendant, or his counsel, makes such objection to the admissibility thereof as he thinks proper, and cross-examines the witnesses that the prosecutor has examined. And when the evi- dence for the prosecution has closed, the defendant, or his counsel, opens the defense and calls his wit- nesses, or reads his written evidence, the prosecutor objecting thereto and cross-examining the defend- ant's witnesses. And when the evidence for the defense has closed, the prosecutor may introduce ' 1 Chit. C. L. {Perk, ed.) 483, and note; Commonwealth v. Park, 2 Pick. .5.50; Commonwealth v. Knapp, 9 Pick. 496; Gen. Stat. c. 172, § 9. CKIMIFAL PROCEDUEE. 221 rebutting evidence, if the defendant ofiers new mattei- in his defense.^ After tlie evidence upon one side and the other is closed, it is for the defendant or his counsel to sum up, as it is called, to the jury, by commenting upon the evidence anioffering such arguments and sug- gestions as may be pertinent to the issue. And this is followed by a like summing up by the prosecu- tion, though in some of the States the defendant in a criminal trial is entitled to the close. How this should be done, depends so much upon the ability and judgment of those who conduct the trial, and the direction which the Court may give in respect to what is admissible and proper, that, as a subject, it is outside of the limits of an elementary treatise. But it involves questions of sufficient interest and importance as to what is required and what is ad- missible in evidence, to call for a general reference to tlie rules which prevail in criminal trials in our courts, though it is hardly necessary to add that the subject of evidence, as a whole, is too broad to be treated of in such a work. Its familiar doctrines, and their application in the trial of criminal causes, is all that will be attempted. It may be accepted as an elementary principle in the trial of-all criminal charges, that the prosecu- tion must prove the corpus delicti, before attempt- ing to charge its commission upon the defendant. Cases have occurred where persons have disappeared under suspicious circumstances, and others have '1 Bish. Ci-. Proc. § 962; 1 Chit. C. L. 623; Moore, C. L. § 931, and cases cited. 222 CRIMINAL LAW. been tried and convicted for murdering tliem, where it has subsequently been shown that the person alleged to have been murdered, was actually alive. Such a case is reported in Coke's 3d Inst. 231, Guinnett's case, 2 Stark. Ev. 710, and 2 Hale, P. C. 290. And to these may be ad^ed the famous case of the Boorns, in Yermont, where the defend- ants were convicted upon their own confession of having murdered a man who made his appearance a short time previous to the day fixed for the exe- cution of the defendants.^ When considering the subject of witnesses, the first question is, how many are required in order to sustain the charge? Ordinarily there is nothing to prevent a jury from rendering a verdict of guilty upon the testimony of a single witness, if the jury believe it. But, in order to convict a defendant of treason or perjury a difi'erent rule prevails. In the case of treason the rule requires two witnesses at least of the overt act charged in the indictment, to warrant a verdict of guilty against the prisoner. It is not enough that two or more witnesses testify to acts of treason committed by him, unless two at least are able to testify to some one overt act, or unless the defendant makes confession of his guilt in open court.^ ' 1 Gveenl. Ev. §214, note; 1 Whart. C. L. § 683. n Chit. C. L. 560, 561; Moore C. L. §§ 320, 699; 1 Greenl. Ev. § 255, 256. See Rev. Stat. 111. 1874, 392, § 264. It was to escape the stringency of this rule, which has been in force since 1 Ed. VI., that Parliament created bills of attainder from time to time which condemned the obnoxious party in ca.ses where the requisite amount of proof could not be found. This CRIMINAL PEOCEDURE. 223 On the trial of a defendant for perjiirj' it is obvi- ous that if the prosecution produced a single wit- ness only, it would present a case where there would be one witness testifying against what another wit- ness had testified in a former trial. Something more, therefore, is required than the testimony of a single witness, though it does not necessarily 7*equire that there should be two witnesses called to testify against the party charged, upon the precise point of the alleged perjury. It will be compe- tent for a jury to convict the defendant, if the witness who testifies against him is sustained or confirmed by other additional competent evidence, and there must be this evidence in respect to eacli count in order to sustain it.* A general rule in every criminal trial is that no statement of any person can be admitted as evidence, unless tlie same be verified by oath, though if it be a confession of the defendant, the fact of its having been made is competent evidence.^ was done in the case of Sir John Fenwick, in the time of Wm. III., notwithstanding the act of 7 Wm. III., passed the year be- fore his impeachment, requiring the oaths of two lawful wit- nesses. This was the last case of such impeachment in Eng- land. 5 Hargravo's State Trials, 40. The 25th Article of the Bill of Rights of Massachusetts forbids the legislature to de- clare any one guilty of treason or felony. ' Roscoe, Cr. Ev. 769; 1 Chit. C. L. .563, and Perkins' note; 1 Greenl. Bv. § 257, 257a. » 1 Chit. C. L. 568, 569. Though this is now a well established rule, and is claimed to be a pai't of the common law, there appear to have been times when it was scandalously disregarded in state trials in England, as was done in the trial of Sir Walter Raleigh for high treason. Salmon's Review, 51. 224 CKIMINAL LAW. One of the exceptions to this rule, is the admis- sion of the dying declarations of one who has been murdereJ, as to the person who committed tlie act, in a trial of an indictment against him for such homicide. To render such declaration competent, it must have been made with a certain expectation of immediate death. And whether it comes within that limitation, so as to be competent evidence, is a question for the Court to determine.^ "When and how far the confession of a prisoner charged with an offense may be competent evidence against him upon his trial, has been a prolific source of inquiry and discussion. If voluntarily and in- telligibly made, it is evidence of the strongest kind. But confessions have so often been obtained by im- proper influence, or been made under such circum- stances of mental weakness or disturbance, as to detract in part or altogether from their value as evidence, that in order to their being admitted, the Court must ordinarily pass upon the question of their competency. If a confession is obtained un- der a promise of gaining favor thereby, or threats of injury if it is not made, the Court will not hold it competent, and of this the Court is to judge.^ Confessions are often obtained and sometimes may be used against the party making them, when one of two or more defendants are indicted for '1 Greenl. Ev. §§ 156, 158; 1 Chit. C. L. 569, and Perkins' note; Commonwealth v. McPike, 3 Cush. 184; 1 Whart. C. L. §681. n Greenl.'Ev, § 214, 215, 219; 1 Whart. C. L. § 683, 685, 686, 687; 1 Chit. C. L. 570, and Perkins' note; Moore, C. L. § 939; Commonwealth v. Knapp, 10 Pick. 490. CRIMINAL PKOCEDmiE. 225 the same offense, or as principal and accessory, or where one is indicted and the other vohmtarily be- comes a witness in the trial against his associate. In popular phrase he becomes in such case " a State's evidence." It is borrowed from the old English doctrine of approvement, now obsolete, which never has formed any part of the American common law. In such case, if he made confession, but did not discover the whole truth, or if the jury did not believe, him and convict liis accomplices, he was liimself convicted and punished upon his own con- i'ession.' In England, if one of several guilty parties con- fesses and is used by the government as a witness, he is recommended to the government for mercy by tlie Court, and ordinarily, though not always, with effect.^ In this country whether an accomplice or co-de- fendant in a criminal trial shall escape punishment by volunteering to become "State's evidence," de- jiends upon the arrangement he is able to make with the prosecuting officer, though it is generally im- ])lied that, if he voluntarily and in good fa,itli dis- closes the facts within his knowledge and the prose- cution accepts it for the purpose of using it as evidence, no judgment shall be rendered against liim for the part he took in it. But if under such an understanding lie makes a full disclosure to the prosecution, who then places him upon the stand as ' Rex V. Rudd, Cowp. 335; 1 Bish. Cr. Proo. § 1074; 1 Chit. C. L. 603; Commonwealth v. Knapp, 10 Pick. 494. ^ 1 Chit. C. L. 604; Commonwealth v. Knapp. 10 Pick. 493. 15 226 CKIMINAL LAW. a witness, and he fails to testify, the prosecution is relieved from all obligation to interpose, and he may be convicted upon his own confession previ- ously made. And this assurance of protection is often formally extended to a co-defendant or accomplice by the prosecution, if he will testify to the facts within his knowledge. In England as well as Massachusetts those who are admitted as witnesses for the government may rest assured of their lives if they perform their engage- ments. ^ If a party on trial voluntarily becomes State's evidence, he thereby waives all right to object to answering questions implicating himself, if they bear upon the issue to be tried.^ Although the testimony of an accomplice, if un- supported, is always received with great caution, and courts and juries are rehictant to convict thereon, it is competent for the jury to find a ver- dict upon such evidence, if they believe it to be true.^ Confessions cannot be admitted as evidence ' 1 Chit. C. L. 570a, and Perkins' note; Commonwealth v. Knapp, 10 Pick. 491^95; Foster v. Pierce, 11 Cnsh. 437. '^ Hamilton v. People, 13 Am. Law Reg. (N. S.) 68.5; 1 Bish. Cr. Proc. § 1083; Commonwealth ». Price, 10 Gray, 476. nChit. C. L. 605; Commonwealth v. Bos worth, 22 Pick. 397; Commonwealth v. Price, 10 Gray, 472; [The People v. Dyle, 21 N. f . 578; Dunn v. The People, 29 N.T. 523; Lindsday 11. The People, 63 N. Y. 143; Gray v. The People, 26 111. 344; Cross V. The People, 47 111. 153. Contra Ray v. The State, 1 G. Greene, 316; Johnson v. The State, 4 G. Greene, 65; The State V. Clemens, 38 Iowa, 257; The State v. Howard, 32 Vt. 380]. CRIMINAL PEOCEDUEE. 227 against any person but him who makes them, not even against an accomplice.' If a confession cannot be used because improperly- obtained, and any facts are thereby obtained which are independent of the confession, they may be made use of on the trial, as where the defendant in his confession stated where a certain weapon might be found, and upon search made, it was found, the prosecution was allowed to show the fact of the finding.^ The character of a party upon trial, good or bad, is often an important consideration in determining the question of his guilt. The defendant may offer evidence of this, and by so doing opens the full in- quiry into it to the prosecution. But it cannot be done by the prosecution unless the defendant opens the inquiry, and only in rebuttal of the defendant's evidence. But this inquiry is restricted to general character, and is not allowed to go into particular facts.' And if the defendant opens the inquiry, the prosecution may not only show what his character ' 1 Chit. C. L. 571, and Perkins' note; Morrison v. The State 5 Ohio, 439. A different rule prevailed in the English courts formerly, as was illustrated in the trial of Somerset for the murder of Overbury. Salmon's Rev. State Trials, 67. ^ Commonwealth v. Knapp, 9 Pick. 511; 1 Chit. C. L. 572, and PerMns' note. » 1 Chit. C. L. 575, and Perkin's note. [In all criminal cases, whether the case is doubtful or not, evidence of good character is admissible on the part of the pris- oner. Jupitz V. The People, 34 111. 516; Conkwright v. The People, 35 id. 204; Hopps v. The People, 31 id. 385; Walsh v. The People, 65 id. 58; Moore, C. L. § 89.] 228 CRIMINAL LAW. was at and prior to the time of the alleged offense, but what it has been since, on the ground that the descent from virtue to crime is gradual, and such evidence may help to show that he Jiad already begun that descent when the act was committed.^ So, the general character of a witness for truth may be inquired of by the party against whom he is called, with a view of impeaching the value of his testimony. But it must be confined to his general character for truth.^ It is often necessary, in making proof against the defendant, to refer to writings, and to show their contents. This may be done by producing the pa- j)er8 themselves, or in certain cases, by proving their contents by the oral testimony of witnesses who have seen and read them. If the paper, whose contents it is proposed to prove, is in the liands of the defendant, before the prosecution can call witnesses to its contents, the defendant must be notified to produce it on the trial. If he fails to comply with this notice, the prosecution may prove its contents by secondary evidence. So, if the pa- per is charged by the indictment to be wrongfully in the hands of the defendant, as by larceny, its contents may be shown aliunde, without first giv- ing notice to produce it. Such would be the case upon a trial for larceny in stealing a bank bill.' Another point in the matter of evidence in rela- 1 Commonwealth r. Socket, 22 Pick. 394. ' I Greenl. Ev. § 461. ' 1 Chit. C. L. 579, and Perkins' note; People v. Holbrook, 13 John. 90; 1 Bish. Cr. Proc. § 433. CRIMINAL PEOCEDTJEE. 229 tion to written papers, is that of their genuineness. The rule is substantially the same in England and most of the United States, though diiferins' in some respects. Any one who has seen the person write, whose name is subscribed to a paper, may testify as to his belief of its being genuine, or otherwise. So, any one who has addressed letters to him and has received letters in reply to these, purporting to be from him, may testify to his belief of the genuine- ness of the handwriting in question. And to this extent it is believed there is no diversity of opinion between these courts.' While the competency of the testimony of ex- perts in handwriting in establishing the genuineness or otherwise of handwriting in the trial of a crimi- nal case, is admitted, the mode of examining such witnesses as to the sources of their knowledge or opinion, is somewliat different in different States. It is at best a mere expression of an opinion, be- cause it is assumed that the witness does not know how the fact is from his personal knowledge of it. And it must be at the best a very unsafe and unsat- isfactory mode of proof. In England, while they allow an expert to testify to his belief as to a given writing being in a disguised hand, they do not allow him to compare the one in question with another which is proved or admitted to be genuine. But in Massachusetts, the courts allow the comparison to be made, and an opinion to be formed and testified of by this comparison.^ , In New York, however, a ' 1 Chit. C. L. 580; 1 Greenl. Ev. §§ 576, 577. ' 1 Greenl. Ev. § 576-580; 1 Chit. C. L. 582, and Perkins' 230 CEIMINAIi LAW. comparison [of instruments not properly in evidence for other purposes] is not allowed to aid an expert.* [In Illinois the rule was at first laid down broadly that the genuineness of handwriting could not be proved or disproved by allowing tlae jury to compare it with the handwriting of the party, proved or ad- mitted to be genuine;^ and that not even experts could be permitted to prove the genuineness of a signature by comparing it with another signature admitted to be genuine.^ But in the subsequent case of Brobston v. Cahill,^ the rule as stated in Jumpertz v. The People, was qualified and held not to be applicable to cases where the writing, with note; Moody v. Rowley, 17 Pick. 490; Commonwealth v. Web- ster, 5 Cush. 295; Richardson v. Newcomb, 21 Pick. 315. See, also, Commonwealth v. WilUams, 105 Mass. 63. ^ People «. Spooner, 1 Denio, 343; VanWyck v. Mcintosh, 14 N. T. 439; Ellis v. The People, 21 How. Pr. 356. « Jumpertz J). The People, 21 lU. 375, 408; Pate v. The People, 3 Gilm. 660; Putnam v. Wadley, 40 lU. 346. ' [Kemin v. Hill, 37 111. 209. See this case criticised by Mr. Denslow in a note to said case on page 209 of Callaghan & Company's edition of said volume. In Michigan witnesses are allowed to compare the writing in question with the appeal bond or other papers forming a part of the record in the same cause and admitted to be signed by the defendant, or with any other writing legitimately introduced into the case under the issue, in order to judge of the genuineness of the writing to be proved; but disputed papers which do not belong in the cause, and are not involved in the issue, cannot have their genuineness made a question of inquiry, and cannot, therefore, be made a basis of comparison for either witness or jury. Vinton v. Peck. 14 Mich. 287; Tiff. Cr. L. 451. The cases and the different rules upon this subject will be found in 1 Greenl. Ev. § 581, note.] * 64 111. 356. CRIMmAL PEOCEDUKE. 231 which it is sought to compare tlie one alleged not to be genuine, is properly in evidence, and pertinent to the case.J As a general rule, with very few, if any, excep- tions, the testimony of witnesses in criminal trials must be given orally in open court. In Massa- chusetts, however, in favor of the defendant, who desires the testimony of a witness who is without the jurisdiction of the court, he is permitted to take his deposition upon a commission from the court upon interrogatories and cross-interrogatories, and to use this in evidence upon his trial. But it cannot be done hj the prosecution, since it is the privilege of the defendant under the constitution to meet the witnesses against him face to face.' Questions of some diflSculty often arise which the courts have to determine as to the persons who are competent to be witnesses. And one class of these is young persons. The questign depends upon the capacity rather than the age; for there is no fixed age before which one is regarded as an incompetent witness. If the Court upon examination of the ' Mass. Gen. Stat. c. 172, § 32; BiU of Rights, Art. 12. See Moore, C. L. §§ 157, 881, et seq. [In cases of misdemeanors, it is held, that the depositions of absent witnesses may be taken by consent; and if the attend- ance of material witnesses for the defendant cannot be procured, he may offer to join in a commission to take their depositions, and the Court, in its discretion, may, in case the other party refuses to join in the commission, continue the cause from term to term, until the other party does join; and when the offer is accepted, the cause will be continued till the next term. Richardson v. The People, 31 lU. 170; Moore, C. L. § 882.] 232 CRIMINAL LAW. witness is satisfied that he understands the obliga- tion of an oath, it admits him. A witness of the age of five years has been admitted.^ In respect to insane persons being competent to be witnesses, the ancient law seems to have excluded them. But the rule of modern times seems to limit this exclusion, to the matters upon which the wit- ness is under an insane delusion, leaving him com- petent as to all other matters. Tlie marginal note of a recent case thus states the law upon this point: "A lunatic patient, who had been in confinement in a lunatic asylum, and who labored under the delu- sion, both at the time of the transaction and the trial, that lie was possessed of twenty thousand spirits, but whom the medical witness believed to be capable of giving an account of any transaction that happened before his ej-es, and who appeared to understand the obligation of an oath and to believe in future reward and punishment, was called as a witness on a trial for manslaughter, and it was held, that his testimony was properly received in evidence; and that when a person under an insane delusion is called as a witness, it is for the judge, at the time, to say whether he is competent to be a witness, and it is for the jury to judge of the credit that is to be given to his testimony.^ Another class of persons have been held incom- petent to be witnesses, by reason of being insensible '1 Greenl. Ev. § .367; 1 Chit. C L. 590, find Perkins' note. ' 1 Chit. C. L. 689, and Perkin.s' note; 1 Greenl. Ev. § 365, and note; Reg. i'. Hill, 15 Jur. 470; 14 Law Reporter, 141; Kendal v. May, 10 Allen, 63, 64. CRIMINAL PEOCEDTJEE. 233 to the sanction of an oath, from a disbelief in the existence of a God who takes cognizance in a future life of what is done in this. The law assumes that there are and may be atheists; but as the fact can be established by their own declarations alone, and the number, if there are any, is so few, and a strong disinclination prevails to takes cognizance of the religious opinions of the citizen, there was a struggle against this rule of law, which has at last rendered such persons competent as witnesses in Massachusetts. Instead of taking an oath, such as is required to be taken by most witnesses, the form is an afBrrnation to tell the truth under the pains and penalties of perjury. The credibility of such testimony is to be judged of by the jury.^ But from the time of the decision of Omichund V. Baker it was not necessary that a witness should believe in the Christian religion in order to be a competent witness. A Jew, Mohammedan or Gentoo is admitted to testify upon being sworn in the man- ner which is recognized by their j-espective faiths as binding upon their consciences, as a Jew upon ' Thurston ». Whitney, 2 Ciish. 104; Hanscom v. Hanscom, 15 Mass. 184; Mass. Gen. Stat. e. 131, § 12; 1 Greenl. Ev. S 368-370 ; Commonwealth v. Hill, 10 Gush. 580, 582; 1 Chit. C. L. 591, and Perkins' note. [It is provided by constitational provision in Michigan, that no person shall be ' ' rendered incompetent to be awitness on account of his opinions on matters of religious belief, " (Const. Art. 6, sec. 34) ; and similar constitutional provisions exist in the States of Iowa, Minnesota, Oregon, Wisconsin, Arkajisas, Florida, Mis- souri, California, Indiana, Kansas, Nebraska, Nevada, Ohio and New York. See Cooley's Const. Limitations, 478, and note.] 234 CRIMINAL LAW. the Pentateuch, a Mohammedan upon the Koran, and the like.^ This question of competency has no reference to the forms of administering oaths, which vary in dif- ferent States and in the same States, to meet the cases of different witnesses, the form adopted being such as most effectually appeals to the conscience of the witness. Thus, in the New England States the form is that of Scotland, by holding up the hand.^ In other States the witness kisses the Bible. Even in Massachusetts the form as applied to Catholics, is to be sworn upon the Evangelists, according to the Douay version. Quakers and others who have scruples of taking an oath, affirm upon the perils of perjury. A Chinese holds a saucer in his hand, which he dashes in pieces upon concluding his oath.» Another class of persons who are incompetent by the common law to testify, are husbands and wives, where the subject of inquiry involves the legal rights ' Omichund u. Baker, 1 Atk. 21, 48; 1 Oreenl. Bv. § 28; 1 Chit. C. L. 591, and Perkins' note, 617. ^ [So in Michigan, by holding up the right hand. 2 Comp. Laws, 1871, § 5960.] ' 1 Chit. C. L. 591, and Perkins' note, 616, 617; Common- wealth V. BuzzeH, 16 Pick. 153; 1 Greenl. Ev. § 328; Mass. Gen. Stat. c. 131, § 12. [In Illinois, it is provided that it shall be lawful to adminis- ter an oath in the following form: "The person swearing shall, with his hand uplifted, swear by the ever living God, and shall not be compelled to lay the hand on or kiss the gospels." Rev. Stat. 1874, 725, § 3. When the witness has conscientious scruples against taking an oath, he "may solemnly, sincerely and truly declare and affirm." Id. sec. 4.] CRIMINAL PROCEDURE. 235 of the husband or wife for or against whom the wit- ness is called. And this was carried so far as to exclude the testimony of a wife for a defendant who is tried with her husband. It is founded upon the idea of identity of interests, and excludes these as witnesses upon the same gi'ound that a party him- self is excluded.' The exception to this was when the wife sought protection of law against the per- sonal violence or abuse of the husband, as was de- cided in Lord Audley's case; and the rule never ex- tended to any but a lawful wife; one's living with another as a wife did not render her incompetent to testify against him.^ The change of the law in respect to the compe- tency of a party in interest to testify in his own case, which has been adopted in England and in several of the States in our own country, has led to a material change in the law as to husbands and wives being admitted to testify for or against each other. In Massachusetts, every person may be a witness in his own case, whether civil or criminal, at his own election, nor is any one excluded from being a competent witness by reason of having been convicted of a crime, and any party may call and examine the adverse party in a suit as a witness, with the exception that neither husband nor wife shall be allowed to testify as to private conversa- ' 1 Greenl. Bv. § 334r-336; 1 Chit. C. L. (Perk, ed.) 594, 595, and notes; Commonwealth v. Shanks, 7 Allen, 535. ' 1 Greenl. Ev. § 343; Batfchews v. Galindo, 4 Bing. 610; Commonwealth v. Murphy, 4 AUen. 491; Kelly v. Drew, 12 Al- len, 110. 236 CRIMINAL LAW. tions with each other, nor shall either be compelled to be a witness on any trial upon an indictment, complaint or other criminal proceeding against the other.' By the common law one who has been convicted of certain offenses which come within the category of crimina falsa, were excluded from testifying, which seems to be visiting the censure for such crime upon the innocent party who may need the testimony of such witness." But the tendency of modern legislation, both in England and this coun- try, is to do away with this rule and to leave the question on« of credibility, and not of competency.' A different rule has prevailed in different States as to the competency of one to testif}', whose name is alleged to have been forged, in a trial of an- other for committing the forgery. In Massachu- setts he was held competent. In Vermont, North Carolina and Connecticut, it was held otherwise. In Pennsylvania the rule is the same as in Massa- chusetts.^ But as this depended upon the supposed interest of the witness in the matter at issue, it would seem to be no longer a question in the States where interest no longer excludes a person from being a witness. ' Stat. Mass. 1870, c. 39.S. [See, also, Rev. Stat. 111. 1874, p. 410, § 426; p. 488, §§ 1, 6; 2 Comp. Laws, Mich. 1871, §§ 5966-6969.] n Stark. Ev. 94; 11 Am. Jurist, 356; 1 Greenl. Ev. 372-376. ' Mass. Stat. 1870, c. 393; 2 Comp. Laws, Mich. 1871, § 5966; Rev. Stat. 111. 1874, 488, § 1. *1 Chit. C. L. 597, and Perkins' note; Commonwealth v. Peck, 1 Met. 428. CRIMINAL PKOCEDUKE. 237 An important rule is still in force wliich relates to communications between a client and his legal counsel, and how far the latter is excluded from tes- tifying in respect to these. It involves questions of private faith and personal honor, as well as legal right. That counsel would not be permitted, if he were willing to disclose what is properly a confi- dential communication made to him by a client, if objected to, may be accepted as an ele.mentary prin- ciple of evidence; and the instances of men within the category of legal counsel, being base enough to consent to disclose these, are so rare and infrequent, that it may be assumed that none will be made, ex- cept such as the law would require to be done. And among the rules upon this matter, one is, that the privilege of excluding such communications from being comj)etent evidence belongs to the cli- ent, personally, and if he calls his counsel as a wit- ness in respect to them, he is obliged, upon cross- examination, to answer all pertinent questions bearing upon the points upon which he has been examined by his client.^ In the next place, the communication must be made by the one as client to the other " in his pro- 1 1 ChiK C. L. 608; 1 Greenl. Ev. § 237, 238; Foster v. Hall, 12 Pick. 92, 93; The People v. Barker, 56 111. 299; Wood v. Thomby, 58 111. 464. [So, the hgir of the client may call for the testimony of the attorney. Fossler v. Schriber, 38 111. 172. It is rot error to permit an attorney, as a witness, to answer a question the ob- ject of which is merely to ascertain whether the relation of attorney and client actually existed, not what was disclosed to him in that relation. Leindecker v. Waldron, 52 111. 283.] 238 CEIMINAL LAW. fessional character, and with reference to professional business." ' It may be made by the client himself, or his agent or interpreter, or to the attorney di- rectly or through his clerk. The communication must be of a professional character, in relation to matters on which the client wishes professional ad- vice and direction. And it is limited to professional counsel, such as barristers, counselors, attorneys and solicitors, although when making the commu- nication, the person making it supposed the one to whom he made it was a professional counselor. If, therefore, a client communicates facts to a student in the office of a counselor, supposing him to be the attorney or counselor, the clerk may be com- pelled to disclose these. So, he may, if he over- hear the communication made by the client to his counsel.^ But the exemption from testifying ex- tends to an interpreter through whom the commu- nication to the counselor is made.^ But being the counsel for a person upon trial does not exempt him from being called to testily to facts within his knowledge not gained by profes.- sional communication.* ^ [Where an attorney is consulted merely as a friend, and ■where neither he, nor the person consulting with him, supposes the relation of attorney and client to exist between them, the communications are not entitled to the sanction of secrecy ex- tended to communications professionally made. Goltra t'. Wolcott, 14 ni. 89.] 2 1 Greenl. Ev. § 239-240; 1 Chit. C. L. 606, 607, and Per- kins' note; Roscoe, Cr. Ev. 177; Barnes v. Harris, 7 Cush. 576; Foster v. Hall, 12 Pick. 89, and cases cited. » 1 Chit. C. L. 606. Roscoe, Cr. Ev. 175; 1 Greenl. Ev. § 239. « Hatton V. Robinson, 14 Pick. 416; [Chilicothe F. R. & B. CRIMINAL PEOCEDUEE. 239 Another view of this subject presents this ques- tion, how far the client is bound to disclose advice or opinions given him by his counsel. And it now seems to be settled that the client can no more be compelled to disclose commucications made to him by his counsel, than the counsel would be to dis- close what had been communicated to him by the client.^ Lord Cottenham says: "Parties are to be at liberty to communicate with their professional advisers with respect to matters which become the subject of litigation, without restriction and with- out the liability of being afterwards called on to produce or discover what they shall so have com- municated." ^ It may be added that no change of time or cir- cumstances short of the voluntary act of the client, can release the counsel from his obligation to with- hold all communication of matters disclosed to him in his professional capacity.^ But this privilege of exemption does not extend to communications made to priests, physicians or any other persons than professional counsel, however strong the confidence under which it was made.' Co. V. Jameson, 48 111. 281, where it was held that it should appear that the attorney derived his knowledge from the rela- tion of attorney and client before it is excluded.] ' 18 Law Rep. 61; 1 Greenl. Ev. § 240. ■' Nias V. N. & E. R. R. Co. 3 Myl. & Cr. 355, 357; Minet v. Morgan, L. R. 8 Ch. Ap. 861, 367; Hamilton v. People, 22 Am. Law Reg. 685. 3 1 Greenl. Ev. § 243. * 1 Greenl. Ev. §§ 247, 248; 1 Chit. C. L. 607; Common- wealth V. Drake, 16 Mass. 162; Commonwealth v. Knapp, 9 Pick. 496. 240 CKIMrtfAL LAW. In I^ew York it lias oeen held that a confession made to a catholic priest need not be disclosed, while the contrary is held in Pennsylvania'. In respect to the mode of compelling the attend- ance of witnesses, it is onlj' necessary to add to what has before been saia,^ that it is done by proper no- tice to them, by serving a suhpcBna issued from the court requiring their attendance, and upon their failure to attend, to apply to the Court for a capias, which is a process directed to an officer, requiring him to bring the witness into court. But in order to obtain this, the party summoning the witness must have tendered him his lawful fees for his travel and one day's attendance, unless he is sum- moned on behalf of the State.^ If the witness be coniined in prison at the time ' 1 Chit. C. L. 607, and PerMns' note; Simons v. Gratz, 2 Pen. & Watts. 416. [It is provided by statute in Michigan that ' ' no minister of the gosugl, orpriest.of any denomination -whatsoever, shall be allowed to disclose any confessions made to him in his professional charac- ter, in the